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criminal procedure Flashcards

1
Q

when can a judge enhance a sentence without a specific jury finding

A

*three strike rule
*statute gives wide discretion on time period
*prior criminal convictions

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2
Q

when does double jeopardy attach

A

*jury trial: when jury sworn in
*bench trial: when first witness sworn in

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3
Q

when is retrial allowed

A

*the conviction was reversed for a reason other than insufficient evidence
*mistrial occurs and manifest necessity is found

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4
Q

when does double jeopardy apply

A

*prosecution after convicted of same offense
*prosecution after acquitted of same offense
*multiple prosecutions or punishments for the same offense

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5
Q

test for same offense

A

Blockburger test: lesser included offense? different elements required?

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6
Q

when does double jeopardy not apply

A

*multiple victims
*separate jurisdictions
*multiple charges but not punishments

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7
Q

requirements for choice of counsel

A

*properly admitted in jurisdiction
*available for trial
*no conflict or other disqualifier

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8
Q

when is capital punishment constitutional (or not)

A

*the victim died

*under 18 when committed the crime
*have a cognitive impairment
*insane at execution

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9
Q

judicial responsibility

A

to remain impartial

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10
Q

prosecutorial responsibilities

A

*Brady doctrine
*can’t knowingly present false testimony
*can’t contact D outside of their counsel’s presence
*can’t comment on D’s failure to testify at trial

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11
Q

defense counsel responsibilities

A

*conflict of interest: no joint representation without court approval or prior representation of a witness
*effective assistance

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12
Q

two requirements for effective assistance of counsel

A

*their performance was reasonable conduct in the profession
*there was not a reasonable probability the result would be different if they had acted reasonably

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13
Q

what is the Crawford doctrine?

A

a testimonial statement of a third party is inadmissible if they are unavailable and D had no prior opportunity to cross-examine them

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14
Q

what is the Bruton doctrine?

A

D’s own statements are admissible against them (but not another defendant unless D is testifying)

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15
Q

what is the Brady docrine?

A

a prosecutor must turn over all material exculpatory evidence to D that (1) tends to show D is not guilty or (2) enables D to impeach the prosecutor’s witnesses

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16
Q

list of trial rights (5)

A

*right to speedy trial
*right to confront witnesses against
*right to jury trial
*right to public trial (unless their is a substantial risk of prejudice to D)
*right to compulsory process for own witnesses

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17
Q

types of removal in voir dire

A

*challenges for cause
*peremptory challenges

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18
Q

how charges are brought at the federal and state level

A

*fed: indictment through grand jury based on probable cause
*state: indictment or information based on probable cause

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19
Q

test for D’s competency

A

does D understand the nature of the proceedings and is able to assist their lawyer?

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20
Q

when must D prove they are competent?

A

*to stand trial
*to plea guilty
*to waive the right to a jury trial

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21
Q

what must a judge do for a guilty plea to be valid?

A

*inform D of their rights and ensure they understand
*inform D of the nature of the charges and essential elements
*inform D of the sentences possible
*inform D of any immigration consequences
*make sure their is a factual basis for the plea
*determine the plea is not the result of force, threat, or promises

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22
Q

key questions for determining whether a constitutional violation has occurred

A

*4A: search or seizure? probable cause? warrant or applicable exception?
*5A: D in custody? being interrogated? Miranda warnings given? invocation of rights? voluntary confession?
*6A: was D charged? at a critical stage?

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23
Q

define the exclusionary rule

A

evidence obtained in violation of the Constitution is inadmissible against the person whose rights were violated

24
Q

define the fruit of the poisonous tree doctrine

A

the exclusionary rule applies to evidence obtained as a result of the initial violation

