Criminal Procedure (MBE) Flashcards
(124 cards)
1
Q
Fourth Amendment: Search and Seizure
A
4A protects from unreasonable searches and seizures
2
Q
Fourth Amendment: Seizure
A
A seizure occurs when, under the totality of the circumstances, a REASONABLE PERSON would feel that they were NOT FREE to decline the officer’s request or terminate the encounter.
3
Q
Fourth Amendment: Arrest
A
An arrest occurs when the police take a person INTO CUSTODY AGAINST THEIR WILL for purposes of prosecution or interrogation.
4
Q
Fourth Amendment: Arrests - Probable Cause
A
An arrest MUST be based on PROBABLE CAUSE
5
Q
Fourth Amendment: Arrests - Warrant
A
Generally, a warrant IS NOT REQUIRED to make an arrest, UNLESS inside a person’s home.
6
Q
**Fourth Amendment: Terry Stops + Frisk
A
Despite NO PROBABLE CAUSE, police can detain person for INVESTIGATORY PURPOSES if REASONABLE SUSPICION of criminal activity supported by ARTICULABLE FACTS.
If the police have a reasonable suspicion the detainee is ARMED AND DANGEROUS, they MAY FRISK the detainee for weapons.
7
Q
Fourth Amendment: Terry Stops - Reasonable Suspicion Standard
A
Reasonable suspicion is MORE THAN vague suspicion but LESS THAN probable cause, it depends on the TOTALITY OF CIRCUMSTNACES.
8
Q
Fourth Amendment: Terry Stops - Duration and Scope
A
Police must act in a DILIGENT AND REASONABLE manner in confirming or dispelling their suspicions.
9
Q
Fourth Amendment: Automobile Stops
A
Police may stop a car if they have REASONABLE SUSPICION that a law has been violated.
10
Q
Fourth Amendment: Automobile Stops - Police Dogs
A
A dog sniff IS NOT A SEARCH, but if the dog alerts to the presence of drugs, it can form PROBABLE CAUSE to search.
11
Q
Fourth Amendment: Automobile Stops - Police Officer Mistake of Law
A
A police officer’s mistake of law DOES NOT invalidate a seizure as long as the mistake was REASONABLE.
12
Q
Fourth Amendment: Automobile Stops - Checkpoints
A
To be valid, the roadblock must: (i) stop cars based on some NEUTRAL, ARTICULABLE STANDARD, and (ii) be designed to serve purposes CLOSELY RELATED TO PROBLEMS PERTAINING TO AUTOMOBILES and their mobility.
13
Q
Fourth Amendment: Automobile Stops - Pretextual Stops
A
Police may stop a car violating a traffic law, EVEN IF their ULTERIOR MOTIVE is to investigate a crime for which they lack sufficient cause to make a stop.
14
Q
Fourth Amendment Search and Seizure: Steps to Analyze S&S Question
A
1) Is there governmental conduct,
2) Standing (Reasonable Expectation of Privacy)
3) Valid Warrant
4) Exceptions to Warrant Requirement
15
Q
Fourth Amendment Search and Seizure: Governmental Conduct - Actors
A
1) Police Officers,
2) Other Government Agents, or
3) Private Individuals acting at the direction of the police.
16
Q
Fourth Amendment Search and Seizure: Standing (Reasonable Expectation of Privacy)
A
To hold the Fourth Amendment protection against unreasonable searches and seizures, a person must have a REASONABLE EXPECTATION OF PRIVACY with respect to the PLACE searched or ITEMS seized. This is based on the TOTALITY OF THE CIRCUMSTANCES
17
Q
Fourth Amendment Search and Seizure: Standing - Situations Where There Is An Automatic Expectation of Privacy
A
1) Person OWNED or had RIGHT to possess place searched,
2) Place searched is person’s HOME,
3) Person is OVERNIGHT GUEST of owner.
