Criminal Procedure Flashcards
(125 cards)
1
Q
Exclusionary Rule
A
Prohibits the introduction of evidence obtained in violation of a D’s 4th, 5th, and 6th amendment rights
2
Q
Fruit of the Poisonous Tree
A
Evidence obtained from exploitation of the unconstitutionally obtained evidence
3
Q
Fruit of the Poisonous Tree - Exceptions
A
1) Fruits derived from statements obtained in violation of Miranda; 2 ) Evidence obtained from a source independent of the original illegality; 3) An intervening act of free will by the D; 4) Inevitable discovery; 5) Violations of the knock and announce rule
4
Q
Fruit of the Poisonous Tree - Limitations
A
1) Inapplicable to Grand Jurise, civil procedures, violations of State law, internal Agency Rules, and Parole revocation proceddings; 2) Good faith reliance on Law, Defective Search Warrant, or clerical error; 3) Use of excluded evidence for impeachment purposes; 4) Knock and Announce Rule Violations
5
Q
Exclusionary Rule - harmless error test
A
If illegal evidence is admitted, a resulting conviction should be overturned on appeal unless the government can show beyond reasonable doubt that the error was harmless.
6
Q
Who bears burden of establishing the admissibility of evidence RE: Exclusionary Rule?
A
Prosecution - Preponderance of the evidence standard
7
Q
Fourth Amendment
A
People should be free from unreasonably searches and seizures
8
Q
What constitutes a seizure?
A
Under the totality of the circumstances, a reasonable person would feel that he was not free to decline the officer’s requests or otherwise terminate the encounter
9
Q
What constitutes an arrest?
A
When police take a person into cutody against her will for purposes of criminal prosecution or interrogations
10
Q
Requirement to arrest
A
Probable Cause - Warrant generally NOT required if they are arresting someone in a public place.
11
Q
Other types of detention
A
Stop and Frisk, Automobile Stops, Detention to Obtain a Warrant, Occupants of the Premises, Station House Detentions
12
Q
Stop and Frisk
A
Police need reasonable suspicison of criminal activity or involvement in a completed crime, supported by articulable facts. Investigative purposes. If police have reason to believe the person is armed and dangerous, they may frisk for a weapon. Duration and Scope - Police must act in a diligent and reasonable manner in confirming or dispelling their suspicions. May ask detainee for name. Brief property seizures are similarly valid if based on reasonable suspicison
13
Q
Automobile Stops
A
Generally - cannot stop absent at least reasonable suspicion that a law was violated. However - If special law enforcement needs are involved, cops can set up roadblocks.
14
Q
Roadblock requirements
A
1) Stop cars on the basis of some neutral, articulable standard; and 2) Be designed to serve purposes closely related to a particular problem pertaining to automobiles and their mobility.
15
Q
Does a roadblock constitute a sezirue? To Whom?
A
Yes, to the driver and any passengers. Passengers have standing to raise wrongful stop as a reason to exclude evidence found during stops
16
Q
Pretextual Stops
A
If police have probable cause to believe a driver violated a traffic law, they may stop the car, even if their ulterior motive is to investigate a crime for which they lack sufficient cause to make a stop.
17
Q
Detentions to Obtain a Warrant
A
If police have PC to believe a suspect had hidden drugs in his home, the may, for a reasonable time, prevent him from going into the home unaccompanied so that they can prevent him fro destroying the drugs while they obtain a warrant
18
Q
Occupants of the Premises
A
With a search Warrant to search for contrband, cops can detain occupants of the premises during a proper search
19
Q
Station house detentions
A
Police must have full PC for arrest to bring a suspect to the station for questioning or fingerprinting against the person’s will
20
Q
Grandy Jury Appearance
A
Not within 4th amendment protections, may seize someone to bring them before grand jury
21
Q
Deadly Force - When can office use to apprehend a suspect?
A
When it is reasonable to do so
22
Q
Evidentiary search and seizure issues analytical model
A
1) Does a D have a 4th amendment right?; 2) Did the Government have a valid warrant?; 3) If the police did not have a valid warrant, did they make a valid warrantless search and seizure?
