Term
| Who do constitutional protections apply to |
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Definition
only to government action; exceptions:
-private persons acting as government agents
-defense counsel (both public and private) are treated as government actors for purposes of 6A with respect to effective assistance of counsel |
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Term
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Definition
-arrests and seizures of persons
-FL: must follow SCOTUS interpretations of 4A
-police can approach anyone in public, and unless the encounter escalates to police preventing person from moving or leaving, there is no real constraint on what police can do and no protection against what they discover
seizure: occurs when an officer, by means of physical force or show of authority intentionally terminates or restraints the subject's freedom of movement
-to determine if it is a seizure: whether a reasonable person would feel free to disregard the officer
-shooting a suspect, ramming suspect's car = seizure
-running over third party while chasing suspect = not a seizure
burden hierarchy
-beyond a reasonable doubt - conviction
-probable cause - arrest
-reasonable suspicion - stop (just a short encounter)
types of seizures
stop and frisk/terry stops: an officer can stop an individual when the officer has reasonable suspicion, based on articulable facts, to believe suspect is or is about to be engaged in criminal behavior
-an officer can pat-down a detainee for weapons, but cannot initiate a search for evidence; if the pat-down reveals objects whose shape makes their identity obvious (like contraband) officer can seize those objects; if probable cause develops during Terry Stop (something suspects sys or object discovered) then officer can make an arrest
traffic stops
-officer can pat-down suspect
-officers do not need reasonable suspicion to stop drivers if they pull over everyone (checkpoints)
arrests
-requires there be probable cause to believe that arrested individual has committed a crime; can be with or without a warrant
-pretext arrest: as long as police have probable cause to believe individual committed crime A, police may arrest that individual on basis of a hunch that there is another crime involved
warrants
-authorizes officer to arrest another
-arrest is issued by neutral and detached magistrate; before signing a warrant, court reviews an affidavit that is attached (sworn statement usually by law enforcement officer; must include: probable cause, person to be searched, place to be searched, property to be searched)
-FL: warrant must be returned within 10 days of issuance
-FL: cannot be executed at night of or on Sunday unless authorized
arrest warrant must contain (FL)
-that it is from state of FL
-name of D or sufficient information for identification
-nature of offense
-date warrant is issued
-county where it is issued
-amount of bail
-signature of judge
*if officers forget the warrant, can go ahead and arrest them if they tell them the reason and show them it as soon as they get to the police station
-allows officers to enter home and arrest individuals
-absent an arrest warrant, officers can arrest someone inside a dwelling if: there are (1) exigent circumstances (felony hot pursuit or danger to others) or (2) there is consent to enter
warrantless arrests
-no finding of probable cause by neutral and detached magistrates but officer has probable cause to believe the individual committed a crime
-if officer sees crime being committed or someone told officer a crime has been committed, then they have probable cause
-if crime was not committed in officer's presence, officer can make arrest only for a felony |
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Term
| Searches incident to arrest |
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Definition
lawful arrest permits arresting officer to make a contemporaneous search of person arrested and immediate areas surrounding person to:
-protect officers' safety and public safety, and
-prevent destruction of evidence
-any evidence discovered during a search incident to a lawful arrest can be used against person arrested
-arrest on the street: can search suspect and his wingspan (where he can reach)
-arrest at home: can search suspect and his immediate area
-arrest in car: may search passenger compartment of vehicle as long as person/suspect still has access to vehicle at time (so cannot arrest suspect, put him in back of squad car, and then search through his car); but if it is reasonable to believe that the vehicle contains evidence of the offense of the arrest, search would be proper
-inventory searches: when police arrest a driver and impound car, may be searched for inventory purposes; would apply when there is not a passenger to drive the car home
-KEY: if the arrest was illegal, either because there was no probable cause or there was some other violation of the law, the presumption is that any evidence seized during the search incident to the arrest should be excluded from prosecution's case-in chief (so think: arrest was with probable cause and arrest was not beyond scope of search) |
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Term
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Definition
occurs when government conduct violates a reasonable expectation of privacy
-government: must be government conduct
-reasonable expectation of privacy
-places we do have reasonable expectation of privacy: homes, hotel rooms, offices, backyard of home, luggage
-places we do not have reasonable expectation of privacy: public streets, open fields, garbage cans left on street, abandoned property |
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Term
| Search warrant requirements |
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Definition
generally need a warrant to conduct a search if there is a reasonable expectation of privacy
requirements
-issued by neutral magistrate
-based on probable cause to believe that items sought are fruits, instrumentalities, or evidence of crime
-must describe place and property to be searched with particularity
if warrant does not meet above requirements the warrant is invalid and items seized pursuant to the warrant will be excluded from the prosecution's case-in-chief |
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Term
| Exceptions to warrant requirement |
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Definition
-exigent circumstances
-search incident to arrest
-consent
-automobiles
-plain view
-evidence obtained from administrative searches
-stop and frisk
exigent circumstances
-officers entitled to secure premises (prevent people from moving things) while they obtain a warrant, but sometimes this is not sufficient
-if officers are in hot pursuit or immediate danger, they may conduct a search without getting a warrant first
-however a warrant is necessary for a search if officers create the exigent circumstances
-SCOTUS has held that generally a warrant is required for a search incident to a DUI; DUI is not an exigent circumstance that allows for immediate blood alcohol concentration test unless exigent circumstances are such that is impossible to get a warrant (late at night so judge not available, far from hospital) |
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Term
