Criminal Procedure (Delaware) Flashcards
(115 cards)
1
Q
Search and Seizure: Government Conduct - Agents Who Fall Under Search and Seizure Action
A
1) Publicly paid police, on or off duty,
2) Private citizens acting under the direction of police,
3) Private security that has been deputized with the power to arrest, and
4) Public school administrators
2
Q
Search and Seizure: Areas or Items Protected by the Fourth Amendment
A
The Fourth Amendment expressly protects individuals from UNREASONABLE searches and seizures of their:
1) Persons (their bodies),
2) Houses (includes hotel rooms and curtilage),
3) Papers (e.g., personal correspondence), and
4) Effects (personal belongings, e.g., purses, backpacks, and cars)
3
Q
Search and Seizure: Areas or Items Protected by the Fourth Amendment - Unprotected Items
A
The following carry NO Fourth Amendment protections because they are sufficiently public in nature that they have no privacy interest (Mnemonic: Public Observation Generally Obliterates Fourth Amendment Protection):
1) Physical characteristics (e.g., voice or handwriting)
2) Odors (e.g., from car or luggage)
3) Garbage (left out on the curb)
4) Open fields (anything that can be seen in or across the open fields)
5) Financial records held by bank
6) Airspace (seen below when flying over public airspace)
7) Pen registers
4
Q
Search and Seizure: Implication of Fourth Amendment - Trespass-Based Test
A
The agent PHYSICALLY INTRUDED on a constitutionally PROTECTED AREA in order to obtain information.
5
Q
Search and Seizure: Implication of Fourth Amendment - Privacy-Based Test
A
The agent’s search or seizure of a constitutionally protected area violated an individual’s REASONABLE EXPECTATION OF PRIVACY. An individual must show the following:
1) An ACTUAL or SUBJECTIVE expectation of privacy in the area searched or items seized, AND
2) That the privacy expectation was one that “society recognizes as reasonable” (OBJECTIVE)
6
Q
Search and Seizure: Implication of Fourth Amendment - Privacy-Based Test - Advanced Technology Used To Search
A
A police search is presumptively UNREASONABLE when it uses a device that is not in public use to explore details of the home that officers could not have known without physical intrusion (e.g., thermal imaging device)
7
Q
Search and Seizure: Implication of Fourth Amendment - Standing to Challenge Search (Third Parties)
A
To have authority or standing to challenge the lawfulness of a search or seizure, an individual’s PERSONAL privacy must be invaded, NOT THOSE OF A THIRD PARTY.
8
Q
Search and Seizure: Warrants - Statutory Requirements for Valid Warrant
A
An application for a search warrant must:
1) Be in WRITING,
2) Be SIGNED by the complainant, and
3) Be VERIFIED by oath or affirmation.
9
Q
Search and Seizure: Warrants - Nighttime Searches
A
A warrant cannot authorize a search of a dwelling UNLESS the magistrate who authorized the search thought it was necessary to prevent escape of the person or removal of the thing to be searched.
10
Q
Search and Seizure: Warrants - Neutral and Detached Magistrate
A
A judicial officer ceases to be sufficiently “neutral and detached” for Fourth Amendment purposes when their conduct demonstrates IN FAVOR OF THE PROSECUTION.
11
Q
Search and Seizure: Warrants - Two Elements
A
For a warrant to be valid, it must have 1) probable cause and 2) particularity.
12
Q
Search and Seizure: Warrants - Probable Cause
A
Probable cause requires proof of a “fair probability” that contraband or evidence of a crime will be found in the area searched.
13
Q
Search and Seizure: Warrants - Probable Cause - Test to Use Informants Information
A
Information from informants may be used based on magistrates COMMON SENSE PRACTICAL DETERMINATION that probable cause exists based on a TOTALITY OF THE CIRCUMSTNACES.
14
Q
Search and Seizure: Warrants - Probable Cause - Special Delaware Rule for Supplemental Information of an Affidavit
A
In Delaware, a judge will determine whether a search warrant satisfies probable cause based on the FOUR CORNERS OF THE AFFIDAVIT, oral supplementation is NOT PERMITED.
15
Q
Search and Seizure: Warrants - Particularity
A
To satisfy the particularity requirement, the affidavit MUST include 1) the PLACE TO BE SEARCHED, and 2) ITEMS TO BE SEIZED.
