A Short & Happy Guide to Criminal Procedure
Author:
Abramson, Leslie W.
Edition:
4th
Copyright Date:
2019
30 chapters
have results for a short and happy guide to criminal procedure
Preface 6 results (showing 5 best matches)
- The Short & Happy Guide to Criminal Procedure
- Criminal Procedure is one of the most interesting law courses. As you were growing up, you watched news reports or television shows like which described or portrayed how the FBI or local police arrested suspects, searched their homes, interrogated them about their criminal conduct, and placed them in lineups. After a suspect was taken to court, further reports outlined whether she was released pending trial, indicted by a grand jury, pled guilty or asked for a jury trial, and sentenced to prison for a term of years.
- The remainder of this book addresses the issues that arise after the federal or state prosecutor institutes criminal proceedings against the suspect. You will learn the constitutional and rule-based procedures relating to pretrial release, prosecutorial discretion, preliminary proceedings, grand jury practice, joinder of offenses and defendants, speedy trial, pretrial discovery of factual information, pretrial publicity, plea bargaining, jury trials, appeals, double jeopardy, and post-conviction remedies.
- The materials in this book are current through the 2018–2019 Term of the United States Supreme Court and the Federal Rules of Criminal Procedure through August, 2019. New editions of this book will be published approximately every three years, but readers can check for interim updates. Thanks to Kaylee Raymer, a 2020 graduate of the University of Louisville Brandeis School of Law, for her quality editorial assistance in the preparation of this edition.
- Each chapter explores one of the above topics, first defining the “key terms” for the topic. Each chapter then explains why its topic is important to the workings of the justice system and how it interrelates with other topics elsewhere in the book. The balance of each chapter discusses the foundational principles and shows you how they “work,” primarily through decisions of the United States Supreme Court or hypothetical situations.
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Copyright Page 4 results
- a short & happy guide
- The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
- © 2015, 2017, 2018 LEG, Inc. d/b/a West Academic
- © 2019 LEG, Inc. d/b/a West Academic
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Chapter 16 Freedom of the Press and Fair Trial 33 results (showing 5 best matches)
- Openness assures that established procedures are being followed and that any deviations become known. It also enhances both the fairness of the trial and the appearance of fairness that is essential to public confidence in the criminal justice system.
- Courts emphasize the historical tradition of openness and the functional value of openness. For example, preliminary hearings are open to the public while grand jury proceedings are not. As to the value of openness, a court asks whether public access to the preliminary proceeding is similar to a trial and “plays a particularly significant positive role in the actual functioning of” the criminal justice process.
- In the context of the criminal justice process, freedom of the press may promote or undermine significant societal interests. Public access to legal proceedings promotes self-government by exposing judicial or prosecutorial corruption or incompetence. Presence of the press may be disruptive and can undermine the fairness of the trial process.
- Trial courts must consider alternatives to closing courtrooms, even if no one identifies the nature of such alternatives. “Trial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials.”
- Another possible remedy for prejudicial pretrial publicity is for the trial court to grant a continuance of the case. Courts are inclined to take a wait-and-see attitude by denying the motion for a continuance while efforts are made to select a jury.
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Chapter 19 Trial Rights 28 results (showing 5 best matches)
- The right of a criminal defendant to be present arises from both the Confrontation and the Due Process Clauses. The Confrontation Clause assures a defendant the opportunity for effective cross-examination. Due Process provides a defendant with the right to be present in order to contribute to the fairness of the procedure.
- Examples of out-of-court “testimonial statements” include: 1) statements made to law enforcement officers, other government employees or officials, 2) statements made in courtrooms settings, such as prior testimony in a preliminary hearing, before a grand jury, at a prior trial, 3) police interrogation situations, 4)
- A criminal defendant has no right to be present when the defendant’s presence would not contribute to a more reliable determination and the hearing raises no questions about substantive trial testimony.
- The admission of hearsay evidence against a criminal defendant can implicate the Sixth Amendment because the defendant is not afforded the opportunity to confront the person making an out-of-court statement.