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Definition
-D/suspect can consent to search
-consent does not require officer to inform the subject of his right to refuse (ex: mind if I look in that)
third parties
-third party with apparent authority can allow a search |
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Term
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Definition
| if police have probable cause to believe an automobile contains contraband they can search those parts of the vehicle and containers inside, which could contain that contraband; cannot search other areas or containers |
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Term
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Definition
| if police are legally on the premises, they can seize any item in plain view or plain smell even if that item was not named in the warrant |
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Term
| Evidence obtained from administrative searches |
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Definition
administrative warrants
-do not require probable cause (such as fire or health inspection of building); evidence, instrumentality, or fruit of a crime can be seized if seen during administrative search
warrantless administrative search
-conducted for noninvestigative purposes, but if they turn up evidence of a crime, can be used for arrest and subsequent prosecution
-airplane and boarding areas
-international borders
-highly regulated industries (liquor stores, gun shops)
-searches of students in public schools
-special needs searches (drug testing of railroad employees after accident)
-roadblocks for drunk driving or seeking info) |
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Term
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Definition
no person shall be compelled in any criminal case to be a witness against himself
scope
-applies to natural persons, not corporations or unions
-applies to testimonial evidence, not physical evidence
-applies to testimony that would be incriminating
-can be invoked in ay proceeding as long as there is a reason to believe the testimony might lead to a future criminal prosecution
statements made by an individual
-must be made by an individual to the government (so can force B to testify about A's statements)
-SCOTUS held that statements made as a result of a custodial interrogation are inadmissible unless they are accompanied by procedural safeguards (Miranda rights)
-custodial: person being questioned has been arrested or is otherwise not free to leave; if not in custody, no warning is required; any statement or failure to respond to questions can be used against them
-interrogation: involves either official asking questions or engaging in other conversation or conduct police know or should know will elicit a response; does not include voluntary statements or routine booking statements
Miranda warnings
-before conducting custodial interrogations, police must inform suspect: she has the right to remain silent, any statement she makes may be used against her in court, she has the right to consult an attorney and have the attorney present during questioning, and she has the right to have an attorney appointed if she cannot afford one
-statement taken in violation of Miranda can be used to impeach credibility of criminal D if he takes the witness stand
-interrogators must ask whether D understands his rights
-as long as substance of Miranda warnings is communicated, it will be sufficient
-if D invokes the right to remain silent, police must cease questioning; D has to say she does not want to talk; it must be affirmatively invoked, not enough to remain silent; after a substantial period of time, police can go back, give warning again, and seek to talk
-if suspect invokes right to counsel, interrogation must cease; right must be affirmatively invoked; must stop until the lawyer is present or the D reinitiates contact with police; police cannot generally go back to D unless there is break of two weeks between the interrogations and D waives her Miranda rights second time; police do not have to tell D that lawyer is trying to reach her if D does not ask for lawyer
public safety exception
-when public safety is at risk, police do not have to give Miranda warnings before questioning
interrogation tactics
-confession must be voluntary
-statements obtained by threats, even after warnings, are inadmissible (we will prosecute you is not a threat)
-confessions can be the product of deceit and still be voluntary and admissible |
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Term
| Consequences of fifth amendment violations |
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Definition
involuntarily obtained statements
-never admissible against D
-whether to overturn a conviction depends on harmless error standard
-evidence obtained as a result of involuntary statement is fruit of poisonous tree and presumptively inadmissible
-think: putting gun to D's head
miranda violation statements
-statement obtained in violation of Miranda is inadmissible in prosecution's case in chief, but can be admitted for impeachment purpose to challenge credibility of D
-evidence obtained as a result of voluntary statement taken in violation of Miranda is admissible |
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Term
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Definition
-fifth amendment = right to counsel for custodial interrogations
-sixth amendment = assistance of counsel for his defense
-sixth amendment automatically attaches once there has been an indictment, information, or other formal charges and exists unless D knowingly and intelligently waives the right; 5th A must be affirmatively invoked by D
-6th A applies only with regard to offenses for which D has actually been charged and any lesser-included offenses; D can still be questioned, either expressly or through undercover government means, with respect to unrelated charges
-applies whether you are in custody or not; 5th A only applies to custodial interrogation but not non-custodial interrogation
when does 6th A right to counsel apply
-all felony prosecution and any misdemeanor prosecutions in which jail time or suspended jail sentence is imposed
-all critical stages of the prosecution (hearings, post-indictment lineups, post-indictment, interrogations, all parts of trial process)
-non-critical stages: investigative lineups, witnesses looking at photo arrays, discretionary appeals and post-conviction (habeas) proceedings |
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Term
| Identification procedures |
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Definition
types
-photo arrays: neither D nor his lawyer has right to be present, but police must turn over array to D
-pre-indictment lineups: D has no right to counsel
-post-indictment lineups: D has a right to counsel present; if that right is violated, then evidence that witness identified D at lineup must be excluded
admissibility
-lineup evidence at trial: if D moves to suppress evidence that witness picked D out of lineup, court will consider whether lineup was impermissibly suggestive; if it was, court can exclude