18
Q
Fourth Amendment Search and Seizure: Things Held Out To The Public
A
A person DOES NOT have a reasonable expectation of privacy in objects held out to the public, such as the following:
1) Account records held by bank,
2) Anything seen in OPEN FIELDS,
3) Anything seen from flying in PUBLIC AIRSPACE,
4) Garbage SET OUT ON THE CURB for collection.
19
Q
Fourth Amendment Search and Seizure: Requirements for a Facially Valid Search Warrant
A
A facially valid search warrant must include: 1) PROBABLE CAUSE, and 2) PARTICULARITY.
20
Q
Fourth Amendment Search and Seizure: Probable Cause - Use of Informers
A
An affidavit based on informer’s tip must meet the TOTALITY OF THE CIRCUMSTANCES, which should be based on informant’s RELIABILITY and CREDIBILITY.
21
Q
Fourth Amendment Search and Seizure: Probable Cause - Challenging the Validity of an Affidavit
A
A search warrant based on an affidavit will be held invalid if the following elements are present: 1) a FALSE STATEMENT was included, 2) the affiant INTENTIONALLY or RECKLESSLY included the false statement, and 3) the false statement was MATERIAL to finding the probable cause.
22
Q
Fourth Amendment Search and Seizure: Warrant - Particularity
A
Warrant must describe with particularity the PLACE to be searched and ITEMS to be seized.
23
Q
Fourth Amendment Search and Seizure: Warrant - Anticipatory Warrant
A
A warrant can PREDICT when illegal items may be in a suspect’s home or office.
24
Q
Fourth Amendment Search and Seizure: Warrant - Execution of Warrant + Third Parties + Violation of Knock and Announce Rule Consequences
A
Only the police may execute a warrant, and it must be done WITHOUT REASONABLE DELAY.
The police MAY NOT be accompanied by third parties UNLESS they’re present to identify stolen property.
A violation of the knock and announce rule WILL NOT result in the suppression of evidence.
25
Fourth Amendment Search and Seizure: Warrant - Search of Persons Found on Search Premises
A warrant to search for contraband authorizes police to RETAIN occupants during a search, BUT it DOES NOT authorize a search of persons found on the premises not named in the warrant.
26
Fourth Amendment Warrant Exceptions: Search Incident to Lawful Arrest
Police may search the person AND areas incident to a lawful arrest, including a PROTECTIVE SWEEP of the area. The search must be CONTEMPORANEOUS in time and place with the arrest.
27
Fourth Amendment Warrant Exceptions: Search Incident to a Lawful Arrest - Unconstitutional Arrests Impact on Search
If an arrest is unconstitutional, ANY SEARCH incident to that arrest is also UNCONSTITUTIONAL.
28
Fourth Amendment Warrant Exceptions: Search Incident to a Lawful Arrest - Geographic Scope
The person and the areas WITHIN THE PERSON'S WINGSPAN.
29
Fourth Amendment Warrant Exceptions: Search Incident to a Lawful Arrest - Searching Automobiles
Police MAY conduct a search of the PASSENGER COMPARTMENT of an automobile incident to a lawful arrest if: (1) the arrestee is UNSECURED and still may gain access to the interior of the vehicle, OR (2) police REASONABLY BELIEVE evidence of the offense FOR WHICH THE PERSON WAS ARRESTED may be found in the vehicle.
30
Fourth Amendment Warrant Exceptions: Search Incident to a Lawful Arrest - Searching Phone
Police officers may examine the PHYSICAL ATTRIBUTES of a person's cell phone BUT NOT DATA.
31
Fourth Amendment Warrant Exceptions: Search Incident to a Lawful Arrest - Search Incident to Incarceration or Impoundment
Police may make an inventory search of the arrestee's belongings or of an IMPOUNDED VEHICLE, including containers within the car.
32
Fourth Amendment Warrant Exceptions: Automobile Exception
If police have PROBABLE CAUSE to believe a vehicle contains evidence of a crime, they MAY SEARCH THE ENTIRE VEHCILE and ANY CONTAINER that might reasonably contain the item.
33
Fourth Amendment Warrant Exceptions: Automobile Exception - Curtilage
If the vehicle is parked within the CURTILAGE of a suspect's home, the police may not search the vehicle without a warrant.