- Assessment of whether an emergency threatening the police and the public is ongoing focuses on whether the threat to the first victim has been neutralized, the type of weapon employed, and the medical condition of the victim. The degree of informality of an encounter between a victim and police also bears on the purpose of the interrogation. For example, a shooting victim’s out-of-court statements to police to assist them to meet an ongoing emergency were non-testimonial hearsay and were admissible at trial.
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Chapter 9 Pretrial Release 15 results (showing 5 best matches)
- In addition to the boilerplate conditions of not committing additional offenses and avoiding contact with the victim or persons known to engage in criminal activities, a defendant may be released, subject to conditions such as being instructed not to leave the jurisdiction, to find employment, to comply with a curfew, and to contact a pretrial services official on a daily basis.
- In response to a growing problem of defendants committing crimes during the period of pretrial release, some state legislatures and the Congress enacted laws prohibiting pretrial release due to either a defendant’s criminal history or the nature of the pending charges. Detention is authorized if the prosecution persuades the court that, , no set of conditions “will reasonably assure the appearance of [the defendant] and the safety of any other person and the community.”
- The regulatory goal of preventing defendants on pretrial release from endangering the community by continuing to engage in criminal activity outweighs a defendant’s liberty interest.
- Typically, eligibility requirements for preventive detention are based on the defendant’s current charge or prior criminal conduct. When a defendant poses a flight or safety risk, the trial judge must consider whether the risk can be minimized by releasing the defendant under the conditions previously described.
- The modern purposes of the pretrial release decision are to ensure the defendant’s appearance at trial and to prevent the accused from committing crimes against either witnesses in the pending case or others in the community. To the accused, pretrial release enables him to resume his daily routine. Moreover, the ability to assist his counsel in locating witnesses to prepare his case is important to a fair trial.
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Chapter 18 Jury Trials 57 results (showing 5 best matches)
- The Sixth Amendment grants to criminal defendants the right to a “jury of the state and district wherein the crime shall have been committed.” The trial jury must be selected from a larger jury panel that reflects a fair cross-section of the community where the crime occurred. A grand jury and the jury that the case do not have to reflect a cross-section of the community.
- The Sixth Amendment provides that in all criminal prosecutions an “accused shall enjoy the right to a public trial, by an impartial jury of the State and district wherein the crime shall have been committed. . . .” Article III of the Constitution states that “[t]he trial of all crimes . . . shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed. . . .”
- The right to a jury trial does not apply to juveniles convicted in juvenile court, because 1) a juvenile delinquency proceeding is neither civil nor criminal, and 2) accurate fact-finding is possible without a jury trial.
- A jury trial is also required when a court imposes fines for criminal contempt. Criminal contempt fines of $52 million for violation of a labor injunction are subject to the jury trial right.
- also applies to sentences of criminal fines. Juries must determine the facts that set a fine’s maximum amount.
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Chapter 10 Preliminary Proceedings 16 results (showing 5 best matches)
- At the initial appearance, by rule the judge must inform the accused about the pending criminal charges, the right to remain silent, the right to request or retain an attorney, that any statement made may be used against the accused, the general circumstances under which the accused may secure pretrial release, the right to a preliminary hearing, and a reasonable time to consult with an attorney.
- determines” whether there was probable cause for having arrested a defendant without a warrant, and is a prerequisite to continued detention; it usually occurs at the defendant’s initial appearance in court.
- The purpose of a preliminary hearing is to determine whether there is probable cause that a crime was committed and that the defendant committed the crime. Without a finding of probable cause, the accused is released from custody.
- The only issue determined at a hearing is whether there is probable cause to believe that the accused committed an offense. The hearing is nonadversarial in nature, with the accused having no right to 1) counsel, 2) be present, or 3) question witnesses. Hearsay and written testimony are admissible. If a court determines that there is no probable cause, immediate release from custody is the proper remedy but that finding does not foreclose a later prosecution.
- Statutes, rules, and court decisions provide for preliminary proceedings involving charges, but there is no constitutional right to a preliminary hearing. If a preliminary hearing is held, the defendant has a right to the assistance of counsel at this “critical stage” of the proceedings.
