Criminal Procedure

CRIM PRO - Exclusionary Rule

Unconstitutionally seized evidence is inadmissible, and all "fruit of the poisonous tree," i.e. evidence procured from exploitation of that unconstitutional evidence must also be excluded, subject to certain exceptions.

CRIM PRO - Exclusionary Rule - Exceptions to FOTPT

(1) Violations of Miranda
(2) Independent Source
(3) Intervening Act of Free Will
(4) Inevitable Discovery
(5) Violations of knock and announce

CRIM PRO - Exclusionary Rule - Inapplicability

Not applicable in (1) grand juries unless in violation of wiretapping statute, (2) civil suits, (3) parole revocation hearings, (4) evidence not violative of constitution (only illegal under state and agency law)

CRIM PRO - Exclusionary Rule - Inapplicability - Good Faith Reliance on Law, Warrant, Clerical Error

The exclusionary rule does not apply when police arrest someone erroneously but in good faith thinking they are acting pursuant to a valid arrest warrant, search warrant, or law.

CRIM PRO - Exclusionary Rule - Inapplicability - Impeachment Evidence

Illegally obtained evidence may be used to impeach the ∆'s credibility IF HE TAKES THE STAND. Specifically, (1) voluntary confessions in violation of Miranda and (2) evidence from an illegal search.

CRIM PRO - Exclusionary Rule - Inapplicability - Knock and Announce

Exclusion is not an available remedy for violations of the knock and announce rule pertaining to execution of a warrant.

CRIM PRO - Exclusionary Rule - Harmless Error Test

If illegal evidence admitted, conviction should be overturned on appeal unless government can show harmless error. In habeas, petitioner to be released if he can show error had a substantial and injurious effect or influence on jury verdict.

CRIM PRO - Exclusionary Rule - Enforcement

∆ entitled to admissibility of evidence/confession decided by judge out of hearing of jury. Government bears burden of POE for admissibility, and ∆ has right to testify at hearing without that testimony being admitted at trial as to guilt.

CRIM PRO - 4th Amendment - In General

4A provides that people should be free from unreasonable searches and seizures. The 4A applies to states via the 14th Amendment.

CRIM PRO - 4th Amendment - Covers Seizures, Arrests, Other Detentions

Seizure - when a reasonable person thinks they are not free to leave or terminate encounter with government.
Arrest - police custody against will for interrogation/custody. Must be probably cause to believe suspect has committed/is committing crime.

CRIM PRO - 4th Amendment - Home Arrests

A warrant is generally not needed to make an arrest of a person in a public place. However, generally must have warrant to effect nonemergency arrest of person in his home.

CRIM PRO - 4th Amendment - Other Detentions - Investigatory Detentions (Stop and Frisk) - General

Polic emay stop and frisk if reasonable suspicion of criminal activity, supported by articulable facts, not just a hunch. If reasonable suspicion armed and dangerous, may frisk for weapons. Brief property seizures are similarly valid if based on R/S

CRIM PRO - 4th Amendment - Other Detentions - Investigatory Detentions (Stop and Frisk) - Duration and Scope

No longer than necessary to verify the suspicion. May ask for name and arrest for refusal to respond. Detention will turn into arrest if during detention other probable cause for arrest arises.

CRIM PRO - 4th Amendment - Other Detentions - Auto Stops

Generally, may only stop if they have a reasonable suspicion to believe law has been violated. However, roadblocks valid if special law enforcement need: (1) must be neutral standard (e.g. every car), (2) serve purposes closely related to problem

CRIM PRO - 4th Amendment - Other Detentions - Auto Stops - Seizure of All Occupants

A stop constitutes a seizure of driver, and all passengers. Thus, passengers have standing to raise a wrongful stop as a reason to exclude evidence found during the stop.

CRIM PRO - 4th Amendment - Other Detentions - Auto Stops - Police May Order Occupants Out

If lawful stop, police may order occupants out. If officer reasonably believes detainees to be armed, he may frisk occupants and search passenger compartment for weapons, even after he has ordered them out.

CRIM PRO - 4th Amendment - Other Detentions - Auto Stops - Pretextual Stops

If reasonably believe violation of traffic law, may stop car, even if ulterior motive to investigate whether some other law has been been violated, for which the police lack probable cause.

