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Flashcards in Criminal Law Deck (102):
1

What is the Fifth Amendment about? (4)

(4th, 5th, & 6th Amendments)

  1. Double Jeopardy
  2. Confessions
  3. Privilege Against Compelled Testimony
  4. Privilege Against Self-Incrimination

2

What is the Sixth Amendment about? (6)

(4th, 5th, & 6th Amendments)

  1. The right to counsel at all criminal proceedings
  2. Confrontation Clause
  3. Trial by Impartial Jury
  4. Right to Public Trial
  5. Right to Speedy Trial 
  6. Right to Confront Opposing Witnesses

3

4th, 5th, and 6th Amendment topics? (5)

  1. The Bill of Rights
  2. Exclusionary Rule
  3. 4th Amendment
  4. 5th Amendment
  5. 6th Amendment

4

Other Criminal Procedure topics? (8)

  1. Identification
  2. Grand jury proceedings
  3. Speedy Trial
  4. Bail
  5. Right to Counsel During Judical Proceedings
  6. Jury
  7. Guilty Pleas
  8. Death Penalty

5

Elements Topics? (5)

  1. Actus Reus
  2. Mens Rea
  3. Concurrence
  4. Causation
  5. Other Preliminary Issues

6

Actus Reus Topics? (2)

(Elements)

  1. Commission = Voluntary Physical Act
  2. Omission

7

Mens Rea Topics? (5)

(Elements)

  1. Specific Intent
  2. General Intent
  3. Malice
  4. Strict Liability
  5. Tranferred Intent

8

Specific Intent Topics? (2)

(Elements: Mens Rea)

  1. Defenses Available Only for Specific Intent Crimes
  2. Specific Intent Crimes

9

General Intent Topics? (3)

(Elements: Mens Rea)

  1. Inferred from the Act
  2. General Intent Crimes
  3. General Intent Defense Issues

10

Strict Liability Topics? (2)

(Elements: Mens Rea)

  1.  Identification of Strict Liability Statutes
  2. Strict Liability Defenses

11

Tranferred Intent Topics? (2)

(Elements: Mens Rea)

  1. Must be the same crime
  2. Does not apply to attempt

12

Causation Topics? (2)

  1. Actual Cause = But For Test 
  2. Proximate Cause = Natural & Probable Consequences

13

"Other Preliminary Issues" Topics? (4)

  1. Jurisdiction = Territorial
  2. Burden of Proof
  3. Classification of Crimes 
  4. Merger

14

"Inchoate Crimes & Accomplice Liability" Topics? (4)

  1. Accomplice Liability
  2. Solicitation
  3. Attempt
  4. Conspiracy

15

Accomplice Liability Topics? (4)

  1. Parties
  2. Mere Presence Insufficient
  3. Scope of Liability
  4. Accomplice Renders Legal Assistance

16

Solicitation Topics? (4)

(Inchoate Crimes & Accomplice Liability)

  1. Actus Reus
  2. Mens Rea
  3. Merger
  4. Withdrawal = No Defense

17

Attempt Topics? (3)

(Inchoate Crimes & Accomplice Liability)

  1. Requirements
  2. Merger with Completed Crime
  3. Defenses

18

Conspiracy Topics? (5)

(Inchoate Crimes & Accomplice Liability)

  1. Requirements
  2. Scope of Co-Conspirator Liability
  3. No Merger with Completed Crime
  4. Conspiracies in Multiple Party Situations
  5. Defenses 

19

Requirements of Conspiracy? (4)

(Inchoate Crimes & Accomplice Liability: Conspiracy)

  1. Agreement b/w two or more people
  2. Intent to Enter into Agreement
  3. Intent to Pursue an Unlawful Objective (Meeting of the Minds)
  4. Overt Act in Furtherance of Conspiracy

20

Crimes Against Persons Topics? (7)

