THE EXCLUSIONARY RULES

Question 1

PRE-TRIAL IDENTIFICATION

Defintion:
Types:

Answer 1

These are forms of out-of-court ID. They can be testified to in court (at trial).

a. line-up – live viewing of suspect and others

b. photo spread/array – display of photos of suspect and others (photo lineup)

c. show-up – presentation of suspect alone to witness

Question 2

Pre-trial identification techniques may raise three constitutional questions:

Answer 2

a. Detention of suspect – Fourth Amendment

b. Right to counsel – Sixth Amendment

c. Fundamental Fairness – Fifth Amendment and Fourteenth Amendment Due Process

Question 3

The out-of-court identification may be suppressed as a poisoned fruit of an illegal seizure if the suspect is not

Answer 3

not lawfully in custody

Question 4

When is detention okay?

Answer 4

If there is probable cause to arrest suspect

Question 5

What did Wade-Gilbert establish?

Answer 5

It established a right to counsel at a lineup in order to protect the defendant’s right to cross-examine at trial.

Rationale: To prevent prejudice and/or reconstruct the ID procedure, the Court created a Sixth Amendment right
to counsel at the ID stage.

Question 6

The court limited the right to counsel at pre-trial ID to those

Answer 6

only to those conducted after the Sixth Amendment right to counsel “attaches”.

Question 7

For the pretrial ID procedure. If
it occurred before formal adversary proceedings began..

Answer 7

Then there is no right to counsel. There is, however, a due process right.

Question 8

T o F: The right to counsel only applies to the live display (lineup, show-up) of a suspect after formal adversary proceedings have begun not a photo array.

Answer 8

True.

Question 9

Suggestive procedure in ID:

Answer 9

1) Show-up – per se suggestive
2) Lineup composition or police communication can make the procedure
suggestive

3) Unnecessarily suggestive

Question 10

T or F: A suggestive ID can be necessary, when the witness may be dying

Answer 10

True

Question 11

if unnecessarily suggestive, Was it nevertheless reliable?

Answer 11

Balance the effect of suggestion against factors concerning reliability, such as:
1) Opportunity to view
2) Witness’ degree of attention
3) Accuracy of prior description by witness
4) Witness’ level of certainty
5) The time lapse between the crime and the ID procedure Only unreliable identifications are suppressed.

Question 12

If the procedure was suggestive unnecessarily and under the balancing test the resulting identification was unreliable, then

Answer 12

the out-of-court ID is suppressed. If such a tainted out-of-court ID has a lasting effect, suppress in-court ID as well.

Question 13

T or F: A suggestive identification procedure does not violate due process if the police are not involved in creating the suggestive circumstances.

Answer 13

True.

Question 14

T of F: A post-indictment witness identification of a criminal suspect, conducted without notice to and in the absence of the suspect’s counsel, violates the Sixth Amendment right to the assistance of counsel.

Answer 14

True.

Question 15

T or F: Under the Due Process Clause, identification evidence may be admitted even if the procedure was suggestive so long as the identification is reliable.

Answer 15

True.

Question 16

DOUBLE JEOPARDY No person shall “be subject for the same offense

Answer 16

to be twice put in jeopardy of life or limb.”

Question 17

Double jeopardy bars successive prosecutions by..

Answer 17

by the same sovereign (state or federal), whether after conviction or acquittal, for the “same offense.”

e.g. A police officer is prosecuted for assault in state court for using excessive force to arrest. He is acquitted and is then prosecuted in federal court for violating the arrestee’s civil rights in the same arrest. There is no double
jeopardy violation.

Question 18

Definition of same offense..

Answer 18

the two offenses have identical statutory elements or one is a lesser included offense of the other.

Note: if each provision requires proof of a fact the other does not, they are separate offenses.

E.g. A conviction for burglary and a conviction for breaking and entering based on the same event may not stand because breaking and entering does not contain an element that the burglary does not.

Question 19

Jeopardy attaches when

Answer 19

(a) when jury is sworn, or

(b) in a bench trial when the first witness is sworn, or

(c) when defendant pleads guilty and the court accepts the plea and enters judgment of conviction.

Question 20

Scope:
The double jeopardy clause generally does not apply to

Answer 20

civil or administrative penalties or criminal forfeitures arising from the same event as criminal prosecution.

Can be sued again in civil or administrative courts

Question 21

T or F: Bail cannot be punitive.

Answer 21

True. Cannot be excessive

Question 22

Can bail be denied, and when?

Answer 22

Bail may be denied where the defendant presents a flight risk or a threat to the community.

Question 23

An indictment by a grand jury before being bound over for trial on a felony charge is not constitutionally required or a constitutional right

Answer 23

True.

Question 24

GUILTY PLEAS:

The defendant may plead..

Answer 24

guilty, not guilty, or nolo contendre

Question 25

Statements made during plea negotiations in which a prosecutor was present which did not result in a plea agreement are

Answer 25

are not admissible at trial.

Question 26

T or F: The prosecutor is permitted to seek the defendant’s agreement to waive the plea-negotiation statement exclusionary provisions,

Answer 26

as a condition to entering into plea negotiations, the prosecutor is permitted to seek defendant’s agreement to waive the plea-negotiation statement exclusionary provisions, and absent some affirmative indication that the defendant entered the agreement unknowingly or involuntarily, such agreements are valid and enforceable

Question 27

A guilty plea is a waiver for

Answer 27

Sixth Amendment rights to a trial, confrontation, subpoena witnesses, and jury,

and to the Fifth Amendment right against compelled self-incrimination

Question 28

for a guilty plea, the prosecution needs to show that the relinquishment of the Constitutional rights in question was made:

Answer 28

by D 1) knowing, 2) intelligent, and 3) voluntary.

additionally, the judge must ensure there is a factual basis for the plea.

e,g, If the defendant enters a guilty plea while
asserting his innocence, the court may accept the plea, but only if there is strong evidence of guilt

Question 29

T or F: The court may permit withdrawal of the plea upon a showing by the defendant of any “fair and just reason.” At any later time, a plea may be set aside only to correct a miscarriage of justice

Answer 29

True