CRIM PRO - 4th Amendment - Other Detentions - To Obtain Warrant

If officers have reasonable suspicion that ∆ has drugs hidden in home, may prevent him to go home unaccompanied so that they can prevent destruction of evidence while they obtain warrant.

CRIM PRO - 4th Amendment - Other Detentions - Occupants on Premises

A valid warrant to search for contraband allows the police to detain occupants of the premises during a proper search.

CRIM PRO - 4th Amendment - Other Detentions - Station House Detentions

Officers must have full probable cause for arrest to bring a suspect to station for questioning and fingerprinting.

CRIM PRO - 4th Amendment - Other Detentions - Grand Jury Appearance

Seizure of a person (by subpoena) for a grand jury appearance is not within 4A protection.

CRIM PRO - 4th Amendment - Other Detentions - Deadly Force

There is 4A "seizure" when officer uses deadly force to apprehend. May only do so if reasonable to do so under the circumstances (i.e. if suspect danger to himself or others).

CRIM PRO - 4th Amendment - Evidentiary Search and Seizure - Analysis.

Must be reasonable to be valid under 4A. Reasonableness requires a warrant except in six circumstances.
STEP 1 - Reasonable Expectation of Privacy?
STEP 2 - Valid Warrant ? (PC and P)
STEP 3 - Valid Warrantless search?

CRIM PRO - 4th Amendment - Evidentiary Search and Seizure - Government Conduct Required

Generally protects against government conduct, not against searches by a private person. This includes private security guards, unless they are deputized as officers of the public police.

CRIM PRO - 4th Amendment - Evidentiary Search and Seizure - REP

Determined by a totality of circumstances. REP automatic when :
(1) Owned/right of possession to place searched
(2) Place was home, whether or not he owned or had a right of possession
(3) Overnight gust of owner of place searched
-includes sense enhancers

CRIM PRO - 4th Amendment - Evidentiary Search and Seizure - No REP List

(1) voice, (2) handwriting, (3) car color, (4) account records at bank, (5) location of vehicle on public roads or arrival at private residence, (6) areas outside home, (7) garbage left for collection, (8) land visible from public, (9) sniff-tests

CRIM PRO - 4th Amendment - Evidentiary Search and Seizure - Searches With Warrant - Showing Probable Cause - Informants

Informant's tip must be shown to be reliable under a totality of the circumstances. Identity of the informant generally need not be revealed.

CRIM PRO - 4th Amendment - Evidentiary Search and Seizure - Searches With Warrant - Showing Probable Cause - Behind the Face of the Affidavit

Warrant issued on basis of affidavit invalid if ∆ establishes all of the following:
(1) false statement included by affiant
(2) false statement was intentional or reckless
(3) false statement material to finding of probable cause

CRIM PRO - 4th Amendment - Evidentiary Search and Seizure - Searches With Warrant - Facially Precise

A warrant must be precise as to the place to be searched and the items to be seized. If it is not, it is invalid, even if the underlying affidavit gives such detail.

CRIM PRO - 4th Amendment - Evidentiary Search and Seizure - Searches With Warrant - 3P Premises

A warrant may be obtained to search premises belonging to nonsuspects, as long as there is reasonable cause to believe evidence will be found there.

CRIM PRO - 4th Amendment - Evidentiary Search and Seizure - Searches With Warrant - Execution

Must knock and announce unless dangerous, inhibitory, or futile. Police may seize any contraband or fruits or instrumentalities of crime, even if not in warrant. May detain unnamed persons, but may not search such persons found on premises.

CRIM PRO - 4th Amendment - Evidentiary Search and Seizure - Exceptions to Warrant Requirement List (6)

(1) search incident to constitutional arrest, (2) "automobile" exception, (3) plain view, (4) consent, (5) stop and frisk, (6) Hot pursuit, evanescent evidence, other emergencies

CRIM PRO - 4th Amendment - Evidentiary Search and Seizure - Exceptions to Warrant Requirement - Search Incident to Constitutional Arrest

May search person and ares into which person might reach to destroy evidence or obtain weapons. Police may also make protective sweep if believe accomplices present. Search must be contemporaneous, but not simultaneous.