  1. Battery
  2. Assault
  3. Mayhem
  4. Homicide
  5. Sex Offenses
  6. False Imprisonment
  7. Kidnapping

21

Topics? (2)

(Crimes Against Persons: Homicide)

  1. Murder
  2. Manslaughter

22

Murder Topics? (2)

(Crimes Against Persons: Homicide)

  1. Murder in the First Degree
  2. Murder in the Second Degree

23

Requirements? (2)

(Crimes Against Persons: Homicide: Murder: Murder in the First Degree)

  1. Statute Required
  2. Premeditation & Deliberation (Time to Reflect)

24

 Requirements? (1)

(Crimes Against Persons: Homicide: Murder: Murder in the Second Degree)

  1. Malice Aforethought

25

Malice Aforethought Requirements? (4)

(Crimes Against Persons: Homicide: Murder)

  1. Intent to Kill
  2. Intent to Commit Great Bodily Injury, OR
  3. Depraved Heart Killing: Wanton & Wilful Disregard of Human Life
  4. Intent to Commit Felony ("Felony Murder Rule")

26

Limitations on Felony Murder Topics? (7)

(Crimes Against Persons: Homicide: Murder: Murder in the Second Degree: Malice Aforethought: Intent to Commit Felony ("Felony Murder Rule"))

  1. Defense for Underlying Felony
  2. Merger Doctrine
  3. Reasonably Foreseeable
  4. Termination of the Felony
  5. Killing of Co-Felon by Victim or Police = No
  6. Killing of Innocent Party by Victim or Police = Yes
  7. Death Sentence

27

Requirements? (3)

(Crimes Against Persons: Homicide: Manslaughter: Voluntary Manslaughter)

  1. Adequate Provocation (aka  "Heat of Passion")
  2. "Imperfect Self-Defense" Doctrine, OR
  3. Diminished Capacity

28

Requirements? (4)

(Crimes Against Persons: Homicide: Manslaughter: Voluntary Manslaughter: Adequate Provocation (aka "Heat of Passion"))

  1. Defendant Provoked by the Victim
  2. Sudden & Intense Passion in Reasonable Person
  3. No Reasonable Time to Cool Of, AND
  4. Defendant Did Not Cool Of

29

Requirements? (2)

(Crimes Against Persons: Homicide: Manslaughter: Involuntary Manslaughter)

  1. Criminal Negligence, OR
  2. Misdemeanor Manslaughter Rule (aka  Misdemeanor-Murder

30

Topics? (2)

(Crimes Against Persons: Sex Offenses)

  1. Rape
  2. Statutory Rape

31

Requirements? (3)

(Crimes Against Persons: Sex Offenses: Rape)

  1. Sexual Intercourse
  2. Without Consent
  3. By Force or Threat of Force

32

Requirements? (2)

(Crimes Against Persons: False Imprisonment)

  1. Unlawful
  2. Confinement

33

Requirements? (2)

(Crimes Against Persons: Kidnapping)

  1. False Imprisonment
  2. Movement or Concealment

34

Crimes Against Property? (9)

  1. Larceny
  2. Embezzlement
  3. False Pretenses
  4. Robbery
  5. Forgery
  6. Extortion (aka Blackmail)
  7. Receiving Stolen Property
  8. Burglary
  9. Arson

35

Requirements? (4)

(Crimes Against Property: Larceny)

  1. Wrongful Taking (aka Without Consent)
  2. Carrying Away
  3. Of Another's Tangible Personal Property
  4. Intent to Permanently Deprive

36

Requirements? (4)

(Crimes Against Property: Embezzlement)

  1. Fraudulent Intent
  2. Conversion
  3. Of Another's Personal Property
  4. By a Person in Lawful Possession

37

Requirements? (4)

(Crimes Against Property: False Pretenses)

  1. Obtaining Title
  2. To Another's Personal Property
  3. By an Intentional False Statement of Past or Present Fact
  4. With the Specific Intent to Defraud

38

Requirements? (2)

(Crimes Against Property: Robbery)