-in-court identification: if prosecution can establish by clear and convincing evidence that witness would have identified D even without suggestive lineup, court will permit in-court identification even if it suppresses result of lineup |
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Term
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Definition
illegally obtained evidence, either physical evidence obtained by an illegal search or a statement obtained through an illegal interrogation is inadmissible at the criminal trial of the person whose rights were violated
-in violation of 4th, 5th, or 6th amendments
-applies not only to evidence obtained in violation of constitution, but also to evidence obtained as a result of initial violation
applies at trial and not to pretrial proceedings (grand jury, etc.) |
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Term
| Exclusionary rule - standing |
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Definition
violation must have been of D's right, and not someone else's rights
but: if driver of a car is arrested without probable cause, passengers are deemed to have been seized as well, so they can challenge constitutionality of the stop |
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Term
| Exclusionary rule - exceptions |
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Definition
knock and announce: although officers executing an arrest warrant at a residence are required to knock and request admission, if they fail to do so, burst in, and discover evidence, it is admissible
inevitable discovery: if evidence would have been discovered anyway through lawful means, will be admissible
-cop A searching D's house without probable cause while cop B who has probable cause is in process of getting search warrant
independent source: relevant evidence discovered on basis of an independent source will be admissible
attenuation in casual chain: intervening events and passage of time can remove taint; however: if officers question D without warning him and then in midstream warn him and continue interrogation, causal chain has not been broken
good faith
-applies to officers who rely on either 1) existing law that was later declared unconstitutional, or 2) warrant that, while facially valid, is later found to be defective; if officers are acting in good faith reliance, they are entitled to use evidence that was obtained
-can rely on warrant as long as: warrant was not obtained by fraud, not defective on its face, magistrate did not wholly abandon his judicial role
isolated negligence by law enforcement personnel does not necessarily trigger exclusionary rule |
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Term
| Exclusionary rule - key points |
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Definition
-suppression is an issue only after you conclude that there has been a constitutional violation in the first place
-4A: was there a search? was there a seizure? if yes, was there probable cause? 4A violation exists only if you can say that there was a search or seizure but no probable cause
-5A: was there a 5A interrogation violation? was the D in custody? was there an interrogation? was D given warnings? did he invoke his rights?
-6A: did 6A right to counsel attach? was this a critical stage
-if any of the above, ask whether exclusionary rule applies and what kind of violation
-if it is a kind of violation to which the exclusionary rule attaches, then ask whether one of the exceptions makes applies |
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Term
| Fed - pretrial - methods of determining probable cause |
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Definition
-under 5A Presentment Clause, all federal felony charges must be initiated by an indictment unless D waives indictment
-indictment claims that there is probable cause to believe that D committed the crimes charged
-5A presentment clause has not been incorporated to the states, so states have choice of whether to proceed by grand jury indictment or by information; if proceeding by information, there must be a preliminary hearing before a neutral judge to determine whether there is probable cause |
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Term
| Fed - pretrial - proceedings before grand jury |
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Definition
-grand juries can consider evidence that involves hearsay or that has been obtained in violation of the constitution in deciding whether to indict
-prosecutors have no duty to present exculpatory evidence to grand jury
-Ds do not have the right to appear before the grand jury or to call witnesses
-witnesses do not have the right to bring counsel within the grand jury room, although they can leave the grand jury room to consult with their lawyers
-grand jury proceedings are held in secret
-grand jury does not have to be unanimous |
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Term
| Fed - pretrial - D's competence to stand trial |
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Definition
test: whether the D comprehends the nature of the proceedings against him and can aid his lawyer in defending the case
if a D is competent to stand trial, he is also competent to waive the right to trial and to plead guilty |
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Term
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Definition
-8th A forbids setting of excessive bail, but does not state outright that bail must be offered pending trial
-bail is available unless D poses either a flight risk or a danger to the community; there is a presumption in favor of release pending trial and a presumption against release after conviction, pending appeal
-courts can impose pretrial release conditions on Ds, such as reporting requirements, house arrest, monitoring, or avoidance of particular locations or people |
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Term
| Fed - pretrial - guilty pleas |
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Definition
-majority of Ds do not go to trial; charges are either dismissed or D pleads guilty
-guilty plea waives various trial rights a D would otherwise have, such as right to put prosecution to its proof, to trial by jury, to challenge introduction of evidence, to appeal if there is a conviction
for a guilty plea to be valid, D must knowingly and intelligently waive these rights; this is accomplished through plea allocution where judge
-informs D of his rights and ensures that D understands those rights
-informs D of the possible sentence
-makes sure there is a factual basis for the plea
-determines that the plea did not result from force, threats, or improper promises
-that D understands the immigration consequences of pleading guilty
-if D is not provided with an appropriate plea allocution, D can challenge his plea as an involuntary waiver of his rights
-if D challenges his plea agreement, conviction is wiped out; prosecution goes back to square one
-guilty plea process is critical stage; D is entitled to have effective assistance of counsel under 6th A; absent effective assistance of counsel, D can withdraw his guilty plea and case goes back to square one |
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Term
| FL - pretrial - first appearance |
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Definition
arrestee must be brought in within 24 hours of arrest