16
Q
Search and Seizure: Warrants - Good Faith Exception
A
In some states, a warrant that is invalid due to the absence of probable cause or particularity can still be saved if the officer relied on it in GOOD FAITH.
DELAWARE DOES NOT FOLLOW THE GOOD FAITH DOCTRINE.
17
Q
Search and Seizure: Warrant Execution - Warrant’s Terms and Limitations
A
In executing a warrant, officers are allowed to search only those AREAS and ITEMS authorized by the language of the warrant, and any contraband they discover in the valid execution.
18
Q
Search and Seizure: Warrant Execution - Search of Persons Found on Premises
A
When executing a search warrant, officers MAY DETAIN occupants found within or immediately outside the premises at the time of the search.
19
Q
Search and Seizure: Warrant Execution - Knock and Announce Rule + Exceptions
A
This requires the police to announce their PRESENCE and PURPOSE before entering the premise, UNLESS the officer REASONABLY believes doing so would:
1) be futile or dangerous, or
2) Inhibit investigation
20
Q
Search and Seizure: Exceptions to the Warrant Requirement (List)
A
(ESCAPIST):
1) Exigent Circumstances,
2) Search Incident to Lawful Arrest,
3) Consent,
4) Automobile,
5) Plain View,
6) Inventory,
7) Special Needs,
8) Terry Stops (Stop and Frisks)
21
Q
Search and Seizure: Exceptions to the Warrant Requirement - Exigent Circumstances - Evanescent Evidence + Alcohol in Blood
A
Evanescent evidence is evidence that MIGHT DISSIPATE OR DISSAPEAR QUICKLY if the police took the time to get a warrant.
Note: The natural dissipation of alcohol in the blood stream DOES NOT automatically create an exigency sufficient to justify a warrantless blood alcohol content test.
22
Q
Search and Seizure: Exceptions to the Warrant Requirement - Hot Pursuit of a Fleeing Felon
A
Hot pursuit allows police officers to enter the home of a suspect or a third party to search for a fleeing felon, and ANY EVIDENCE discovered in PLAIN VIEW while searching for the suspect is ADMISSIBLE.
23
Q
Search and Seizure: Exceptions to the Warrant Requirement - Emergency Aid/Community Caretaker
A
A police officer may enter a residence without a warrant if there is an OBJECTIVELY REASONABLE basis for believing that a person inside is in need of emergency aid to address or prevent injury (NOT REQUIRED TO BE LIFE THREATENING)
24
Q
Search and Seizure: Exceptions to the Warrant Requirement - Search Incident to Lawful Arrest
A
Incident to a lawful arrest, the police may search the PERSON and AREAS INTO WHICH THEY MIGHT REACH TO OBTAIN WEAPONS OR DESTROY EVIDENCE (i.e., wingspan)
25
Search and Seizure: Exceptions to the Warrant Requirement - Search Incident to Lawful Arrest - Timing and Scope
The search must be CONTEMPORANEOUS in time and place with the arrest and the PERSON AND AREAS WITHIN THE PERSON'S WINGSPAN, including body, clothing, and any bags and containers within arrestee's immediate control.
26
Search and Seizure: Exceptions to the Warrant Requirement - Search Incident to Lawful Arrest - Contemporary Balancing Test
With respect to modern things that can be searched, the SCOTUS balances the degree to which the search incident to arrest INTRUDES UPON A PERSON'S PRIVACY against the degree to which the search is needed to promote LEGITIMATE GOVERNMENT INTEREST. (e.g., Cell Phones (may not search data), DNA (may take DNA swab), Sobriety Tests (may take breath not blood)).
27
Search and Seizure: Exceptions to the Warrant Requirement - Search Incident to Lawful Arrest - Automobiles Searched Incident to Custodial Arrest
The police may conduct a search of the passenger cabin, including closed containers, BUT NOT THE TRUNK.
28
Search and Seizure: Exceptions to the Warrant Requirement - Search Incident to Lawful Arrest - Automobiles Search (Secured v. Unsecured Arrestees)
Secured Arrestee - The officer can only search the arrestee's vehicle if the officer has reason to believe the vehicle may contain evidence RELATING TO THE CRIME FOR WHICH THE ARREST WAS MADE
Unsecured Arrestee - The police may search an automobile incident to arrest if the arrestee is UNSECURED and STILL MAY GAIN ACCESS TO THE INTERIOR OF THE VEHICLE.