CRIM PRO - 4th Amendment - Evidentiary Search and Seizure - Exceptions to Warrant Requirement - Search Incident to Constitutional Arrest - Autos

Police may only search passenger compartment of car incident to arrest if at time of search
(1) arrestee unsecured and may still gain access OR
(2) reasonable belief that evidence of offense for which the person arrested may be found in vehicle

CRIM PRO - 4th Amendment - Evidentiary Search and Seizure - Exceptions to Warrant Requirement - "Automobile Exception"

If police have probable cause to believe contains fruits, instrumentalities, evidence, they may search whole vehicle and any container that might reasonably contain item for which they had reasonable cause to search. Car can be towed and searched later.

CRIM PRO - 4th Amendment - Evidentiary Search and Seizure - Exceptions to Warrant Requirement - "Automobile Exception" - Passengers & Containers

Passenger's belongings may be searched. If police have probable cause only to search container in a vehicle, they may search only the container, not other parts of the vehicle.

CRIM PRO - 4th Amendment - Evidentiary Search and Seizure - Plain View

Warrantless ok if
(1) legitimately on the premises
(2) plain view
(3) have probable cause to believe that item is contraband, evidence of crime, instrumentalities

CRIM PRO - 4th Amendment - Evidentiary Search and Seizure - Exceptions to Warrant Requirement - Consent

Requires authority, voluntary and intelligent consent, not knowledge of the right to withhold consent. Limited to scope of consent, which generally extends to all areas which a reasonable person would think it extends under the circumstances.

CRIM PRO - 4th Amendment - Evidentiary Search and Seizure - Exceptions to Warrant Requirement - Consent - Authority

Any person with apparent equal right to use or occupation of the property may consent to a search, and evidence may be used against the other owner. However, such consent not valid if co-occupant is present and objects to search, and search directed at them.

CRIM PRO - 4th Amendment - Evidentiary Search and Seizure - Exceptions to Warrant Requirement - Stop and Frisk

May stop without P/C if they have articulable and reasonable suspicion of criminal activity. A frisk is only justified if officer reasonably thinks that the suspect has a weapon. Generally limited to a patdown, and may frisk passengers if R/B dangerous.

CRIM PRO - 4th Amendment - Evidentiary Search and Seizure - Exceptions to Warrant Requirement - Stop and Frisk - "Plain Feel"

Officer may reach into suspects clothing and seize anything that reasonably believes has plain feel of a weapon or contraband.

CRIM PRO - 4th Amendment - Evidentiary Search and Seizure - Exceptions to Warrant Requirement - Hot Pursuit, Evanescent evidence, Other Emergencies

Police in hot pursuit of fleeing felon may make warrantless search and seizure and may even enter private residence. Also can seize evanescent evidence and enter primes to address emergencies affecting health and safety.

CRIM PRO - 4th Amendment - Evidentiary Search and Seizure - Administrative Inspections

Inspectors need warrant to serach private residences and commercial buildings, but need show a general and neutral enforcement plan to justify issuance of warrant.

CRIM PRO - 4th Amendment - Evidentiary Search and Seizure - Administrative Inspections - Examples of Valid Warrantless searches

(1) contaminated food, (2) highly regulated industry, (3) inventory searches of arrestees, (4) airline passengers, (5) parolees and homes, (6) government employees, drug tests of : (7) EEs involved in accidents; (8) customs applicants; (9) E/C kids

CRIM PRO - 4th Amendment - Evidentiary Search and Seizure - Administrative Inspections - Public Schools

P/C nor required for search of public school students and possessions; need reasonable grounds. Will be reasonable only if (1) moderate chance of finding evidence, (2) reasonable measures to objectives, (3) not excessively intrusive.

CRIM PRO - 4th Amendment - Evidentiary Search and Seizure - Foreign Countries

4A does not apply to searches and seizures by US government in foreign countries involving an alien, at least where the alien does not have a substantial connection to the US.

CRIM PRO - 4th Amendment - Evidentiary Search and Seizure - Border/Equivalent

No warrant necessary. Applies to roving patrols inside the US and border officials at a vehicle checkpoint inside the border. May disassemble vehicle, even without reasonable suspicion. Includes opening international main with R/C.

CRIM PRO - 4th Amendment - Evidentiary Search and Seizure - Border/Equivalent - Immigration Enforcement

May do a "factor survey" of work force in factory to determine citizenship of workers, and even illegally obtained evidence may be used in a civil deportation hearing.

CRIM PRO - 4th Amendment - Evidentiary Search and Seizure - Border/Equivalent - Detentions

May detain if "reasonable suspicion" that traveler is smuggling contraband in her stomach.