23
Q
Does a D have a 4th Amendment right?
A
4th Amendment protects only against governmental conduct, and need to have legitimate expectation of privacy.
24
Q
Legitimate Expectation of Privacy
A
With respect to the place searched or the item seized. A person has a legitimae expectation of privacy any time: 1) He owned or had a right to possession of the place searched; 2) The place searched was in fact his home, whether or not he owned or had a right to possession of it; or 3) He was an overnight guest of the owner fo the place searched. Things held out to the public means to privacy
25
Exceptions to the warrant requirement
1) Search incident to constitutional arrest; 2) Automobile Exception; 3) Plain View; 4) Consent; 5) Stop and Frisk; 6) Hot pursuit, evanescent evidence, and emergency aid exceptions
26
When will a valid warrant be issued?
There is PC to believe that seizable evidence will be found on the person or premises at the time the warrant is executed. Officers must submit an affidavit to the judge to make a determination of PC independent of the officers' conclusions.
27
Use of informers - Affidavit for a warrant
Totality of the circumstances test - Affidavit may be sufficient even though the reliability and credibilkity of the informer or his basis for knowledge are not established
28
When will a search warrant issued on the basis of an affidavit be held invalid?
NEED ALL THREE 1) A false statements was included in the affidavit by the affiant (officer); 2) The affiant intentionally or recklessly included the false statement; and 3) False statenment was material to the finding of PC
29
Police may reasonable rely non validity of warrant
Evidence obtained by cops in reasonable reliance on a facially valid warrant may be used by the prosecution, despite an ultimate finding that the warrant was not supported by PC.
30
Must the warrant be precise on its face?
YES. WARRANT (not affidavit) Must describe with reaosnable precision the place to be searched and items to be seized.
31
Requirments of the execution of a warrant
Must be police, executed without unreasonable delay, police must knock, announce their purpose, and wait a reasonable time for admittance. Scope of search is limited to what is reasonably necessary to discover items described in warrant. Violations of knock and announce will not trigger exclusionary rule!
32
People not named in warrant found on premises, can police search?
NO! May detain during a proper search, but cannot search the persons not named within the warrant
33
Search Incident to Constitutional Arrest
Incident to a constitutional arrest, the police may search the person and areas into which he might reach to obtain weapons or destroy evidence. Search must be contemporaneous in time and place with the arrest (does not mean simultaneous).
34
Automobiles and Searches Incident to Constitutional Arrest
May conduct a search fo the passenger compartment of an automobile incident to arrest only if at the time of the search; 1) Arrestee is unsecured and still may gain access to the interior of the vehicle; or 2) Police reasonable believe that evidence of the offense for which the person was arrested may be found int he vehicle.
35
Searches incident to incarceration or impoundment
Police may make an inventory search fo the arrestee's belongings pursuant to established department procedure. (Same for inpounded vehicle)
36
Automobile Exception to the Warrant requirement
If police have PC to believe that a vehicle contains fruits, instrumentalities, or evidence of a crime, they may search the whole vehicle and any container that might reasonably contain the item for which they had PC to search. Passenger's Belongings may be searched. If police only have PC to search a container in the vehicle, they may only search the container, nto other parts of the vehicle.
37
Plain View Exception to the Warrant Requirment
If: 1) Police are legitimately on the premisie; 2) Discover evidence, fruits or instrumentalities of crime, or contraband; 3) See such evidence in plain view(smells and hears ok); and 4)Have PC to believe that the item is evidence, contraband, or a fruit or instrumentality of crime..
38
Consent Exception to the Warrant Requirment
Police must have VOLUNTARY consent. Knowledge ot the right to withhold consent is NOT a prerequisite to establishing a voluntary consent. Scope - may be limited to the scope of consent. But generally extends to all areas to which a reasonable person under the circumstance would believe it extends.
