8th Amendment, Burdens, & Appeals

Question 1

What is the 8^th Amendment?

Answer 1

Prohibits the federal government from imposing cruel and unusual punishment, including torture or punishment that is grossly disproportional to the offense.

Question 2

Does the 8^th Amendment apply to states?

Answer 2

Yes, incorporated to the states via the 14^th Amendment.

Question 3

What type of punishment is considered “cruel and unusual”?

Answer 3

1. A punishment is considered “cruel and unusual” if it is disproportionate to the seriousness of the crime committed (e.g. 25 years for $100 shoplifting charge is disproportional)
   Remember: There is also a constitutional prohibition on excessive fines

Question 4

Does applying a harsher sentence to a repeat offender violate the 8^th Amendment?

Answer 4

No. SCOTUS has held that imposing greater penalties for repeat offenders (e.g. three-strike laws) is constitutional.

Rummel v. Estelle

Question 5

What are the three limitations for sentencing minors recognized as cruel and unusual under the Eighth Amendment?

Answer 5

1. A person who committed their offense while a minor may not be executed;
2. A minor who committed a non-homicide offense may not be sentenced to life imprisonment without parole; AND
3. A minor who committed a homicide offense may not be sentenced using a sentencing scheme that imposes mandatory life imprisonment without the possibilty of parole

Question 6

Can D be incarcerated solely for his inability to pay a fine?

Answer 6

No, this is unconstitutional.

Question 7

What is the legal standard for setting bail?

Answer 7

Bail must be fixed at a rate that is no more than necessary to ensure the defendant will attend trial.

Remember: To deny bail, the government must show that defendant poses a flight risk or is a danger to the community. Arbitrary denials of bail are not valid under the Due Process Clause

Question 8

What types of crimes are eligible for the death penalty?

Answer 8

Crimes that result in death or crimes against the state.

Question 9

When is the death penalty unconstitutional?

Answer 9

1. D was under 18 when the crime was committed *(Roper v. Simmons)*
2. D lacks sufficient mental capacity to understand the imposition of a death sentence (Atkins v. Virginia); or
3. Crime was felony murder AND either:
   * D was not a major participant; or
   * D was a major participant but did not act with a callous indifference to human life

Question 10

Is a mandatory death penalty for specific crimes constitutional?

Answer 10

No, mandatory death penalties are unconstitutional because they prevent the consideration of mitigating factors.

Eddings v. Oklahoma

Question 11

What is required for the death penalty to be constitutional?

Answer 11

1. Death penalty statute is clear and unambiguous (Godfrey v. Georgia);
2. Statute provides a procedure for review that ensures death penalty is not arbitrary or discriminatory; and
3. Jury is given opportunity to review mitigating factors (e.g. age, mental capacity);
4. Jury had the opportunity to find D guilty of a lesser-included offense; and
5. Jury finds evidence of at least one aggravating circumstance

Question 12

Is the death penalty unconstitutional if disproportionately used on one race?

Answer 12

No, as long as there is no discriminatory intent.

See McCleskey v. Kemp

Question 13

Can a judge impose the death penalty?

Answer 13

Yes, either alone, or with the advisement of a jury, provided its imposition complies with all other constitutional requirements.But, a sentencing judge (without a jury) may not find an aggravating circumstance necessary for the death penalty.

(Ring v. Arizona)

Question 14

Does the U.S. Constitution guarantee a right to a direct appeal of a conviction?

Answer 14

No, but when a state provides access to appeals, the Constitution requires that they are not granted in a discriminatory way.

(Griffin v. Illinois)

Question 15

What is the burden of proof in all criminal cases?

Answer 15

Prosection must prove every element of the crime beyond a reasonable doubt

Question 16

Who bears the burden of proving affirmative defenses?

Answer 16

When defendant raises an affirmative defense, they must prove that affirmative defense by a preponderence of evidence.

Generally, the prosecution must prove every element of the case beyond a reasonable doubt. However, D can have the burden to prove affirmative defenses (e.g. insanity, entrapment, duress, or self-defense)

⚠️ Note: Can either be proved by clear and convincing evidence or by a preponderance of the evidence standard.

