Review Flashcards

Question

What is the 6th Am's Right to Counsel AND when does it attach?

Answer 1

Express const. g'tee that attaches ONLY WHEN ∆ is formally charged (NOT upon arrest!) Applies at "all critical stages" of the prosecution that take place after formal charges (arraignment, probable cause hearings, police interrogation, etc) The g'tee is "offense specific": applies ONLY to the offense with which the ∆ has been FORMALLY charged (i.e. provides NO protection for uncounseled interrogation for other uncharged criminal activity) Incriminating stmts obtained from the ∆ by law enforcement abt charged offenses violate the 6th Am IF those stmts are deliberately elicited AND ∆ did not knowingly, intelligently, and voluntarily waive his right to have his atty present **NOTE: a stmt obtained in violation of a ∆'s 6th Am Right to Counsel MAY be used to (only) IMPEACH the ∆'s contrary trial testimony NOTE: Right to counsel is available in MISDEMEANOR cases ONLY IF imprisonment is ACTUALLY imposed Thus, for misdemeanor crimes w/o IMPRISONMENT, a criminal ∆ CAN BE DENIED COUNSEL

Answer 2

1) Jury trial: when the jury is SWORN NOTE: the state MAY retry a ∆ EVEN IF DJ attaches when a jury trial ends in a hung jury 2) Bench tiral: when the first witness is SWORN 3) Guilty plea: when the ct accepts the ∆'s plea UNCONDITIONALLY

Answer 3

DJ = "...nor shall any person be subject for the SAME OFFENSE to be twice put in jeopardy of life or limb by the SAME SOVEREIGN" 1) Same offense req: Federal rule: 2 offenses are NOT the "same" if EACH contains an element THAT THE OTHER DOES NOT Greater and "lesser-incl'd" offenses: 2 offenses ARE the "same" offense if only ONE has an element not in the other THUS, trial for greater offense bars retrial for lesser offense and vice versa NY DISTINCTION: NY uses the "trxn test," which reqs that a ∆ be charged w/ all offenses arising from a SINGLE TRXN UNLESS... (i) the offenses have subt. different elements; (ii) ea. offense contains an element NOT in the other AND prevents different harms; (iii) one is for criminal possession and the other is for criminal USE; OR (iv) ea. offense involves harm to a different victim 2) Same sovereign req: DJ bars retrial for the same offense by the SAME sovereign ONLY NOT same sovereigns (i) State and federal gov'ts (ii) Different states SAME sovereign State and municipalities w/in that state 3) More serious offense Can't be charged a second time for a more serious offense, even if the second trial results in conviction of equal or lesser offense.

Answer 4

Jury trials MUST be UNANIMOUS ONLY IF 6 jurors are used Verdicts in 12-person juries need NOT be unanimous NY DISTINCTION: jury verdicts MUST be unianimous

Answer 5

General rule: deadly force may NOT be used to defend property EXCEPTION: an OCCUPANT may use deadly force inside her DWELLING when: (i) an intruder has gained entry in a tumultuous manner; AND (ii) the occupant reasonably believes that the use of deadly force is NECESSARY to prevent a personal attack on herself or someone else in the dwelling

Answer 6

1) "Proximate cause" theory (majority rule) = if one of the co-felons proximately causes the victim's death, then ALL of the other co-felons will be guilty of felony murder, EVEN IF the actual killing is committed by a 3d party (e.g. a bystander, a police officer, etc) NY DISTINCTION: this is the approach followed in NY 2) "Agency" theory = felony murder doctrine applies ONLY IF the killing is committed by one of the co-felons 3*) Redline case - criminal liability for felony murder cannot attach when the person killed is one of the co-felons

Answer 7

Derivative evidence (or secondary evidence) obtained by exploiting PRIOR unconst conduct NOTE: Like direct evidence, FOTPS evidence is INADMISSIBLE in the prosecution's case-in-chief To admit "tainted fruit", prosecutors MUST show a break in the causal link b/t the original illegality and the criminal evidence that is LATER discovered, which can be done by... 1) "Independent Source" doctrine: applies where there is a source for the discovery and seizure of the evidence that is DISTINCT from the original illegality 2) "Inevitable Discovery" doctrine: applies where the evidence would NECESSARILY have been discovered thru lawful means 3) "Attenuation" doctrine: admits derivative evidence where the PASSAGE of time and INTERVENING events "purge the taint" of the original illegality and RESTORE the ∆'s free will (e.g. ∆ is illegally arrested on Fri and let go, then returns the NEXT WEEK to make a confession)

Answer 8

Factors (i) Length of the delay; (ii) Reason for the delay; (iii) Whether the defendant asserted his right; and (iv) Prejudice to the defendant. Remedy: Dismissal with prejudice.

Answer 9

To determine whether probable cause for detention exists.

Answer 10

1) Breaking and entering; "Breaking" = creating/enlarging an opening by at least minimal force (e.g. opening a window/door; NOT entering an already open window) Constructive "breaking" = when entry is gained thru fraud, threats OR intimidation "Entry" = means SOME part of the ∆'s body must enter the bldg 2) into the dwelling of another at night; "Dwelling" = structure where someone regularly sleeps 3) with the specific intent to commit a felony inside Intent to rob, steal, rape, assault, kill, etc NOTE: doesn't matter if you ULTIMATELY complete the offense (forming intent alone is enough)

Answer 11

1) Trespassory taking and carrying away; The property must be wrongfully/unlawfully MOVED (i.e. "asportation") NOTE: Counts even if movement is slight 2) Personal property of another; Turns on who had lawful custody If ∆ has lawful custody of the property, then he CANNOT be guilty of larceny; BUT ∆ CAN be guilty of larceny, EVEN IF he owns the property, if someone else had lawful custody 3) with the specific intent to permanently retain the property (steal) If ∆ intends to give the property BACK, then it's not larceny The Erroneous Takings Rule: A taking under a claim of right is NEVER larceny, EVEN IF the ∆ erroneously believes the property is his NOTE: if a ∆ wrongfully takes property, but w/o the intent to steal, he will NOT be guilty of larceny; BUT, if the ∆ LATER forms the intent to steal, the initial trespassory taking is considered to have "continued" and he WILL be guilty of larceny (i.e. an EXCEPTION to the concurrence principle)

Answer 12

(1) Civil action claim | (2) Challenge of a search