34
Fourth Amendment Warrant Exceptions: Plain View Exception
Police may make a warrantless seizure when they: (i) are LEGITIMATELY on the premises, (ii) discover evidence of crime, (iii) see such evidence in PLAIN VIEW, and (iv) have PROBABLE CAUSE to believe that the item is evidence of crime.
35
Fourth Amendment Warrant Exceptions: Consent
A warrantless search is valid if the police have VOLUTNARY CONSENT, regardless if the person had knowledge of the right to WITHOLD consent.
36
Fourth Amendment Warrant Exceptions: Consent - Impact of Police Claiming They Have a Warrant
If police state they have a warrant, it negates the consent to search the house.
37
Fourth Amendment Warrant Exceptions: Consent - Authority to Consent
ANY person with APPARENT authority to occupy the property may consent, HOWEVER if a co-occupant is present and objects NO CONSENT CAN BE GIVEN. Remember, police may REMOVE a co-occupant with a valid arrest, then use the consent of the only occupant left to search.
38
Fourth Amendment Warrant Exceptions: Stop and Frisk (Terry Stop)
Police may make a BRIEF DETENTION for the purpose of investigating if they have ARTICULABLE and REASONABLE SUSPICION of criminal activity and if the officer believes the person may be armed, they may conduce a PROTECTIVE FRISK.
39
Fourth Amendment Warrant Exceptions: Stop and Frisk - Scope of Search
The scope of the frisk is limited to a pat down of OUTER CLOTHING, unless the officer has information of a weapon hidden in another area.
Officer may SEIZE any weapon or contraband he REASONABLY BELIEVES is such based on feel
40
Fourth Amendment Warrant Exceptions: Evanescent Evidence
Evidence that MIGHT DISSAPEAR QUICKLY if police took time to get a warrant is an exception to the warrant requirement (not applicable to blood sample)
41
Fourth Amendment Warrant Exceptions: Hot Pursuit
Police in hot pursuit of a FELLING FELON may make a warrantless search and seizure IF THEY ARE WITHIN 15 MINUTES BEHIND the FELON and MAY pursue the suspect into ANY PRIVATE DWELLING (and may take any evidence in plain view), unless suspected of a misdemeanor.
42
Fourth Amendment Warrant Exceptions: Emergency Aid
A police officer may enter a premises without a warrant if the officer faces an EMERGENCY that threatens the HEALTH OR SAFETY of an individual.
43
Fourth Amendment Warrant Exceptions: Administrative Inspections and Searches
1) Airline passengers prior to boarding, and
| 2) drug tests of public school children involved in extracurricular activities.
44
Fourth Amendment Warrant Exceptions: Administrative Inspections and Searches - Public School Searches
Only requires REASONABLE GROUNDS to search public school students, and will be held reasonable if: (i) it offers a MODERATE CHANCE of finding evidence,
(ii) the measures adopted to carry out the search are REASONABLY RELATED to the objectives of the search, and (iii) the search is NOT EXCESSIVELY INTRUSIVE.
45
Fourth Amendment Warrant Exceptions: Searches In Foreign Countries and At The Border
Fourth amendment DOES NOT APPLY to searches and seizures by the United States in foreign countries and involving an alien with no substantial connection to the United States.
46
Fourth Amendment Warrant : Wiretapping - Requirements for Warrant
Wiretapping IS A SEARCH within the Fourth Amendment and requires a valid warrant. A valid warrant authorizing a wiretap may be issued if: (1) PROBABLE CAUSE, (2) suspected persons are NAMED, (3) the warrant describes with PARTICULARITY the conversation that can be overheard, (4) the wiretap is limited to a SHORT DURATION, (5) the wiretap is terminated when the information is obtained, and (6) the court receives the conversations.
47
Fourth Amendment Warrant Exceptions: Wiretapping and Eavesdropping - Exceptions (The Unreliable and Uninvited Ear)
A speaker ASSUMES the risk that the person whom they are speaking with may turn information over to the government.
