Term
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Definition
A defendant's liberty can be resticted only upon a finding of probable cause.
If probable cause has not already been determined and there are significant constraints on an arrestee's liberty, a preliminary hearing to determine probable cause must be held within reasonable time |
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Term
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Definition
| 5th Amendment right to indictment by grand jury has not been incorporated into the 14th Amendment, but some state constitutions require grand jury indictment. |
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Term
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Definition
Secrecy and defendant's lack of access
No right to counsel or to Miranda warnings
No right to have evidence excluded
Right against incrimination
Exclusion of minorites = grounds for reversal |
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Term
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Definition
Totality of circumstances
Factors:
1. lenght of delay, reason for delay, whether defendant asserted right, and prejudice.
Right attaches when defendant is arrested or charged. |
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Term
| Prosecutorial duty to disclose exculpatory information |
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Definition
Government has a duty to disclose material, exculpatory evidence to defendant.
Failure to disclose (whether willful or inadvertent) violates DPC and is grounds for reversing a conviction if the D can prove
i. evidence was favorable to him b/c it either impeaches or is exculpatory and 2. prejudice has resulted. |
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Term
| Notice of alibi and intent to present insanity defense |
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Definition
If D is going to use alibi or insanity defense, he must notify prosecution.
Alibi = notice of witnesses.
P must give list of witnesses to rebut defense. |
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Term
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Definition
Insanity is a defense to a criminal charged based on the defendnat's mental condition at the time he committed the charged crime.
Incompetency to stand trial, on the other hand, is not a defense to the charge, but rather is a bar to trial.
Based on defendnats mental condition at time of trial. |
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Term
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Definition
1. lacks a rational as well as factual understanding of the charges and proceedings or
2. lacks sufficient present ability to conuslt with his lawyer with a reasonable degree of understanding. |
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Term
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Definition
| actual malice or financial interest |
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Term
| Trial: due process violations |
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Definition
1. Unlikely that jury gave evidence reasonable consideration
2. State compels D to appear in prison clothing
3. State compels D to appear visibly shackled
4. Jury is exposed to influence favorable to prosecution. |
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Term
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Definition
serious offenses
More than six months |
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Term
| Right to jury trial: contempt |
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Definition
For civil contempt proceedings, there is no jury trial right.
For criminal contempt proceedings cumulative penalties totaling more than six months cannot be imposed without affording the defendnat the right to a jury trial. |
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Term
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Definition
Must be at least six. Must be unanimous.
9-3 = okay |
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Term
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Definition
| A defendant has a right to have the jury selected from a representative cross-section of the community. |
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Term
| Use of peremptory challenges for racial and gender based discrimination |
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Definition
1. The defendant must show facts or circumstances that raise an inference that the exclusion was based on race or gender.
2. On showing, P can come forward with race-neutral explanation
3. Judge then determines whether prosecutor is sincere. |
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Term
| Jury: right to questioning on racial bias |
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Definition
| A defendant is entitled to questioning on voir dire specifically directed to racial prejudice whenever race is bound up in the case or he is accused of an interracial capital crime. |
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Term
| Juror opposition to death penalty |
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Definition
In capital punishment cases, a state may not automatically exclude for cause all those who express a doubt or scruple about the death penalty.
It must be determined whether the juror's views would prevent or substantially impair performance of his duties in accordance with his instructions and oath. |
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Term
| Juror favoring death penalty |
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Definition
The defendant must be allowed to ask potential jurors if they would automatically give the death penalty upon a guilty verdict.
A juror who answers affirmatively must be excluded for cause because such a juror cannot perform his duties in accorance with instructions as to mitigating circumstances. |
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Term
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Definition
| If substantive law provides that sentence may be increased byeond the statutory maximum for a crime if additional facts are proved, proof of the facts must be submitted to the jury and proved byeond reasonable doubt; the defendnat's right to jury trial is violated if the judge makes the determination. |
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Term
| Right to counsel: misdemeanor caes |
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Definition
Right to counsel is available in misdemeanor cases only if imprisonment is actually imposed.
Thus, if an exam question involves a nonfelony and defendnat asks for counsel is denied and is convicted, whether the right to counsel has been violtated depends on defendant's sentence.
No imprisonment = no vioaltion. |
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Term
| Waiver of right to counsel |
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Definition
A defendant has right to defend himself at trial if, in the judgment of the judge, his waiver is knowing and intelligent and, based on the trial judge's consideration of the defendant's emotional and psyhological state, he is competent to proceed pro se.
Defendant does not have a right to self-representation on appeal. |
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Term
| Effective assitance of counsel |
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Definition
Presumed effective
Ineffective assitance:
1. Deficient performance
2. But for deficiency, proceeding would have been different.
Must show specific deficencies. |
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Term
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Definition
Joint representation is no per se invalid.
However, if an attorney advises the trial court of a resulting conflict of interest at or before trial, and the court refuses to appoint seperate counsel, the defendant is entited to automatical reversal. |
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Term
| Right to confront witness |
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Definition
The Sixth Amendment grants to a defendnat in a criminal prosecution the right to confront adverse witness.
