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Criminal Procedure

Barbri Review

QuestionAnswer
Key Amendment- 4th amendment Prohibition against unreasonable search and seizure
Key Amendment- 5th amendment Privilege against compulsory self-incrimination; Prohibition against double jeopardy
Key Amendment- 6th amendment Right to speedy trial; Right to trial by jury; Right to confront witnesses; Right to assistance of counsel
Key Amendment- 8th amendment Prohibition against cruel and unusual punishment- 1. Death penalty, 2. Prisoners rights
Exclusionary Rule A remedy of American constitutional procedure whereby someone who has been victim of illegal search or a coerced confession can (among other remedies) have product of illegal search or coerced statement excluded from any subsequent criminal prosecution
Exclusionary Rule- Limitations on exclusion; Grand jury proceedings Exclusion does not apply to grand jury proceedings- Grand jury witness may be compelled to testify based on illegally seized evidence
Exclusionary Rule- Limitations on exclusion; Civil proceedings Exclusion is not available remedy in civil proceedings
Exclusionary Rule- Limitations on exclusion; Violation In order to qualify for exclusion of search in question must be either violate federal Constitution or a federal statute
Exclusionary Rule- Limitations on exclusion; Parole revocation proceedings Exclusion is not an available remedy in parole revocation proceedings
Exclusionary Rule- Limitations on exclusion; Impeachment Exclusion not apply to use excluded evidence for impeachment purposes; ALL illegally seized real/physical evidence admitted to impeach credibility of D's trial testimony (Miranda violations); D trial testimony impeached, not testimony of defense witness
Exclusionary Rule- Limitations on exclusion; Knock and announce rule Exclusion is not an available remedy for violation of the knock and announce rule in execution of search warrants
Exclusionary Rule- "The Fruit of the Poisonous Tree" doctrine Will not only exclude illegally sized evidence, but also exclude all evidence obtained or derived from police illegality
Exclusionary Rule- "The Fruit of the Poisonous Tree" doctrine; Does not apply To Miranda violations, unless the police act in bad faith in obtaining such information
Exclusionary Rule- "The Fruit of the Poisonous Tree" doctrine; Gov't can break chain b/w original, unlawful police action and some supposedly derived piece of evidence- Independent source Gov't could show that it had independent source for that evidence, independent of original police illegality
Exclusionary Rule- "The Fruit of the Poisonous Tree" doctrine; Gov't can break chain b/w original, unlawful police action and some supposedly derived piece of evidence- Inevitable discovery Police would have inevitably discovered evidence anyway
Exclusionary Rule- "The Fruit of the Poisonous Tree" doctrine; Gov't can break chain b/w original, unlawful police action and some supposedly derived piece of evidence- Intervening acts of free will On part of D; "III"
Exclusionary Rule- Convictions; Overturned convictions Conviction will not necessarily be overturned b/c improperly obtained evidence admitted at trial
Exclusionary Rule- Convictions; On appeal Ct will apply the harmless error test
Exclusionary Rule- Convictions; Harmless error test Under the test, conviction will be upheld if the conviction would have resulted despite the improper evidence
4th amendment Protects citizens from unreasonable searches and seizures
4th amendment- Arrests and detentions; Probable cause Arrest must be based on probable cause
4th amendment- Arrests and detentions; Arrest warrants Generally not required before arresting someone in a public place; Even if time to get one
4th amendment- Arrests and detentions; Non-emergency arrest Of an individual in his home does require an arrest warrant
4th amendment- Arrests and detentions; Station house detention Police need probable cause to arrest you and COMPEL you to come to police station either for fingerprinting or interrogation
4th amendment- Investigatory detentions ("Terry" stops) Police have authority to briefly detain person even if they lack probable cause to arrest; In order to make stop, the police must have reasonable suspicion supported by articuable facts of criminal activity (hunch not enough even if right)
4th amendment- Reasonable suspicion Whether police have reasonable suspicion depends on totality of circumstances
4th amendment- Automobile stops Police may stop car if they have at least reasonable suspicion that law has been violated
4th amendment- Exception; Check point, road blocks Police do not need reasonably suspicion to stop car so long as it is neutrally applied; DUI or border checkpoints
4th amendment- Traffic stops and police dogs During routine traffic stops, a sniff is not a search so long as the police do not extend the stop beyond time needed to issue ticket or conduct normal inquiries
4th amendment- Search & Seizure; Model answer: Step one, Gov't conduct 1. Publically paid police on/off duty, 2. Private individual acting at direction of public police, a. Privately paid police action NOT constitute gov't conduct unless deputize w/power to arrest, b. Example- Store security, subdivision/campus police