48
Confessions: Fourteenth Amendment Voluntariness
For self-incriminating statements to be admissible under the due process clause, it must be VOLUNTARY, as determined by the TOTALITY OF THE CIRCUMSTANCES. A statement will be INVOLUNTARY if there is some official compulsion.
49
Confessions: Harmless Error Test
If an involuntary confession is admitted, the conviction NEED NOT BE OVERTURNED if there is overwhelming evidence of guilt.
50
Confessions: Sixth Amendment Right to Counsel - When Does This Become Applicable
The Sixth Amendment prohibits police from deliberately eliciting incriminating statements AFTER THE DEFENDANT HAS BEEN CHARGED. Therefore, this applies AFTER formal proceedings.
51
Confessions: Sixth Amendment Right to Counsel - Offense Specific
Even if a defendant's Sixth Amendment rights attach, the defendant may be questions regarding UNRELATED CHARGES.
52
Confessions: Sixth Amendment Right to Counsel - Waiver
6A may be waived if KNOWING and VOLUNTARY, and furthermore does not require the presence of counsel if not initially requested by defendant.
53
Confessions: Sixth Amendment Right to Counsel - Remedy (Nontrial Proceedings v. Trial)
Nontrial Proceedings, HARMLESS ERROR RULE applies.
Trial - a violation of the 6A will result in AUTOMATIC REVERSAL of the conviction.
54
Confessions: Sixth Amendment Right to Counsel - Impeachment
A statement obtained in violation of defendant's 6A is NOT ADMISSIBLE in prosecutions case MAY BE USED to impeach defendant's contrary statement at trial.
55
Confessions: Fifth Amendment Privilege Against Self-Incrimination (Miranda Warnings)
When a person is in CUSTODIAL INTERROGATION, he must be told in substance that: (i) he has the RIGHT TO REMAIN SILENT, (ii) anything the person says CAN BE USED AGAINST THEM in court, (iii) the person has the right to an ATTORNEY, and (iv) if an attorney cannot be afforded, one will be APPOINTED if they desire.
56
Confessions: Fifth Amendment Privilege Against Self-Incrimination (Miranda Warnings) - When Required
Miranda warnings must be given when IN CUSTODY and accused of a crime PRIOR TO INTERROGATION
57
Confessions: Fifth Amendment Privilege Against Self-Incrimination (Miranda Warnings) - Government Conduct v. Informant
Miranda warnings are necessary ONLY IF the detainee KNOWS they are being interrogated by a GOVERNMENT AGENT, and NOT an informant.
58
Confessions: Fifth Amendment Privilege Against Self-Incrimination (Miranda Warnings) - Custody
Custody exists if: (i) a REASONABLE PERSON would feel they are FREE TO TERMINATE interrogation and leave, based on a totality of circumstances, and (ii) whether environment presents same INHERENTLY COERCIVE PRESSURE as station house questioning.
59
Confessions: Fifth Amendment Privilege Against Self-Incrimination (Miranda Warnings) - Interrogation
Interrogations includes any words of conduct that would LIKELY ELICIT AN INCRIMINATING RESPONSE.
60
Confessions: Fifth Amendment Privilege Against Self-Incrimination (Miranda Warnings) - Rights After Receiving Miranda Warnings
After receiving Miranda Warnings, a detainee may: (i) do nothing (police may continue questions, no waiver but no invocation of rights), (ii) waive their Miranda rights, (iii) assert the right to remain silent, or (iv) assert the right to consult with an attorney.
61
Confessions: Fifth Amendment Privilege Against Self-Incrimination (Miranda Warnings) - Waiver
A waiver of Miranda rights MUST be KNOWING and VOLUNTARY, based on a TOTALITY OF CIRCUMSTANCES.