29
Search and Seizure: Exceptions to the Warrant Requirement - Consent
A warrantless search is valid if the police have a VOLUNTARY CONSENT, regardless if the individual knows they have the right to refuse consent.
30
Search and Seizure: Exceptions to the Warrant Requirement - Consent - Scope
The scope of the search may be limited to what was consented, but generally consent to a search extends to ALL AREAS which a REASONABLE OFFICER would believe permissible
31
Search and Seizure: Exceptions to the Warrant Requirement - Consent - Apparent Authority
An individual who has APPARENT authority to give consent is ENOUGH to allow for a search, ACTUAL authority is not required.
32
Search and Seizure: Exceptions to the Warrant Requirement - Consent - Inconsistent Consent with Shared Premises
If co-tenants who are BOTH PRESENT disagree regarding consent to search the common areas, the OBJECTING PARTY PREVAILS over areas with which they share dominion and control, HOWEVER if removed due to lawful arrest, police can rely on consent of remaining co-tenant.
33
Search and Seizure: Exceptions to the Warrant Requirement - Automobile Exception
If police have PROBABLE CAUSE to believe that a vehicle contains evidence of a crime, they MAY SEARCH THE WHOLE VEHICLE and ANY CONTAINER that might REASONABLY CONTAIN the item for which they had probable cause to search.
34
Search and Seizure: Exceptions to the Warrant Requirement - Automobile Exception - Curtilage
The automobile exception DOES NOT APPLY to vehicles on the CURTILAGE of a home.
35
Search and Seizure: Exceptions to the Warrant Requirement - Plain View
The police may make a warrantless seizure of an item in plain view if the following requirements are met: 1) the police have LAWFUL ACCESS TO THE PLACE from which the item can be seen, 2) the police have LAWFUL ACCESS TO THE ITEM, and 3) the criminality of the item is IMMEDIATELY APPARENT.
36
Search and Seizure: Exceptions to the Warrant Requirement - Inventory Searches (Types + Requirements)
Inventory searches may occur in either: (1) arrestee when they are booked into jail, and (2) vehicles when they are impounded.
Inventory searches are constitutional provided:
1) the regulations governing them are REASONABLE in scope,
2) the search itself complies with those regulations, and
3) the search is conducted in GOOD FAITH - motivated solely by the need to safeguard the owner's possessions and/or to ensure officer safety.
37
Search and Seizure: Exceptions to the Warrant Requirement - Terry Stops (Stop and Frisk)
A Terry Stop is a BRIEF detention or SEIZURE for the purpose of INVESTIGATING SUSPICIOUS CONDUCT. These can take place ANYWHERE.
38
Search and Seizure: Exceptions to the Warrant Requirement - Terry Stops (Stop and Frisk) - Permissible Length (Delaware Rule)
Under Delaware law, the stop must be concluded WITHIN 2 HOURS, at which time an officer must either arrest the suspect or let them go.
39
Search and Seizure: Terry Stops - When a Seizure Occurs
An individual is seized under Fourth Amendment purposes when, based on a TOTALITY OF THE CIRCUMSTANCES, a REASONABLE PERSON would not feel free to leave OR to decline an officer's request to answer questions.
Factors to consider: 1) whether the officer brandishes a weapon, 2) the officer's tone and demeanor, and 3) whether the individual was told they had the right to refuse consent.
40
Search and Seizure: Terry Stops - When a Seizure Occurs - Police Pursuit
When being pursued by a police officer, an individual is seized ONLY if the individual submits to the officer's authority by stopping or if the officer physically restrains them.
41
Search and Seizure: Terry Stops - Traffic Stops (Who is Seized + Dog Sniffs)
In a traffic stop, both the driver and passenger are seized, such that EITHER can challenge the legality of the stop, though an officer may legally order both out of the car.
Dog sniffs at stops are PERMISSIBLE provided the sniff does not prolong the stop, and an alert by the dog will provide PROBABLE CAUSE.