  1. Larceny
  2. Force or threat of immediate harm

39

Eequirements? (4)

(Crimes Against Property: Forgery)

  1. making or altering of
  2. a writing with apparent legal significance
  3. so that it is false
  4. with the intent to defraud

40

Requirements? (2)

(Crimes Against Property: Extortion)

  1. Threat of Future Harm
  2. Specific Intent to Cause Another Person to Cede Property

41

 Requirements? (3)

(Crimes Against Property: Receiving Stolen Property)

  1. Receiving Stolen Property
  2. With Knowledge that Property is Stolen
  3. With the Intent to Deprive Owner

42

Requirements? (4)

(Crimes Against Property: Burglary)

  1. Trespassory Breaking & Entering (aka  "Unlawful Entry"
  2. Dwelling of Another
  3. At Night Time
  4. Specific Intent to Commit a Felony Insid

43

Requirements? (3)

(Crimes Against Property: Arson)

  1. Malice
  2. Burning
  3. Another's Dwelling (Any Structure of Another)

44

Defenses? (12)

  1. Insanity
  2. Intoxication
  3. Infancy
  4. Self-Defense
  5. Adequate Provocation (aka "Heat of Passion")
  6. Duress
  7. Necessity
  8. Mistake of Fact
  9. Mistake of Law
  10. Lawfully Resisting Arrest
  11. Entrapment
  12. Consent

45

What are the four theories of insanity?

(Defenses: Insanity)

  1. M'Naghten Test (Cognitive Test)
  2. Irresistible Impulse Test (Volitional Test)
  3. Durham Test (Causation Test)
  4. American Law Institute (ALI) or Model Penal Code Test

46

What are the two categories of infancy defense?

(Defenses: Infancy)

  1. Under 7 = No Criminal Liability 
  2. Under 14 = Rebuttable Presumption of No Criminal Liability 

47

Self-Defense Topics? (7)

(Defenses: Self-Defense)

  1. Use of Non-Deadly Force
  2. Use of Deadly Force
  3. Initial Aggressor's Right to Self-Defense
  4. "Imperfect Self-Defense" Doctrine
  5. Defense of Other
  6. Defense of Dwelling
  7. Defense of Property

48

Duty to Retreat Topics? (2)

(Defenses: Self-Defense: Use of Deadly Force)

  1. Majority Rule = No Duty to Retreat
  2. Minority Rule = Duty to Retreat (2 X's)

49

Elements? (3)

(Defenses: Self-Defense: Use of Deadly Force)

  1. Without Fault (aka Non-Aggressor Victim)
  2. Confronted with Unlawful Force
  3. Reasonable Belief of Imminent Threat of Death or Great Bodily Harm

50

Views? (2)

(Defenses: Self-Defense: Defense of Others)

  1. Majority View = Honest &  Reasonable Belief
  2. Minority View = Alter Ego

51

Categories and Two Requirements for Each? (2)

(Defenses: Self-Defense: Defense of Dwelling)

  1. Deadly Force = Prohibited, Unless:
    1. Riotous & Forcible Entry, OR
    2. Intent to Commit Felony Inside of Personal Danger
  2. Non-Deadly Force
    1. Unlawful Entry, OR 
    2. Attack on Dwelling 

52

Categories? (2)

(Defenses: Self-Defense: Defense of Property)

  1. Deadly Force Prohibited
  2. Non-Deadly Force Permitted

53

Elements? (3)

Other Thing?