4th amendment- Search & Seizure; Model answer: Step two, Reasonable expectation of privacy- Automatic categories of STANDING a. If you own premises searched always have standing to object to search, b. You live on premises searched, whether you have ownership interest or not, c. Overnight guests have standing to object to legality of search of place they are staying
4th amendment- Search & Seizure; Model answer: Step two, Reasonable expectation of privacy- "Sometimes category of standing If you own property seized you have standing ONLY IF have reasonable expectation of privacy in the item/area searched
4th amendment- Search & Seizure; Model answer: Step two, Reasonable expectation of privacy- No standing No expectation of privacy, and therefore NO standing for anything that you hold out to the public everyday
4th amendment- Search & Seizure; Model answer: Step two, Reasonable expectation of privacy- No standing, Your voice Sound of your voice
4th amendment- Search & Seizure; Model answer: Step two, Reasonable expectation of privacy- No standing, Handwriting Style of your handwriting
4th amendment- Search & Seizure; Model answer: Step two, Reasonable expectation of privacy- No standing, Outside of car Paint on outside of car
4th amendment- Search & Seizure; Model answer: Step two, Reasonable expectation of privacy- No standing, Account records Account records held by your bank
4th amendment- Search & Seizure; Model answer: Step two, Reasonable expectation of privacy- No standing, Location of your car Monitoring the location of your car on public street or in your driveways; Must have warrant to put gps device on someone's car
4th amendment- Search & Seizure; Model answer: Step two, Reasonable expectation of privacy- No standing, Open fields Anything that can be seen across the the open fields
4th amendment- Search & Seizure; Model answer: Step two, Reasonable expectation of privacy- No standing, Public air space Anything that can be seen from flying over in the public air space
4th amendment- Search & Seizure; Model answer: Step two, Reasonable expectation of privacy- No standing, Odors The odors emanating from your luggage or car
4th amendment- Search & Seizure; Model answer: Step two, Reasonable expectation of privacy- No standing, Trash Your trash set out on curb for collection; Must be out for collection on curb
4th amendment- Search & Seizure; Model answer: Step three, Did police have valid search warrant- Two core requirements for facially valid search warrant (PP) Probable cause and particularity
4th amendment- Search & Seizure; Model answer: Step three, Did police have valid search warrant- Standard of probable cause A fair probability that contraband or evidence of crime will be found in area searched
4th amendment- Search & Seizure; Model answer: Step three, Did police have valid search warrant- Particularity Warrant must state with particularity the place to be searched and the things to be seized
4th amendment- Search & Seizure; Model answer: Step three, Did police have valid search warrant- Warrants and use of informants, ... An officer's affidavit or probably cause is based on informant info., its sufficiency determined by totality of circumstances
4th amendment- Search & Seizure; Model answer: Step three, Did police have valid search warrant- Warrants and use of informants, Relevant factors An informant's reliability/credibility and basis of knowledge relevant factors in making this determination
4th amendment- Search & Seizure; Model answer: Step three, Did police have valid search warrant- Warrants and use of informants, Informant tip Valid warrant can be based in part on informant's tip even though informant is anonymous
4th amendment- Search & Seizure; Model answer: Step three, Did police have valid search warrant- "No knock" Entry permitted in execution of search warrants if exigent circumstances exist
4th amendment- Search & Seizure; Model answer: Step three, Did police have valid search warrant- "No knock", Knock and announce Officer need not "knock and announce" if knocking and announcing would be dangerous, futile, or inhibit investigation
4th amendment- Search & Seizure; Model answer: Step three, Did police have valid search warrant- "No knock", Inhibiting investigation Biggest fear of inhibiting investigation: Destruction of evidence
4th amendment- Search & Seizure; Model answer: Step four, If warrant not valid, does officer's good faith defense save defective search warrant- G/R An officer's good faith reliance on search and warrant overcomes defects with probable cause or particularity requirements
4th amendment- Search & Seizure; Model answer: Step four, If warrant not valid, does officer's good faith defense save defective search warrant- Exceptions to good faith reliance on defective search warrant, Lacking in probable cause Affidavit underlying warrant is so lacking in probable cause that no reasonable police officer would have to rely on it
4th amendment- Search & Seizure; Model answer: Step four, If warrant not valid, does officer's good faith defense save defective search warrant- Exceptions to good faith reliance on defective search warrant, Lacking particularity Affidavit underlying warrant is so lacking in particularity that no reasonable officer would have relied on it