CRIM PRO - 4th Amendment - Evidentiary Search and Seizure - Wiretap / Eavesdropping

Valid tap warrant requires
(1) P/C
(2) persons to be overheard named
(3) particular conversations that can be overheard
(4) short time
(5) timely termination
(6) return to court, showing conversations that were intercepted

CRIM PRO - 4th Amendment - Evidentiary Search and Seizure - Wiretap / Eavesdropping - Exceptions

Speaker assumes risk that person with whom talking an informer wired for sound or taping conversation. A speaker has no 4A claim if he makes no attempt to keep a conversation private. Pen register (caller ID rolls) subject to statutory judicial OK.

CRIM PRO - 4th Amendment - Shocks the Conscience

Evidence obtained in a manner that shocks the conscience, offends a sense of justice, inadmissible under the DPC. Taking blood is usually upheld, surgery requires great need.

CRIM PRO - Confessions - General

Admissibility of confessions and other incriminating admissions are governed under the 4th, 5th, 6th, 14th Amendments.

CRIM PRO - Confessions - 14A Voluntariness

Confession must be voluntary to be admissible under DPC. Determined by TOC. Must be official compulsion, not mere involuntary. Harmless error test applies, and conviction will not be overturned if there is overwhelming evidence of guilt.

CRIM PRO - Confessions - 6A Right to Counsel

Applies to all critical stages of prosecution after judicial proceedings commence, aka formal charges filed. Prohibits police from eliciting an incriminating statement outside presence of counsel unless right to counsel waived.

CRIM PRO - Confessions - 6A Right to Counsel - Compare to 5A Right

No 6A violation of right to counsel if no charges filed. Thus, if arrested but not charged, 6A right does not exist. Defendant does have a 5A right to counsel under Miranda.

CRIM PRO - Confessions - 6A Right to Counsel - Stages When Applicable

(i) custodial interrogation, (ii) post indictment interrogation, (iii) preliminary hearings (iv) arraignment (v) post charge lineups (vi) pleas/sentencing (vii) felony trials (viii) misd trials when imprisonment (ix) overnight trial recesses (x) appeals

CRIM PRO - Confessions - 6A Right to Counsel - When Inapplicable

(i) blood sampling (ii) handwriting (iii) precharge lineups (iv) photo ids (v) prelims on detainment (vi) brief recesses during ∆ testimony at trial (vii) discretionary appeals (viii) parole/probation revocation (ix) post conviction proceedings

CRIM PRO - Confessions - 6A Right to Counsel - Offenses Specific

Even if 6A right attaches, he may still be questioned regarding unrelated, uncharged offenses without violation of the 6A right to counsel (although interrogation may still violate 5A under Miranda. Offense unrelated if requires additional element.

CRIM PRO - Confessions - 6A Right to Counsel - Waiver

May be waived if knowing, voluntary, and intelligent. Counsel need not be present for waive, at least if counsel has not already been requested by but rather appointed by court.

CRIM PRO - Confessions - 6A Right to Counsel - Remedy

Nontrial proceedings get harmless error rule. If ∆ was entitled to lawyer at trial, automatic reversal of conviction, even without specific unfairness. Erroneous disqual of private counsel also results in automatic reversal.

CRIM PRO - Confessions - 6A Right to Counsel - Impeachment

A statement obtained in violation may not be admitted in prosecutions case in chief, but may be used to impeach ∆'s contrary trial testimony. Similar rule to Miranda violations.

CRIM PRO - Confessions - 5A Privilege Against Compelled Self-Incrimination - Miranda Warnings

Admission/confession to be admissible under 5A, person in custody must, prior to interrogation, be informed in substance that
(1) right to remain silent
(2) anything can be used against him
(3) right to presence of attorney
(4) appointed if indigent

CRIM PRO - Confessions - 5A Privilege Against Compelled Self-Incrimination - Miranda Warnings - When Required

Generally only necessary when detainee knows being interrogated by government agent. Does not apply to an uncharged witness testifying before grand jury, even if compelled to be there by subpoena.

CRIM PRO - Confessions - 5A Privilege Against Compelled Self-Incrimination - Miranda Warnings - Custody Requirement

Custody depends on whether the person's freedom of action is denied in a significant way based on objective circumstances. Traffic stop not custody, arrest is.