42
Search and Seizure: Terry Stops - Frisks
Terry frisk is a PATDOWN of the outer clothing and body to check for WEAPONS that is justified by an officer's belief that a suspect is armed and dangerous
43
Search and Seizure: Terry Stops - What Can Be Seized in a Terry Frisk
If an officer finds something he reasonably believes to be a WEAPON, or CONTRABAND WITHOUT MANIPULATING THE OBJECT, the officer can seize it.
44
Search and Seizure: Terry Stops - Car Frisks
When conducting a traffic stop, if an officer believes that a suspect is dangerous, the officer MAY search the PASSENGER CABIN of the suspect's vehicle, limited to those areas in which a weapon may be placed or hidden.
45
Search and Seizure: Terry Stops - Protective Sweep
When making an in-home arrest, police may "SWEEP" the residence to look for criminals whose presence may threaten the officer's safety.
46
Search and Seizure: Terry Stops - Evidentiary Standard for Stop
The evidentiary standard for Terry stops and frisks is REASONABLE SUSPICION, which is less than probable cause, meaning for stops, the officer must have REASONABLE GROUND to believe a person is committing, has committed, or is about to commit a crime.
47
Search and Seizure: Terry Stops - Limit of Officer's Questioning in Delaware + Consequence of Refusal to Give Information
Under Delaware law, the officer may demand the person's name, address, and destination. Failure to provide this information justifies further detention and questioning.
48
Search and Seizure: Terry Stops - Evidentiary Standard for Frisk
An officer must have REASONABLE GROUND to believe the person stopped POSSESS A DANGEROUS WEAPON.
49
Search and Seizure: Special Needs Searches
Searches that meet the special needs of law enforcement, governmental employers, and school officials BEYOND A GENERAL INTEREST IN LAW ENFORCEMENT.
50
Search and Seizure: Special Needs - Drug Testing
Warrantless, suspicionless drug tests are permitted in a variety of contexts, including the following: (i) railroad employees, following an impact accident, (ii) customs agents responsible for drug interdiction, and (iii) public schoolchildren who participate in ANY extracurricular activities.
51
Search and Seizure: Special Needs - Parolees
Warrantless, suspicionless searches of parolees and their homes are permissible as a condition of parole.
52
Search and Seizure: Special Needs - School Searches
Warrantless searches of the person and effects of public school children are permissible provided the search is REASONABLE and NOT EXCESSIVELY INTRUSIVE.
53
Search and Seizure: Special Needs - Government Employees
Warrantless searches of government employees' DESKS and FILE CABINETS are permissible provided the searches are REASONABLE at their inception and scope.
54
Search and Seizure: Special Needs - Border Searches
Neither citizens nor non-citizens have ANY Fourth Amendment rights at the border with respect to ROUTINE searches of persons and effects.
55
Search and Seizure: Special Needs - Non-Law Enforcement Primary Purpose Test
The "special needs" doctrine does NOT INCLUDE law enforcement programs whose PRIMARY PURPOSE is to gather criminal evidence for general use by law enforcement (e.g., car checkpoint to look for drugs)
56
***Use of Evidence in Court: Exclusionary Rule (Federal)
Evidence that is obtained - physical or testimonial - in violation of a federal statutory or constitutional provision is INADMISSIBLE in court against the individual whose rights were violated.
57
Use of Evidence in Court: Exclusionary Rule (Delaware)
In Delaware, the exclusionary rule applies to evidence gathered in a STATUTORY ILLEGAL ARREST that otherwise complies with federal constitutional requirements.
58
Use of Evidence in Court: Limits on Exclusionary Rule - Case in Chief v. Cross-Examination
Unconstitutionally obtained evidence is excluded from the prosecutor's CASE IN CHIEF ONLY. It MAY BE USED TO IMPEACH the defendant's testimony on cross-examination.
59
Use of Evidence in Court: Limits on Exclusionary Rule - Knock and Announce Rule (Delaware)
Delaware has NOT RECOGNIZED the SCOTUS's exception that failure to comply with knock and announce DOESN'T require suppression of evidence. Therefore, a violation of knock and announce in Delaware may make the evidence found inadmissible.
60
Use of Evidence in Court: Limits on Exclusionary Rule - Police Error
The exclusionary rule DOES NOT APPLY when police arrest someone erroneously but in good faith. To trigger the exclusionary rule, the police must have acted RECKLESSLY, DELIBERATE, or GROSSLY NEGLIGENT.
