Trial

Question 1

Before trial, a prosecutor has a duty to disclose what kind of information?

Answer 1

exculpatory information

Question 2

When is the willful or inadvertent failure to disclose exculpatory information grounds for a reversal of a conviction?

Answer 2

when 1) the evidence is favorable to the defendant; and 2) prejudice has resulted, meaning that there is a reasonable probability that the result would have been different had the information been disclosed.

Question 3

When does the defendant have a constitutional right to trial by jury?

Answer 3

when the defendant is tried for an offense for which the maximum* authorized sentence exceeds* six months.

Question 4

The minimum number of jurors in a jury is _____.

Answer 4

6

Question 5

If the court uses a six-person jury, the verdict must be _____________.

Answer 5

unanimous

Question 6

The maximum number of jurors is ____.

Answer 6

12

Question 7

Does the defendant have a constitutional right to a 12-person unanimous verdict?

Answer 7

no, 10-2 and 9-3 have been upheld.

Question 8

Must an empaneled jury reflect a fair cross-section of the community?

Answer 8

no, only the jury pool.

Question 9

A juror will be excused when . . .

Answer 9

their views would prevent or substantially impair the performance of her duties.

Question 10

A defendant has the right to represent himself so long as his waiver of counsel is made . . .

Answer 10

knowingly and intelligently.

Question 11

What must be present for a finding of ineffective assistance of counsel?

Answer 11

there must be deficient performance by counsel and, but for such deficiency, there is a reasonable probability that the result of the proceeding would have been different.

Question 12

In order to make an adequate charge of ineffective assistance of counsel, the defendant must do what?

Answer 12

the defendant must state particular errors of trial counsel.

Question 13

When is the absence of a face-to-face confrontation between the defendant and the accuser not a violation of the Sixth Amendment?

Answer 13

when preventing such confrontation serves an important public purpose and the reliability of the witness testimony is otherwise assured.

Question 14

Can a defendant waive his right to confrontation?

Answer 14

yes. If he is disruptive in the courtroom, he will be removed and thereby relinquishes his right to confrontation.

Question 15

What is the result of a co-defendant’s confessing to a crime?

Answer 15

the confession is inadmissible at the trial of the other defendant.

Question 16

Under the confrontation clause, prior testimonial evidence may not be admitted unless . . .

Answer 16

1) the declarant is unavailable; and 2) the defendant had an opportunity to cross-examine the declarant at the time the statement was made.

Question 17

In a criminal prosecution, the state must prove every element of a crime under what standard?

Answer 17

beyond a reasonable doubt

Question 18

When can the death penalty not be imposed on a defendant for felony murder?

Answer 18

where the defendant was acting as an accomplice and did not attempt or intend to take life.

Question 19

When can the death penalty be imposed on a defendant on a charge of felony murder?

Answer 19

where the defendant participated in a major way to a felony that resulted in death and he acted with reckless disregard for human life.

Question 20

When does jeopardy attach in a jury trial?

Answer 20

when the jury is sworn.

Question 21

When does jeopardy attach in a bench trial?

Answer 21

when the first witness is sworn.

Question 22

Does jeopardy attach in civil cases?

Answer 22

no

Question 23

When will a retrial be permitted without violating jeopardy?

Answer 23

1) when the jury is unable to come to a verdict; 2) mistrials for manifest necessity; or 3) a successful appeal results in a retrial.

Question 24

Can a defendant be retried for a more serious crime after he has had a successful appeal of a conviction of another crime?

Answer 24

no

Question 25

When a defendant breaches a plea deal, what can result?

Answer 25

the prosecutor can withdraw the guilty plea and bargain agreement and reinstate the original charges.

Question 26

What is the test for determining whether someone is being tried twice for the same offense?

Answer 26

two crimes do not constitute the same offense if each crime requires proof of an additional element that the other does not.

Question 27

Can you be tried for a lesser included offense after being tried for a greater offense?

Answer 27

No. Being put in jeopardy for a greater offense bars retrial for any lesser included offense.

Question 28

Can you be tried for a greater included offense after being tried for a lesser offense?

Answer 28

No. If you are first put in jeopardy for the lesser included offense, you cannot later be retried for the greater offense.

Question 29

What kinds of cases can the Fifth Amendment privilege against self-incrimination be invoked in?

Answer 29

in any kind of case by anyone asked a question under oath wherein the response might tend to incriminate her.

Question 30

When must the privilege against self-incrimination be invoked by someone asked a question under oath?

Answer 30

the first time it is asked.

Question 31

Where the privilege is not invoked in a civil proceeding, can the witness later invoke it in a subsequent criminal proceeding?

Answer 31

No. You must invoke the privilege at a civil proceeding in order to later invoke it in a criminal proceeding.

Question 32

Can the police take a DNA swab after an arrest for a serious crime?

Answer 32

yes

Question 33

Does the Fifth Amendment privilege against self-incrimination prohibit the police from searching the personal effects or documents of someone that might incriminate that person?

Answer 33

no

Question 34

Is it constitutional for a prosecutor to make negative statements on a defendant’s failure to testify or on a defendant’s choosing to remain silent after being given the Miranda warnings?

Answer 34

No, it is unconstitutional and prosecutors cannot do this.

Question 35

When can a prosecutor make negative statements about a defendant’s failure to testify or their choosing to remain silent after being given the Miranda warnings without violating the 5th Amendment?

Answer 35

when the comment is in response to defense counsel’s assertion that defendant was not allowed to explain his side of the story.

Question 36

When can a defendant’s choosing to remain silent be used against him in court?

Answer 36

if the defendant chooses to remain silent BEFORE police read him his Miranda warnings.

Question 37

If a prosecutor does make negative comments on a defendant’s choosing to remain silent in violation of the 5th Amendment, what result?

Answer 37

the reviewing court will look to see if there was any harm. If it is found to be harmless error, the conviction will be sustained.

Question 38

When one is offered immunity for their testimony, can that person still claim the Fifth?

Answer 38

no

Question 39

When a criminal defendant takes the stand, can they still plead the Fifth?

Answer 39

no, they have waived it by taking the stand.