25
exceptions to the exclusionary rule
*failure to knock and announce *inevitable discovery *independent source *attenuation in the causal chain *good faith: reliance on a law or warrant that is later unconstitutional or found defective (not applicable if any intentional conduct occurred) *negligence (kind of)
26
what is required if a pre-indictment identification procedure is impermissibly suggestive?
clear and convincing evidence that D would've been identified even without the lineup
27
when does the 5A privilege against self-incrimination apply?
to natural persons who make a testimonial statement to the government that would subject them to criminal liability
28
if Miranda is violated, what is admissible?
*statement: only for impeachment *resulting evidence: for anything
29
if a statement is given involuntarily, what is admissible?
*statement: never *resulting evidence: never
30
elements for Miranda to apply
*custodial: arrested? reasonable person would not otherwise free to leave? *interrogation: engaging in conduct that the police should know would elicit a response?
31
invoking rights under Miranda
*must invoke the right to remain silent or to counsel explicitly *once invoke the right to remain silent, police can only resume questioning after a substantial time has passed and they have provided the warning again *once invoke the right to counsel, police cannot resume questioning until D has a lawyer present OR affirmatively initiates contact
32
seven exceptions allowing a warrantless search
*exigent circumstances *search incident to lawful arrest *consent *administrative search *plain view *stop and frisk *cars *special government exception (schools, prisons, routine booking)
33
considerations for whether a search has occurred
*reasonable expectation of privacy? *government intrusion?
34
common areas where a reasonable expectation of privacy exists (vs. not)
*home, hotel room, car (kind of), office, luggage, curtilage vs. *garbage on the street, public street, open fields, abandoned property, financial records, inmate's cell, conversations with undercover cops
35
requirements for a valid search warrant
*issued by a neutral magistrate *based on probable cause, supported by oath or affidavit, to believe the items are related to a crime *description of the property and place to be searched with particularity
36
what is allowed in a search incident to lawful arrest?
*search of the person and immediate surroundings to protect from weapons or danger OR to prevent the destruction or concealment of evidence
37
requirements for a valid arrest warrant
*issued by a neutral and detached magistrate *based on probable cause, supported by oath or affidavit the individual committed a particular crime *identifies the person and offense
38
when can an arrest be made in a dwelling?
*warrant *exigent circumstances *consent *if in a third party's dwelling, with a valid arrest warrant and search warrant
39
when is a warrantless arrest allowed?
*any crime committed in the officer's presence *the officer has probable cause to believe the person committed a felony
40
in a Terry stop, if an officer doesn't have reasonable suspicion, is the evidence recovered admissible?
*yes if develop probable cause *no if the initial stop and arrest are unlawful
41
elements of seizure
*the use of physical force OR a show of authority that *intentionally ends or restrains one's freedom of movement *would a reasonable person feel free to disregard the officer?
42
types of seizures and burden to conduct
*stop and frisk: reasonable suspicion *traffic stop: reasonable suspicion *arrest: probable cause
43
does an illegal arrest in a 3rd party's home prevent prosecution?
no, not as long as the defendant was properly charged
44
three circumstances for searching a 3rd party's home for a defendant subject to an arrest warrant
*search warrant *3rd party's consent *exigent circumstances
45
when are general checkpoint stops allowed?
*based on neutral, articulable standards *purpose closely related to cars
46
when are checkpoints allowed for a special government need?
*stop's primary purpose to apprehend an individual other than the car's occupants *stop significantly advances a public concern *stop minimally interferes with 4A rights
47
are Miranda warnings required when the defendant does not know the interrogator is a police officer?
no, not if the police officer is undercover
48
definition of a "critical stage" for purposes of 6A
any event where the absence of counsel may prejudice the defendant's right to a fair trial
49
is testimony given under grant of immunity coerced?
yes, the statements are considered involuntary and therefore inadmissible
50
statements made through grant of immunity are precluded from use in what type of cases?
criminal prosecution
51
when does the 6A right to counsel attach before indictment (special circumstance)??
any uncharged crime that constitutes the same offense as the formally charged crime (Blockburger test)
51
if the 6A right to counsel is violated, are the defendants statements admissible?
yes, but only for impeachment
51
what happens when a defendant is denied the right to choose their own counsel?
automatic reversal of any decision
52
when must a preliminary hearing to determine whether probable cause exists to hold D occur?
within 48 hours of arrest if not based on a grand jury indictment or arrest warrant
53
three scenarios warranting exigent circumstances
*imminent threat that relevant evidence will be destroyed *hot pursuit: suspect fleeing after felony has occurred *emergency aid: immediate threat of harm to police/public
54
who bears the burden of proving that D waived Miranda rights?
the prosecution
55
for what types of appeals must an indigent D be provided counsel?
appeals as of right but not discretionary appeals

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