61
Use of Evidence in Court: Limits on Exclusionary Rule - Officer's Reasonable Mistakes
The exclusionary rule DOES NOT APPLY to evidence obtained erroneously when executing a search warrant, provided an officer's mistake was REASONABLE.
62
Use of Evidence in Court: Fruit of the Poisonous Tree Doctrine
Evidence found INDIRECTLY from an unconstitutional search may be INADMISSIBLE for the prosecutor's case in chief.
63
Use of Evidence in Court: Fruit of the Poisonous Tree Doctrine - Admitting Tainted "Fruit"
To nullify "fruit of the poisonous tree," prosecutors must show a BREAK IN THE CAUSAL LINK between the illegality and the criminal evidence that is later discovered. The following doctrines can achieve the required break:
1) Independent Source
2) Inevitable Discovery
3) Intervening Cause
4) Attenuation (the passage of time, intervening events, and non-flagrant nature of the misconduct "purged the taint" of the original illegality
64
Arrests: When An Arrest Occurs + De Facto Arrests
An arrest occurs when the police take a person into custody against their will for purposes of criminal prosecution or interrogation.
It is considered a DE FACTO arrest when the police compel someone to come to the police station for questioning or fingerprinting.
65
Arrests: Evidentiary Standard
An arrest must be based on PROBABLE CAUSE, which is based on the TOTALITY OF THE CIRCUMSTNACES
66
Arrests: When is an Arrest Warrant Needed
An arrest warrant IS NOT NEEDED to arrest in a public place.
An arrest warrant IS NEEDED to arrest someone in their home.
An arrest warrant AND search warrant is needed to arrest someone in a third party's home.
67
Arrests: Offenses Where a Warrantless Arrest is Permissible (Delaware)
1) When a crime has been committed in their PRESENCE; and
| 2) When they have PROBABLE CAUSE to believe the person COMMITTED A FELONY.
68
Confessions: Fourteenth Amendment Voluntariness Standard
To exclude a confession a suspect must show it their statement was made INVOLUNTARY, meaning a PRODUCT OF POLICE COERCION.
69
Confessions: Sixth Amendment Right to Counsel - When Attached
The Sixth Amendment attaches when the defendant is FORMALLY CHARGED, not upon arrest.
70
Confessions: Sixth Amendment Right to Counsel - Offense Specific
The 6A applies ONLY to the crimes with which a defendant is FORMALLY CHARGED. It provides NO PROTECTION for uncounseled interrogation for other uncharged criminal activity.
71
Confessions: Sixth Amendment Right to Counsel - Standard + Waiver
Statements obtained from the defendant may violate the 6a if they are DELIBERATELY ELICITED and the defendant DID NOT KNOWINGLY, INTELLIGENTLY, and VOLUNTARILY waive the right to have an attorney present.
72
Confessions: Fifth Amendment Privilege Against Self-Incrimination - Miranda Warnings
For an admission of confession to be admissible, a person in custody must be informed in substance that the person:
1) has the RIGHT TO REMAIN SILENT,
2) anything they say MAY BE USED AGAINST THEM,
3) has the right to an ATTORNEY, and
4) if they cannot afford an attorney, the court will provide them with one if they desire.
73
Confessions: Fifth Amendment Privilege Against Self-Incrimination - Miranda Warnings - When Is It Required
Miranda warnings are required when a suspect is in a CUSTODIAL INTERROGATION.
74
Confessions: Fifth Amendment Privilege Against Self-Incrimination - Miranda Warnings - Custody Requirement
A suspect is in custody for Miranda purposes if, under a TOTALITY OF THE CIRCUMSTANCES, they: (i) were NOT AT LIBERTY TO END the interrogation and (ii) the environment presents INHERENTLY COERCIVE PRESSURES
75
Confessions: Fifth Amendment Privilege Against Self-Incrimination - Miranda Warnings - Interrogation Requirement
Interrogation occurs when the police knew their words or conduct would be LIKELY TO ELICIT AN INCRIMINATING RESPONSE.
76
Confessions: Fifth Amendment Privilege Against Self-Incrimination - Public Safety Exception
If custodial interrogation is prompted by an immediate concern for public safety, Miranda warnings are UNNECESSARY and any incriminating statements are ADMISSIBLE AGAINST THE SUSPECT.
