Crim Pro: Punishment/DJ/Privilege Flashcards Preview

Criminal Law > Crim Pro: Punishment/DJ/Privilege > Flashcards

Flashcards in Crim Pro: Punishment/DJ/Privilege Deck (11)
Loading flashcards...


8A prohibits cruel and unusual punishment in light of evolving standards of decency
Test: grossly disproportionate to seriousness of offense
Ex. 12 yrs imprisonment in irons and hard labor for falsifying records.


Death Penalty: Defective Process

a. Automatically imposed (first-degree murder)
b. Not homicide offense against person (eg. child rape, not treason)
c. Without consideration of all mitigating evidence


Death Penalty: Ineligible Offenders

a. Mentally retarded
b. Insane at time of execution
c. Juveniles (under 18) at time of offense
NOTE: no life without possibility of parole for juvis for non-homicide crime.
note: No mandatory life without possibility of parole for juvis even for homicides.


Double Jeopardy

5A prohibits person being put
1. twice in jeopardy of life and limb
2. for same offense
3. by same sovereign


Double Jeopardy: Attachment

When someone is put in jeopardy they cannot be prosecuted again for same offense. Attaches when:
1. Jury trial: jury is sworn.
2. Bench trial: when first witness is sworn.
3. Guilty Plea: when judge accepts plea unconditionally.
4. Civil proceedings: no jeopardy.


Double Jeopardy: Same Offense

Test: not same offense if each has an element that the other does not.
a. Ex. Vehicular manslaughter (causing death, negligently, through use of auto) v. Hit and Run (causing injury, negligently, through use of auto, and unlawfully leaving scene) -- can be tried separately for both.
b. Ex. greater and lesser included offense: Auto Theft (taking and operating auto, without owners consent, with intent to permanently deprive owner of possession) v. Joyriding (taking and operating auto, without owners consent)--SAME OFFENSE.


Double Jeopardy: Same Sovereign

Rule: Different sovereigns may prosecute for same conduct (considered different offenses).
*State and municipalities are considered same sovereign


Double Jeopardy: Exceptions

Retrials permitted IF:
1. Hung Jury
2. Mistrial due to manifest necessity
3. After successful appeal (ex. erroneously admitted evidence-- NO RETRIAL IF insufficient evidence--D free and clear).
4. Breach Plea Bargain


Privilege Against Self-Incrimination

5A prohibits compelled testimony in a criminal case.
1. Prosecution cannot comment on invocation of privilege.
2. Prosecution CAN comment on pre-invocation silence.


Privilege Against Self-Incrimination: Application

1. Anyone may invoke the privilege in
a. Custodial Interrogation (Miranda) and
b. Any proceeding with testimony under oath.
2. Not applicable
a. Physical evidence (voice, hand, handwriting).
b. Prior uncompelled communication (eg. diary, tweet, etc)


Privilege Against Self-Incrimination:Elimination

1. Prosecution grants use and derivative use testimony: prosecution may compile testimony but cannot to use testimony or anything derived from it to convict you.
2. Extinguish privilege by testifying: waives privilege as to anything properly within scope of cross-examination.
3. Statute of Limitation: privilege unavailable once SoL has run on underlying crime.