39
The authority to consent
Any person with an APPARENT right to (roomate can give consent to shared space, prob not roomates's room) use or occupy the property may consent to a search, and any evidence found may be used agaisnt the other owners or occupants. However if cops want to search when a co-occupnt is present and objects to the search and the search is targetted at the objector, NO CONSENT
40
Stop and Frisk exception to the warrant requirement
Cops need articulable and reasonable suspicion of criminal activity for a STOP. FRISK only justified if the office reasonably thinks that the suspect has a weapon. Scope of Intrusion - generally limited to a patdown of outer clothing. Office rmay order passengers of a stopped vehicle and frisk them and search the passenger compartment of the vehicle if the officer has a reasonable belief that an occupant is dangerous. If, during patdown, officer may reach into the suspect's clothing and seize any item that the officer reasonably believes, based on its "plain feel" is a weapon or contraband (ADMISSIBLE!)
41
Hot Pursuit, Evanescent Evidence, and Emergency Aid Exceptions to the Warrant Requirement
Police in hot pursuit of a felon, may even pursue suspect into a private dwelling. Police may also seize without a warrant evidenc likely to disappear before a warrant can be obtained. Emergencies that could affect health or safety.
42
Administrative Inspections and Searches
Inspectors must have a warrant for searches of private residences and commercial buildings, but the PC required to obtain a warrant is more lenient that for other searches: A showing of a general and neutral enforcement plan will justify issuance of a warrant.
43
Administrative Inspections and Searches - Exceptions permitting warrantless searches
1) Seize spoiled or contaminated food; 2) Business within a highly regulated industry; 3) Inventory searches of arrestees; 4) Searches of airline passengers prior to boarding; 5) Parolees and their homesm(statute must authorize such searches) 6) Government employees' desks and file cabinents where scope is reasonable and there is a work-related need or reasonable suspicion of aowkr-related misconduct; 7) Drug test of railroad employees involved in an accident; 8) Drug tests of persons seeking customs employment in positions connected to drug interdiciton; and 9) Drug tests of public school students who participate in extracurricular activites
44
Public School Searches
Only Reasonable if: 1) it offers a moderate chance of finding evidence of wrongdoing; 2) The measures adopted to carry out the search are reasonably related to t he objective of the search; and 3) The search is not excessively intrusive in light of the age and sex of the student and nature of t he infraction
45
Searches in Foreign Countries and at the Border
In Foreign Countries - 4th Amendment does not apply. At the Border or its equivalent - No Warrant necessary - No 4th Amendment rights at the border. Can open international mail when authorities have reasonable cause to suspect that the mail contains contraband. May detain someone who they think have reasonable suspicion has something in their stomach.
46
Wiretapping and Eaves Dropping
Wiretapping constitutes a search. Warrant authorizing a wiretap may be issued if; 1) There is PC; 2) the suspected persons involved in the conversations to be overheard are named; 3) The warrant describes with particularity the conversations to be overheard are named; 4) The wiretap is limited to a short period of time; 5) The wiretap is terminated when the desired information has been obtained; and 6) Returen is made to the court, showing what conversations have been intercepted
47
Exceptions to warrant requirement for wiretapping
A speaker has no 4th amendment claim If he makes no attempt to keep a conversation private.
48
Method of obtaining evidenc that shocks the conscience
Evidence obtained in a manner offending a "sens of justice" is inadmissible under the Due Process clause
49
14th Amendment - Confession
For a self-incriminating statement to be admissible under the Due Process Cluse, it must be voluntary, as determined by the totality of the circumstances. Harmless error test applies.