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Chapter 8 Right to Counsel 76 results (showing 5 best matches)
- Counsel is a necessity for criminal defendants due to the state’s belief that attorneys are essential to the public’s prosecutorial interest. Defendants who can afford attorneys hire them. A fair and impartial system can be a reality only if indigents also have the assistance of an attorney. Defendants are entitled to counsel who render effective assistance.
- A “critical stage” occurs when counsel’s presence minimizes the imbalance in the adversarial system between the prosecution and the defendant, and assists an uninformed defendant in the criminal justice system. . Besides the right to counsel at trial, the following are examples of “critical stages” to which the right to counsel applies.
- A criminal defendant’s Sixth Amendment right to counsel includes the right to the “effective” assistance of counsel. The right applies to trial proceedings, guilty pleas, sentencing, and a first appeal of right. Whether a defendant has a right to effective assistance of counsel during state post-conviction proceedings is still an open question after . If there is no right to counsel, no right to effective assistance exists. The remedy for ineffective assistance is automatic reversal of the conviction.
- Counsel must be admitted to practice law in the place of the criminal proceedings, unless counsel is specially admitted to the Bar of that jurisdiction to represent the defendant in only that criminal proceeding (“
- A criminal defendant may waive her Sixth Amendment right to counsel, if that waiver is voluntary, knowing and intelligent. The trial court must ensure that the defendant understands the waiver’s significance and consequences.
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Chapter 23 Post-Conviction Remedies 64 results (showing 5 best matches)
- , the failure to object to a confession barred federal review in order to preserve the integrity of state procedures, and to promote federalism and comity. The most common form of procedural default is the defendant’s failure to present a federal constitutional claim to the state trial court to preserve the issue for appellate review.
- , a Latin term meaning “you have the body,” is a collateral attack because it is not a continuation of the criminal process, but instead is a separate suit brought to challenge the legality of the restraint under which a person is held. The petitioner has the burden to prove by a preponderance of evidence that his confinement is illegal. The respondent in a
- 28 U.S.C. § 2244(b) establishes procedures for the disposition of second or successive petitions. Any claim that was presented in a prior application for relief must be dismissed.
- Following the filing of a petition, the state’s answer to the petition, and the record of the state court proceedings, the court must determine whether an evidentiary hearing is required. If the petitioner failed to develop the factual basis of a claim in state court, the federal court usually cannot hold an evidentiary hearing.
- Prior to filing, a second or successive petition also must pass through a “gatekeeping” system requiring a petitioner to seek authorization from a three-judge panel in the appropriate court of appeals before a district court may hear the petition. . This certification decision is not appealable and is not subject to rehearing.
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Chapter 22 Double Jeopardy 35 results (showing 5 best matches)
- Double jeopardy bars a second prosecution only if jeopardy attached in the original proceeding. If a case is dismissed or terminated before trial, jeopardy has not attached and the defendant may have to respond to the same criminal charges in further proceedings.
- The question for prosecutors following a dismissal or an acquittal is whether it can be appealed or retried. Prior to the attachment of jeopardy, whether a criminal proceeding was terminated because of a dismissal or acquittal has no double jeopardy significance. For example, when the defendant’s pretrial motion to dismiss for insufficient evidence is granted, double jeopardy does not bar a government appeal, because jeopardy had not attached.
- Once jeopardy has attached, whether a trial ends in a dismissal or in an acquittal is important to resolving whether the government can appeal the adverse termination of the case and whether the defendant can be retried. A dismissal can be appealed, and generally an acquittal cannot.
- When a judge terminates the proceedings prior to a formal verdict, she may exercise her discretion to declare a mistrial and end the case without a verdict.
- A mistrial is granted when an error in the trial cannot be cured by remedial action of the parties or the court. Case law in every state addresses which errors require a mistrial, and which errors are “curable” by instructions to the jury or continuances.