The right is not absolute: face to face confrontation is not required when preventing such confrontation serves an important public purpose. |
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Term
| Introduction of co-defendant's confession |
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Definition
| If two persons are tried togerther and one has given a confession that implicates the other, the right of confrontation prohibits use of that statement, even where the confession interlocks with the defendant's own confession which is admitted. |
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Term
| Introduction of co-defendant's confession: exception |
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Definition
Statement may be admitted if:
-all portions referring to the other defendant can be eliminated
- confessing defendant takes the stand
- confession of nontestifying co-defendant is being used to rebut the defendant's claim that his confession was obtained coercively. |
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Term
| Prior testimonial statement of unavailable witness |
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Definition
i. declarant is unavailable
ii. defendant had opportunity to cross-examine the declaratnt at the time the statement was made. |
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Term
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Definition
| A mandatory presumption or a presumption that shifts the burden of proof to the defendant violates the Fourteenth Amendment's requirement that the state prove every element of the crime beyond a reasonable doubt. |
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Term
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Definition
| A judge is to give a jury instruction requested by the defendant or the prosecution if the instruction is correct, has not already been given, and is supported by some evidence. |
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Term
| Advising defendant on the charge, the potential penalty and his rights |
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Definition
Voluntray and intelligent.
Judge must be sure D understands:
1. nature of charge and the crucial elements
2. maximum possible penalty and any mandatory minimum
3. the he has a right not to plead guilty and that if he does plead guilty, he waives that right.
Attorney may inform defendant. |
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Term
| Collateral attacks on guilty pleas after sentence |
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Definition
i. involuntariness
ii. lacks jurisdiction
iii. ineffective assitance of counsel
iv. failure to keep the plea bargain |
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Term
| Procedural rights in sentencing |
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Definition
A defendant has a right to counsel during sentencing.
Usual sentence may be based on hearsay and uncross-examined reports.
Where a magnified sentence is based on a statute that requires new findings of fact to be made, those facts must be found in a context that grants a right to confrontation and cross-examination. |
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Term
| Resentencing after successful appeal and reconviction |
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Definition
If a greater punishment is imposed on a defendnat who has been reconvicted after a successful appeal than was imposed at the first trial, the judge must set forth in the record the reasons for the harsher sentence.
This insures that D is not vindictively penalized for exericising right of appeal. |
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Term
| Equal protection and right to counsel on appeal |
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Definition
| If an avenue of post-conviction review is provided, conditions taht make the review less accessible to the poor than to the rich violate equal proteciton. |
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Term
| Righ tto consel at parole and probation revocation |
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Definition
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Term
| Double jeopardy: juvenile proceedings |
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Definition
Commencment of a juvenile proceeding bars a subsequent criminal trial for the same offense.
Jeopardy does not attach in civil proceedings other than juvenile proceedings. |
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Term
| Double jeopardy: exceptions permitting re-trail |
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Definition
1. Hung jury
2. Manifest necessity
3. Successfully appeal
4. Breach of plea bargain |
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Term
| Cumulative punishments for offenses constituting same crime |
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Definition
| Even if two crimes constitute the same offense under this test, multiple punishments are permissible if there was a legislative intent to have cumulative punishments |
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Term
| Double jeopard exception: new evidence |
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Definition
| An exception to the double jeopard bar exits if UNLAWFUL CONDUCT has not occured at the time of the prosecution for the lesser offense or has not been discovered despite due diligence. |
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Term
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Definition
Prosecution may appeal nay dismissal based on D's motion.
Double jeopardy does not bar appeals by prosecution if a successul appeal would not require a re-trial.
There is no bar to a government appeal of a sentence pursuant to statute permitting such review. |
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Term
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Definition
| Under the doctrine of collateral estoppel, a defendant may not be tried or convicted of a crime if a prior prosecution by that sovereignty resulted in a facutla determination inconsistent with one required for convction. |
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Term
| self-incrimination: who may assert |
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Definition
| Only natural persons may assert privilege |
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Term
| self-incrimination: when privilege may be asserted |
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Definition
A person may refuse to answer a question whenever his response might funish a link in the chain of evidence needed to prosecute him.
Privilege must be claimed in civil proceedings to prevent the privilege from being waived for a later criminal prosecution. |
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Term
| Method for invoking 5th amendment privilege |
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Definition
A criminal defendant has a right not to take the witness stand at trial and not to be asked to do so.
In any other situtation, the privilege does not permit a person to avoid being sword as a witness or being asked questions. |
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Term
| self-incrimination: testimonial but not physical evidence |
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Definition
| 5th Amendment privilege protects only testimonial or communicative evidence and not real or physical evidence. |
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Term
| Comments on defendnat's silence |
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Definition
A prosecutor may not comment on a defendnat's silence after being arrested and recieing Miranda warnings.
Neither may the prosecutor comment on a defendant's failure to testify at trial.
Can comment if in response to D's assertion D could not tell his side of story. |
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Term
| self-incrimination: grant of immunity |
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Definition
| A witness may be compelled to answer questions if granted adequate immunity from prosecution |
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Term
| use and derivative use immunity standard |
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Definition
Guarantees that the witness testimony and evidence located by means of the testimony will not be used against the witness.
However, the witness may still be prosecuted if the prosecutor shows that the evidence to be used against the witness was derived from some source indepndent of the immunized sestimony. |
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Term
| Immunized testimony involuntary |
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Definition
testimony obtained by a promise of immunity is coercer and therefore involuntary.
Immunized testimony may not be used for impeachment of defendnat's testimony at trial. |
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Term
| immunitized testimony: other soverign |
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Definition
| fedral prosecutors may not use evidence obtained as a result of a state grant of immunity and vice versa |
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Term
| No possibility of incrimiantion |
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Definition
| A person has no privilege against self incrimination if there is no possibility of incrimination. |
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Term
| Juvenille court proceedings |
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Definition
Rights that must be afforded:
i. written notice of charges
ii. assistance of counsel
iii. opportunity to confront and cross-examine
iv. right not to tesity
v. right to have guilt established by proof beyond reasonable doubt |
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Term
| Right to pre-seizure notice and hearing |
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Definition
| A hearing is, however, required before final forfeiture of proeprty. |
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