50
6th Amendment Right to Counsel
Applies once FORMAL JUDICIAL PROCEEDINGS have begun. Police cnnot deliberately elicite an incriminating statement from a D outside the presence of counsel after the D has been charged absent waiver
51
6th Amendment Right to Counsel - Stages where applicable
1) Post-indictment interrogation, whether or not custodial; 2) Preliminary hearings to determins probably cause to prosecute; 3) Arraignment; 4) Post-charge lineups; 5) Guilty plea and sentencing; 6) Felony trials; 7) Misdemeanor trials when imprisonment is actually imposed or when a suspended jail sentence is imposed; 8) Overnight reccesses during trial; 9) Appeals as a matter of right; and 10) Appeals of guilty pleas
52
6th Amendment Right to Counsel - Stages where not applicable
1) Blood sampling; 2) Taking of handwriting or voice exemplars; 3) Precharge or investigative lineups; 4) Photo identifications; 5) Preliminary hearings to determine PC to detain; 6) Brief recesses during the D's testimony at trial; 7) Discretionary appeals; 8) Parole and probation revocation proceedings; and 9) Post-conviction proceedings
53
6th Amendment Right to Counsel - Common Issues
Offense specific. Right to counsel may attach at charging of another charge, and the D may still not have right to counsel for questioning about different matter. It must be unrelated and uncharged offense. Two offenses will be considered different if each requires proof of an additional element that the other crime does not require. Waiver - Must be knowing, voluntary, and intelligent (neeed not be in the presence of counsel if counsel has not been requested by the D but rather appointed by the court
54
6th Amendment Right to Counsel - Remedy
Nontrial proceedings - Harmless error rule applies. Trial proceedings - Automatic reversal of the conviction.
55
6th Amendment Right to Counsel - Impeachment Rules
May be used to impeach the D's contrary testimony.
56
5th Amendment Privilege Against Compelled Self-Incrimination - Miranda Requirements
For an admission to be admissible under the 5th amendment privilege against self-incrimination, a person in custody must, prior to interrogation, be informed, in substance, that: 1) he has the right to remain silent; 2) Anything he says can be used against him in court; 3) He has the right to presence of an attorney; and 4) If he cannot afford an attorney, one will be appointed for him if he so desires.
57
When is Miranda Required?
In custody and accused of a crime , and prior to interrogation by the police. (must be governmental conduct - D must have knowledge he is being interrogated by a government agent) Inapplicable at a grand Jury Hearing
58
When is an individual in custody?
Depends on whether the person's freedom of action is limited in a significant way based on the objective circumstances.
59
Interrogation - Definition
Any words of conduct by the police that they should know would likely elicit a response from the detainee. Spontaneous statements and routine booking questions not covered by Miranda
60
Options Once Miranda Rights have been received
1) Do nothing; 2) Waive his Miranda Rights; 3) Assert the right to remain silent; 4) Assert the right to consult with an attorney
61
If Mirandee Does nothing
Courts will determine he is exercising his right to silence. Police can continue questioning
62
If Mirandee Waives his Miranda Rights
Waiver must be knowing and voluntary. Totality of the circumstances test. If Gov't can show the detainee received Miranda warnings and then chose to answer questions, probably sufficient waiver.
63
If Mirandee Invokes his right to Remain Silent
To be effective, invocation must be explicit, unambiguous, and unequivocal. Police cannot BADGER the detainee. Later questioning may occur on an unrelated crime
64
If Mirandee invokes his right to Counsel
Detainee must unambiguously and specifically indicate that he wishes to speak to counsel. ALL QUESTIONING MUST CEASE until counsel has been provided unless detainee: 1) Waives his right to counsel (by reinitiating questioning) or 2) Is released from the custodial interrogation and 14 days have passed since release.
65
Allow detainee to consult with counsel and then resume interrogation after counsel leaves, ok?
NO! Counsel must be present durring interrogation unless the detainee has waived the right!!!!!
66
Effect of Miranda Violation
Generally - evidence obtained in violation of the Miranda rules is inadmissible at trial under the exclusionary rule. Statements obtained in violation may be used for impeaching the D's trial testimony.
67
Cops receive confession before reading Miranda, then mirandize and get same confession
Subsequent confession will be inadmissible if the nature of the questioning was intentional. IF original questioning seemed unplanned and the failure to mirandize was inadvertent, then subsequent confession is ok.
68
Nontestimonial fruits of an unwarned confession
If unmirandized detainee gives cops info that leads to nontestimonial evidence, evidence supressed only if the failure to mirandize was purposeful.
69
Public Safety Exception to Miranda
Interrogation where it was reasonably prompted by a concern for public safety.
70
Sixth Amendment Right to Counsel - Pretrial Identifications
Suspect has a right to the presence of an attorney at any post-charge lineup or showup. NOT at photo ID or when police take physical evidence, handwriting samples or fingerprints
71
Sixth Amendment Right to Counsel - Pretrial Identifications - Due Process
D can attack an ID as denying DP if the ID is uneccarily suggestive and there is a substantial likelihood of misidentification.