4th amendment- Search & Seizure; Model answer: Step four, If warrant not valid, does officer's good faith defense save defective search warrant- Exceptions to good faith reliance on defective search warrant, Lied/mislead Police officer or prosecutor lied to or mislead the magistrate when seeking warrant
4th amendment- Search & Seizure; Model answer: Step four, If warrant not valid, does officer's good faith defense save defective search warrant- Exceptions to good faith reliance on defective search warrant, Bias If magistrate is biased, and therefore has wholly abandoned his/her neutrality
4th amendment- Search & Seizure; Model answer: Step five, Exceptions to warrant requirement If warrant is invalid and cannot be saved by good faith defense or if police never had any warrant at all, then move to this step
4th amendment- Search & Seizure; Model answer: Step five, Exceptions to warrant requirement- Search incident to arrest, Lawful arrest Arrest must be lawful, if arrest is unlawful then search is unlawful
4th amendment- Search & Seizure; Model answer: Step five, Exceptions to warrant requirement- Search incident to arrest, Contemporaneous Arrest and search must be contemporaneous in time and place
4th amendment- Search & Seizure; Model answer: Step five, Exceptions to warrant requirement- Search incident to arrest, Geographic scope limitation What can be searched? Person and areas in which he can reach either to procure weapon or to destroy evidence
4th amendment- Search & Seizure; Model answer: Step five, Exceptions to warrant requirement- Search incident to arrest, Search incident to arrest/automobiles Police may search interior of auto incident to arrest only if- 1. Arrestee is unsecured and still may gain access to interior of vehicle, OR, 2. Police reasonably believe evidence of offense evidence for offense person arrested may be found in vehicle
4th amendment- Search & Seizure; Model answer: Step five, Exceptions to warrant requirement- Search incident to arrest, Search incident to arrest/automobiles, Community caretaker exception Justifies warrantless search if an officer faces an emergency that threatens the health or safety of individual or public
4th amendment- Search & Seizure; Model answer: Step five, Exceptions to warrant requirement- Automobile exception, Probable cuase In order for police to search anything or anybody and fall under this exception they must have probable cause
4th amendment- Search & Seizure; Model answer: Step five, Exceptions to warrant requirement- Automobile exception, But only if Before searching anything or anybody police have probable cause then they can search the entire car; This includes entire interior compartment, and trunk;
4th amendment- Search & Seizure; Model answer: Step five, Exceptions to warrant requirement- Automobile exception, But only if probable cause Moreover, if there is probably cause, police may open (w/o warrant) any package, luggage or other contain which could reasonably contain item they had probable cause to look for whether package luggage or other container is owned by passenger or driver
4th amendment- Search & Seizure; Model answer: Step five, Exceptions to warrant requirement- Automobile exception, PC arises Probable cause necessary to justify the warrantless search of an auto under automobile exception can arise after car is stopped; But, probable cause must arise before anything or anybody is searched
4th amendment- Search & Seizure; Model answer: Step five, Exceptions to warrant requirement- Plain view, Presence To constitute valid plain view seizure police officer must be legitimately present at location where he/she does the viewing of item seized
4th amendment- Search & Seizure; Model answer: Step five, Exceptions to warrant requirement- Plain view, Apparency It must be immediately apparent that item is contraband or fruit of a crime
4th amendment- Search & Seizure; Model answer: Step five, Exceptions to warrant requqQQQQqqirement- Consent, Valid For consent to be valid, consent must be voluntary and intelligent; Police saying they have warrant negates consent (consent not proper if saying have warrant)
4th amendment- Search & Seizure; Model answer: Step five, Exceptions to warrant requirement- Consent, Third party consent Where 2 or more people have equal right to use piece of property, either can consent to its warrantless search; However, if both people present and one person consents to search and other does not, the one who does NOT consent controls
4th amendment- Search & Seizure; Model answer: Step five, Exceptions to warrant requirement- Stop and frisk, "Terry" stop A "Terry" stop is brief detention for purpose of investigating suspicious conduct
4th amendment- Search & Seizure; Model answer: Step five, Exceptions to warrant requirement- Stop and frisk, Legal standard The legal standard for stopping is reasonable suspicion
4th amendment- Search & Seizure; Model answer: Step five, Exceptions to warrant requirement- Stop and frisk, Reasonable suspicion standard Is less than the probable cause standard
4th amendment- Search & Seizure; Model answer: Step five, Exceptions to warrant requirement- Stop and frisk, "Terry" frisk Pat down of outer clothing and body to check for weapons
4th amendment- Search & Seizure; Model answer: Step five, Exceptions to warrant requirement- Stop and frisk, "Terry" frisk justified By concern for ...
