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CSULB 350 3

TEST # 3

Right to Appointed Counsel: WHEN DOES IT START? starts at first court appearance.
Right to Appointed COunsel: WHEN DOES IT END? Ends when first direct appeal after conviction is complete.
Limits on right to counsel: WHEN DOES IT ONLY APPLY? ONLY applies to criminal proceedings. and ONLY applies if prison or jail can be part of the sentence
TEST FOR REVERSAL DUE TO INCOMPETENT ATTORNEY - representation was below standard of reasonable attorney. AND AND AND AND - serious likelihood that outcome of trial would have been different with a competent attorney.
Does one have a right ACT as own attorney? yes
Mentally competent defendant may represent self at trial AFTER what? after voluntary waiver of right to counsel. (may be mentally competet to stand trial but NOT Competent to be a PRO PER.
do you have a right to be PRO PER on appeal? NO right to be pro per on appeal.
what is PRO Per SElf representataion
can defendants with conflicting interests be forced to share attorney? NO.
can defendants waive the right to separate attorneys? yes.
can the judge refuse to the request to share attorney even if both consent? yes.
WHO has the right to appointed counsel for APPPEALS in criminal cases??? INDIGENTS
is the indigents right to appointed counsel for APPEALS in criminal cases Restricted when defendants sentences to jail or prison? NO its not restricted.
Based on financial need at the time of APPEALS for indigents- is the fact that the defendant hired an attorney considered? NO it is not considered. you still have to pay.
WHEN do you get a right to counsel on APPEAL: ONLY APPEAL>
are subsequent appeals covered for cousel on appeal? NOT covered on higer state courts. - u.s supreme courts. - Habeas corpus- is considered a civil processing.
what does an attorney apponited to do? - handle case, - waive filing fees, - provide transcripts, - attorney files brieg.
who has the tight to counsel at trial? criminal defendants who cannot afford to hire an attorney have the right to have an attorney appointed to represent them.
what are the restrictions on appointed appellate attorneys WITHDRAWING from case Original Attorney must file brief or otherwise inform appellate court of reason the appeal should not be taken. - COURT MUST APPOINT ATTORNE IF NONFRIVOLOUS APPELLATE ISSUES ARE PRESENT.
what is sixth admendment? right to speedy trial.
for a speedy trial, what are the 4 factors considered 1. length of delay. 2. Reason for delay. 3. Defendant's assertion of rightss. 4. Prejudice to defendant.
when does the right to a speedy trial start? when the charges are filed. "pre- indictment" delay is not considered.
special situations: what is PRE-INDICTMENT DELAY. defendant must be in custody to claim denial of sixth amendment right to speedy trial.
Special Situations: what are PRE- trial appeals delay due to good faith appeal does not violate right to speedy.
special situations: what is extensive delays long delays require lesser showing og actual prejudice to defendant.
what are the three special situations: pre-indictment delay, pre trial appeals, and d extensive delays.
DUE PROCESS: RIGHT TO DISCOVERY: Is there duty to collect or save evidence for defense experts to examine. NO duty.
prosecutor must disclose what? exculpatory evidence= brady material.
statutes may require degense to disclose what 2) alibi - list of witnesses defense placs to call to testify at trial.
right to discovery is covered in what admendment? 5th amendment.
does defense have to disclose evidence protected by privledge against self incrimination? no they do not.
does defense have to reveal whether the defendant will testify untill he/she takes the stand. no defense not have to reveal.
who holds the right to jury trial? - defendant can demand a jury trial. - prosecution can demand a jury trial. - trial is held without a jury only if both defense and prosecution waive right to a jury trail.
when does the RIGHT TO JURY TRIAL start? potential sentence over 6 months.
what is the minimun size jury 6 jurors.
when is the unanimous verdict not requied- not in california if the jury has more thena 6 jurors the unanimous verdict not requied.
in california, how many jurors are there? anad what is our verdict. california usses 12 jurors and requires unanimous verdicts.
formation of jury pool cannot violate what? equal protection- no racial discrimination, and men and women were entitled to same exemptions.
how many challenges can you use "FOR CAUSE" unlimited.
peremptory challenges cannot be used in racially discriminatory manner by whom EITHER defense or preosecution. = batsonv. kentucky
peremptory challenges cannot be used to exclude whom? potential jurors based on gender.
jurors who are influenced by ___________ _____________ can be excluded? inflammatory publicity.