72
Remedy for Unconstitutional Identifications
Exclusion of the in-court identification unless: In-court ID has an independent source (opportunity to observe at the time of the crime)
73
Hearings on pre-trial identifications
Gov't bears burden of proving that: 1) Counsel was present; 2) Accused waived counsel; or 3) There is an independent source for the in-court ID. D must prove DP violation.
74
Preliminary Hearing to Determin PC to Detain
If PC established - no hearing necessary. Hearing must be within 48 hrs (reasonable time) of a significant constraint on an arrestee's liberty. Evidence discovered as a result of the unlawful detention can be excluded under the exclusionary rule.
75
Does D have a right to notice that Grand Jury is considering an indictment against him?
NO! GJ proceedings are conducted in secret. No right to confront witnesses, be present or introduce evidence. No right to Miranda, counsel, or even that he is a potential D. Exclusionary rule doesn't apply. 5th Amendment Self-incrimination protects GJ witnesses
76
Only way to quash a Grand jury indictment?
Exclusion of Minorities - conviction resulting from an indictment issued by a GJ from which members of a minority group have been excluded. Without regard to harmlessness of error.
77
6th Amendment Right to Speedy Trial
Totality of the circumstances test - Length of delay, reason for delay, whether D asserted this right, and prejudice to the D. Remedy is dismissal without prejudice. Right does not attach under D has been arrested or charged. D does not need to know of the charges for speedy trial right to attach.
78
Prosecutor's duty to disclose exculpatory evidence
If D can prove 1) The evidence is favorable to him because it either impeaches or is exculpatory; and 2) prejudice has resulted (a reasonable probability that the result of the case would have been different. If D shows these, DP has been violated
79
D's notification to using alibi or insanity defense
D must notify Prosecution. Alibi - D must give prosecutor list of witnesses, and prosecution must give witness list to rebut to D. Prosecutor can not comment at trailat D's failure to produce a witness names as supporting the alibi or on failure to present the alibi himself.
80
Competency vs Insanity
Insanity - mental state at the time of the crime. Incompetency - Mental condition at the time of the trial
81
When is a D incompetent to stand trial? - Due Process standard
1) Lacks a rational as well as factual understanding of the charges or proceedings; or 2) Lacks sufficient present ability to consult with his lawyer with a reasonably degree of understanding. Court may place burden on D - preponderance of the evidence. Clear and convincing standard is unconstitutional
82
Detention of insane D
IF D succesfully asserts insanity defense, may be confined to a mental hospital for a term longer than the max period of incarceration for the offense. Cannot be indefinitely committes.
83
Excessive Pretrial Publicity
may require change of venue or retrial
84
Right to Unbiased Judge
DP violated if judge has actual malice against the D or has a financial interest in having the trial result in a guilty verdict
85
Due Process Rights to Trial will be violated if:
1) The trial is conducted in a manner making it unlikely that the jury gave the evidence reasonable consideration; 2) The state compels the D to stand trial in prison clothing; 3) State compels the D to stand trial or appear at penalty phase proceedings visibly shackled, unless the court find the shackling justified by concerns about courtrrom security or escape; or 4) The jury is exposed to influence favorable to the prosecution.
86
Right to Trial by Jury
Only if offense is serious (imprisonment for more than 6 months) NO juvenile; Civil Contempt - No jury right; Criminal Contempt - Jury Trial if penalities are 6 months or more
87
Right to trial by jury and Probation
Judge can place someone on probation up to 5 years without jury, unless revocation of probations would not result in imprisonment for more than 6 months
88
Number of jurors?