what happens
-advised of charges and given copy of complaint
-advised of miranda rights (first time or reiteration)
-advised of right to counsel
-appoint counsel if indigent and possibility of jail time |
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Term
| FL - pretrial - pretrial release |
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Definition
presumption of pretrial release on non-monetary conditions
factors to consider
-nature and circumstances of crime
-weight of evidence
-danger to community
-community ties and employment
-mental state or substance abuse
-criminal history
note: bail can be modified with only three hours' notice |
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Term
| FL - pretrial - pretrial detention |
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Definition
Ds are not entitled to release if capital offense or crime punishable by life imprisonment and proof of guilty is evident or presumption is great
detention is granted if
-state files motion at first appearance or 3 days after hearing
-additional factors: violated conditions previously, drug trafficking or DUI manslaughter, under supervision at time of arrest |
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Term
| FL - pretrial - preliminary hearing |
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Definition
this is to determine probable cause; if there was an arrest warrant, probable cause was already found
non-adversary hearing to determine if probable cause to keep D in jail
-48 hours from arrest
-no arrest warrant was issued
-if D is in custody
-if judge finds no probable cause, then D must be released from detention; case is not dismissed but state is given notice and time to establish probable cause
adversary hearing to determine if there is probable cause to keep the person under arrest or under supervision of court on a bond
-not formally charged within 21 days after arrest (if not charged within 21 days, then D has right to adversary proceeding to determine probable cause)
-witnesses can be called
-D released from custody, but case is not dismissed
-can also apply if D is out of custody and D says that pretrial release conditions are a significant restraint on her liberty; must file a written notice explaining why this would eliminate those restraints and file within 21 days of arrest and notice given to state; judge has 7 days to make decision |
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Term
| FL - pretrial - filing of charges |
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Definition
felonies are charged by:
-indictment from a grand jury; capital offenses must be charged by indictment but other crimes can be charged by indictment
-information from state attorney: charging document created by state attorney and signed by state attorney saying there is probable cause
misdemeanors
-notice to appear
-affidavit (ticket)
in custody
-must file charges within 30 days of arrest
-if no files charged on day 30, court can require that D be released on 33rd day unless state files charges or 40th day if good cause shown unless state files charges, but D cannot remain longer than 40 days |
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Term
| FL - pretrial - joinder/severance of Ds and offenses |
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Definition
joinder can occur at the beginning of the case and severance can occur at the beginning or as the case goes on
offenses
-based on same acts or connected acts: should be joined together
-if state fails to consolidate acts, any additional charges may be dismissed
defendants
-charged together if they are accountable for each of the offenses charged
-motion to sever for fair determination of the facts
-if statement that are admissible to one D and not the other:
---try Ds together and try without statement, or
---try cases together and remove references to non-speaking D
---sever Ds and try separately |
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Term
| FL - pretrial - arraignment/plea |
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Definition
D is advised of charges in information or indictment
D enters a plea: guilty, not guilty, nolo contendere
court must decide if: D understands the plea and its significance, it is a voluntary plea, and there exists a factual basis for the plea |
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Term
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Definition
all motions must be in writing and served on opposing party
major motions:
-motion to dismiss
-motion to suppress evidence
-motion to take depositions to perpetuate testimony
-demand for speedy trial |
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Term
| FL - pretrial motions - motion to dismiss |
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Definition
must be filed at or before arraignment
can be based on
-double jeopardy
-motion alleges that there are no disputed facts and based on disputed facts, there is no prima facie case |
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Term
| FL - pretrial motions - motion to suppress evidence |
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Definition
-different from a motion in limine that is based on rules of evidence
-based on an alleged violation of constitution
-usually based on violations of police by 4th or 5th amendments
-filed before trial unless good cause shown for raising issue during trial |
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Term
| FL - pretrial motions - motion to take deposition to perpetuate testimony for trial |
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Definition
-different from a discovery deposition
-motion when there is concern that witness will not be available to testify at trial
-asking for permission to create trial testimony, usually vide deposition
-there will be objections that might not occur at normal depositions
-must be filed at least 10 days before trial |
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Term
| FL - pretrial motions - demand for speedy trial |
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Definition
-in absence of a demand for speedy trial, D has a right to be tried within 90 days of an arrest for a misdemeanor and 175 days from arrest for a felony
-if D is not tried within required time period, D must file a notice of expiration of time
-D can file a demand for speedy trial to be tried within 60 days (outer limit); court must hold hearing (calendaring) within 5 days of motion, set trial for between 5 and 45 days from that time; if trial doesn't get set after 50 days, D can file notice of expiration of time and court must set trial for within those last 10 days; outer limit is 60 |
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Term
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Definition
-failure to file notice precludes defense
-file notice and witness list at least 10 days before trial
-state must provide rebuttal witnesses within 5 days |
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Term
| FL - defenses - competency |
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Definition
standard: does D understand the nature of the proceedings and can the D assist her attorney in her own defense
-issue can be raised by court, prosecutor, or defense attorney