(Defenses: Duress)

  1. the defendant reasonably believed
  2. another would imminently inflict death or great bodily harm
  3. to her or an immediate family member

Complete Defense to All Crimes Except Homicide

54

Elements? (2)

(Defenses: Necessity)

  1. Defendant Reasonably Believed That Her Crime Was the Lesser of Two Evils
  2. No Reasonable Alternative 

55

Limitations on the defense? (2)

(Defenses: Necessity)

  1. No Defense to Homicide
  2. Not Available if Defendant at Fault

56

Categories? (2)

(Defenses: Mistake of Fact)

  1. Unreasonable Mistake of Fact
  2. Reasonable Mistake of Fact

57

Topics? (2)

(4th, 5th, and 6th Amendment: the Bills of Rights)

  1. Only Applies to Government Action
  2. Application to States

58

Topics? (4)

(4th, 5th, and 6th Amendment: Exclusionary Rule)

  1. Standing
  2. Inapplicable to
  3. Exceptions
  4. States May Grant Broader Rights

59

Topics? (2)

(4th, 5th, and 6th Amendment: Exclusionary Rule: Standing)

  1. Confessions
  2. Search & Seizure

60

Inapplicable to? (4)

(4th, 5th, and 6th Amendment: Exclusionary Rule)

  1. Civil Cases
  2. Deportation Hearings
  3. Parole Revocation Hearings
  4. Grand Jury Proceedings

61

Exceptions? (5)

(4th, 5th, and 6th Amendment: Exclusionary Rule)

  1. Purged Taint Exception
  2. Miranda Violations Do Not Exclude Physical Fruits
  3. Admissible to Impeach Defendant's Testimony
  4. Good Faith Defense
  5. Knock & Announce Violation

62

Requirements? (3)

(4th, 5th, and 6th Amendment: Exclusionary Rule: Exceptions: Purged Taint Exception)

  1. Intervening Act of Defendant's Free Will,
  2. Independent Source Rule, OR
  3. Inevitable Discovery

63

Categories? (2)

(4th, 5th, and 6th Amendment: Exclusionary Rule: Exceptions: Admissible to Impeach Defendant's Testimony)

  1. Voluntary Confessions in Violation of Miranda Rights
  2. Illegal Searches (Violation of Fourth Amendment)

64

Requirements? (3)

Six Exceptions to #3?

(4th, 5th, and 6th Amendment: Exclusionary Rule: Exceptions: Good Faith Defense)

  1. Judicial Opinion
  2. Statute or Ordinance, OR
  3. Defective Warrant
    1. Warrant Obtained Pursuant to Illegal Search
    2. Warrant Facially Defective
    3. Affidavit Lacking in Probable Cause
    4. Police Lied to or Misled Magistrate
    5. Magistrate Biased

65

Topics? (6)

(4th, 5th, & 6th Amendments: 4th Amendment)

  1. Seizures
  2. Search
  3. Requirements for a Valid Warrant
  4. Exceptions to the Warrant Requirement (Warrantless Search)
  5. Non-Investigatory Searches
  6. Exempt Proceedings

66

Structure?

  1. _
    1. _
    2. _
      1. _
      2. _
  2. _
    1. _
    2. _
      1. _
        1. _
        2. _
      2. _
      3. _
    3. _

 

(4th, 5th, & 6th Amendments: 4th Amendment: Seizures)

  1. Seizure of a Person
    1. Investigatory Detention
    2. Automobile Stops
      1. Officer's Subjective Motivation is Irrelvant
      2. Seizure of Passengers
  2. Arrest
    1. Probable Cause Required
    2. Warrant Required?
      1. In Public = No
        1. Felony Arrests
        2. Misdemeanor Arrests
      2. In Suspect's Home = Yes  Unless EMERGENCY
      3. Overnight Guest = Yes
    3. Effect of Invalid Arrest

67

Topics? (3)

(4th, 5th, & 6th Amendments: 4th Amendment: Searches)

  1. State Action Required
  2. Standing = Reasonable Expectation of Privacy
  3. Wiretapping & Bugging

68

Structure? (below)

(4th, 5th, & 6th Amendments: 4th Amendment: Searches: Standing = Reasonable Expectation of Privacy)