4th amendment- Search & Seizure; Model answer: Step five, Exceptions to warrant requirement- Stop and frisk, Investigatory stop If probable cause arises during an investigatory stop, the detention can become an arrest and officer could then conduct a full search incident to arrest
4th amendment- Search & Seizure; Model answer: Step five, Exceptions to warrant requirement- Stop and frisk, Auto stops If vehicle properly stopped for traffic violation and officer reasonably believes driver/passenger armed and dangerous, officer may 1) conduct frisk of suspected person, and 2) may search vehicle, so long as limited to areas in which weapon may be placed
4th amendment- Search & Seizure; Model answer: Step five, Exceptions to warrant requirement- Evanescent evidence Evidence that might disappear quickly if police took the time to get warrant; Scrapping finger nails, blood tests
4th amendment- Search & Seizure; Model answer: Step five, Exceptions to warrant requirement- Hot pursuit of fleeing felon Rule of thumb: If police are not within 15 minutes behind fleeing felon, it is not valid hot pursuit exception
4th amendment- Search & Seizure; Model answer: Step five, Exceptions to warrant requirement- Hot pursuit of fleeing felon, Entering home If police truly in hot pursuit they can enter anyone's home without warrant, any any evidence they see in plain view will be admissible
4th amendment- Search & Seizure; Model answer: Step five, Exceptions to warrant requirement- Inventory searches Before incarceration of an arrestee, , police may search 1) arrestee's personal belongings, and/or 2) arrestee's entire vehicle
4th amendment- Search & Seizure; Model answer: Step five, Exceptions to warrant requirement- Public school searches, Random drug tests Public school children engaged in extracurricular activities can be randomly drug tested; Any activity, including school dance or club
4th amendment- Search & Seizure; Model answer: Step five, Exceptions to warrant requirement- Public school searches, Violation of school rules Warrentless search of public school children's affects, such as purses and/or backpacks is permissible to investigate violations of school rules
4th amendment- Search & Seizure; Model answer: Step five, Exceptions to warrant requirement- Public school searches, School search Reasonably only if- 1. Offers a moderate chance of finding evidence of wrongdoing, and 2. Measures adopted to carry out search are reasonably related to objectives of search, and 3. Search not excessively intrusive
4th amendment- Wiretapping and eavesdropping Requires a warrant
4th amendment- Wiretapping and eavesdropping; Exception to eavesdropping: "Unreliable ear" & "Uninvited ear", Assume risk No warrant necessary; Everybody in society assume risk that person to whom he is speaking will either consent to gov't monitoring conversation or will be wired and therefore no 4th amendment objection on basis that it warrantless search
4th amendment- Wiretapping and eavesdropping; Exception to eavesdropping: "Unreliable ear" & "Uninvited ear", Speaker No 4th amendment right if she makes no attempt to keep conversation private
4th amendment- Confessions; Miranda warnings: When required Suspect must be given- 1. Have right to remain silent, 2. Anything you say can be used against you in ct, 3. You have right to an attorney, and 4. If you cannot afford an attorney, only will be appointed for you if you so desire; Need not be verbati
4th amendment- Confessions; Miranda warnings: Trigger Trigger for required Miranda warning custodial interrogation
4th amendment- Confessions; Miranda warnings: Trigger, Custody- Legal standard You are in custody if, at time of interrogation, you are NOT free to leave
4th amendment- Confessions; Miranda warnings: Trigger, Custody- Legal standard, Not free to leave Covered being in police car or being in jail, but you could also be in your home or in hospital bed; OBJECTIVE standard
4th amendment- Confessions; Miranda warnings: Trigger, Custody- Not custodial Probation interviews and routine traffic stops are not custodial; If come to window and ask you then can be used against you even if not miranda rights
4th amendment- Confessions; Miranda warnings: Trigger, Interrogation- 5th amendment Interrogation is defined as any conduct where the police knew or should have known that they might elicit an incriminating response from the suspect