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Chapter 17 Plea Bargaining 40 results (showing 5 best matches)
- : In many states, the accused may enter a plea of by which he is not contesting the charges. Generally, it is identical to a guilty plea except that, without supporting proof, it cannot be used as an admission of guilt in a subsequent civil or administrative proceeding. However, it is the equivalent of a criminal conviction for sentencing and recidivist charges.
- Unlike what television dramas might lead you to believe, most criminal cases are resolved by a jury trial. “Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas.” . Learning about the plea bargaining process is critical to an understanding about the disposition of criminal charges.
- A judge does not have a constitutional duty to explain all consequences of a criminal conviction to a defendant before permitting him to plead guilty. Currently, the failure to inform a defendant about the risk of deportation is the only collateral consequence that a court constitutionally must disclose to a defendant before accepting a guilty plea.
- A guilty plea is a defendant’s admission about committing the charge. It also is a waiver of all defects in any prior stage of the proceeding. A guilty plea constitutes a waiver of numerous constitutional rights, including the privilege against self-incrimination, the right to a trial by jury, the right to confront one’s accusers, and the right to appeal the conviction.
- Conditional guilty plea: A defendant avoids the necessity of a full trial but wants appellate review of a claim. The defendant reserves in writing the issue for appellate review, and the court and the prosecutor must consent to the plea.
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Chapter 3 Warrantless Searches 101 results (showing 5 best matches)
- A stop is proper when an officer reasonably concludes in light of his experience and observation that criminal activity may be afoot and that the person to be stopped is armed and presently dangerous. , the case law appears to have de-emphasized the armed and dangerous requirement for a stop.
- After the police arrest and “book” a suspect at police headquarters, it is reasonable for police or jail officials to search the personal effects as part of the routine administrative procedure. The government’s interests are to 1) prevent personal items from being stolen, 2) help protect jail officials from false claims of theft, 3) prevent contraband or weapons from being introduced into the jail, and 4) ascertain a suspect’s identity.
- The reasonable suspicion standard for a stop or a frisk requires less proof than either probable cause or even a preponderance of evidence. Measuring reasonable suspicion is based on an individual assessment of the totality of the circumstances for suspecting the person of criminal activity. Reliance on drug courier profiles does not necessarily amount to reasonable suspicion to justify a stop.
- Other facts that may support reasonable suspicion for a stop are the nature of the suspected crime, what conduct caused the suspicion, whether the area is a high crime area or a luxury home area, whether the suspect is engaged in conduct for which he already has a criminal record, the suspect’s age, race, dress, demeanor, and the police officer’s experience.
- When a vehicle is legally impounded according to local standards that permit officers to exercise discretion, police may search the entire vehicle and any closed containers to list the contents. Any evidence recovered may be used in a later criminal prosecution. . An inventory search without written regulations to govern containers found during inventory searches is unconstitutional.
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Chapter 20 Sentencing 38 results (showing 5 best matches)
- Criminal forfeiture cases require that the government prove by a preponderance that the owner obtained the property around the time of the crime, and that it was unlikely the property came from any other source. The burden then switches to the defense to show this was not the case.
- , identifying four principles of proportionality review—“the primacy of the legislature, the variety of legitimate penological schemes, the nature of our federal system, and the requirement that proportionality review be guided by objective factors—[that] inform the final one: The Eighth Amendment forbids only extreme sentences that are ‘grossly disproportionate’ to the crime.”
- The Court has rejected a Due Process challenge to a state sentencing procedure that permitted the sentencing judge to consider information about the offender’s “past life, health, habits, conduct, and mental and moral propensities.”
- Pretrial seizures of property are constitutional, as long as there is probable cause to believe both that the defendant has committed an offense that can lead to forfeiture and that the assets result from the allegedly criminal conduct.
- when a trial court suspends a criminal sentence and releases the defendant, under the supervision of a probation officer.
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Chapter 7 Prosecutorial Discretion 24 results (showing 5 best matches)
- In response to a criminal charge, a defendant alleging selective prosecution must show both discriminatory intent and discriminatory effect.
- Prosecutors have broad discretion about when and whether to pursue criminal prosecutions. They are the executive branch’s delegate to help discharge a chief executive’s constitutional responsibility to “take Care that the Laws be faithfully executed.”
