Crim Pro Flashcards

Question

pretrial identification

Answer 1

Accused does not have a right to counsel at photo identifications or when police take physical evidence D can attack an identification as denying due process if the ID is unnecesarily suggestive and there is substantial likelihood of misidentification Remedy for unconstitutional ID is to exclude it Independent source Factors to consider in showing an independent source include The witness prior opportunity to observe the alleged criminal act The existence of any dicrepancy between any pre-lineup ecription and the defendant’s actual description Any identification prior to the lineup Failure to identify the defendant on a prior occasion Lapse of time between the alleged ct and the lineup identification

Answer 2

whereunder evidence obtained in violation of the 4th amendment is ordinarily inadmissible in a criminal trial Exclusionary rule: unconstitutionally obtained evidence exclude at trial Fruit of the poisonous tree: evidence obtained from exploitation of unconstitutionally obtained evidence only precludes evidence from being introduced during criminal trials Admitted in civil and during pre/post trial proceedings grand jury preliminary hearings, parole revocation hearing and sentencing enforcing Gov bears the burden of est the admissibility by a perpondeance of the evidence

Answer 3

Fruits derived from statements in violation of miranda Evidence obtained from independent source Attenuation: casual link between police misconduct and evidence is broken D’s intervening act of free will Inevitable discovery The prosecution can show that the police would have discovered the evidence whether or not the police acted unconstitutionally Violation of knock and announce rule

Answer 4

Independent source Intervening act of free will Inevitable discovery

Answer 5

Inapplicable in civil and grand jury, internal agency rules, parole revocation proceeding Good faith reliance on defective warrant Exceptions Affidavit so lacking in probable cause no reasonable officer would rely on it Affidavit so lacking in particularity no reasonable officer would rely on it Officer or prosecutor lied to or misled magistrate Magistrate is biased and wholly abandoned neutrality Use of excluded evidence for impeachment purposes Voluntary confession taken in violation of miranda admissible for impeachment

Answer 6

If illegal evidence admitted, conviction should be overturned on appeal unless gov can show beyond a reasonable doubt that error was harmless

Answer 7

If PC has not already been determined and there are significant constraints on an arrestee’s liberty, a preliminary hearing to determine probable cause must be held within a reasonable time - 48 hours

Answer 8

Conducted in secret D has no right to notice No right to counsel No right to have evidence excluded No right to challenge subpoena on 4th amendment grounds Conviction from indictment issued by grand jury from which minority group excluded will be reversed

Answer 9

Factors Length of delay Reason for delay Whether D asserted right Prejudice to D Right attaches When D arrested or charged When speedy trial raised Check timing- arrest or charged?

Answer 10

Brady material Failure to disclose material exculpatory evidence is grounds for reversing conviction if Evidence is favorable o D and Prejudice has resulted

Answer 11

At least 6 Must be unanimous Fair cross section Peremptory challenges Generally may use perremptory challenge for any reason Cannot challenge jurors solely on basis of race or gender Challenges for cause Juror should be excluded for cause if juror’s views would prevent or substantially impair performance of duties Right to question of racial bias when In capital cases involving an interracial crime, prospective jurors must be informed of the race of the victim and questioned on the issue of racial bias during voir dire , if race tied up in crim Note: if the judge fails to include the racial bias question, the defendant cannot complain about the omission unles he/she specifically requested the question Questioning about death penalty

Answer 12

Deficient performance by counsel The objective reasonable standard applies Was counsel’s assistance reasonable considering all the circumstances Judicial scrutiny of counsel’s performance must be highly deferential, giving the appropriate deference to trial counsel’s choices The ct must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed at the time of counsel’s conduct required to prove Counsel made errors so serious that counsel was not functioning as counsel guaranteed the D by the 6 amendment But for the deficiency, result of proceeding would have been different A reasonable probability is a probability sufficient to undermine confidence in the outcome Convictions: whether there is reasonable probability, that absent the errors, the factfinder would have had a reasonable doubt respecting guilt Death sentence: whether there is a reasonable probability that, absent the error, the sentencing ntity would have concluded that the balance of aggravating and mitigating circumstances did not warrant death Counsels errors were so serious as to deprive the D of a fair trial, a trial whose result is reliable

Answer 13

Doesnt require face- face Can insolate child from trauma Can remove disruptive D Confessing D takes stand and is subject to cross examination, or Confession used to rebut D’s claim that confession was obtained coercively Prior testimonial evidence Not admitted unless D unavailable and D had opportunity to cross-examine declarant at Co defendant’s confession may be admitted if All portions referring to other D can be eliminated