CRIM PRO - Confessions - 5A Privilege Against Compelled Self-Incrimination - Miranda Warnings - Options for Detainee

After being read their rights, detainee can
(1) do nothing
(2) waive rights
(3) assert right to remain silent
(4) assert right to consult with attorney

CRIM PRO - Confessions - 5A Privilege Against Compelled Self-Incrimination - Miranda Warnings - Options for Detainee - Do Nothing

This is not a waiver. It is also not an assertion of rights. Therefore, police may continue to question.

CRIM PRO - Confessions - 5A Privilege Against Compelled Self-Incrimination - Miranda Warnings - Options for Detainee - Waive Rights

Government must show by POE that waiver was knowing, voluntary, and intelligent. Proving detainee was read rights and then chose to answer questions is generally sufficient.

CRIM PRO - Confessions - 5A Privilege Against Compelled Self-Incrimination - Miranda Warnings - Options for Detainee - Invocation of Silence

Police must scrupulously honor the request and not badger the detainee. Detainee's invocation must be explicit, unambiguous, and unequivocal. The SC has allowed later questioning to occur on an unrelated crime.

CRIM PRO - Confessions - 5A Privilege Against Compelled Self-Incrimination - Miranda Warnings - Options for Detainee - Invocation of Counsel

Unambiguous indication, all questioning must cease until counsel has been provided unless detainee (i) then waives right (e.g. re-initiation) or (ii) is released from custodial interrogation and 14 days has passed since relief. Counsel must be present.

CRIM PRO - Confessions - 5A Privilege Against Compelled Self-Incrimination - Miranda Warnings - Effect of Violation - Exclusion

However, may be used to impeach ∆'s trial testimony.
Cannot cure by "question first, warn later" unless original unwarned question unplanned and failure to give Miranda rights inadvertent.

CRIM PRO - Confessions - 5A Privilege Against Compelled Self-Incrimination - Miranda Warnings - Nontestimonial Fruits of Unwarned Confessions

Generally admissible if failure was not purposeful.

CRIM PRO - Confessions - 5A Privilege Against Compelled Self-Incrimination - Miranda Warnings - Public Safety Exception

Interrogation ok without Miranda where it is reasonably prompted by a concern for public safety (e.g. to locate a hidden gun that could have caused injury to innocents.

CRIM PRO - Pretrial Identification - Substantive Bases for Attack - 6A

6A RtC - Right at any post-charge lineup or showup. Does not have right at photo identifications or where police take physical evidence, like handwriting or fingerprints. Tends not to cover before trial proceedings where witness against him not present.

CRIM PRO - Pretrial Identification - Substantive Bases for Attack - DPC

∆ can attack ID as denying due process if identification is unnecessarily suggestive and there is a substantial likelihood of misidentification. Suspect cannot refuse to appear under 5A because appearance is not testimonial.

CRIM PRO - Pretrial Identification - The Remedy

Exclusion of the in-court identification. May be cured by an independent source, most commonly a source with opportunity to observe at time of the crime.

CRIM PRO - Pretrial Identification - Remedy - Hearing

Admissibility of ID should be determined at suppression hearing w/o jury, although not required. Government must prove (i) counsel was present, (ii) accused waived counsel, or (iii) independent source. ∆ must prove DPC violation.

CRIM PRO - Pretrial Procedures - Prelim Hearing on P/C to Detain

If probable cause not already determined and there are significant restrains on an arrestee's liberty (i.e. jail, bail, not release on recognizance), prelim must happen w/n reasonable time (48 hours) - Informal, nonadversarial.

CRIM PRO - Pretrial Procedures - Bail

Most state constitutions create right to be released on bail unless capital charge, and can be set no higher than is necessary to assure ∆'s appearance at trial. Refusals to grant are appealable immediately.

CRIM PRO - Pretrial Procedures - Grand Juries

5A right to indictment by grand jury has not been incorporated into the 14A, but some states require grand jury indictment. Western states generally charge by filing an "information," a written accusation.

CRIM PRO - Pretrial Procedures - Grand Juries - Proceedings

∆ has not right to notice or access. W has no right to receive Miranda nor is he entitled to warning that is a "potential ∆" nor a right to attorney. No right to exclusion of evidence. Can still refuse to answer incriminating questions.

CRIM PRO - Pretrial Procedures - Grand Juries - Challenges

No right to challenge subpoena on 4A grounds for lack of probable cause or any other reason to call a witness for questioning. On MBE, exclusion of minorities from a grand jury is about the only defect sufficient to quash a grand jury indictment

CRIM PRO - Pretrial Procedures - Speedy Trial

Right attaches once ∆ arrested or charged. Determined on TOC. The ∆ does not need to know of the charges for the right to attach.