  1. _
    1. _
    2. _
    3. _
  2. _
    1. _
    2. _
  3. _

  1. Automatic Standing
    1. Suspect Lives on Premises Searched
    2. Suspect Owned Premises Searched
    3. Overnight Guest on Premises Searched
  2. Sometimes Standing
    1. Suspect's Property Seized
    2. Suspect Legitimately Present on Premises Searched
  3. No Standing = Items held Out to Public

69

Topics? (3)

(4th, 5th, & 6th Amendments: 4th Amendment: Searches: Wiretapping & Bugging (aka Electronic Eavesdropping))

  1. "Unreliable Ear" Exception
  2. Pen Register
  3. National Security Surveillance

70

Requirements? (3)

(4th, 5th, & 6th Amendments: 4th Amendment: Requirements for a Valid Warrant)

  1. Issued by Neutral & Detached Magistrate
  2. Probable Cause 
  3. Particularly Describe Place & Items

71

Exceptions? (8)

(4th, 5th, & 6th Amendments: 4th Amendment: Exceptions  to the Warrant Requirement)

  1. Lawful Arrest
  2. Automobile Exception = Probable Cause that Vehicle Contains Evidence of Crime or Contraband
  3. Plain View
  4. Consent 
  5. Hot Pursuit
  6. Evanescent Evidence 
  7. Stop & Frisks (aka "Terry Stop")
  8. Special Needs Exception

72

Structure?

(4th, 5th, & 6th Amendments: 4th Amendment: Exceptions  to the Warrant Requirement: Exceptions: Lawful Arrest)

  1. _
    1. _
    2. _
  2. _
    1. _
      1. _
      2. _
    2. _
  3. _
    1. _
      1. _
      2. _
      3. _
    2. _
    3. _
      1. _
      2. _
  4. _

  1. Timing of Search
    1. Arrest Must Take Place Before Search 
    2. Search Must be Contemporaenous in Time &  Place with Arrest
  2. Scope = Arrestee's Person & Area Within Immediate Control
    1.  Protective Sweep
      1. Immediately Adjacent Areas = Yes
      2. Not Immediately Adjacent Areas = Only If Reasonable Suspicion to Believe Others Inside Pose Danger
    2. Arrest for Serious Crimes = DNA Sampling Permitted
  3. Automobile Searches Incident to Arrest of Recent Occupant (Recent Occupant Rule)
    1. Scope of Search 
      1. Interior Compartment = Yes 
      2. Closed Containers in Interior Compartment = Yes 
      3. Trunk = No
    2. No Contemporaneous with Arrest Requirement
    3. Traffic Violations
      1. Must Be Custodial Arrest
      2. Most cases: No Reasonable Basis to Believe Vehicle Contains Evidence Relevant to Crime of Arrest
  4. Inventory Searches of Arrestees

73

Structure?

  1. _
    1. _
    2. _
    3. _

(4th, 5th, & 6th Amendments: 4th Amendment: Exceptions  to the Warrant Requirement: Automobile Exception)

  1. Scope of Search = Limited to Parts of Vehicle that May Contain Evidence of Crime of Contraband
    1. Entire Vehicle Including the Trunk
    2. Closed Containers
    3. Passenger's Belongings

74

Requirements? (4)

(4th, 5th, & 6th Amendments: 4th Amendment: Exceptions  to the Warrant Requirement: Plain View)

  1. Police Legitimately on the Premises
  2. Discover Evidence in Plain View
  3. Incriminating Character Immediately Apparent
  4. Police Have Lawful Right to Access the Object

75

Structure?

  1. _
    1. _
      1. _
    2. _
  2. _
  3. _
    1. _
    2. _
  4. _

(4th, 5th, & 6th Amendments: 4th Amendment: Exceptions  to the Warrant Requirement: Consent)

  1. Valid Consent
    1. Voluntary
      1. False Claim of Valid Search Warrant
    2. Intelligent
  2. Scope of Search = Limitless Scope of Consent
  3. Multiple Parties (aka Joint Authority)
    1. Multiple Parties Present & One Objects = No Consent
    2. Only Consenting Pary Present = Consent
  4.  Invalid Third Party Consent

 

76

Structure?