62
Confessions: Fifth Amendment Privilege Against Self-Incrimination (Miranda Warnings) - Invocation of Right to Remain Silent
Invocation of right to silence must be UNAMBIGUOUS. If invoked, police must SCRUPUOUSLY HONOR the request by not badgering detainee
63
Confessions: Fifth Amendment Privilege Against Self-Incrimination (Miranda Warnings) - Invocation of Right to Counsel
Invocation of right to counsel must be UNAMBIGUOUS, then ALL QUESTIONING MUST CEASE until counsel has been provided UNLESS: (1) detainee waives the right, or (2) is released from custodial interrogation back to normal life, and 14 DAYS PASSED since release.
64
Confessions: Fifth Amendment Privilege Against Self-Incrimination (Miranda Warnings) - Effect of Violation + Exceptions
Generally, evidence obtained in violation of Miranda rules is INADMISSIBLE, UNLESS: (i) using to impeach DEFENDANT'S trial testimony, or (ii) if failure to give Miranda warnings WAS NOT PURPOSEFUL
65
Confessions: Fifth Amendment Privilege Against Self-Incrimination (Miranda Warnings) - Public Safety Exception
Interrogation is allowed WITHOUT Miranda warnings when it was reasonably prompted by a concern for public safety.
66
Confessions: Fifth Amendment Privilege Against Self - Pretrial Identification + Photo Identifications
A suspect has the right to an attorney at any POST-CHARGE LINEUP OR SHOWUP, but NOT FOR photograph identifications or when police take physical evidence (e.g., handwriting or fingerprints)
NOTE: the right to counsel BEFORE TRIAL is VERY LIMITED, and does not cover procedures where the defendant is NOT PERSONALLY CONFRONTED by the witness against them.
67
Confessions: Fifth Amendment Privilege Against Self - Due Process Standard
A defendant can attack an identification as denying due process IF the identification is UNECESSARILY SUGGESTIVE and there is a SUBSTANTIAL LIKELIHOOD OF MISIDENTIFICATION
(E.g., victim says attacker was white, and lineup consists of 7 black guys and 1 white guy)
68
Confessions: Fifth Amendment Privilege Against Self - Remedy for Unconstitutional Identifications
Remedy is to EXCLUDE identification, UNLESS (i) witness makes IN-COURT identification with an INDEPENDENT SOURCE (e.g., witness saw defendant during the crime), or (ii) the government can prove counsel was present, counsel was waived, or independent source for ID.
69
Exclusionary Rule
Unconstitutionally obtained evidence is EXCLUDED at trial
70
Fruit of the Poisonous Tree Doctrine
Evidence obtained from EXPLOITATION of unconstitutionality obtained evidence is EXCLUDED.
71
Fruit of the Poisonous Tree Doctrine - Exceptions (The Three IN's)
1) INDEPENDENT SOURCE,
2) INTERVENING ACT OF FREE WILL,
3) INEVITABLE DISCOVERY, and
4) Statements obtained IN VIOLATION OF MIRANDA,
5) ATTENUATION, causal link between police misconduct and evidence is broken,
6) Violations of KNOCK AND ANNOUNCE RULE.
72
Exclusionary Rule - Grand Juries
The exclusionary rule is inapplicable to GRAND JURIES, UNLESS obtained in violation of federal wiretapping statute
73
Exclusionary Rule - Good Faith + Exceptions
The exclusionary rule DOES NOT APPLY when acting in GOOD FAITH that the warrant is valid, UNLESS: (1) the affidavit was so lacking in probable cause no REASONABLE POLICE OFFICER would rely on it, (2) affidavit lacks in PARITUCLARITY no REASONABLE POLICE OFFICER would rely on it, (3) the police officer LIED TO or MISLED the magistrate when seeking the warrant, or (4) BIASED MAGISTRATE.
74
Exclusionary Rule - Use For Impeachment Purposes
Illegally obtained evidence may be used to impeach defendant's testimony, such as: (i) an otherwise VOLUNTARY CONFESSION taken in violation of Miranda, or (ii) evidence obtained from an ILLEGAL SEARCH.
75
Exclusionary Rule - Knock and Announce Rule
Exclusion is NOT available for violations of the knock and announce rule.