4th amendment- Confessions; Miranda warnings: Trigger, Interrogation- Miranda not required Prior to admissibility of what's known as a spontaneous statement; Look for "blurted out", if so then going to be admissible
4th amendment- Confessions; Miranda warnings: Waiver Miranda waiver must be knowingly, voluntary and intelligent
4th amendment- Confessions; Miranda warnings: Waiver, Totality of circumstances test Ct will employ a totality of circumstances test in making determination
4th amendment- Confessions; Miranda warnings: Invoking your Miranda rights, Right to remain silent Must be unambiguous; Police may reinitiate questioning after D invoked right to silence if they wait a significant amt of time, D is re-Mirandized, and question limited to crime not subject of earlier questioning
4th amendment- Confessions; Miranda warnings: Invoking your Miranda rights, Right to counsel Request for counsel can be invoked only by an unambiguous request; If accused invokes right to counsel, all questions must cease until accused 1) Given atty, or 2) Initiates further questioning
4th amendment- Confessions; Miranda warnings: Invoking your Miranda rights, Right to counsel- 5th v. 6th amendment, Ct created 5th right to counsel arising when suspect invokes Miranda rights and requests attorney;
4th amendment- Confessions; Miranda warnings: Invoking your Miranda rights, Right to counsel- 5th v. 6th amendment, 5th amendment NOT offense specific and thus applies to entire process of custodial police interrogation; Hears Miranda and then states "want attorney" so atty for entire process
4th amendment- Confessions; Miranda warnings: Invoking your Miranda rights, Right to counsel- 5th v. 6th amendment, 6th amendment Is offense specific meaning counsel would only need to be present if D being asked questions about specific case for which D retained counsel
Pre-trial Identification- Substantive basis to attack pre-trial identification; Denial of right to counsel: Post charge Line ups(standing in a line) and show ups (one-by-one) give rise to right to counsel; Counsel need to present
Pre-trial Identification- Substantive basis to attack pre-trial identification; Denial of right to counsel: No right to counsel When police go out to show victim or witness photographs
Pre-trial Identification- Substantive basis to attack pre-trial identification; Denial of right to counsel: Other stages Taking blood/handwriting samples; Pre-charge lineups; Brief recess during D testimony at trial; Parole and probation revocation proceedings; Taking of fingerprints
Pre-trial Identification- Substantive basis to attack pre-trial identification; Denial of due process Certain pre-trial identification techniques are so unnecessarily suggestive and so substantially likely to produce misidentifiaction that they deny due process of law
Pre-trial Identification- Substantive basis to attack pre-trial identification; Denial of due process: Remedy for unconstitutional pre-trial identification Exclude the in-court identification; Unless State can show that it had adequate independent source for that in-court identification (independent of bad line-up)
Pre-trial Identification- Substantive basis to attack pre-trial identification; Denial of due process: Independent source Victim or witness had adequate opportunity to observe the D at time of crime; Bank robbery and see without mask for 10 minutes
Pre-trial Identification- Bail Bail issues are immediately appealable; Preventive detention is constitutional
Pre-trial Identification- Grand juries; Exclusion Does not apply to conduct of grand juries; Grand jury witness may be compelled to testify based on illegally seized evidence
Pre-trial Identification- Grand juries; Proceeding Secret; D has no rights to appear and no right to send in witnesses
Prosecutorial Duty to Disclose Exculpatory Information- Prosecutors failure to disclose evidence Whether willful or inadvertent, violates Due Process and may be grounds for reversal of conviction; "Brady"
Prosecutorial Duty to Disclose Exculpatory Information- Failure to disclose exculpatory information Constitute grounds for reversing conviction if- 1. Evidence is favorable to D, and 2. Prejudice has resulted, meaning there is a reasonable probability that result would have been different had info been disclosed
Trial- Right to unbaised judge; Bias Having a financial interest in the outcome of case or some actual malice against D