  1. _
    1. _
    2. _
    3. _
    4. _
      1. _
      2. _
  2. _
    1. _
      1. _
      2. _
      3. _
    2. _
  3. _

(4th, 5th, & 6th Amendments: 4th Amendment: Exceptions  to the Warrant Requirement: Stop & Frisks (aka "Terry Stop"))

  1. Stop = Articulable & Reasonable Suspicion
    1. Lower Standard than Probable Cause
    2. Based on Objective Fact
    3. Flight as Cause for Suspicion
    4. Stop v. Arrest
      1. No Longer than Reasonably Necessary
      2. No More Intrusive than Reasonably Necessary
  2. Frisk = Reasonably Believe Suspect Presently Armed & Dangerous
    1. Scope
      1. Weapons Only
      2. Probable Cause Required to Enter Clothing
      3. One Feel Rule
    2. Automobiles = May Order Driver Out of Vehicle & Conduct Frisk
  3. Questioning without Miranda Warnings Permissible

77

Categories? (2)

(4th, 5th, & 6th Amendments: 4th Amendment: Exceptions  to the Warrant Requirement: Special Needs Exception)

  1. Routine Sobriety Checkpoints = Initial Stop Constitutional
  2. Ordinary Criminal Wrongdoing Checkpoints = Unconstitutional

78

Categories? (2)

(4th, 5th, & 6th Amendments: 4th Amendment: Non-Investigatory Searches)

  1. Border Searches
  2. Administrative Inspections & Searches

79

Structure?

  1. _
  2. _
    1. _
    2. _

(4th, 5th, & 6th Amendments: 4th Amendment: Non-Investigatory Searches; Border Searches)

  1. Searches Not At Point of Entry
  2. Exceptions
    1. Permanent Alien Checkpoint
    2. Roving-Patrol Stop = Reasonable Suspicion Required

80

Structure?

  1. _
  2. _
    1. _
    2. _
    3. _
    4. _
    5. _
    6. _

(4th, 5th, & 6th Amendments: 4th Amendment: Non-Investigatory Searches; Administrative Inspections & Searches)

  1. Probable Cause for Administrative Warrant = General & Neutral Enforcement Plan
  2. Exceptions
    1. Public School Searches
    2. Searches to Seize Spoiled or Contaminated Food
    3. Searches of Businesses within Highly Regulated Industry
    4. Searches of Airline Passengers
    5. Searches of Parolees & Their Homes
    6. Searches of Government Employees' Desks & File Cabinets

81

82

Topics? (6)

(4th, 5th, & 6th Amendments: 5th Amendment: Double Jeopardy)

  1. Criminal Cases Only
  2. Jeopardy Attaches?
  3. Exceptions Permitting Retrial
  4. Same Offense?
  5. Same Sovereign?
  6. Collateral Estoppel & Res Judicata

83

Topics? (5)

(4th, 5th, & 6th Amendments: 5th Amendment: Double Jeopardy: Jeopardy Attaches?)

  1. Defendant Pleads Guilty
  2. Jury Trial = Jury Empaneled & Sworn In
  3. Bench Trial = First Witness Sworn In
  4. Civil Trial = Never Attaches
  5. Preliminary Hearing = Never Attaches

84

When will retrial be permitted, even after jeopardy has attached? (4)

(4th, 5th, & 6th Amendments: 5th Amendment: Double Jeopardy: Exceptions Permitting Retrial)

  1. Hung Jury
  2. Mistrial for Manifest Necessity
  3. Breach of Plea Bargain
  4. Retrial After Successful Appeal (Unless reversal was for insufficiency of the evidence to support a guilty 
    verdict)

85

Structure?

  1. _
  2. _
    1. _
      1. _
      2. _

(4th, 5th, & 6th Amendments: 5th Amendment: Double Jeopardy: Same Offense?)

