Sixth Amendment/Exclusionary Rule

Question 1

Right to effective counsel

Answer 1

A suspect against whom formal criminal proceedings have been commenced has a right to effective counsel at any post-charge line-up or show-up, including sentencing. This right does not apply to photo identifications, or when police take physical evidence from a suspect such as handwriting samples or fingerprints.

Question 2

Standard of effectiveness (6th Effect. Counsel)

Answer 2

To establish ineffective assistance of counsel, the defendant must prove that counsel’s performance was deficient in that counsel did not act as a reasonably competent attorney would have acted, and that this deficiency was prejudicial such that, but for the deficiency, the result would have been different.

Question 3

Attorney substitution (6th Effect. Counsel)

Answer 3

A court will allow the defendant to substitute his attorney if the interests of justice so require, taking into account any conflicts, the interests of the defendant and the court, and the timeliness of the request.

Question 4

Self-representation (6th Effect. Counsel)

Answer 4

The defendant is permitted to knowingly and intelligently waive his right to counsel and represent himself.

Question 5

Right to confront adverse witnesses (6th)

Answer 5

The Sixth Amendment allows a defendant in a criminal prosecution the right to confront adverse witnesses.

Question 6

Compel testimony (6th Right to Confront)

Answer 6

The right to confront includes issuing subpoenas to compel testimony of an adverse or hostile witness, as well as to cross-examine hostile witnesses.

Question 7

Testimonial statements (6th Right to Confront)

Answer 7

The prosecution may not admit testimonial statements by a third person against the defendant unless the declarant is available for cross-examination either at the time the statement was made or during trial.

a. Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency, such as a 911 call.
b. Statements are testimonial when the circumstances indicate that there is no ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

Question 8

Joint co-defendants (6th Right to Confront)

Answer 8

Joint co-defendants can raise “right to confront” issues.

a. Confession of one co-defendant: Where two defendants are jointly tried and one of them confesses, the right to confront adverse witnesses prohibits use of that statement against the other defendant unless the statement can be redacted or the co-defendant who made the statement takes the stand and subjects himself to cross-examination.
b. Severance of joint trial: Where co-defendants are charged for the same crime, courts prefer joint trials for judicial economy, but will sever the co-defendants if a joint trial would result in substantial prejudice to one of the defendants.

Question 9

Right to a jury trial

Answer 9

Criminal defendants have the right to a jury trial for serious offenses that have a potential sentence of greater than six months.

Question 10

Waiver permitted of jury trial

Answer 10

The defendant may voluntarily, knowingly, and intelligently waive his right to a jury trial.

Question 11

Number of jurors required

Answer 11

Juries must consist of at least six persons and can consist of twelve persons. a. Six-person jury: In a six-person jury, a unanimous verdict is required. b. Federal criminal trial: A unanimous verdict is required. c. Twelve-person jury: In a twelve-person state jury, only a substantial majority is required for a conviction.

Question 12

Impartial jurors

Answer 12

A jury must be impartial, consisting of a fair cross-section of a community. A jury does not consist of a fair cross-section of a community if the defendant can prove that:

1. The group alleged to be excluded is a distinctive group in the community;
2. The representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and
3. This underrepresentation is due to systematic exclusion of the group in the jury-selection process.

Question 13

4. Voir dire

Answer 13

During voir dire each side (not party) has unlimited strikes for cause (bias, prejudice, related to a party, etc.) and three peremptory strikes that may be used for any reason, so long as the reason is gender and race neutral.

Question 14

Discrimination not permitted in jury pool

Answer 14

The equal protection clause of the Fourteenth Amendment prevents the state or any state actor, including the court, from intentionally discriminating against a distinctive group in selection of the jury pool.

Question 15

The right to a speedy trial

Answer 15

The Sixth Amendment right to a speedy trial is viewed on a case-by-case basis with the court balancing the following factors:

1. The length of the delay;
2. The reason for the delay;
3. The prejudice to the defendant as a result of the delay; and
4. The time and manner in which the defendant asserted his right.

Question 16

Right to a preliminary hearing

Answer 16

A defendant who pleads not guilty has a right to a preliminary hearing if probable cause has not been established, within 30 days of their arrest, unless he waives such right. (The rules for preliminary hearings vary among jurisdictions.)

Question 17

The exclusionary rule

Answer 17

The exclusionary rule is a judge-made rule that prohibits the prosecution from introducing evidence obtained in violation of a defendant’s Fourth, Fifth, or Sixth Amendment rights.

Question 18

The exclusionary rule Standing required

Answer 18

The defendant must have standing to assert the exclusionary rule, such that the evidence wrongfully obtained must have been in violation of the defendant’s own constitutional rights and not any third persons.

Question 19

“Fruit of the poisonous tree”

Answer 19

Evidence wrongfully obtained is inadmissible as the “fruit of the poisonous tree”— in other words, evidence that is found as a result of the original wrongfully obtained evidence.

Question 20

“Fruit of the poisonous tree” exceptions

Answer 20

a. Independent source
b. Inevitable discovery
c. Purged taint

Question 21

Independent source

Answer 21

The evidence obtained could have been obtained from an independent source separate from the illegal source;

Question 22

Inevitable discovery

Answer 22

The evidence obtained would inevitably have been discovered by other police techniques, had it not first been obtained through illegal discovery;

Question 23

Purged taint

Answer 23

There are a sufficient number of additional factors that intervened between the original illegality and the final discovery that the link is too tenuous, such that the intervening factors have purged the taint of the illegal discovery.

Question 24

Allowed during civil hearings or parole proceedings: (exclusionary rule)

Answer 24

Illegally obtained evidence is allowed in civil hearings or parole proceedings.

Question 25

Allowed for impeachment (Exclusionary Rule)

Answer 25

Illegally obtained evidence may still be used to impeach the defendant, defense witnesses, or grand jury witnesses.

Question 26

The good faith warrant exception (Exclusionary Rule)

Answer 26

The good faith warrant exception: Where an officer acts in reasonable reliance on a facially valid search warrant issued by a proper magistrate and the warrant is ultimately found to be unsupported by probable cause, the exclusionary rule will not apply and the evidence will not be barred.
Exception: The good faith warrant exception does not apply (and thus the evidence will be excluded under the exclusionary rule) where:
a. The affiant knew the information he was providing in the affidavit was false, or he would have known except for his reckless disregard of the truth.
b. There was a lack of probable cause such that the magistrate’s reliance on the affidavit was unreasonable.

Question 27

Due process in identification

Answer 27

A defendant’s due process rights are violated if an identification of the defendant based on the totality of the circumstances is unnecessarily suggestive and so conducive to mistaken identification that it is unfair to the defendant.

Question 28

Plea bargains

Answer 28

A defendant can settle by plea bargain to receive a less serious charge or a lighter sentence if he is competent, understands the charge, and understands the consequences of the plea.

1. Voluntary and intelligently: Plea bargains must be made voluntarily and intelligently; in open court and on record.
2. The prosecutor has no obligation to agree to a plea and the judge can refuse to accept the guilty plea if he thinks the defendant didn’t commit the crime.