witherspoon v. illnois: in death penalty cases a juror may be excluded if personal beliefs make it impossible for him/her what? impossible for them to apply the law to the case.
does one have the right to have winess testify in court? yes.
is testimonial hearsay allowed? no.
what is the exception on testimoninal hearsay it is not allowed UNLESS the person who made the statement is available for cross- examinations.
can you block the defendants view of witness stand? not you cannot the block the degendants view of the witness stand.
closed circuit tv can be used during testimony of childeren who are victims of what? sexual abuse.
in order to use the closed circuit tv, what must be shown/proved must show victim would be traumatized by testifying in presence of defendant.
can you restrict cross examination information relevant to impeachment no you may not. - right to use adult and juvenile convicttions. - rape shield laws cannot restrict relevant questioning.
co defendants: defendant has right to cross examine any person whose confession is ? admitted into evidence at trial if the confession implicates the defendant in the crimes charged.
when a co defendant who made confession elects Not to testidy what happens? "sanitize" statement to exclude references to co- defendants OR separates trials.
Double Jeopardy is NOT violated by case dismissed befor tial.. - refiling charges that were dismissed prior to trial. -retrial after hung jury. - retrial aftermistrial. - retrial after concivtion reversed on appeal.
double jepordy: trials by separate sovereigns Can be convicted? federal crime and state crims..
double jeporady: trial by separate soverigns can NOt be convicted? state crime and city ordinance.
forfeiture proceedings are not considered a part of a conviction do NOT trigger what double jeopardy
Double jeopardy IS violated by conviction when? same charge after acquital. same charge after judge ruled as MATTER OF LAW that prosecution failed to prove case.
when same charge after conviction reversed for insufficient evidence- is that double jeopardy yes.
lesser included offense after acquittal or conviction on greater offense is that double jeopardy yes.
greater offense after acquittal or conviction fro lesser included offense is that double jepordy yes.
murder with special circumstance need what need unanimous jury verdict.
does jury consider aggravating and mitigating when deciding on penalty yes.
can you execute the defendant if the case did not involve a death of victim? no
can you execute mentally retarded criminals no
can you execute defendant that were under the age of 18 at the time the crime was committed no
can the defendant forfeit the right to be present at trial if they are being disruptive and ururly yes.
does the defendant have to wear the jail uniform no, he can wear street clothes.
if defendant is shackled, what should they do. the shackles must be hidden to the jury.
can the co- felon be given the death penalty if he was a key player and understood the risk to human life. yes.
3 strikes law: does the 3rd strike have to be violent not does not have to be a violent crime.
in 1983 the court held that a abitual offender law that imposed a sentence of life without parole violated what admendment the 8th admendment
sexually violent predator laws provide for committing a person to a secure mental health facility after what he has served the sentence for the crimes.
what is the burden of proof for sexually violent predator substantial risk that mental consition will result in violent sexual crimes.
competency to stand trial: criminal justice proces violates what, if the defendant is what due process. if the defendant is not mentally competent/
you must be mentally competent if - all court hearings. - Sentencing. - execution.
competency to stand trial: competency to stand trial is what kind of issue: due process issue.
competency to stand trial is a due process issue- it is not waived by what it is not waived by failure of defense to raise the issue..
the judge has responsiblity to watch for? under the compentcy to stand trial indications that the defendant is not competent
does the defendant must be competent each day of the court proceedings yes.
what is the test for competence to stand trial defendant must be able to understand the nature of the criminal proceddings AND assist eith defense by rationally communicating with defense attorney
states are free to set their own standars for the following because they do NOT involve constitutional issues like NGRI. Intoxication as a defense. assisted suicide.
requiring forfeiture after a criminal conviction violate the double jeopardy no its does not violate.
forfeiture laws: do you need to establish proof beyond a reasonable doubt as long as there are sufficient procedural safeguards. no do not need to establishh.
what are the types of speech pure speech, symbolic speech, commercial speech.
what is pure speech expressing opinions verbally or in writing.
what is symbolic speech expressing opinions through actions.
what is commercial speech advertising and business activities.
what kind of speech is NOT protected by the first amendment shouting FIRE< OBsecity and fighting words.
regulations of pure speech must be what content neutral
what is content neutral. government can not restrict point of view expressed by individuals or groups.
regulation of pure speech is ONLY allowed when if it protects a substantial interst.