  1. Lesser Included Offenses
  2. Greater Included Offenses
    1. Exceptions
      1. Unable to Try Both Simultaneous
      2. New Evidence

86

Types and Results? (3)

(4th, 5th, & 6th Amendments: 5th Amendment: Double Jeopardy: Same Sovereign?)

  1. Federal Court & State Court ≠ Same Sovereign
  2. Different State Courts ≠ Same Sovereign
  3. State Courts & Municipal Courts within Same State = Same Sovereign

87

Topics? (3)

(4th, 5th, & 6th Amendments: 5th Amendment: Confessions)

  1. Miranda
  2. Exceptions
  3. Confessions Must Be Voluntary

88

Structure?

  1. _
    1. _
      1. _
      2. _
      3. _
      4. _
  2. _
  3. _
  4. _
    1. _
      1. _
      2. _
    2. _
      1. _
      2. _

(4th, 5th, & 6th Amendments: 5th Amendment: Confessions: Miranda)

  1.  In Custody
    1.  Not Considered Custody
      1. Voluntary Encounter
      2. Initial Period of Routine Traffic Stop
      3. Probation Interviews
      4. Tax Audit Interviews 
  2. Police Interrogation
  3. Burden of Exercising Miranda Rights = Suspect
  4. Miranda Warnings
    1. Right to Remain Silent = Offense Specific
      1. Police May Not Question About Same Crime
      2. Police May Question About Different Crime
    2. Right to Attorney = Not Offense Specific
      1. Unambiguous Assertion
      2. Police May Not Question About Any Crime

89

Structure?

  1. _
    1. _
  2. _
  3. _
    1. _
    2. _
  4. _
  5. _
  6. _
    1. _
  7. _
  8. _

(4th, 5th, & 6th Amendments: 5th Amendment: Confessions: Exceptions)

  1. Waiver = Knowingly, Voluntarily &  Intelligent
    1. Burden of Proving Waiver of Miranda Rights= Government
  2. Spontaneous Statement
  3. Impeachment of Suspect's Testimony
    1. Pre-Miranda Silence = Yes
    2. Post-Miranda Silence = No
  4. Non-Testimonial (aka Physical) Fruit
  5. Substantial Compliance
  6. Public Safety Exception
    1.  Location of Weapon
  7. Stop & Frisks
  8. Grand jury Proceeding

90

Topics? (2)

(4th, 5th, & 6th Amendments: 5th Amendment: Confessions: Confessions Must be Voluntary)

  1. Coerced Confession
  2. Not Incriminatory Confession

91

Topics? (5)

(4th, 5th, & 6th Amendments: 5th Amendment: Privilege Against Compelled Testimony)

  1. Civil Proceedings Waiver
  2. Testimonial Evidence Only
  3. Negative Comment by Prosecution or Judge Unconstitutional
  4. Voluntary Waiver
  5. Elimination of Privilege

92

Structure?

  1. _
  2. _
    1. _
      1. _
    2. _
      1. _
      2. _

(4th, 5th, & 6th Amendments: 5th Amendment: Privilege Against Compelled Testimony)

  1. No Possibility of Incrimination
  2. Grant of Immunity
    1. Use & Derivative Use
      1. Required If Witness Compelled to Provide Potentially Incriminating Evidence
    2. Transactional Immunity
      1. Non-Granting Sovereign
      2. Not Required If Witness Compelled to Provide Potentially Incriminating Evidence

93

Topics? (6)

(4th, 5th, & 6th Amendments: 6th Amendment)

  1. Requirements
  2. Offense Specific
  3. Retained vs. Appointed
  4. Applicable Stages
  5. Remedies
  6. Effective Assistance of Counsel

94

Requirements? (3)

(4th, 5th, & 6th Amendments: 6th Amendment: Requirements)

  1. Defendant Represented by Counsel 
  2. Formal Adversarial Judicial Proceedings Have Commenced 
  3. No Custody Requirement 

95

Structure?