CRIM PRO - Pretrial Procedures - Prosecutorial Duty to Disclose Exculpatory Information and Notice Defense

Must be disclosed. Will be DPC violation if ∆ can prove that (i) evdience is favorable b/c it impeaches or is exculpatory and that (ii) prejudice has resulted (reasonable probability result would have been different)

CRIM PRO - Pretrial Procedures - Prosecutorial Duty to Disclose Exculpatory Information and Notice Defense - Notice of Alibi, Insanity

∆ must notify prosecution if he is going to present alibi or insanity defense. If alibi, must present list of witnesses and prosecution must list rebuttal witnesses. Prosecutor cannot comment on ∆'s failure to produce witness, talk about alibi @trial

CRIM PRO - Pretrial Procedures - Competency to Stand Trial

Insanity is a defense based on mental condition at time of charged crime. Incompetency is not a defense but instead a bar to stand trial based on mental condition at time of trial.

CRIM PRO - Pretrial Procedures - Competency to Stand Trial - Due Process Standard

Incompetent if (1) lacks rational as well as factual understanding of charges and proceedings OR (2) lacks sufficient present ability to consult with lawyer. State may require POE, but not C&C.

CRIM PRO - Pretrial Procedures - Competency to Stand Trial - Detention of ∆

Upon assertion of a successful insanity defense, ∆ may be confined to mental hospital for a longer term than the maximum period for encarceration. ∆ cannot be indefinitely held after regaining merely b/c might be dangerous.

CRIM PRO - Pretrial Procedures - Pretrial Publicity

Excessive pretrial publicity prejudicial to ∆ may require change of venue or retrial.

CRIM PRO - Trial - Right to Fair Trial - Public Trial 6A

6A and 14A guarantee right to a public and fair trial, and right varies within stage of proceedings. Pretrial proceedings presumptively open to public, unless closure needed. Public have 1A right to attend trial itself, TV ok over objection.

CRIM PRO - Trial - Right to Fair Trial - Unbiased Judge

Judge biased only if actual malice against ∆ or financial interest in having trial result in guilty verdict.

CRIM PRO - Trial - Right to Fair Trial - DP Rigths

Violation if
(1) unlikely jury gave reasonable consideration
(2) ∆ compelled to stand trial in prison clothing
(3) visibily shackled (unless justified by security/escape)
(4) jury exposed to influence favorable to prosecution

CRIM PRO - Trial - Right to Jury Trial

Only attaches for serious offenses, those punishable by imprisonment of OVER six months. No right in juvenile delinquency proceeding. Civil contempt never gets right, and criminal attempt subject to six month rule, unless imposed during trial.

CRIM PRO - Trial - Right to Jury Trial - Probation

A judge may give probation of up to 5 years without jury trial, as long as the revocation of such probation would not result in imprisonment of more than 6 months.

CRIM PRO - Trial - Right to Jury Trial - # and Unanimity of Jurors

No right to jury of 12, but there must be at least 6. SC has upheld convictions of 9-3, probably not 8-4. Six person juries must be unanimous.

CRIM PRO - Trial - Right to Jury Trial - Right to Venire Selected from Respresentative Cross Section

∆ has a right to have jury pool be respresentative of cross-section of the community, but has no such right on his particulary jury.

CRIM PRO - Trial - Right to Jury Trial - Right to Venire Selected from Respresentative Cross Section - Peremptory Challenges

EPC forbids use based on race or gender. EPC attack on peremptory strikes includes 3 steps: (1) ∆ must show facts that raise inference. (2) Prosec must come forward with race-neutral explanation. (iii) Judge determines whether prosecution was sincere.

CRIM PRO - Trial - Right to Jury Trial - Impartial Jury

May question on racial bias when race is bound up in case or accused of interracial capital crime. Juror opposition to death penalty does not automatically exclude, but juror favoring death penalty for guilty verdict must be excluded.

CRIM PRO - Trial - Right to Jury Trial - Sentence Enhancement

If sentence can be enhanced by additional facts, those facts must be proven to the satisfaction of the jury beyond reasonable double. However, a judge may decide whether sentences run consecutively or concurrently.