-if competency is raised, judge sets a hearing within 20 days to determine competency
if D is found to be not competent
-D must undergo treatment until rendered competent
-court will review D every 6 months
-once competency is restored, case proceeds
-case dismissed if not rendered competent after 5 years for a felony and 1 year for a misdemeanor |
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Term
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Definition
different from incompetency in three ways
-relevant time is of offense not time of trial
-definition of insanity is different
-insanity defense results in a trial in which insanity defense is an affirmative defense
pleading insanity
-D must file written notice within 15 days of arraignment
-if found not guilty by reason of insanity: committed to Department of Children and Family Services of treatment, order out-patient treatment, or discharge D
-if committed, court will review status no later than 6 months after admission |
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Term
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Definition
| after charges are filed, D begins discovery process by filing notice for discovery; committing yourself to reciprocity |
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Term
| FL - discovery - prosecutor's obligations |
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Definition
must disclose with 15 days of request
-any statements and tangible objects belonging to D
-electronic surveillance
-witness statements (names, addresses, and statements)
-experts' names and reports or statements
-grand jury minutes
-exculpatory information including information about confidential informants; can prevent by protective order if there is a fear that it might affect other cases
-DNA evidence |
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Term
| FL - discovery - D's discovery obligations |
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Definition
within 15 days of receiving prosecution's discovery, must turn over names of witnesses and any reports or statements intended to be used at trial
-NOTE D only needs to turn over what will be used at trial while prosecution must turn over everything
can be ordered to
-appear in lineup (voice or clothing)
-physical samples (fingerprints, hair, bloods)
-pose for photographs
-handwriting samples |
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Term
| FL - discovery - depositions |
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Definition
in FL, depositions may be taken in felony case but misdemeanor and traffic unless good cause shown
sanctions for non-compliance
-court order for compliance
-continue the case
-contempt |
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Term
| Fed - trial - D's right to a jury trial |
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Definition
6A provides a right to jury trial for all serious offenses, provided he asks for it; serious offenses are those for which authorized punishment is more than 6 months
-NOTE: 6A right to counsel attaches in misdemeanor cases only if sentence of incarceration is actually imposed |
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Term
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Definition
federal: jury in federal criminal cases must have 12 members and must decide case unanimously
states: can use juries of 6 or more in criminal cases; if state uses a jury of 12, juries do not have to be unanimous |
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Term
| Fed - trial - jury selection |
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Definition
begins with venire or jury pool
-must represent a fair cross section of community for which no distinctive group is excluded
petit or petty jury is selected through process of voir dire
-can remove for cause or peremptory challenges; while actual jury that is seated must be impartial, does not have to reflect fair cross-section of community
for-cause: used to ensure impartial jury
-jurors can be removed for cause when they reveal something that will prevent from deliberating fairly or intelligently
-number of challenges is limitless
peremptory challenges: can generally be made for anything
-each side is statutorily limited in amount
-neither side can challenge jurors on basis of race or sex |
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Term
| Fed - trial - speedy trial rights |
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Definition
D can be injured by passage of time between alleged crime and their trial
statutes of limitations give D repose
-SOL normally begin to run when crime was committed
-for continuing offense (conspiracy), SOL does not begin to run until end of offense (conspiracy's purpose has been achieved or abandoned)
two constitutional protections that protect against delay
-due process protects against pre-accusation delay
-speedy trial of 6A protects defendants against delay that occurs between time of arrest or indictment and time of trial
court faced with speedy trial looks at four factors:
-length of delay
-reason for delay
-whether D asserted his right to speedy trial
-prejudice to D |
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Term
| Fed - trial - public trial rights |
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Definition
6A and FA, taken together, protect rights of D and public to attend public trials
courts do have some discretion to close particular proceedings if there is a substantial likelihood of prejudice to D or unfairness |
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Term
| Fed - trial - confrontation clause |
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Definition
6A guarantees D the right to confront the witnesses against them, as well as right to compulsory process to produce their own witnesses
Crawford doctrine
-if statement is testimonial, then 6A bars admission of statement if declarant is unavailable and D had no prior opportunity to cross-examine witness
-for non-testimonial, look at rules of evidence
Bruton category
-D's own statements are always admissible against him; true even if D does not testify at trial
-if there are co-Ds, non-testifying co-D's statements are not admissible against co-D
D's right to present witnesses: D has right to testify on his own behalf; also has right to compulsory process to obtain witnesses in his defense |
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Term
| Fed - trial - burden of proof |
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Definition
prosecution must prove every element of crime beyond a reasonable doubt
important to determine what elements of the crime are, but to distinguish these from affirmative defenses
-government can place burden of proof with regard to affirmative defenses on D; affirmative defenses can include mistake, entrapment, self-D or insanity |
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Term
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Definition
-jury selection
-opening statement
-state's case
-motion for judgment of acquittal
-defense case
-jury charge
-closing arguments |
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Term
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Definition
D has right to speedy and public trial by impartial jury if
