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Flashcards in Criminal Procedure Deck (63)
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Two ways to bring charges

Indictment: grand jury finds probable cause.

Information jurisdictions: preliminary hearing on probable cause by magistrate within 48 hours of arrest.


NY: bring charges

Defendants in felony cases are entitled to preliminary hearing UNLESS grand jury indicted them already.


Grand jury proceedings

1) defendant has no right to present or confront witnesses
2) prosecutor has no duty to present exculpatory evidence.
3) illegally obtained evidence or hearsay is admissible.
4) no right to counsel.


NY: grand juries

1) 16-23 people, 12 needed for indictment.

2) evidence must be legally sufficient and admissible at trial.

3) defendants can request to testify BUT must waive immunity.

4) witnesses with total immunity have no right to counsel.

5) witnesses without immunity have right to counsel.


Prosecution duty to disclose

* MUST disclose exculpatory evidence (negate guilt OR diminish culpability or punishment).

* Failure is grounds for reversal if:
1) evidence was exculpatory; AND
2) prejudice from failure to disclose.


NY: Prosecution duty to disclose

Prosecution MUST disclose:

1) all statements of prosecution witnesses related to the testimony.

2) statements of defendant and co-defendants. (if suppressible, then within 15 days of arraignment).

3) all documents, photos, drawings, scientific tests, objects, or tangible things that prosecution intends to use at trial.

* Grounds for reversal if defendant shows that failure to disclose materially contributed to or altered the outcome of the proceeding.


Waiver of jury trial

Voluntary + knowing + intelligent + in open court.


NY: waiver of right to jury trial

may NOT waive right in first-degree murder case.


Jury size and unanimity

Federal: 12 members + unanimous verdict.

State: 6 members + unanimous OR 6+ members + substantial majority.


NY: jury size

In felony trials, 12 jurors + up to 4 alternates. Defendant may waive and have 11 jurors.

If misdemeanor, 6 juror + up to 2 alternates.


Challenge to jury composition

Defendants must show:
1) distinctive group in community;
2) not fairly represented in venire;
3) resulting in systematic exclusion of that group.

* Prosection rebuttal:
1) manifestly and primarily advances
2) a significant government interest.


Peremptory challenges

may NOT challenge based solely on race or gender.

* Batson test for race:
1) moving party shows prima faciae case;
2) challenged party gives race-neutral explanation;
3) moving party must show justification is pretextual.


Guilty pleas

Judge must first advise defendant:
1) right to trial
2) right to plead not guilty
3) right to counsel
4) elements of charge
5) maximum and minimum sentences
6) waiving right to appeal
7) statements may be used under oath in subsequent perjury action.


Right to speedy trial

1) length of delay
2) reason for delay
3) assertion of right to speedy trial
4) prejudice to defendant
5) diligence and good faith by court.

* If violated = dismissed with prejudice.


NY: right to speedy trial

Felony: 6 months

Class A misdemeanor: 90 days

Class B misdemeanor: 60 days

Violation: 30 days


What is testimonial?

= reasonably expected to be used in prosecution, e.g.:
1) affidavit
2) custodial examination
3) prior testimony
4) police interrogation (EXCEPT ongoing emergency)
5) results of lab tests (NY: does not include rape kit tests)

* To admit, must show:
1) witness unavailable
2) defendant had prior opportunity to examine.


Bruton rule

Admission of the confession of a non-testifying codefendant is NOT allowed.


NY: burden of proof for affirmative defense

Insanity, duress, entrapment = preponderance of the evidence.


Blockburger tests

* Used to determine if offence is same for double jeopardy:
1) Does each offence require proof of an element that the other does not?
2) If not, then lesser included offense and DJ attaches, UNLESS:
-facts necessary to prove greater offense did not become available until after trial.
-prosecution negotiated as part of guilty plea to lesser offence that defendant waive DJ rights for greater offence.


NY: double jeopardy

Crimes arising out of single transaction must be tried together UNLESS:
1) each offense has different elements;
2) one concerns possession and the other use;
3) each offense involves death or injury of different victims.


When does DJ attach?

Jury trials: when jury is impaneled and sworn.

Bench trials: when first witness is sworn in.



1) OK after reversal due to trial error.

2) NOT OK after reversal due to insufficiency of evidence.

3) OK after mistrial if there is manifest necessity to declare mistrial:
-judge or juror sickness
-the jury hangs
-defendant moves for mistrial.
-BUT if prosecution moves for mistrial due to inability to locate witness, DJ will attach.


What can prosecution appeal?

= any determine not related to innocence:
1) orders dismissing indictments
2) orders suppressing evidence
3) post verdict new trial
4) bail determinations
5) sentences (even more severe is ok).


Factors for determining curtilage of home

1) proximity to home
2) whether or not included in enclosure
3) nature of the use
4) steps taken to protect


Defendant right to attach warrant

Can show by PoE that affidavit:
1) contained false statements made knowingly, intentionally, or with reckless disregard for truth;
2) false statements were necessary to finding of probable cause.


Requirements of wiretapping warrant

1) limited to short time period
2) probable cause
3) name of person(s) involved
4) description of conversations overheard
5) provisions for termination


Conditions to administer antipsychotic drugs for competency to stand trial

1) no serious side effects affecting fairness of trial;
2) necessary, no less instrusive method;
3) medically appropriate.


NY: prosecutor failure to disclose

Grounds for due process violation if failure had a "reasonable possibility" of contributing to verdict.


Violations of 8th amendment

1) recidivist statutes specifying death penalty for non-violent felonies.
2) jail sentence merely for inability to pay fine.
3) failure to admit or review mitigating evidence in death penalty.
4) death penalty in rape cases if victim is woman or child.
5) death penalty in felony-murder case where defendant did not intent deadly force.
6) death penalty for insane people or the mentally retarded.
7) death penalty for person under 18 at time of commission of crime.


Death penalty

Statutory scheme MUST provide:
1) clear and objective standards;
2) specific and detailed guidance;
3) opportunity for rational review.

* Aggravating circumstances in homicide crimes must be:
1) not apply to every defendant convicted of murder;
2) not unconstitutionally vague.

* sentencing proceed reqts:
1) channel of limit discretion.
2) must consider relevant mitigating evidence.