Tricky Review - MBE Flashcards
Difference b/w Fifth and Sixth Amendment Right to Counsel . . .
5th:
- not offense specific
- right to remain silent = asking about unrelated crime is ok
- right to counsel (pre-formal charges) = once invoked ALL question must cease (asking about unrelated crime = NOT ok.
- only applies when D knows he’s being questioned by gov’t agent
- informant in cell ok if D doesn’t know he’s a cop or working for cops
6th:
- offense specific
- starts after formal proceedings commence
- applies at all critical stages
- does NOT apply to pretrial + precharge detention or custodial interrogation
- CAN be interrogated about a different charge outside of presence of counsel
- occurs when police deliberately elicit an incriminating statement from a defendant about the crime D is charged with, without first obtaining a waiver of the defendant’s right to have counsel present
- informant in cell ok if doesn’t elicit questions about crime he is charged with
- -NOTES - - - - - -
The Fifth Amendment, applicable to the states through the Fourteenth Amendment, provides that no person “shall be compelled to be a witness against himself . . . .” This has been interpreted to mean that a person shall not be compelled to give self-incriminating testimony. At any time prior to or during interrogation, the detainee may also invoke a Miranda (i.e., Fifth Amendment) right to counsel. If the detainee invokes this right, all questioning must cease until the detainee is provided with an attorney or initiates further questioning himself. [Edwards v. Arizona, 451 U.S. 477 (1981)]. Once the detainee invokes his right to counsel under Miranda, all questioning must cease; the police may not even question the detainee about a totally unrelated crime, as they can where the detainee merely invokes the right to remain silent.
The Sixth Amendment provides that in all criminal prosecutions, the defendant has a right to the assistance of counsel. The right protects defendants from having to face a complicated legal system without competent help. It applies at all critical stages of a criminal prosecution after formal proceedings have begun. [Rothgery v. Gillespie, 554 U.S. 191 (2008)] The right is violated when the police deliberately elicit an incriminating statement from a defendant without first obtaining a waiver of the defendant’s right to have counsel present. [See Fellers v. United States, 540 U.S. 519 (2004)] Since Miranda, below, the Sixth Amendment right has been limited to cases where adversary judicial proceedings have begun (e.g., formal charges have been filed). [Massiah v. United States, 377 U.S. 201 (1964)] Thus, the right does not apply in precharge custodial interrogations.
The Fifth Amendment is not offense specific, but the Sixth Amendment is offense specific. Thus, if a defendant invokes his right to counsel, under the Fifth Amendment the police cannot interrogate the defendant about any charge without counsel. But under the Sixth Amendment, the defendant can be interrogated regarding a different charge. The difference is significant when a defendant requests counsel after being charged and is put into a cell with an informer. The Sixth Amendment right to counsel applies to any post-charge interrogation—whether or not the defendant knows he is being interrogated by a government agent. The Fifth Amendment right to counsel, on the other hand, applies only when the defendant knows that he is being interrogated by a government agent. Thus, an undercover informer in the defendant’s cell can question the defendant about anything without violating his Fifth Amendment right to counsel, and under the Sixth Amendment, the informer can question the defendant about any crime but the one with which he is charged. Therefore, if the cellmate informer questions the defendant and obtains information regarding a crime different from the one with which the defendant was charged, the questioning violates neither the Fifth nor the Sixth Amendment.
T/F. A preliminary hearing need not be held if the arrest is pursuant to a grand jury indictment.
T
If a charging grand jury determines probable cause to prosecute, it will return a bill of indictment as a “_____.”
true bill
A _____ hearing (not report) is a hearing to determine probable cause to hold a detainee who was arrested without a prior finding of probable cause
Gerstein
A witness subpoenaed to testify before a grand jury has no right to:
- receive Miranda warnings
- no right to have an attorney present, but she may consult with an attorney outside the grand jury room
- a witness who is under investigation and may well become a defendant has no right to a warning that she is a “potential defendant” when called to testify before the grand jury
2 prongs of deficient performance by counsel claim:
An ineffective assistance of counsel claimant must show deficient performance by counsel and but for the deficient performance the result would have been different.
An adverse ruling by the judge without actual prejudice to the defendant would not be sufficient to show ineffective assistance of counsel.
The fact that the defense attorney was appointed by the court is irrelevant.
In a criminal jury trial, if state law allows a sentence to be increased beyond the statutory maximum sentence on proof of aggravating circumstances, the jury must find those aggravating circumstances proven:
Beyond a reasonable doubt
NOTE: jury . . . not judge. Judge can’t do this.
The Sixth Amendment right to trial by jury applies to the states through the Due Process Clause of the Fourteenth Amendment. There is, however, no constitutional right to a jury trial for petty offenses; it exists only for serious offenses. An offense is considered serious, making a jury trial a constitutional right, when _____.
more than six months’ imprisonment is authorized
Defendant signed a confession to a crime at the police station shortly after his arrest.
Is this confession sufficient in and of itself to convict Defendant?
No, a criminal conviction cannot rest entirely on an uncorroborated extrajudicial confession. If the defendant does not admit guilt in court, the prosecution must introduce extrinsic evidence that, at the least, tends to establish the trustworthiness of the admission.
It is not sufficient that the confession was voluntary or that it admits all the elements of the crime; the confession must be shown to be trustworthy.
Likewise, Miranda warnings do not obviate the trustworthiness requirement.
Under what circumstances is a defendant accused of an interracial crime entitled to question prospective jurors on potential racial bias?
In capital cases only
In noncapital cases, regardless of whether they involve felonies or misdemeanors, the interracial aspect of the crime alone is not sufficient to allow questioning on racial bias.
Under what circumstances may a co-defendant’s confession be admitted against a defendant in a criminal trial?