-D faces more than 6 months in jail
-D can waive right with consent of prosecutor
jury in felony case that is non-capital will consist of 6 jurors; in capital case it would be 12
upon request, D can be given a list of prospective jurors' names and addresses and their completed questionnaires |
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Term
| FL - trial - jury selection |
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Definition
challenges for cause
-either prosecutor or defense can challenge jury panel on grounds that prospective jurors were not selected legally
-each side has unlimited challenges for cause
peremptory challenges
-need not give a reason
-each party has 10 in felony punishable by death or life imprisonment
-6 in all other felonies
-3 in misdemeanors
-1 for each alternate juror
-each co defendant gets same number, and prosecution gets same number of all Ds |
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Term
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Definition
-must be sequestered in all capital cases
-may be allowed to submit questions in writing to witnesses
-may be allowed to visit and view a relevant location
-jury instructions are generally given orally and in writing and do not include the penalty except in capital cases
-verdict must be unanimous |
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Term
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Definition
| due process clause requires judges possess neither actual nor apparent bias; actual bias consists of interests that would impair judge's impartiality |
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Term
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Definition
four duties
Brady doctrine: must turn over all material exculpatory evidence to D
-includes: evidence that tends to show that D is not guilty of crimes charged and evidence that would enable D to impeach credibility of prosecution witnesses
-evidence is material if disclosure could change outcome of proceeding
-includes inconclusive lab reports, witness descriptions that do not match D, cooperation agreements with witnesses
prosecution may not knowingly present false testimony
prosecutor may not contact a D outside presence of his counsel
prosecutor may not comment on a D's failure to testify at trial or make unfair remarks about D to jury
prosecutorial misconduct
-prosecutorial misconduct that has a reasonable possibility of affecting verdict may require mistrial or reversal of conviction
-other forms of prosecutorial misconduct may result in discipline to prosecutor but generally do not result in any consequence for D |
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Term
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Definition
SCOTUS has held that 6A not only guarantees Ds the right to assistance of counsel, but guarantees them effective assistance of counsel
conflicts of interest
-joint representation, when a lawyer represents several different Ds at trial, can pose problems for D because of possibility of divided loyalty; if there is an actual conflict, judge must warn the Ds that joint representation is a risk or decide not to allow joint representation
-if a COI actually affects counsel's behavior, there is a presumption of prejudice; D may obtain a new trial
effective assistance: SCOTUS has two-part test (strickland test) for assessing whether a D was denied effective assistance
-1) performance: did D counsel's performance fall below wide range of objectively reasonable conduct that lawyers might engage in
-2) prejudice: the deficient performance prejudiced D because there is a reasonable probability that, had counsel performed effectively, the result would have been different
-cases that go to trial: D must show that there was a reasonable probability that he would not have been convicted if lawyer had done a good job
-guilty plea: D must show that he would not have pleaded guilty if his lawyer had done a decent job
-if D is denied effective assistance of counsel, conviction may be reversed |
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Term
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Definition
D who can afford retained counsel are entitled to counsel of their choice as long as lawyer is
-properly admitted in jurisdiction
-available for trial
-no conflict or other reason to disqualify lawyer
D who is denied the retained counsel of his choice is entitled to have conviction reversed regardless of whether lawyer who actually represented him at trial provided effective assistance of counsel
indigent Ds: not entitled to appointment of lawyer of their choice; just competent lawyer |
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Term
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Definition
Ds are entitled to waive right to counsel and represent themselves
D who proceeds per se does not have a constitutional right to a back up lawyer |
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Term
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Definition
-judge may withhold adjudication of guilty if judge places D on probation
-must advise D of his right to appeal
-in non-capital offenses, D can be released on bail pending appeal if D not previously convicted of a felony and appeal is taken in good faith and not frivolous |
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Term
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Definition
three primary constitutional provisions that regulate sentencing
-cruel and unusual punishments clause of 8th A
-double jeopardy clause of 5th A
-apprendi lien of cases under 6th A |
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Term
| Sentencing - cruel and unusual punishment |
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Definition
length of prison sentences
-SCOTUS has given government free reign to authorize virtually any length sentence for virtually any crime
-exception: juveniles cannot be sentence to life without parole for non-homicide crimes
capital punishment
-rule: in cases that involve an actual individual victim, SCOTUS has held that capital punishment can be imposed only in cases in which victim dies
-death penalty cannot be imposed on Ds who are under age of 18 when they committed they crime, mentally retarded Ds, Ds who are insane at time of execution (even if they were sane at time crime was committed)
-state must provide variety of special safeguards before executing a D; these include bifurcated trial process; ability of D to present any mitigating evidence at sentencing proceedings; process that sufficiently narrows class of death-sentence eligible offenses
other types of sentences of punishments
-8th A also prohibits imposition of cruel or unusual/degrading punishments as well as excessive
-must have been convicted of a crime for it to apply
-NOTE: torturing a suspect to get suspect to confess violates 5th and 14th amendment due process, but not cruel and unusual punishment clause
-courts have extended 8th A protection to degrading things done to prison inmates (denial of medical treatment) |
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Term
| Sentencing - double jeopardy clause |
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Definition
three separate protections
-protection against prosecution for same offense after an acquittal