  1. _
  2. _
    1. _
    2. _

(4th, 5th, & 6th Amendments: 6th Amendment: Effective Assistance of Counsel)

  1. Includes Necessary Experts in Felonies
  2. Requirements to Prove Ineffective Assistance of Counsel
    1. Truly Unreasonable, AND
    2. Result of Proceeding Would Have Been Different But For the Deficiency

96

Structure?

  1. _
  2. _
    1. _
      1. _
      2. _
  3. _
    1. _

(Other Criminal Procedure: Pre-Trial Identification)

  1. Violation of Due Process
  2. Right to Counsel at Post-Charge In-Person Lineup
    1. Exceptions
      1. Photographic Identification
      2. Physical Evidence
  3. Remedies for Unconstitutional Lineups = Exclusion of In-Court Identification
    1. Exception: Reliable Independent Source (aka Reparable)

97

Structure?

  1. _
  2. _
    1. _
  3. _
    1. _
    2. _
    3. _
    4. _
    5. _

(Other Criminal Procedure: Grand Jury Proceedings)

  1. Felonies in Federal Court Only
  2. Exclusionary Rule Inapplicable
    1. Indictment Can Be Based on Inadmissible Evidence
  3. Defendant's Lack of Access
    1. No Right to Notice
    2. No Right to be Present
    3. No Right to Counsel if Called to Testify
    4. No Right to Confront Witnesses
    5. No Right to Introduce Evidence

98

Topics? (3)

(Other Criminal Procedure: Speedy Trial)

  1. Attaches When Defendant Arrested or Charged
  2. Standard of Review = Totality of the Circumstances
  3. Remedy = Dismissal with Prejudice

99

Structure?

  1. _
  2. _
    1. _
    2. _

(Other Criminal Procedure: Bail - The Eighth Amendment)

  1. Immediately Appealable
  2. Preventive Detention
    1. The defendant poses a danger to society, OR
    2. No amount of bail would ensure the defendant's appearance at trial

100

Structure?

  1. _
    1. _
  2. _
  3. _
    1. _
  4. _
    1. _
      1. _
      2. _
        1. _
  5. _

(Other Criminal Procedure: Jury)

  1. Right to a Jury Trial
    1. Non-Petty Offenses?
  2. No Unanimous Requirement
  3. Number of Jurors
    1. Six-Person Juries Must Be Unanimous
  4. Right to Venire
    1.  Peremptory Challenges
      1. Exclusion Based on Race or Gender = Unconstitutional
      2. Opposition to the Death Penalty
        1. Exception: Opposition to Death Penalty Would Substantially Impair Ability to Follow Court's Instruction
  5. Directed Verdict for Prosecution = Unconstitutional

101

Structure?

  1. _
    1. _
    2. _
    3. _
  2. _
  3. _
  4. _

(Other Criminal Procedure: Guilty Pleas)

  1. Only After Advisement of Rights & Consequences of the Plea
    1. Nature of Charge & Crucial Element
    2. Maximum Penalty & Mandatory Minimum
    3. Right to Plead Not Guilty & Go to Trial
  2. Remedy for Invalid Plea
  3. Plea Bargains Broken by Prosecution
  4. Ineffective Assistance of Counsel

102

Structure?

  1. _
  2. _
    1. _
    2. _
    3. _
    4. _
  3. _
    1. _
    2. _

(Other Criminal Procedure: Death Penalty)

  1. No Automatic Death Penalty
  2. Eighth Amendment Ban on Cruel & Unusual Punishment
    1. Minor at Time Crime Committed
    2. Mentally Disabled at Time Crime Committed
    3. Legally Insane at Time of Execution
    4. Torture or Lingering Death Prohibited
  3. Felony Murder
    1. Neither Took Life, Attempted to Take Life Nor Intended to Take Life = Unconstitutional
    2. Major Participant & Reckless Indifference to Human Life = OK