Question 17

Who bears the burden of proving an alibi?

Answer 17

The prosecution. An alibi is not an affirmative defense (in which D would have the burden), but something that negates an essential element of the crime. Therefore, the burden rests with the prosecution.

Question 18

Define: writ of habeas corpus

Answer 18

Mechanism for a person to challenge the lawfulness of their detention. It is considered a collateral attack on the conviction, and is a separate legal proceeding.The writ of habeas corpus is a civil challenge (not criminal), and there is no right to counsel.

Question 19

Can a person file a writ of habeas corpus when no longer in custody?

Answer 19

No, b/c writ of habeas corpus is challenging the lawfulness of the detention. Can only be filed while incarcerated, or on bail, probation, or parole.

Question 20

Can a state prisoner bring a writ of habeas corpus only in federal court?

Answer 20

No, a prisoner must exhaust all state remedies before they filing a writ of habeas corpus in federal court

Question 21

If a writ of habeas corpus is granted, and the prisoner released, can they be re-tried for the same crime?

Answer 21

Yes, Double Jeopardy does not apply

Question 22

Define: double jeopardy

Answer 22

Under the 5^th Amendment, D cannot be charged with the same crime, arising out of the same offense, once jeopardy has attached.

Question 23

In a bench trial, when does jeopardy attach?

Answer 23

When the first witness is sworn in

Question 24

In a jury trial, when does jeopardy attach?

Answer 24

When the jury is sworn in

Question 25

What constitutes the “same crime” for the purposes of double jeopardy?

Answer 25

Blockburger test: Crimes are not the same if each crime contains an element not found in the other​​.

Ex. You can be charged with attempt, and later charged with conspiracy because both require proof of different elements.⭐️ This means that re-trying D for any lesser included or greater included offense is prohibited because they contain the same, core elements.

Question 26

What is a “lesser included offense”

Answer 26

A lesser included offense is a crime where all of the elements necessary to impose criminal liability are also elements found in a more serious crime

Question 27

What are the exceptions to Double Jeopardy (i.e. when can D be retried)?

Answer 27

A defendant MAY be retried for the same offense in five scenarios, where double jeopardy will not apply, including:
1. hung jury;
2. mistrial based on defendant’s motion OR manifest necessity;
3. breach of a plea bargain;
4. retrial after a successful appeal; OR
5. trials by separate sovereigns

Remember: The government may NOT appeal an outright acquittal but may appeal the denial of certain orders and sentencing rulings

Question 28

What is the separate sovereign exception to double jeopardy?

Answer 28

The prohibition against double jeopardy does not apply to trials by separate sovereigns. A person may be tried for the same offense by two separate states OR a state and the federal government.

Question 29

If there is newly discovered evidence, does Double Jeopardy prevent trying D for a greater included offense?

Answer 29

No

Question 30

Does Double Jeopardy prevent retrial if D was acquitted?

Answer 30

Yes, but the acquittal must be a final verdict

Question 31

Under what circumstances is the prosecution allowed to appeal?

Answer 31

The prosecution may appeal as long as a successful appeal would not subject the defendant to a retrial (i.e., judge grants motion to set aside jury verdict)
Remember: The prosecution may also appeal any dismissal based on the defendant’s motion which does not form an acquittal on the merits

Question 32

May states impose constitutional protections that fall short of federal constitutional rights?

Answer 32

No states must meet the federal constitutional protections as a “floor”

Remember: States may also offer greater protections than guaranteed by the Constitution if they choose

Question 33

What is the “harmless error test”?

Answer 33

The “harmless error test” provides that any error, defect, irregularity, or variance which did not prejudice the case or affect the defendant’s substantial rights shall be disregarded.

Remember: On appeal, a guilty verdict will stand if the prosecution can show beyond a reasonable doubt that the admission was harmless

Question 34

Why are jury instructions that create an irrebuttable or mandatory presumptions problematic?

Answer 34

A jury instruction that creates an irrebuttable conclusive presumptino that cannot be disputed or overcome by additional evidence is a per se violation of the Due Process Clause

A jury instruction that creates a rebuttable mandatory presumption violates the Due Process Clause if it shifts the burden of proof to the defendant on an element of the offense.