77
Confessions: Fifth Amendment Privilege Against Self-Incrimination - Valid Miranda Rights Waiver
To be a valid waiver of Miranda rights, the government must show by a preponderance of the evidence that the waiver was KNOWING AND VOLUNTARY
For knowing - suspect must understand the NATURE of the rights and the CONSEQUENCES of abandoning them
For voluntary - must not be a product of POLICE COERCION.
78
Confessions: Fifth Amendment Privilege Against Self-Incrimination - Special Delaware Rule for Suspect's Rights If Attorney Is Waiting at the Police Station
If an attorney is at the police station waiting to see the suspect, and police INTENTIONALLY or NEGLIGENTLY fail to inform the suspect of that fact, a WAIVER of the right to counsel is INVALID.
79
Confessions: Fifth Amendment Privilege Against Self-Incrimination - Implied Waiver of Miranda Rights
A Miranda waiver may be IMPLIED by aa course of conduct that indicates the suspect desires to speak with interrogators after receiving and understanding Miranda rights.
80
Confessions: Fifth Amendment Privilege Against Self-Incrimination - Invoking Right to Remain Silent + Police Conduct After Invocation
To be an effective invocation of the right to silence, the suspect must UNAMBIGUOUSLY express their wish to remain silent.
If requested, the police must SCRUPUOUSLY HONOR this request by not badgering a suspect into talking and must wait a SIGNIFICANT PERIOD OF TIME before reinitiating questioning and MUST FIRST OBTAIN A VALID WAIVER.
81
Confessions: Fifth Amendment Privilege Against Self-Incrimination - Invoking Right to an Attorney - Police Conduct After Invocation
The request to counsel must be UNAMBIGUOUSLY CLEAR.
Interrogation MUST CEASE unless initiated by suspect.
82
Confessions: Fifth Amendment Privilege Against Self-Incrimination - Invoking Right to an Attorney - Is This Offense Specific?
NO, unlike 6A, the right to counsel is NOT OFFENSE SPECIFIC, therefore interrogation following a request for counsel under Miranda is PROHIBITED as to ALL TOPICS outside the presence of a suspect's attorney.
83
Confessions: Fifth Amendment Privilege Against Self-Incrimination - Invoking Right to an Attorney - Duration of Prohibition
The request for counsel expire 14 DAYS after suspect is released from custody.
84
Confessions: Fifth Amendment Privilege Against Self-Incrimination - Limitations on Evidentiary Exclusion as Applied to Miranda Violations
Statements obtained in violation of the Miranda rules are INADMISSIBLE in the prosecutor's case-in-chief but MAY BE USED TO IMPEACH the defendant's trial testimony.
85
***Confessions: Fifth Amendment Privilege Against Self-Incrimination - Nontestimonial Fruits of an Unwarned Confession
Failure to give a suspect Miranda warnings DOES NOT require the suppression of the physical fruits of incriminating statements, provided the statements are VOLUNTARY
86
Confessions: Fifth Amendment Privilege Against Self-Incrimination - Statements Made After Violation of Miranda and Waiver
If a statement is inadmissible due to a Miranda violation, SUBSEQUENT incriminating statements made AFTER OBTAINING A MIRANDA WAIVER are admissible, provided the initial non-Mirandized statement was not obtained through the use of police coercion.
87
Confessions: Fifth Amendment Privilege Against Self-Incrimination - Harmless Error
If testimonial evidence that should have been excluded from a Miranda violation was improperly admitted at trial, the guilty verdict MAY STAND if the government can prove, beyond a reasonable doubt, that the ERROR WAS HARMLESS because the defendant would have been convicted without the statement
88
Confessions: Pretrial Identification - Types
1) Lineups,
2) Show ups, and
3) Photo Arrays
89
Confessions: Pretrial Identification - Substantive Challenges
1) Denial of Right to Counsel - while no 5A right to counsel under Miranda for pretrial identification, BUT it does apply to 6A AT LINEUPS AND SHOWUPS, BUT NOT PHOTO ARRAYS
2) Violation of Due Process - a pretrial identification will violate due process that it is so UNECESSARILY SUGGESTIVE that it creates a SUBSTANTIAL LIKELIHOOD OF MISIDENTIFICATION
90
Confessions: Pretrial Identification - Remedy + Exceptions
The remedy for unconstitutional identifications is EXCLUSION of the witness's in-court identification, UNLESS the identification has an INDEPENDENT SOURCE by pointing to facts such as:
1) the witness's OPPORTUNITY TO VIEW THE DEFENDANT at the crime scene,
2) the SPECIFICITY of the description given to the police,
3) the CERTAINTY of the witness's identification
91
Pretrial Proceedings: When is Bail Unavailable (Special Delaware Rule)
Bail is unavailable when the defendant is charged with FIRST DEGREE MURDER and the DEATH PENALTY is sought.