- Due Process prohibits a prosecutor from using his criminal charging discretion to penalize a defendant’s proper exercise of constitutional or statutory rights, , reindicting a defendant on more serious charges as retaliation after a successful appeal.
- deciding when and whether to pursue criminal charges.
- When a presumption of vindictiveness arises, the
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Table of Contents 132 results (showing 5 best matches)
Chapter 15 Discovery 39 results (showing 5 best matches)
- Discovery Outside the Rules of Criminal Procedure
- Most discovery rules require the government to disclose prior statements of the defendant, the defendant’s prior criminal record, documents and tangible objects the prosecution will use at trial, and scientific reports and tests such as autopsy reports and fingerprint analysis.
- Fed.R.Crim.P. 26.2 permits both parties to obtain any pretrial statement of any witness in the possession of the opposition, the witness testifies at trial on direct examination. The key to applying the rule is the definition of a “statement,” which can be made and signed or adopted or approved by the witness, a substantially recital of an oral statement (recorded contemporaneously and contained in a recording or transcription of a recording).
- The grand jury offers prosecutors many of the advantages that civil litigants obtain through discovery depositions. Prior to the return of an indictment, the grand jury has the power to compel testimony and documents in an
- The prosecution’s theory was that a large group had murdered the victim, and no defendant rebutted the prosecution’s group attack theory. After their convictions became final, defendants claimed that the prosecution had withheld evidence at trial that was material to their guilt. The evidence included the identity of one man seen running into the alley after the murder and stopping near the victim’s body. The Supreme Court held that the withheld evidence was not material, citing and looking at the withheld evidence “in the context of the entire record.” Because virtually every witness at trial agreed that a group killed the victim, it was not reasonably probable that the withheld evidence could have led to a different result at trial.
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Chapter 12 The Charging Instrument 21 results (showing 5 best matches)
- The charging instrument is the jurisdictional document filed in the trial court. The indictment or information is brought in the name of the sovereign, and ordinarily concludes that the offense was against the peace and dignity of the sovereign. The charging document gives the defendant notice of the charge in order to prepare a defense, and protects her from surprise during the criminal prosecution. The document must state an offense that is within the power of the court to adjudicate.
- Vagueness: A criminal statute must define the criminal offense with sufficient clarity that ordinary people can understand what conduct is prohibited.
- fuller disclosure about the nature of the criminal charge when a charging document is incomplete.
- defining a criminal offense with insufficient clarity so that ordinary people cannot understand what conduct is prohibited.
- A defendant may move to dismiss an indictment or information on the ground that the statute the defendant is charged with violating is unconstitutional. Motions to dismiss may include the following grounds:
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Chapter 5 Identification Procedures 31 results (showing 5 best matches)
- A Due Process constitutional violation may exist where the pretrial confrontation takes place before after adversary judicial criminal proceedings began, and defense counsel is present. If the pretrial confrontation violates Due Process, proof that the defendant was identified at the pretrial confrontation is inadmissible and the witness cannot identify the defendant at trial. This is a
- Opportunity of the witness to view the criminal at the time of the crime, , the lighting conditions, the amount of time for the view, and the degree of view by the victim.
- If adversary judicial criminal proceedings have been initiated against the defendant, he is entitled to have a lawyer present at any state-sponsored pretrial confrontation with an eyewitness, , any lineup or showup. The defense lawyer may later challenge the credibility of the witness’ in-court identification at trial, and to eliminate unfair pretrial confrontations resulting in identifications of persons as the perpetrators of crime when they are not.
- The Court has identified a short list of events that qualify as “adversary judicial proceedings,” including initial appearance, formal charge, preliminary hearing, indictment or information. The defendant’s initial appearance triggers the attachment of the right to counsel.
- A. Why Identification Procedures Are Important
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Chapter 14 Speedy Trial 40 results (showing 5 best matches)
- Time limitation issues apply to all criminal charges, delay, Sixth Amendment speedy trial rights for post-charge delay, and statutory speedy trial guarantees. In every case, courts and parties must be aware of these constitutional and statutory requirements.