76
Harmless Error Test + Right to Counsel at Trial
If illegal evidence is admitted, conviction should be overturned, UNLESS the government can show BEYOND A REASONABLE DOUBT that the evidence was HARMLESS.
This exception NEVER APPLIES to the right to counsel at trial.
77
Pretrial Procedures: Preliminary Hearing to Determine Probable Cause
If no probable cause has been determined, there MUST be a probable cause hearing WITHIN 48 HOURS to determine probable cause.
78
Pretrial Procedures: Grand Juries - Differences from Trial
Grand juries are conducted in secret, and defendant has NO RIGHT to notice, to be present and confront witnesses, or to introduce evidence. The following also apply:
1) No right to counsel,
2) No right to Miranda warnings,
3) No right to have illegally obtained evidence excluded.
79
Pretrial Procedures: Speedy Trial Standards
A determination of whether a defendant's Sixth Amendment right to a speedy trial have been violated is based on a TOTALITY OF THE CIRCUMSTANCES.
The factors to consider are (LRAP): LENGTH of delay, REASON for delay, whether defendant ASSERTED RIGHT, and PREJUDICE to defendant.
80
Pretrial Procedures: Speedy Trial Standards - Remedy
A violation of speedy trial is DISMISSAL WITH PREJUDICE
81
Pretrial Procedures: Prosecutorial Duty to Disclose
The government has a duty to disclose material, EXCULPATORY evidence to the defendant, not doing so VIOLATES DUE PROCESS CLAUSE if defendant can prove: 1) the evidence is FAVORABLE, and 2) PREJUDICE has resulted (based on REASONABLE PROBABILITY)
82
Pretrial Procedures: Competency to Stand Trial
Incompetency to stand trial is based on DEFENDANT'S mental condition AT THE TIME OF TRIAL (as opposed to insanity defense which is at the time the crime was committed).
83
Trial: Right to Unbiased Judge
Due process is violated if judge is shown to have ACTUAL MALICE or FINANCIAL INTEREST in having the trial result in a guilty verdict.
84
Right to Trial By Jury
Trial by jury ONLY applies to SERIOUS OFFENSES, meaning if imprisonment for MORE THAN SIX MONTHS is authorized.
85
Number and Unanimity of Jurors
There is NO constitutional right to a jury of 12, BUT there MUST BE AT LEAST 6 jurors to satisfy the right to a jury trial.
Jury verdicts MUST BE UNANMIOUS.
86
Right to Venire Selected from Representative Cross-Section Community v. Final Jurors
A defendant has a right to have the jury selected FROM a representative cross-section of the community, HOWEVER the actual jury need not have the proportional representation.
87
Preemptory Challenges
May be used FOR ANY REASON, EXCEPT to exclude jurors based on gender or race. An equal protection based attack must show: 1) defendant must show facts or circumstances that raise an INFERENCE exclusion was based on race or gender, 2) then, prosecutor must show RACE-NEUTRAL EXPLANATION, then 3) judge determines whether prosecutor's explanation was genuine.
88
Jurors: Standard to Exclude
A prospective juror should be excluded for cause if his views would PREVENT or SUBSTANTIALLY IMPAIR the performance of their duties
89
Violation of Right to Counsel (At Trial v. Nontrial)
Violation of right at trial REQUIRES REVERSAL, but for nontrial violations the HARMLESS ERROR TEST is applied.
90
Waiver of Right to Counsel at Trial (Pro Se)
Defendant may waive right to counsel if (1) made KNOWINGLY and INTELLIGENTLY, and (2) defendant is COMPETENT TO PROCEED PRO SE.
91
Effective Assistance of Counsel
The Sixth Amendment includes the right to EFFECTIVE COUNSEL, which is GENERALLY PRESUMED. An ineffective assistance claimant must show: (i) DEFICIENT PERFORMANCE by counsel (MUST BE SPECIFIC, can't be general inexperience, lack of time, etc.), and (ii) but for the deficiency, THE RESULT WOULD HAVE BEEN DIFFERENT.