Trial- Right to jury trial; Constitutional right Attaches anytime D tried for an offense for which maximum authorized sentence exceeds 6 mos; If maximum authorized sentence is up to or including 6 mos, there is no constitutional right to jury trial
Trial- Right to jury trial; Number and unanimity of jurors: Minimum numbers of jurors Permissible is 6; If ct uses minimum number of jurors, verdict must be unanimous
Trial- Right to jury trial; Number and unanimity of jurors: No federally protected constitutional right To unanimous twelve juror verdict; Supreme ct has approved non-unanimous verdict of 10-2 and 9-3
Trial- Right to jury trial; Cross sectional requirement Right to have jury pool reflect a fair cross section of community; But, no right to have impaneled jury reflect fair cross section of community
Trial- Right to jury trial; Use of peremptory challenges Challenge to exclude a prospective juror for any reason what so ever
Trial- Right to jury trial; Use of peremptory challenges: Unconstitutional For prosecutor or defense to exercise peremptory challenges to exclude from jury prospective jurors on account of their race or gender
Trial- Right to counsel; Criminal D Right to counsel applies to all critical stages of prosecution, including trial
Trial- Right to counsel; Ineffective assistance of counsel: Rule There must be deficient performance by counsel and, but for such deficiency, the result of proceeding would have been different
Trial- Right to counsel; Ineffective assistance of counsel: Specifying particular errors Typically, such a claim can only be made out by specifying particular errors of trial counsel
Trial- Right to counsel; Right to self-representation: D right To defend himself so long as waiver of trial counsel is knowingly and intelligent, and he is competent to proceed to pro se
Trial- Right to counsel; Right to self-representation: D found mentally incompetent To stand trial, yet incompetent to represent himself, as determined by trial judges discretion
Trial- Right to counsel; Right to confront witnesses: Absence face-to-face confrontation B/w D and accuser does NOT violate 6th am when preventing such confrontation serves important public purpose and reliability of witness testimony otherwise assured; Important public purpose: child trauma in sex abuse cases
Trial- Right to counsel; Right to confront witnesses: D ... May be removed from ctroom, thereby relinquishing right to confrontation
Guilty Please and Plea Bargaining Supreme ct will not disturb guilty pleas after sentencing; K theory: Both sides agree to K so held to deal
Guilty Please and Plea Bargaining- D pleads guilty; Judge must specifically address D on record about Nature of charge; Judge must tell D maximum authorized penalty and any mandatory minimum penalty; Judge must tell him he has right to plead not guilty and to demand trial; All of this must be on record
Guilty Please and Plea Bargaining- Good bases for withdrawing guilty plea after sentencing; Involuntary Plea was involuntary (some mistake in plea taking ceremony); A plea not involuntary merely because it was entered in response to prosecution's threat to charge D with more serious crime
Guilty Please and Plea Bargaining- Good bases for withdrawing guilty plea after sentencing; Jurisdiction Lack of jurisdiction
Guilty Please and Plea Bargaining- Good bases for withdrawing guilty plea after sentencing; Counsel Ineffective assistance of counsel
Guilty Please and Plea Bargaining- Good bases for withdrawing guilty plea after sentencing; Agreed upon plea bargain Failure for prosecutor to keep agreed upon plea bargain
Death penalty- Death penalty statute Death penalty statute does not give D chance to present mitigating facts and circumstances to unconstitutional
Death penalty- Automatic category Can be no automatic category for imposition of death penalty
Death penalty- State may not by statute Limit the mitigating factors; All relevant mitigating evidence must be admissible or death penalty statute is unconstitutional
Death penalty- Jury Only a jury, not a judge, may determine aggravating factors justifying imposition of death penalty
Double jeopardy- Attaching Attaches in jury trial when jury is sworn; In a bench trial, jeopardy attaches when the first witness sworn
Double jeopardy- Not attaching Does not generally attach when proceedings are civil
Double jeopardy- Exceptions permitting retrial; Jury Jury is unable to reach a verdict