92
Pretrial Proceedings: Preliminary Hearing (Special Delaware Timing)
A preliminary hearing is an informal hearing, held NO MORE THAN 20 DAYS AFTER ARREST (or 10 days for those denied bail) to determine whether there is PROBABLE CAUSE that the defendant committed the charged offense.
93
Pretrial Proceedings: Joinder of Offenses in Delaware
Two or more offenses may be charged in the same indictment if the offenses charged are of the SAME OR SIMILAR CHARACTER or are based on the SAME ACT OR TRANSACTION.
94
Pretrial Proceedings: Joinder of Defendants
Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the SAME ACT OR TRANSACTION or in the SAME SERIES OF ACTS OR TRANSACTIONS consulting an offense or offenses.
95
Pretrial Proceedings: Relief from Prejudicial Joinder
If it appears that a defendant or the state is PREJUDICED by a joinder of offenses or defendants, the court MAY order an election or separate trial of counts, grant a severance of defendants, or provide whatever other relief justice requires.
96
Trial Rights and Rules: Speedy Trial Right + Standards for Violation
ALL CRIMINAL DEFENDANTS have the 6A right to a speedy trial. In determining whether a defendant's right was violated, there will be an evaluation of the TOTALITY OF THE CIRCUMSTANCES of the following:
1) LENGTH of delay,
2) REASON for delay, and
3) PREJUDICE to the defendant
97
Trial Rights and Rules: Prosecutor's Duty to Disclose Exculpatory Evidence + Delaware Rule 16
Generally, Prosecutor's are required to disclose to a criminal defendant all MATERIAL, EXCULPATORY EVIDENCE, meaning evidence that is: (i) FAVORABLE to the defendant, and (ii) PREJUDICE HAS RESULTED from not disclosing
However, in Delaware, prosecutor's are required to disclose the following in discovery:
1) Prior statements of defendant or co-defendant
2) Prior criminal record
3) Examinations and Tests
4) Expert Witnesses
5) Collection and Preservation of Evidence, and
6) Production of Witness Statements (Jencks Act)
98
Trial Rights and Rules: Delaware Evidentiary Rules At Trial - Introduction of Co-Defendant's Confession (Bruton Rule)
A co-defendant's confession naming the defendant as a participant in the crime CANNOT be introduced at their joint trial, UNLESS:
1) all portions that referred to the defendant are ELIMINATED, or
2) the co-defendant takes the stand and subjects themselves to CROSS-EXAMINATION.
99
Trial Rights and Rules: Delaware Evidentiary Rules At Trial - Prior Statements by Recanting Witness
Voluntary, out-of-court statements of a witness who is PRESENT and SUBJECT TO CROSS-EXAMINATION may be used as affirmative evidence with independent testimonial value.
100
Trial Rights and Rules: Delaware Rules for Juries - Right to Jury Trial
The right to jury trial ATTACHES WHENEVER JAIL TIME IS POSSIBLE, also BOTH defense and prosecution have the right to a jury trial, therefore a bench trial will only result if both parties waive the right to trial by jury
101
Trial Rights and Rules: Delaware Rules for Juries - Number of Jurors + Unanimity
The requisite number of jurors in ALL CRIMINAL TRIALS in Delaware are 12 and the verdicts MUST BE UNANIMOUS
102
Trial Rights and Rules: Delaware Rules for Juries - Cross Sectional Requirement
The POOL from which the jury is drawn MUST REPRESENT A CROSS-SECTION OF THE COMMUNITY, however, the actual jurors selected need not be representative.