92
Right to Confront Witnesses + Face to Face
The Sixth Amendment grants to a defendant IN A CRIMINAL PROSECUTION the right to confront adverse witnesses.
Face to face confrontation is NOT REQUIRED when preventing such confrontation serves an important public purpose
93
Introduction of Co-Defendant's Confession
A co-defendant's confession that implicates the other, the right of confrontation PROHIBITS the use of that statement UNLESS: 1) all portions to the other defendant can be ELIMINATED, 2) the confessing defendant takes the stand and is subject to cross-examination, or 3) the confession of the nontestifying co-defendant is being used to REBUT the defendant's claim that their confession was coercively obtained.
94
Burden of Proof for Criminal Trial
The state has the burden to prove guilt BEYOND A REASONABLE DOUBT
95
Guilty Pleas: Taking the Plea
The judge must determine the plea is VOLUNTARY and INTELLIGENT, the judge must be sure the defendant knows the: (i) nature of the charge, (ii) the MAXIMUM penalty and MANDATORY minimum, and (iii) the defendant has a right NOT TO PLEAD GUILTY, but if they do they WAIVE their right to trial.
96
Guilty Pleas: Collateral Attacks on Guilty Pleas After Sentencing
A plea can be set aside for (1) involuntariness, (2) lack of jurisdiction, (3) ineffective assistance of counsel, or (4) failure to keep plea bargain.
97
Constitutional Rights in Sentencing: Procedural Rights in Sentencing
A defendant has a RIGHT TO COUNSEL during sentencing.
98
Constitutional Rights in Sentencing: Death Penalty
The death penalty CAN ONLY BE IMPOSED under statutory scheme that gives jury REASONABLE DISCRETION, FULL INFORMATION, and GUIDANCE.
99
Constitutional Rights in Sentencing: Death Penalty - Insanity
The 8th Amendment prohibits executing a prisoner who is insane AT THE TIME OF EXECUTION, even if he was sane at the time committed.
100
Constitutional Rights in Sentencing: Death Penalty - Intellectual Disability + Minors
The death penalty for intellectually disabled and minors under 18 AT THE TIME THEY COMMITTED THE OFFENSE, is prohibited.
101
Constitutional Right to Appeal
There is NO FEDERAL CONSTITUTIONAL RIGHT TO APPEAL
102
Collateral Attack Upon Conviction
An indigent has NO RIGHT to appointed counsel at a habeas corpus proceeding, petitioner has the burden of proof to show unlawful detention by preponderance of the evidence.
103
Revocation of Probation
If revocation of probation also involves a new sentence, defendant is entitled to representation
104
Rights During Punishment: Due Process - Prison Regulations
Prison regulations impinge on due process rights ONLY if the regulations impose ATYPICAL and SIGNIFICANT HARDSHIP in relation to the ordinary incidents of prison life.
105
Rights During Punishment: Prisoner's Rights - Fourth Amendment in Cells
Prisoners have NO REASONABLE EXPECTATION OF PRIVACY in their cells.
106
Double Jeopardy
Under the Fifth Amendment, a person MAY NOT BE RETRIED for the same offense once jeopardy attaches
107
Double Jeopardy: When Jeopardy Attaches (Jury v. Bench Trials)
Jeopardy attaches in a jury trial at the EMPANELING AND SWEARING of the jury. For bench trials, jeopardy attaches when THE FIRST WITNESS IS SWORN IN.
108
Double Jeopardy: Exceptions Permitting Retrial
The following exceptions allow for a retrial after jeopardy attaches:
1) first trial ends in HUNG JURY,
2) MANIFEST NECESSITY to abort first trial (e.g., medical emergency),
3) Defendant successfully appealed conviction (unless ground for reversal was insufficient evidence), but defendant may NOT be retried for a greater offense.
4) Defendant BREACHES PLEA BARGAIN, and
5) Defendant could have been tried for multiple charges, but CHOSE to have separate trials
109
Double Jeopardy: Same Offense (Charged with Two Crimes)
Two crimes are the SAME OFFENSE unless each crime REQUIRES PROOF OF ADDITIONAL ELEMENT that the other does not.
