Criminal Procedure: Grab bag stuff

Question 1

What are substantive federal challenges to pretrial identifications?

Answer 1

1. 5th Amend.: NO right to counsel for pretrial ID

2. 6th Amend.: right to counsel at line-ups and show-ups that take place after formal charging

Question 2

What is the NY pre-trial ID protection?

Answer 2

Right to attorney present at line-up conducted before filing of charges if police aware D has counsel AND D requests counsel’s presence

Question 3

What is the due process pretrial ID standard?

Answer 3

Violates due process if so unnecessarily suggestive there is substantial likelihood of misidentification

Question 4

What happens if constitutional violation in pretrial ID?

Answer 4

Witness’s in-court ID excluded

Prosecution can avoid by proving ID based on observations of suspect other than unconstitutional pretrial ID

Question 5

What do grand juries do?

Answer 5

Issue indictments; proceedings nonpublic; states need not use as part of charging process

NY: indictments must establish ALL elements of the offense AND provide reasonable cause to believe accused committed crime in question

Question 6

When are pretrial detention hearings unnecessary

Answer 6

1. Grand jury issued indictment OR

2. Magistrate issued arrest warrant

Question 7

What does the right to an unbiased judge mean?

Answer 7

1. No financial stake in outcome of case AND

2. No actual malice towards D

Question 8

When does the D have a right to a jury trial?

Answer 8

When maximum authorized sentence exceeds 6 months

Question 9

What is the fewest possible number of criminal jurors you can have?

Answer 9

6 (then must be unanimous)

12-person juries need not be unanimous

Question 10

What is the NY minimum number of jurors?

Answer 10

D can waive 12-person jury requirement and proceed to verdict with only 11 jurors participating

Question 11

What are the cross sectional requirements for jurors?

Answer 11

POOL from which jury drawn represents cross-section of community

Question 12

What do you have to show that your counsel has been ineffective?

Answer 12

Requires proof that

1. Counsel’s performance was deficient AND
2. But for deficiency, outcome of trial would have been different

Unless colorable argument D is innocent, always denied relief

Question 13

What must there be for a guilty plea to be valid?

Answer 13

Judge must establish it is voluntary and intelligent, addressing in open court, on the record:

1. Nature of charge AND
2. Consequences of the plea

Question 14

When may defendant withdraw a guilty plea after sentencing?

Answer 14

1. Plea is involuntary due to defect in plea-taking colloquy
2. Jurisdictional defect
3. D prevails on claim of ineffective assistance of counsel
4. Prosecutor fails to fulfill his part of bargain

Question 15

What does 8th Amend. prohibit?

Answer 15

Criminal penalties grossly disproportionate to seriousness of offense committed

Question 16

When is death penalty violative of 8th Amend.?

Answer 16

When creates automatic category for imposition of death penalty

Jurors must be allowed to consider ALL potentially mitigating evidence in deciding death penalty

Question 17

Against whom does 8th Amend. prohibit imposition of death penalty?

Answer 17

1. Mentally retarded
2. Presently insane
3. Under 18 at time offense occurred