- Federal statutory crimes and almost all states have statutes that precisely define limits for bringing a criminal prosecution. 18 U.S.C. § 3282, imposing a five-year limitations period after commission for prosecuting felonies. While the length of the period often increases with the seriousness of the crime, many states have no time limitation for charging felonies or capital crimes.
- Many state legislatures and the Congress have enacted speedy trial legislation that establishes specific time limits for completing stages of a criminal prosecution.
- Despite the view that a defendant does not have the duty to bring himself to trial, the defendant’s failure to demand a speedy trial undercuts the defendant’s constitutional argument. By contrast, a vigorous and timely assertion provides strong evidence that the defendant is interested in a speedy disposition.
- establishes specific time limits for completing stages of a criminal prosecution.
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Chapter 4 Police Interrogation and Confessions 62 results (showing 5 best matches)
- Often, police officials obtain confessions from criminal suspects. At trial, prosecutors attempt to introduce those statements as evidence against the defendant. In order to evaluate the admissibility of confessions, you must know about the Fifth Amendment privilege against self-incrimination, the Sixth Amendment right to counsel, Due Process, and the trial court’s supervisory authority.
- Assuming that the police have engaged in overreaching conduct, courts also consider the characteristics of the suspect to evaluate his ability to resist the coercive police pressure. The common factors present in both traditional voluntariness as well as waiver cases include the defendant’s: age, intelligence, education, experience in the criminal justice system, mental condition, intoxication on alcohol or drugs, physical injury and coercion, threats to others, length of interrogation and number of interrogators
- Prior to any questioning, police must inform a suspect in custody that he “has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.” After those warnings, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement.
- The differences between the Sixth Amendment and Fifth Amendment invocations of the right to counsel: a Sixth Amendment invocation may occur even prior to warnings, and the consequences of a Sixth Amendment invocation permit questioning the suspect about uncharged offenses.
- , police officers must respect an arrestee’s invocations of the right to silence, the right to counsel, or both, by ceasing the interrogation. If an arrestee’s invocation is ambiguous, police may ignore the invocation and continue to interrogate. Post- cases have resolved issues about a suspect’s unambiguous invocation of rights.
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Chapter 21 Appeals 37 results (showing 5 best matches)
- The defendant usually initiates the appellate process, seeking to overturn a finding of guilt made by a judge or a jury. In criminal cases, until there is a final judgment following a conviction or an acquittal, there can be no appeal, , an appellate court reviews only final judgments from a lower court. 28 U.S.C. § 1291. There are two exceptions to the final judgment rule.
- “The Constitution entitles a criminal defendant to a fair trial, not a perfect one.”
- A structural error “affect[s] the framework within which the trial proceeds,” and it defies harmless error analysis. Thus, when a structural error is objected to and then raised on direct review, the defendant is entitled to automatic reversal without any inquiry into harm.
- affect the framework within which the trial proceeds, as opposed to an error in the trial process itself. Such errors require automatic reversal, and are not subject to harmless error analysis
- Standards of Review in Criminal Cases
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Chapter 2 Search Warrants and Arrest Warrants 60 results (showing 5 best matches)
- For a search warrant, the government must prove a fair probability that the specified items sought are evidence of criminal activity and are presently located at the specified place described in the search warrant application.
- a fair probability that the specified items sought are evidence of criminal activity and that those items are presently located at the specified place described in the search warrant application.
- Normally, if a person is a search target of a search warrant, she must be particularly described (although not necessarily by name), just as with any non-human search target like a residence, business, or vehicle. The description is proper when the search premises are used for clearly criminal purposes, , for a “crack house.”
- The common-law “knock-and-announce” doctrine for warrants requires executing officers to audibly “knock” or otherwise make their presence and their purpose known at the outer door, and then to delay for a period of time sufficient to permit the occupants to reach and to open the door.