-protection against prosecution for same offense after a conviction
-prosecution against multiple prosecutions or punishments for same offense
defining same offense:
-Blockburger test: ask whether each statutory provision requires proof of an element that the other does not
-offenses with different victims are separate offenses for double jeopardy purposes; killing each victim with one shot can be prosecuted as two separate crimes
-separate sovereigns rule: if two different sovereigns have jurisdiction over crime committed they can each try D separately
attachment and end of jeopardy
-attaches when jury is sworn in, or in bench trial, when first witness is sworn in
-before trial begins, prosecutor can add, drop. or change charges against D without double jeopardy problems
-acquittal: if jury acquits D, end of case and D cannot be retried by same jurisdiction for same offense; P cannot appeal from an acquittal
-conviction: if jury convicts D, and he appeals and gets conviction reversed, he can be retried unless the reversal was based on insufficiency of evidence
-if jury convicts D and he either does not appeal or his conviction is affirmed, that is end of double jeopardy and he cannot be retried by same jurisdiction
mistrial: two kinds
-manifest necessity: D can be tried (occurs when the jury is deadlocked or defense counsel engages in misconduct)
-no manifest necessity: D can't be retried by that jurisdiction (judge declares mistrial so he does not miss his plane) |
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Term
| Sentencing - apprendi doctrine |
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Definition
-5th A
-D is entitled to have the jury decide by proof beyond a reasonable doubt all of the elements necessary to impose a particular criminal punishment
two components
-all facts necessary to authorize a particular sentence must be found by jury
-all facts necessary to authorize a particular sentence must be found beyond a reasonable doubt
exception: sentence enhancements based on prior criminal convictions need not be charged in case that results in higher sentence; recidivism statutes are constitutional even if the jury in a particular case is not asked to determine whether the D had been convicted in the past |
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Term
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Definition
-sentencing is based on sentencing guidelines created by FL legislature
-judges uses a criminal punishment worksheet that adds points for D's offenses, criminal history, several punishment enhancers, V's injury, and D's legal status at time of crime
-judge can depart downward only if certain mitigating factors are met
presentence report
-department of corrections creates these reports
-court may order a report in any case
-court must order a report if D is found guilty of a first felony offense
-court must order a report for a felony conviction of a person who committed the crime while they were under age of 18
-report must be created in a capital case if D does not challenge death penalty or presents no mitigating factors
-is a means for judge to get information outside of D and prosecution
sentencing cannot be pronounced if
-D is insane
-D's identity is not clearly established
-D has been pardoned
-D is pregnant in a capital offense, but as soon as baby is born, can be sentenced
judge's change of mind
-judge may correct an illegal sentence or one based on miscalculations at any time
-issues can be raised at sentencing or within 15 days of sentence
-court can reduce or modify a sentence within 60 days after sentencing or after receiving an appellate court mandate
-where do appeals of death sentences go? FL supreme court |
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Term
| FL - post conviction relief |
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Definition
-judgment or sentence violated constitution
-court lacked jurisdiction
-sentence exceeded authorized maximum
-plea was involuntary
-judgment or sentence is subject to collateral attack
procedure
-must be filed within 2 years for non-death sentence or 1 year in death penalty case
-grounds for expanding time: facts have come to light that could not have been discovered through diligence, new fundamental constitutional right, neglect of post-conviction counsel
death sentence
-procedures in place after death sentence has been affirmed on appeal to attempt to expedite the process
-supreme court must appoint capital collateral regional counsel
-counsel files a motion of appearance or withdrawal within 30 days
-status conference is held every 90 days until motion is heart
-court must rule within 30 days of receiving hearing transcript |
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Term
| FL - juvenile delinquency - language |
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Definition
-child = youth = juvenile
-juvenile delinquent = committed crime prior to 18th period
-detention or detention facility = used instead of custody, prison, jail
-pretrial detention = being held without bond
-order to take a child into custody = similar to warrant
-delinquent act = crime
-adjudicatory hearing = a trial to the court (no jury trials for juveniles)
-order of adjudication = order of judgment
-adjudicated delinquent = juvenile was found guilty
-dispositional hearing = sentencing |
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Term
| FL - juvenile delinquency - jurisdiction |
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Definition
juvenile court jurisdiction lasts until juvenile is 19
-exception: if juvenile is in placement or detention, juvenile court jurisdiction lasts until juvenile is 21 |
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Term
| FL - juvenile delinquency - custody |
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Definition
custody can be ordered by court
order of court to take child into custody must be based on sworn affidavit or testimony and must cite one of the following:
-a violation of law
-failure to appear
-violation of probation or home detention
-violation of conditional release supervision
-escape |
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Term
| FL - juvenile delinquency - notice to appear |
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Definition
occurs after juvenile has committed a crime and is released to his parents
summons will state when he must appear
summons/notice to appear may not be used (and child must be kept in detention or custody) if juvenile:
-fails to identify himself
-is a danger to himself or others
-has no ties to community
-has an outstanding warrant
-has previously failed to make court obligations |
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Term
| FL - juvenile delinquency - notifications |
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Definition
required when juvenile is in custody for a felony or crime of violence
given to school district and parents or guardians |
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Term
| FL - juvenile delinquency - release from custody |
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Definition
presumption: juvenile will be released as soon as reasonably possible