At least 6
89
Right to impartial jury
D can question on racial bias is race is bound up in the case or accused of interracial capital crime; May ask potential jurors if they favor death penalty automaticlaly upon conviction
90
Right to Counsel
Violation of this right to trial, including erroneous disqualification of D's privately retained counsel, requires reversal. For nontrial denails, harmless error applied. Right to counsel only attaches if imprisonment is actually imposed. If exam question involves a nonfelony and D asks for counsel, is denied, and is convicted, wthere the right to counsel has ben violated depends on D's sentence. If imprisonment - then yes, if no imprisonment - then no
91
Waiver of Right to Counsel at Trial and Right to Defens Oneself
D has right to defende himself at trial, if judge thinks his waiver is knowing and intelligent and he is competent (mentally) to proceed pro se. Right to defend oneself only applies at Trial and NOT appeals.
92
An ineffective assistance claimant must show:
1) Deficient performance by counsel; and 2) But for the deficiency, the result of t he proceeding would have been different (shorter sentense or acquittal) Trial tactics and failure to raise constitutiuonal issue that is later invalidates do not constitute this.
93
Joint Representation - per se invalid?
NO. Attorney advises trial court of resulting conflit of interest at or before trial, and the court refuses to appoint separate counsel,D is entitled to automatic reversal.
94
Right to Confront Witness
Not absolute. Face to face confrontation not required when preventing such serves an important public purpose. Judge may remove a disruptive D
95
Introduction of Co-D's Confession
Such a statement may be admitted if: 1) All portions referring to the other D can eb eliminated; 2) The confessing D takes the stand and subjects himslef to cross-x with respect to the truth or falsity of what the statement asserts; or 3) The confession on the nontestifying co-D is being used to rebut the D's claim that his confession was obtained coercively.
96
Prior testimonial statement of unavilable witness
1) The declarant is unavilable and 2) The D had an opportunity to cross-x the declarant at the time the statement was made
97
What is testimonial?
Statements from a preliminary hearing, a GJ hearing, a former trial, or police interrogation. NOT aiding police in responding to an ongoing emergency. Forensic lab testing - Must have technician who produced the report take the stand so D can cross-x
98
When do you forfeit the confrontation clause claim?
Wrongdoing that was intended to keep witness from testifying
99
Presumption of Innocence
Anything that places a presumption that shifts the burden of proof onto the D violates 14th amendment
100
Requirments for plea to be voluntary and intelligent
Must be done by addressing the D personally in open court on the record. Judge must be sure the D knows and understands things like: 1) Nautre of the charge and the crucial elements of the crime charged; 2) The maximum possible penalty and any mandatory minimum; and 3) That he has a right not to plead guilty and that if he does plead guilty, he waives the right to trial. Judge need not explain these things, own counsel can do it, judge just needs to be sure D understands. Remedy for failure to meet the standards for taking a plea is withdrawal of the plea and pleading anew
101
A plea can be set aside for:
1) Involuntariness; 2) Lack of jurisdiction; 3) Ineffective assistance of counsel; or 4) Failure to keep the plea bargain
102
Procedural Rights in Sentencing
D has a right to Counsel during sentencing. No right to confrontation nor cross-x. If magnified sentence is based on a statute that requires new findings of fact to be made, must do it in an arena giving D confrontaion and cross-x rights.
103
Death Penalty imposition guidelines
For murder, under a statutory scheme that vies the judge or jury reasonable discretion, full information concerning Ds and guidance in making the decision. Statute cannot be vague. If death sentence is imposed partly based on the Ds prior convictions, sentence must be reversed if the prior conviction is invalidated. D must be sane at the time of the execution. Cannot capitally punish mentally handicapped or minors.
104
Equal protection and right to counsel on appeal
First appeal as a matter of right for all Ds.
105
Retroactivity
If Supreme Court announces a new rule of crim pro (one not dictated by precedent) in a case on direct review, the rule must be applied to all other cases on direct review
106
Habeus Corpus Proceeding - Burdens of Parties
Indigent has no right to appointed counsel. Petitioner has burden of proof by preponderance of the evidence to show an unlawful detention.
107
Right to counsel at parole and probation revocation
If revocation also involved imposition of a new sentence, D is entitles to Counsel (if she would be entitled to same at trial). If revocation of probation, springs already imposed sentence on D (or in a parole revocation), D only gets counsel if representation is necessary to a fair hearing.
108
When does Double Jeopardy attach?
In a jury trial at the empaneling and swearing of the jury. At bench trial, when the first witness is sworn.