Double jeopardy- Exceptions permitting retrial; Mistrials Mistrials for manifest necessity
Double jeopardy- Exceptions permitting retrial; Retrials Retrial after a is not DJ
Double jeopardy- Exceptions permitting retrial; After successful appeal Upon retrial after successful appeal, the D cannot be retried for a more serious offense than convicted of at first trial; Cannot be charged with murder 1/2 after being tried for manslaughter
Double jeopardy- Exceptions permitting retrial; Breach Breach of agree upon plea bargain by D; When D breaches plea bargain agreement, plea and sentence can be withdraw and the original charges reinstated
Double jeopardy- Crimes do not constitute same offense if each crime requires proof of addition element that other does not; Lesser included offenses Being put in jeopardy for greater offense bars retrial for any lesser included offense
Double jeopardy- Crimes do not constitute same offense if each crime requires proof of addition element that other does not; Lesser included offenses: Exception If D tried and convicted on charge of battery, and victim of battery later dies due to injuries, the person can also then be prosecuted for greater offense
Double jeopardy- Separate sovereigns Double jeopardy bars retrial for same offense by sovereign; State and federal are different sovereigns
5th Amendment Privilege Against Compelled Testimony- Asserted By anyone in any type of case; Anyone asked question under oath in any kind of case, wherein response might tend to incriminate him is entitled to 5th amendment privilege
5th Amendment Privilege Against Compelled Testimony- Asserted; When Must assert privilege the first time the question is asked for you will have waived your 5th amendment privilege for all subsequent criminal prosecution
5th Amendment Privilege Against Compelled Testimony- Asserted; Claimed Privilege must be claimed in civil proceeding to prevent privilege from being waived for later criminal prosecution
5th Amendment Privilege Against Compelled Testimony- Asserted; Civil proceeding Individual responds to questions instead of claiming the privilege during civil proceeding, he cannot later bar evidence on 5th amendment grounds
5th Amendment Privilege Against Compelled Testimony- Scope of protection; Protection 5th amendment protects citizens from compelled testimony
5th Amendment Privilege Against Compelled Testimony- Scope of protection; Not protect 5th amendment does not protect citizens from having gov't use physical evidence in ways to incriminate them
5th Amendment Privilege Against Compelled Testimony- Scope of protection; Examples of non-testimonial evidence prosecution can compel person to produce Persons blood/handwriting/voice/hair sample
5th Amendment Privilege Against Compelled Testimony- 5th amendment and prosecutorial conduct; Unconstitutional It is unconstitutional for prosecutor to make negative comment on D's failure to testify or on D choosing to remain silent after being given Miranda warnings
5th Amendment Privilege Against Compelled Testimony- 5th amendment and prosecutorial conduct; Exception Prosecutor can comment on D's failure to take stand when comment is in response to defense counsel's assertion that D not allowed to explain his side of the story
5th Amendment Privilege Against Compelled Testimony- 5th amendment and prosecutorial conduct; Harmless error test When prosecutor impermissibly comments on D's silence, the harmless error test applies, and thus, the prosecutor's conduct may not be fatal to an otherwise sound conviction
5th Amendment Privilege Against Compelled Testimony- 5th amendment privilege can be eliminated 1. Under grant of immunity; 2. No possibility of incrimination (SOL run on underlying crime, not entitled to 5th am privilege); 3. Waiver (Criminal D who takes witness stand waives 5th am privilege as to all legitimate subjects of cross)
General notes and tips Know search and seizure, Miranda, spontaneous statement, community caretaker, public school searches, search incident to arrest
General notes and tips Key phrases- 1. Independent source (Good for gov't, Breaking chain, remedies pretrial identification errors), 2. Totality of circumstances (reliability of informants, judging reasonable suspicion Terry stops), 3. Miranda waivers
General notes and tips Harmless error- 1. Deals with exclusionary rule of improperly admitted evidence 2. Prosecutorial comments on D's silence
Created by: dmoore147