will be released to parent or guardian or to a responsible adult without conviction for a felony, child abuse, drug trafficking, or prostitution |
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Term
| FL - juvenile delinquency - diversion programs |
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Definition
attempt to divert the child out of juvenile delinquency system
neighborhood restorative justice
-for first-time and nonviolent offenders
-probation before conviction
-if juvenile satisfies probation, case will not be filed
community arbitration
-for misdemeanors and third-degree felonies
-case is tried by panel of citizens who make recommendations for child |
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Term
| FL - juvenile delinquency - juvenile probation officer |
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Definition
assigned to every child who
-was not released from custody
-was put into a diversion program
-participated in arbitration
role: assess proper treatment plan and make recommendations to court |
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Term
| FL - juvenile delinquency - probable cause affidavit |
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Definition
occurs
-before court orders child into custody OR
-immediately after child is brought into custody
filed by person who took child into custody
must be filed within 24 hours after release
report must include
-identity of child
-why child was taken into custody
-who child was released to
-prima facie case of violation |
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Term
| FL - juvenile delinquency - pretrial detention |
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Definition
-juvenile remains in custody until adjudicatory hearing
-requires written petition for detention
-probation officer must do a risk assessment before detention hearing
court considers 5 factors when determining whether to detain a juvenile
-is there a substantial risk of failure to appear
-is there a substantial risk of inflicting bodily harm on others
-is there a history of committing property offenses prior to adjudication, disposition, or placement
-has juvenile committed contempt of court
-has juvenile requested protection from imminent bodily harm
length of detention: 21 days unless adjudicatory hearing has begun |
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Term
| FL - juvenile delinquency - pretrial detention hearing |
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Definition
-can be no pretrial detention order without a hearing except if the juvenile's parents cannot be heard
-hearing must be held within 24 hours of detention
-right to counsel attaches to all of these proceedings
-regarding the alleged offense, court must find probable cause
-court can continue hearing for up to 72 hours |
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Term
| FL - juvenile delinquency - pretrial procedures |
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Definition
filing of charges
-done by state attorney's office
-must be written petition to find D a delinquent; served with summons to appear on child and parents/guardians
arraignment
-if child is detained, arraignment must occur within 48 hours of filing of charges; at arraignment, juvenile is: advised of offenses against her and asked whether she admits or denies those offenses |
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Term
| FL - juvenile delinquency - deferred prosecution |
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Definition
-even after charges have been filed, treatment plan could be put in place if prosecution agrees to defer prosecution
-treatment plan is submitted by an agency of department of juvenile justice
-child must waive his due process right to a speedy trial
-if child violates treatment plan the plan could be enforced or court could proceed to a hearing on petition
discovery
-discovery on juvenile case operates in similar manner as adult case except that after juvenile files her notice of discovery, state has 5 days to respond with written discovery exhibits and after state has filed written discovery exhibit, juvenile has 5 days to complete her discovery obligations |
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Term
| FL - juvenile delinquency - adjudication |
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Definition
adjudication hearing
-must be within 90 days after juvenile is taken into custody or from date of service on summons attached to petition
-incompetence defense: assessed at time of trial; detention limited to 2 years
-insanity defense: assessed at time of crime; notice required 10 days before hearing
-hearing is a trial to court; court determines whether offense has been proven not jury determining whether juvenile is guilty
-predisposition report mandatory
dispositional hearing
-court and/or predisposition report can recommend that there be no adjudication and instead suggest treatment plan
types of dispositions
-probation
-conditional release (parole)
-residential commitment: juvenile correctional facility or intensive residential treatment
residential correctional facilities (juvy jail):
-13 to 19 (or up to 21 depending on nature of crime)
can only be sent to residential correctional facilities if:
-one serious felony
-felony after juvenile has been previously committed 3 times to delinquency commitment program
-offense making child eligible for adult prosecution |
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Term
| FL - juvenile delinquency - juveniles in adult court |
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Definition
voluntary waiver from delinquency court: juvenile agrees to go to adult court
involuntary waiver from juvenile delinquency court: juvenile is forced to move from delinquency court to adult court
-must be filed within 7 days of petition
-must be in writing
-must be a hearing
-two kinds of involuntary waivers: discretionary and mandatory
-discretionary: left to discretion of state attorney's office; applies only to juveniles 14 years or older
-mandatory: based on previous adjudication; juvenile is 14 or older and juvenile is currently charged with either a crime against person and was previously adjudicated for certain enumerated violent crimes or felonies or fourth felony and one of prior felonies involved a firearm
direct file to adult court
discretionary direct file
-14 or 15 at time of offense; committed one of enumerated violent offenses with use of weapon and public interest requires adult sanctions
mandatory direct file
-16 or 17; currently charged with crime of violence or crimes against a person and had a previous adjudication for enumerated violent crimes OR currently charged with crime involving discharge of a weapon OR currently charged with a forcible felony and 3 additional adjudication which were each 45 day sapart
-regardless of age; carjacking resulting in death or serious bodily injury of non-participant
if there is a mandatory direct file
-all of juvenile's pending felonies will be transferred to adult court
-all future crimes that this juvenile may commit, she will be treated as adult
-if found guilty, juvenile goes to a sentencing; presentence report is prepared; court considers whether juvenile should be given treatment, probation, or sentenced as a juvenile |
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