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