If the co-defendant takes the witness stand and subjects himself to cross-examination about the statement
The right of confrontation generally prohibits the introduction of a co-defendant’s confession because of the inability of the nonconfessing defendant to compel his co-defendant to take the stand for cross-examination. However, a statement of the confessing defendant is admissible if the confessing defendant takes the stand and subjects himself to cross-examination with respect to the truth or falsity of what the statement asserts.
The fact that the judge instructs the jury that the statement is to be used as evidence of guilt only as to the defendant who made the statement would not allow admission of the statement. It is still a violation of the right of confrontation.
That the other defendant also gave a statement to the police that is admitted into evidence, and the two statements corroborate each other, does not satisfy the Confrontation Clause requirement; the opportunity to cross-examine is the key.
A statement may be admitted if all references to the nonconfessing defendant are eliminated. However, merely blacking out any mention of the other defendant is insufficient, as the jury may conclude the blacked out name is that of the defendant.
T/F. Constitutional right to a jury trial only applies to felony offenses.
F
serious offense = more than 6th months.
Under what circumstances can a police officer rely on a tip from an informer to establish reasonable suspicion sufficient for a Terry stop?
When the tip is accompanied by adequate indicia of reliability
What do you need for each of the following:
a. Terry Stop (stopped for investigative purposes)
b. Search Incident to Arrest (no warrant)
c. Felony arrest w/out warrant
d. dog sniff
e. Police search an automobile (vehicle)
f. Exceptions to warrant requirement when quick action is needed
g. Roving patrol inside US border stopping an auto for questioning
h. Arrest made in a public place without a warrant
i. Arrest made without a warrant in a home
a. Terry Stop =
TO STOP - reasonable suspicion based on articulable facts (need not rise to PC)
TO FRISK - reasonable suspicion that armed and dangerous (need not rise to PC; CANNOT frisk just b/c officer has reasonable suspicion that person is hiding evidence of the crime on his person)
LIMIT TO FRISK - pat down of outer clothing
b. Search Incident to Arrest (no warrant) = exception that generally for officer safety, but officer need not be in fear for safety before conducting (ex. protective sweep of house and finds in plain view in closet is ok; within suspect reach is ok; NOT OK if search vehicle while D in squad car); NOTE: must be Constitutional arrest
c. Felony arrest w/out warrant = Probable cause need not be based on personal observations, but the officer must reasonably believe that the suspect has committed or is committing a crime
d. not a search (may be seizure)
e. if they have PC that it contains contraband or fruits, instrumentalities, or evidence of a crime, they may search the vehicle without a warrant. Can search passenger’s stuff too. They can tow it and search it later. Can look anywhere where it could be (usually entire vehicle). Can also search person of all occupants. LIMIT: If PC is for something recently placed in the vehicle, then can only look in there, not whole car.
f. Hot pursuit of a fleeing felon; evanescent evidence; emergencies that threaten health or safety
g. roving patrol = if officer reasonable suspects car contains illegal aliens. (can’t search; just stop)
h. arrest made without a warrant in a public place
Felony = reasonable grounds to believe that a felony has been committed and that the person before her committed it
Misdem = An officer may make a warrantless arrest for a misdemeanor committed in her presence. A crime is committed in the officer’s “presence” if she is aware of it through any of her senses.
NOTE: valid even if they had time to get a warrant
i. Arrest made without a warrant in a home = Presumed unreasonable; gov’t have to provide exigent circumstances (emergency)
If in home of third party, need to get a search warrant for third party’s home, but if arrest is made of D, no evidence suppressed. Only evidence suppressed is anything found that is to be used against third party if that third party is tried.
Search warrant must be based on ____.
PC
If a defendant was convicted after a trial in which unlawfully obtained evidence was used against her, the conviction will be overturned unless the government can show __________ that the admission was harmless.
Beyond a reasonable doubt
A confession obtained in violation of Miranda may be used for ______.
Impeachment purposes
If the police arrest a suspect without a warrant or probable cause (i.e., an unconstitutional arrest), give him Miranda warnings, interrogate him, and obtain a confession, must the confession be suppressed from use in the prosecution’s case in chief?
Yes, because the confession is the fruit of the poisonous tree
Example: D was arrested without probable cause and brought to the police station. The police read D his Miranda warnings three times and permitted D to see two friends. After being at the station for six hours, D confessed. The confession must be excluded because it is the direct result of the unlawful arrest—if D had not been arrested illegally, he would not have been in custody and would not have confessed. [Taylor v. Alabama, 457 U.S. 687 (1982)]
Compare: Police have probable cause to arrest D. They go to D’s home and improperly arrest him without a warrant, in violation of the Fourth Amendment. D confesses at home, and the police then take him to the station. D confesses again at the station. The home confession must be excluded from evidence because it is the fruit of the illegal arrest, but the station house confession is admissible because it is not a fruit of the unlawful arrest. Because the police had probable cause to arrest D, they did not gain anything from the unlawful arrest—they could have lawfully arrested D the moment he stepped outside of his home and then brought him to the station for his confession. Thus, the station house confession was not an exploitation of the police misconduct; i.e., it was not a fruit of the fact that D was arrested at home as opposed to somewhere else. [New York v. Harris, 495 U.S. 14 (1990)]
If a suspect invokes his right to remain silent, the police __________ reinitiate questioning ___________. For example ______.
May; if they scrupulously honor his request to remain silent
For example, the Supreme Court has allowed the police to reinitiate questioning where: (i) the police ceased questioning immediately upon the detainee’s request and did not resume questioning for several hours; (ii) the detainee was given a fresh set of Miranda warnings; and (iii) the questioning was limited to a crime that was not the subject of the earlier questioning.