110
Double Jeopardy: Lesser Included Offense
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.
Ex: Robbery includes larceny and assault. All elements of larceny are contained within robbery. If the defendant is charged with larceny, it cannot be later charged for robbery or vice versa.
111
Double Jeopardy: Lesser Included Offense - Exception
An exception to double jeopardy bar exists if unlawful conduct that is SUBSEQUENTLY USED to prove the greater offense: (i) has NOT OCCURRED at the time of the prosecution of the lesser offense, or (ii) has NOT BEEN DISCOVERED despite due diligence.
A retrial for MURDER IS PERMITTED if the victim dies AFTER jeopardy attaches for battery
112
Double Jeopardy: Separate Sovereigns
The same person MAY BE TRIED by separate sovereigns (state and federal).
State and fed = separate sovereigns
2 states = separate sovereigns
State and its municipalities = SAME sovereign.
113
Privilege Against Compelled Self-Incrimination: Who May Assert
The Fifth Amendment privilege against self-incrimination may be asserted by ANY NATURAL PERSON (not corporations) IN ANY TYPE OF CASE, it may be asserted by a defendant, witness, or party if the answer to the question might incriminate them.
114
Privilege Against Compelled Self-Incrimination: When Privilege May Be Asserted + Criminal Trial That Follows Civil Trial
A person may invoke their right WHENEVER an answer may link the chain of evidence to prosecute them.
The privilege must be claimed in the civil proceeding if they wish to use it in a following criminal prosecution
115
Privilege Against Compelled Self-Incrimination: Method For Invoking Privilege (Criminal v. Civil)
A CRIMINAL DEFENDANT has a right to NOT take the witness stand at trial and NOT to be asked to do so.
In any other situation, the privilege DOES NOT permit a person to avoid being sworn in or being asked questions, rather the person must listen to the questions and specifically invoke the privilege
116
Privilege Against Compelled Self-Incrimination: Disclosing Name
As we have seen in TERRY STOPS, furnishing one's name does not violate the Fifth Amendment because disclosure of name generally does not pose danger of incrimination.
117
Privilege Against Compelled Self-Incrimination: Scope of Protection
The Fifth Amendment privilege ONLY protects TESTIMONIAL or COMMUNICATIVE evidence, not real or physical evidence.
Testimonial - meaning it relates a factual assertion or discloses information.
118
Privilege Against Compelled Self-Incrimination: Compulsory Production of Documents
A person served with a subpoena requiring the production of documents HAS NO PRIVILEGE to refuse to comply because the production of documents is NOT TESTIMONIAL
119
Privilege Against Compelled Self-Incrimination: Comments on Defendant's Silence + Exception
Prosecutor MAY NOT COMMENT on defendant's silence AFTER receiving Miranda warnings or failure to testify at trial
HOWEVER, prosecutor can comment on defendant's failure to take the stand when in response to defense's assertion defendant was not allowed to explain their side of the story OR if suspect chooses to remain silent PRIOR to being read Miranda rights.
120
Privilege Against Compelled Self-Incrimination: Grant of Immunity
A witness may be compelled to answer questions if granted adequate immunity from prosecution.
121
Privilege Against Compelled Self-Incrimination: Use and Derivative Use Immunity
Use and derivative use immunity guarantees that the witness's testimony and evidence located by means of the testimony WILL NOT BE USED AGAINST THE WITNESS.
122
Privilege Against Compelled Self-Incrimination: No Possibility of Incrimination
A person HAS NO PRIVILEGE to against compelled self-incrimination if there is no possibility of incrimination (e.g., SOL has run)
123
Privilege Against Compelled Self-Incrimination: Waiver of Privilege
BY TAKING THE WITNESS STAND, a criminal defendant waives the privilege
124
Forfeiture Actions (Penal v. Civil)
The Excessive Fines Clause of the 8th Amendment applies only to fines imposed as punishment, NOT civil fines, thus penal fines are subject to the clause ,NOT civil forfeitures.