103
Trial Rights and Rules: Delaware Rules for Juries - Number of Preemptory Challenges
In Delaware, EACH SIDE is entitled to 6 preemptory challenges in a non-capital case.
104
Trial Rights and Rules: Delaware Rules for Counsel - Test for Ineffective Assistance of Counsel
Claims of ineffective assistance of counsel are subject to the following prongs:
1) DEFICIENCY - defendant must show that counsel's performance fall below an OBJECTIVE standard of reasonableness
2) PREJUDICE - "but for" the deficiency, the OUTCOME WOULD HAVE BEEN DIFFERENT.
105
Trial Rights and Rules: Delaware Rules for Jury Instructions - Motion for New Trial (Rule 33) - Based on Newly Discovered Evidence
A motion for a new trial based on NEWLY DISCOVERED EVIDENCE that could not have been discovered before may be made within 2 YEARS after entry of final judgment.
106
Trial Rights and Rules: Delaware Rules for Jury Instructions - Motion for New Trial (Rule 33) - Based on Any Other Ground
A motion for a new trial in the interest of justice based on ANY OTHER GROUND must be made WITHIN 7 DAYS after the verdict is entered.
107
Trial Rights and Rules: Delaware Rules for Juvenile Court Proceedings - General Rule for Under 18 Defendant + Exceptions
If someone under 18 years old is charged with a crime, the case is HEARD IN FAMILY COURT as a CIVIL DELINQUENCY PROCEEDING.
Exceptions that will charge a minor as an adult: (i) first or second degree murder, (ii) first or second degree rape, and (iii) assault, robbery, or kidnapping in the first degree.
108
Trial Rights and Rules: Delaware Rules for Juvenile Court Proceedings - Amenability Hearings + Reverse Amenability Hearings
Family courts lack jurisdiction who are NOT AMENABLE to the rehabilitative processes available in court.
In any case in which the Superior Court has jurisdiction, it may transfer the case to Family Court if, in its opinion, the interest would be best served by such transfer by considering the following: (i) nature of the offense, (ii) defendant's prior record, (iii) nature of past treatment and rehabilitative efforts and defendant's response, and (iv) interest of society.
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Trial Rights and Rules: Delaware Rules for Juvenile Court Proceedings - Sentencing
It is UNCONSTITUTIONAL to impose the DEATH PENALTY on defendants under the age of 18 AT THE TIME THE OFFESNE OCCURED, or MANDATORY LIFE IN PRISON WITHOUT THE POSSIBILITY OF PAROLE
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Trial Rights and Rules: Plea Agreements - Requirements of Valid Plea Agreement
For a guilty plea to be valid, the judge MUST ESTABLISH that it is VOLUNTARY AND INTELLIGENT
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Trial Rights and Rules: Plea Agreements - Nolo Contendere Plea (Robinson Plea in Delaware)
With the consent of the court, a defendant may plead nolo contendere, meaning guilty WITHOUT ADMITTING the essential facts of the offense charged.
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Trial Rights and Rules: Plea Agreements - Rule 11 Colloquy
Before accepting the plea, the judge MUST CONDUCT A COLLOQUY in OPEN COURT in which the judge addresses the following 3 major issues:
1) the NATURE OF THE CHARGES,
2) any MANDATORY MINIMUM AND MAXIMUM PENALTY, and
3) the CONSEQUENCES of the plea.
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Trial Rights and Rules: Plea Agreements - Withdrawing the Plea
A defendant withdrawing a plea is VERY UNLIKELY, but may do so if:
1) there was a DEFECT IN RULE 11 COLOQUY and
2) INEFFECTIVE ASSISTANCE of counsel
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Trial Rights and Rules: Sentencing - Mandatory Presentence Report (Rule 32(c))
The mandatory presentence report MUST contain the following information:
1) defendant's PRIOR CRIMINAL RECORD, FINANCIAL CONDITION, and any relevant circumstances affecting behavior,
2) sentencing RANGE, and
3) a VICTIM IMPAC STATEMENT
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Trial Rights and Rules: Sentencing - Correction of Reduction of Sentence (Rule 35) + Reduction
A defendant may move to correct an ILLEGAL sentence at ANY TIME.
A defendant may move to reduce a sentence WITHIN 90 DAYS after the sentence is imposed.