when are regulations of pure speech void overbreath
Freedom of speech: Government can NOT prohibit what expression of unpopular belifs like burning the us flag. non criminal acts motivated by racism and other prejudices
what are hate crimes (pure and symbolic) can impose longer sentence for criminal acts if defendant selected victim due to racial hatred.
pure/symbolic crims. Goverment employees have ________ free speech rights while performing their official duties Limited.
public school and universities must provide what? (pure and symbolic) must provide funds and space for both secular and religous activites.
commercial speech can can require statements to be truthful.- can control noise level and set limits on time of day in restidential area. Can keep ads off public property. can pass zoning ordinance that restrict where business may locate ORdinances must NOt be overboard.
parade permits are covered by the what admendment 1st admendment freedom of assembly.
the freedom of asssembly: can place/ require what can place reasonalbe restrictions on time and place. can require bonds for clean- up of area after the parade.
where is picketing protected by first amendment freeedom of assembley.
where cant you picket not focused on one residence. - floating buffer zones around people seeking access to site of demonstaration are not allowed
gag order can restrict information released to whom news media.
gag order must be carefully worded and used only when there is a _______ danger that pre-trial publicity will make it impossible to find unbiased jurors. serious danger.
who are only officials parties that can be gagged prosecutor, police, defense attorney.
gag oder can not be resticted when publication of information obtained from non goverment sources, information obtained in open court can not be restricted
court hearing cna be closed to new media true or false ture.
in order for the media to be closed to new media. they must show what must show a substantial chance or prejudice to the case if pre trial hearing is open to the public. OR testifying would cause substantial chance of trauma to child who is the victim of the crime being prosecutored.
juvenile court proceeding can be closed to the public and the news media true or false true.
what is the test for obscenity average person applying contemporary community standard. work, appeals to prurient interest. describes sexual conduct offensively. and work, lack serious literary value.
possession of obscene material in privacy of own home IS protected by what amendment, 1st amendment.
possession obscene material is allowed, except what kind of obscenity child pornography.
what are the special procedure for obtaining search warrant to seize allegedly obscene items affidavit mus give very specific details about what is depicted in each issue. magistrate determines if probable cause exists that EACH issue is obscene. SEIZE ONE COPY OF EACH ISSUE
after warrent is executed, defendant must have prompt access to adversary hearing to determine what if each iteme seized is obscence.
1983 cases. plaintiff must show what 1)violations of specific constitutional right. AND 2) intentional misconduct or deliberate indifference to rights by state or local officals.
what does 1983 mean civil rights acts.
bivens gives similar right to sue whom federal employees, but not federal agenies.
what is 1985 cases consipracies.
what do 1985 cases must prove violation of constitutional rights, and conspiracy. this section does NOT require actions to be done under color of state laws.
who has absolute immunity - judge in roles. prosecutor in roles. state, state officals for official acts, any witness for testimony given in court.-warden.
even if the person was acting maliciously do certain people get immunity yes
if witness cant be sued for testimony in court. what can we still sue him for purgery
what is qualifies immunity applies to what kind actions in good faith.
who has qualified immunity police, prosecutor for seeking warrent, speaking to police, statements at new conferences. state offical acting in personal capacity., city.
who can you sue under qualified immunity state, and private prisons. but you got to stay current with law.
what kind are compensatory damages medical bills, lost wages, replace items damaged or destroyed. NO SYMPATHY
what are general damages pain and suffering. SYPATHY PHYSICAL FACTORS. PAIN COSTSMORE.
what are punitive damages designed to do designed to punish
punitive damages are only on what kind of faith bad faith.
when are punitive damages awarded to awarded only if there is intentional misconduct or reckless indifference to plaintiffs constitutional rights
are cities immune from punitive damages yes.
how are punitve damages measure by wrongfullness of conduct, and ability to pay.q
what are injunctions court orders telling you what to do.
are police immune in a high speed pursuits. what if they hit someone. yes they are immune, unless they violated a code. like they did not put lights and sirens.
when are injuctions awarded ONLY if a pattern of wrongful conduct has been established. an injunction can be obtained even through defendant has immmunity from monetary damages. federal courts abstain from interfering while state criminal prosecution is in progress.
who can award reasonable fee for hours spent on case. the judge.
plaintiff is entitled to attorney fee if case? if case ends in plaintiffs favor. ex: out of court settlement, consent decreee, jury verdict.
defendant is entitled to attorney fees is defendant won because of ? plaintiff case was frivolous
Created by: pinkkat4