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Crim Pro 2


undefined, object
copy deck
unanimous verdict?
No const right to a unanimous verdict
Jury Instructions:
gov't always has the burden of proof, beyond a reasonable doubt, on every element of the crime, even "negative" elements i.e.: gov't has to disprove head of passion.
opportunity to retreat safely:
general rule that you can use deadly force in self defense even if use of force could be avoided by retreating BUT: does not apply to initial aggressor
felony murder and borrowing
if only intend to borrow, did not commit felony, so no felony murder
Cruel and Unusual Punishment: 8th amendment
Intense punishment does NOT nec. mean it is cruel and unusual. i.e. life imprisonment for 3x loswer on minor offenses has been held ok. Intense punishment must be done humanely. i.e . can't deny medical care Capital punishment not per se violative of the Constitution. can't beat inmate to death even if received death sentence.
violate 4th amendment knock and announce what happens to evidence?
exclusionary does NOT apply
implied malice and felony
malice implied from intent to commit inherently dangerous felony (robbery counts)
Test for fruit of poisonous tree:
is the ultimate piece of evidence still tainted by the initial illegality or has the taint been attenuated? Voluntary statement of a 3rd part WILL REMOVE taint, break chain
Guilty Plea:
contract w/ offer, acceptance, and consideration. If gov't does not fulfill deal=breach and the D can rescind, can w/draw plea. (look for gov't promising- they can't do this! will recommend)
Dual sovereignty rule and double jeopardy (Kansas city issue)
no double jeopardy prob, applies to feds too.
Jury trials and double jeopardy
do not arise, do not attach, until the jury is sworn in
mistrial asked for by D? double jeopardy?
no double jeopardy when mistrial asked for by D
Privilege Against Self Incrimination:
Involves testimonial evidence which can be used to convict the D. ID process is non-testimonial, so no 5th am priv here. D promised full immunity to testify. Does not want to testify against own co-defs. MUST testify. No absolute right to remain silent Is it against the law to not ID oneself? After unlawful stop: NO After lawful stop: YES, forced ID is valid
taking tv from hotel-
6th Amendment Right to Counsel:
Gideon v. Wainwright: seminal but narrow holding. D requested a lawyer at the trial in a serious crim case.
Juror challenges: 2 types
1) Challenge for cause: no limits 2) Preemptory challenge: NO reason need be given. statutory limits still CAN'T exclude on basis of race or gender
confession obtained in violation of Miranda, but otherwise voluntary. can it be used at all?
CAN be used for limited purpose of impeaching a D who testifies at trial. BUT involuntary confession CANNOT be used to impeach
Same offense for double jeopardy purposes?
How to define: does each crime require proof of an add'l element that the other crime does not require. Put crimes side by side. If answer is YES, not same offense for double jeopardy purposes i.e.: conspiracy to distribute drugs and drug distribution. Conspiracy requires an agreement, distribution DOES NOT so NO double jeopardy prob
affidavit for warrant and informer
may be based on informers statements
conspiracy w/ undercover police officer
CANNOT be w/ undercover police and one other
Ineffective assistance of counsel:
D must show (hard to prove): 1) attorney was not reasonably competent 2) and lack of competence affected outcome of trial
Standing: who has standing to challenge admissibility?
Ex: illegal search. Owners of property ALWAYS have standing. All persons in phone conversation have standing- sufficiently private interest
live W testimony and fruit of poisonous tree?
difficult to have live W testimony excluded as fruit of poisonous tree
Sentencing and jurors:
if facts necessary to increase sentence must be found, it is jury, NOT judge, that must find these facts
Eyewitness Identification:
Rule: no const issue if the in court ID is independent of an illegal pretrial ID. Judge decides Ex: W views illegal pretrial lineup, at trial IDs def. In court ID Admissible
If in-court ID tainted by illegal ID:
2 constitutional issues 1) Due process clause: was the pretrial ID reliable? D can challenge if unnecessarily suggestive and substantial likelihood of misidentification 2) 6th Am right to counsel at any post charge lineup or showup! (no right to counsel at photo IDS or when police take physical evidence). After formal charge (usually indictment) EX: D indicted, formally charged. Placed in line up where picked out but Ds counsel not allowed to be at post indictment lineup. NOT ADMISSIBLE No violation of 6th Am if before formally charged. Only entitled to lawyer post-charge if personally confronted (line up or show up vs blood sample, handwriting, etc)
Right to lawyer at non-trial settings:
D formally charged w/ robbery, pre-trial out on bail, undercover agent asks ?s, this VIOLATES 6th Am right to counsel (about that specific robbery, it is offense-specific: can ask about others)
prosecutor and priv agst self incrimination
prosecutor can't comment on failure to testify
If D does not ask for lawyer,
does NOT waive!! (unlike Miranda), waiver has to be explicit. Have to ask D if they understand
Double Jeopardy:
multiple trials, for the same offense, by the same jurisdiction
if prob cause of warrant is at issue, informer name can remain privileged
size of jury?