109
Exceptions Permitting Retrial - Double Jeopardy does not apply
1) State may retry a D whose first trial ends in a hung jury; 2) A trial may be discontinued and the D reprosecuted for the same offense when there is manifest necessity to abort the original trial or when termination occurs at the behest of the D on any ground not constituting acquittal on the merits; 3) A D who successfully appealed a conviction unless the ground for reversal was insufficient evidence to support a guilty verdict; 4) Charges may be reinstated after a D breached her plea bargain
110
When two crimes are not the same offense
Unless each crime requires proof of an additional element that the other does not require, even though some of the same facts may be necessary to prove both crimes.
111
Cumulative punishments for offenses constituting the same crime
Multiple punishments are permissible if there was a legislative intent to have cumulative punishments
112
Lesser included offenses
Attachment of jeopardy for a greater offense bars retrial for lesser included offenses. Attachment of jeopardy for a lesser included offense bars retrial for a greater offense, except that retrial for murder is permitted if the victim dies after attachment of jeopardy for battery.
113
Exception - New Evidence
If unlawful conduct that is subsequently used to proves the greater offense; 1) Has not occurred at the time of prosecution for the lesser offense or 2) Has not been discovered despite due diligence.
114
Subsequent civil actions
Double Jeopardy prohibits only repetitive criminal prosecutions.
115
Separate Sovereigns - Double Jeopardy
Double Jeopardy does not apply to trials by separate sovereigns. Person may eb treid for the same conduct by both the state and federal governments or by two states, BUT NOT a state and its municipalities
116
Appeals by Prosecution
Prosecution may appeal any dismissal on Ds motion that does not constitute an acquittal on the merits. Double Jeopardy clause does not bar appeals by the prosecution if a successful appeal would not require a retrial. No bar to a gov't appeal of a sentence pursuant to statute permitting such review.
117
Collateral Estoppel
D may not be tried or convicted of a crime if a prior prosecution by that sovereignty resulted in a factual determination inconsistent with one required for conviction.
118
Privilege against compelled self-incrimination
Only natural persons may assert, and is personal, and only if the answer to the question might tend to incriminate him. Person may refuse to answer a ? Whenever his response might furnish a link in the chain of evidence needed to prosecute him. Privilege must be claimed in civil proceedings to prevent the privilege from being waived for a later criminal prosecution.
119
Privilege against compelled self-incrimination - Method for invoking privilege
A criminal D has a right not to take the witness stand at trial and not to be asked to do so. Any other proceeding privilege does not permit a person to avoid being sworn in as a witness or being asked questions. Must listen to questions and then specifically invoke privilege
120
Scope of privilege against compelled self-incrimination
Protects only testimonial or communicative evidence and not real or physical evidence. Testimonial - factual assertion or disclose information. Can be compelled to produce documents. Violation of this privilege does not occur until a person's COMPELLED statements are used against him in a criminal case
121
Comments on D's Silence
Prosecutor may not comment on a D's silence (or not taking the stand) after being arrested and receiving Miranda warnings. If D opens up saying "D couldn't tell his side of the story" then Prosecution can bring it up. Harmless error test applies. State cannot impose penalties for failing to testify
122
Elimination of Privilege - Grant of Immunity
Witness may be compelled to answer questions if granted adequate immunity from prosecution. Testimony obtained by promise of immunity is coerced and therefore involuntary. State cannot use evidence obtained as a result of federal grant of immunity and vice versa.
123
Elimination of Privilege - No possibilitt of Incrimination
If it is impossible to incriminate yourself, not privilege against compelled self incrimination. (statute of limitations has run)
124
Waiver of Privilege against compelled self-incrimination
Criminal D by taking the stand waives the privilege to the extent necessary to subject him to any cross-x.
125
Rights that must be afforded to Juvenile's Court Proceedings
1) Written notice of charges; 2) Assistance of counsel; 3) Opportunity to confront and cross-x witnesses; 4) The right not to testify; and 5) The right to have "guilt" established by proof beyond a reasonable doubt (NO JURY TRIAL RIGHT)