CRIM PRO - Trial - Right to Counsel

Violation at trial, including erroneous disqualification, requires reversal. For nontrial denials, the harmless error test is applied. Right for misdemeanor only if imprisonment is ACTUALLY imposed.

CRIM PRO - Trial - Right to Counsel - Waiver of Right

Judge decides if waiver was knowing and intelligent and whether he is competent to proceed pr se. No right to self-representation on appeal.

CRIM PRO - Trial - Right to Counsel - Costs

If indigent, no need pay. But state may then seek reimbursement who later become able to pay.

CRIM PRO - Trial - Right to Counsel - Effective Assistance

6A includes right to effective counsel. Extends to the first appeal, and is generally presumed. Claimant must show specific instances of deficient performance and but for deficiency result would have been different. Not trial tactics.

CRIM PRO - Trial - Right to Counsel - Conflicts of Interest

Joint rep is no per se invalid. If attorney advises court of conflict but ignored, ∆ gets reversal. ∆'s conflict of interest with attorney is rarely ground for relief. ∆ has no right to be jointly repped with co-defendants if potential conflict.

CRIM PRO - Trial - Right to Counsel - Support Services

If ∆ makes preliminary showing that likely to be able to use insanity defense, state must provide psychiatrist for preparation of defense.

CRIM PRO - Trial - Right to Counsel - Seizure of Funds

Right to counsel does not forbid seizure of drug money and property obtained therewith, even where defendant was going to use money or property to pay for attorney.

CRIM PRO - Trial - Right to Counsel - Limited while Testifying

∆ cannot consult with attorney while testifying, and may be sequestered from her attorney during short breaks, 15 minutes compared to overnight.

CRIM PRO - Trial - Right to Confront

6A grants ∆ in criminal prosecution right to confront adverse witnesses, but not absolute. Not required when preventing confrontation serves important public purposes such as protecting child witnesses from trauma, or removing disruptive defendants.

CRIM PRO - Trial - Right to Confront - Co-Defendant's Confession

Statement prohibited, even when confession interlocks with ∆'s own confession, unless (1) all portions referring to other ∆ can be eliminated OR (2) confessing defendant testifies OR (3) used to rebut ∆'s claim that his confession was coerced

CRIM PRO - Trial - Right to Confront - Prior Testimonial Statement of Unavailable Witness

Prior testimonial evidence not admitted unless declarant (1) unavailable and (2) ∆ had an opportunity to cross-examine when statement was made. Testimonial includes statements at hearings, grand jury, former trial, police interrogation, unless emergency.

CRIM PRO - Trial - Right to Confront - Prior Testimonial Statement of Unavailable Witness - Forfeiture by Wrongdoing

∆ can be held to have forfeited CC claim if wrongdoing intended to keep witness from testifying.

CRIM PRO - Trial - Burden of Proof and Sufficiency of Evidence

DPC requires state prove guilt beyond reasonable doubt. (BRD) Presumption of innocence is a basis component of fair trial. State may impose BOP for affirmative defenses. Mandatory or burden shifting presumptions are violations of the 14A.

CRIM PRO - Guilty Pleas and Plea Bargaining - Taking the Plea

Judge must determine if voluntary and intelligent, by addressing in open court on the record. Judge must assure (attorney can to) understanding of nature of charge and crucial elements, maximum and mandatory minimum, right not to plead, otherwise withdrawal.

CRIM PRO - Guilty Pleas and Plea Bargaining - Collateral Attacks on Guilty Pleas after Sentence

Immune if plea seen as intelligent choice among ∆'s choices. Can be set aside for (i) involuntariness, (ii) jurx, (iii) ineffective assistance, (iv) failure to keep the plea.

CRIM PRO - Guilty Pleas and Plea Bargaining - Plea Bargaining

Enforced against prosecutor and defendant, not the judge, who need not accept the plea. Not invalid if in response to prosecutions promise to charge ∆ a more serious crime if he does not plead out, no prosecutorial vindictiveness here.

CRIM PRO - Guilty Pleas and Plea Bargaining - Collateral Effects of Guilty Pleas

May be used as a conviction when relevant, eg as basis for sentence enhancement. However, does not admit legality of incriminating evidence nor waives 4A in subsequent civil damages cases.

Criminal Procedure

Law 1 with Scivoletto at University of San Diego

About this deck

About StudyBlue

Sign up (free) to study this.

About this deck

About StudyBlue