No const right to a 12 person jury (if 6, need unanimous verdict)
commission of violent felony and self defense
commission of violent felony = provocation that would arose reasonable apprehension
Publicity Issues
Due process: starting point. D is entitled in all crim cases to have an impartial trier of fact. Does too much publicity mean no impartial jury? Judges options: 1) Delay trial (right to speedy trial prob) 2) Sequester jury (problematic- expensive) 3) Change of venue- generally what occurs
can owner commit burglary of own structure?
owner can commit burglary of own structure it rented and if used as dwelling of another
no burning of structure-
attempted arson
no Miranda warnings?
5th am self incrimination when
Cameras in courtroom:
not per se unconstitutional. ? is whether trial will be adversely affected (not whether parties signed off on it)
Waiver and double jeopardy:
If D appeals her conviction has waived double jeopardy claim. But if charged w/ greater offense, convicted of lesser offense at trial, then reversed on appeal, acquittal on appeal equals acquittal to greater, can NEVER be tried again for greater
liability for felony murder and death of co-felon
can't be based on death of co-felon
Post trial right to lawyer:
right to a lawyer at sentencing AND on automatic appeal.
if owner consents to search
might NOT equal consent to search something in the room of someone who lives there
Fruit of the Poisonous Tree Doctrine
If evidence too far removed from illegal police action, it is not tainted. Related to standing. Ex: illegal search of A's house leads police to B. B leads them to illegal gun and prints on gun belong to A, and her friend C. Does A have standing to challenge search? YES, it was her house. BUT gun is admissible as to A, it is NOT fruit of poisonous tree Gun is admissible as to C BUT NOT b/c of fruit of poisonous tree, b/c C does not have standing!!!
Const right under 6th Am- limit?
not limited to lawyer (experts if D can show necessary to fair trial)
Grand Jury: differences from criminal trial:
1) D (grand jury witness) has no right to counsel or Miranda warnings. 2) grand jury may consider evidence that would be excluded at trial. 3) D (grand jury witness) must appear, can refuse to answer ?s
Can judge close trial?
Not likely unless there is a compelling interest and NO less restrictive alternative. Heightened scrutiny
receipt of stolen property
requires D receive possession and control knowing it to have been stolen
Bench trials and double jeopardy
no double jeopardy prob until 1st witness is sworn in
Current Law re: standing
D must show that she had a sufficient privacy interest which was invaded by the search (used to be automatic standing b/c there) now simply being present NOT enough. D, who is on A's premises during search, can demonstrate sufficient privacy interest as invited dinner guest, having spent the night, etc.
robbery v. larceny
remember, robbery involves use of force. can't be convicted of robbery AND larceny (larceny a lesser included offense of robbery)! larceny: permanently deprive
Right to a Jury Trial:
Right depends on punishment scheme: (2 sentencing schemes in U.S). 1) sentencing law w/ no statutory max. entitled to jury trial if actual sentence imposed is more than 6 months, after the fact determination. 2) w/ statutory max: if max exceeds 6 mos right to trial
Right to a Speedy Trial: 6th Am
Only have prob if delay is AFTER arrested and formally charged 4 factors: (judge will take all into account) 1) length of delay- no fixed term 2) reasons for delay-innocent or intentional by gov't 3) Did D make demand. Everyone asks, what they mean is if D made unnecessary motions, demand not taken seriously 4) Prejudice: impact on trial
Limitation on double jeopardy
manifest necessary. Not gov'ts fault for new trial: i.e. judge drops dead, witness disappears, hung jury, NO double jeopardy prob

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