Answer 14

Must be voluntary and intelligent the record must show the judge confirmed with the D his understanding of the rights waived by pleading guilty ( including the 5th amendment privilege against self-incrimination, right to a jury trial and the right to confront witnesses) and that the guilty plea is voluntary. Mere silence is insufficient Reasons to set aside plea Involuntariness Lack of jurisdiction Ineffective assistance of counsel Failure to keep plea bargain Plea bargain enforced against prosecutor and D but not judge, who does not have to accept plea Not involuntary just because prosecutor say would charge with a more serious crime Collateral effects of guilty Can be used in other proceeding such as sentencing enhancement

Answer 15

Must be imposed under statutory scheme that gives jury reasonable discretion, full info, and guidance No death penalty for rape Cannot execute prisoner who is insane at time of execution even if sane at time crime was committed No death penalty for person who is intellectually disabled No minors, under age of 18 at time commit crime

Answer 16

No right to appt counsel Petitioner has burden of proof to show unlawful detention by preponderance of evidence Civil case D must be in custody

Answer 17

Person may not be retried for same offense once jeopardy has attached When jeopardy attaches Jury trial:empaneling and swearing of jury Bench trial: when first witness is sworn Exceptions permitting retrial First trial ends in hung jury Manifest necessity to abort first trial (medical emergency ) D successfully appealed conviction (unless ground for reversal was insufficient evidence) May not be tried for a greater offense than that for which they were cocnvicted D breached plea bargain D could have been tried for multiple charges in single trial but chose to have offenses tried separately Two crimes are the same offense unless each crime requires proof of additional element that other does not Cumulative punishments for offenses Leeser included offenses Attachment of jeopardy for greater offense bars retrial for lesser included offense Attachment of jeopardy for lesser included offense bars retrial for greater offense New evidence Unlawful conduct that is subsequently used to prove the greater offense Has not occurred at the time of prosecution for the lesser offense or Has not been discovered despite due diligence Retrial for murder is permitted if victim dies after attachment of jeopardyfor battery Prohibition against double jeopardy does not apply to trials by separate sovereigns State and fed gov= separate sovereigns 2 states= separate sovereigns State and its municipalities= same sovereign Separate sovereigns can try a D for the same offense Attachment doesnt matter if there are two separate sovereigns

Answer 18

Who may assert Privilege against self-incrimination can be asserted by any person in any type of case when answer to question might tend to incriminate them When asserted Whenever their response might furnish a link in the chain of evidence needed to prosecute them Claimed in civil proceeding to prevent the privilege from being waived for a later criminal prosecution Methods for invoking D has right not to take witness stand at trial and not be asked to do so Being required to give one’s name after terry stop does not violate 5th amendment Scope of protection Testimonial but not physical evidence 5th amendment privilege protects testimonial or communicative evidence and not real or physical evidence Can take cheek swab after arrest for serious crime Compulsory production of doc = no basis in the privilege to refuse to comply Seizure of incriminating docs =Privilege protects against being compelled to communicate info not against disclosure of communication made in the past When violation occur Until person’s compelled statements are used against them in criminal case Prohibition against burdens on assertion of privilege Prosecutor may not comment on d’s silence after receiving miranda warnings or at trial Exception Prosecutor can comment on D’s failure to take stand when in response to D’s assertion that D was not allowed to explain story If suspect remains silent before Miranda warnings, silence can be used against them Can’t impose penalties for failure to testify Elimination of privilege Witness may be compelled to answer questions if granted adequate immunity from prosecution Use derivative use immunity guarantees that witness’s testimony and evidence located bc of testimony will not be used against witness Immunized testimony involuntary Testimony obtained by a promise of immunity is coerced and therefore involuntary Immunized testimony may not be used for impeachment of a D’s testimony at trial Any immunized states true or untrue can be used in trial for perjury Federal prosecutors may not use evidence obtained as a result of a state grant of immunity and vice versa No possibility of incrimination Person has no privilege against compelled self-incrimination if there is no possibility of incrimination (SoL has run) Immunity extends only to offense to which the question relates and does not protect against perjury committed during immunized testimony Waiver of privilege D waives by taking witness stand Witness waives by disclosing incriminating information

Answer 19

GR: excessive fines clause of 8th amendment does not apply to civil forfeitures Forfeitures made under the fed drug forfeiture state are penal and subject to 8th amendment clause Monetary forfeitures Brought in civil actions generally are not subject to the 8th amendment

Answer 20

For the exclusionary rule to apply there must be a causal connection between the illegal conduct and the evidence If causal link is broken, no suppression bc it would not serve the purpose of deterring future misconduct For confessions, an independent act of free will is necessary to purge the primary taint of the illegal conduct There is no per se rule that Miranda warnings will purge the taint of an earlier 4th amendment violation Ct must consider Temporal proximity of the arrest and the confession Presence of intervening circumstances Purpose of flagrancy of the official misconduct

Answer 21

Protects the witness from prosecution for the offense or offenses involved

Crim Pro Flashcards

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