- Many anticipatory warrants involve narcotics to be delivered to a certain place and time (the “triggering condition”) in the future. Two prerequisites of probability must be satisfied: 1) probable cause to believe the triggering condition will occur, and 2) if the triggering condition occurs, a fair probability that contraband or evidence of a crime will be found in a particular place. Anticipatory warrants become invalid if the triggering event (
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Chapter 13 Joinder and Severance 52 results (showing 5 best matches)
- When a single act affects multiple victims, separate offenses are committed. If one person is killed and another is wounded by the same bullet, multiple criminal offenses have been committed.
- The most difficult problem in applying collateral estoppel is ascertaining which facts were established in the defendant’s favor in the earlier case. Because juries render general rather than special verdicts in most criminal cases, a determination of which facts were essential to the verdict requires careful analysis of the trial record.
- However, if the prosecutor cannot prove that A and B committed both robberies together, there are two options for the prosecution. Under Fed.R.Crim.P. 8(a), the prosecutor may charge defendant A with both robberies in one indictment and charge defendant B with both robberies in a separate indictment. Under Fed.R.Crim.P. 8(b), the alternative for the prosecutor would be to charge both A and B with one robbery in one indictment and to charge A and B with the other robbery in a second indictment.
- The legislature may divide a continuous course of conduct into separate offenses, even for conduct that occurs within a short period of time. . For example, when the defendant fires six gunshots at police during a chase, the result is six different charges of reckless endangerment.
- Assume that in a joint trial of defendant A and defendant B, A’s pretrial confession incriminates B. The admission into evidence of A’s entire pretrial confession violates B’s Sixth Amendment right to confrontation if A does not testify at trial, because B does not have the opportunity to cross-examine A about the pretrial confession.
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Chapter 6 Exclusionary Rule 65 results (showing 5 best matches)
- If a trial judge has ruled that the police conducted an unconstitutional out-of-court identification procedure, the prosecutor still has the opportunity to show that the victim or witness can make an in-court identification that is independent of the improper out-of-court identification.
- A criminal defendant must have “standing” to raise the issue of unconstitutional law enforcement conduct. Standing exists only where the defendant seeks to remedy a violation of her
- Evidence derived from law enforcement’s unconstitutional activity is inadmissible in criminal proceedings not only when it is obtained as a direct result of that activity, but also when it has been derived as an
- The rule is intended to protect against unduly suggestive procedures that might impugn the integrity of the fact-finding process.
- In order for a defendant to invoke the FOPT doctrine, the issues are whether 1) the defendant has standing to challenge the original violation, rights; and 3) the evidence sought to be admitted against her, , the fruit, was obtained as a result of the original violation. FOPT analysis specifically addresses the
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Chapter 11 Grand Jury Proceedings 37 results (showing 5 best matches)
- Unlike most stages of a criminal prosecution, grand jury proceedings are conducted in secret. . Most jurisdictions impose an obligation of secrecy upon the prosecutor and grand jury personnel, but
- Half the states have eliminated grand juries and permit prosecution by a verified document known as an information (by which charges are prepared by the prosecutor). Some states allow the prosecutor to choose between a grand jury indictment and submitting an information. Federal defendants may waive the right to indictment and proceed by information.
- A person served with a subpoena may file a motion to quash the subpoena on Fifth Amendment grounds. To prevail, the prosecutor must show that, the subpoena issued, she was aware that the documents sought were 1) in existence, 2) in the recipient’s possession, and 3) the documents described (known as authentication) in the subpoena. If the prosecutor cannot prove all three elements, the court will grant the motion to quash. At that time, the prosecutor will have to decide whether to seek a judicial grant of immunity for the production of the documents or give up the quest for the documents.
- The prosecutor may seek an immunity order from the judge granting the witness immunity from prosecution to force a response. The common types of immunity are transactional and use/derivative use.
- A taxpayer’s rights are not violated by enforcing a subpoena directed to her accountant and requiring . Similarly, a taxpayer cannot shield her accountant’s papers by giving them to her lawyer.
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Chapter 1 Fourth Amendment Activity 40 results (showing 5 best matches)
- The Fourth Amendment has two parts: the “Reasonableness Clause” and the “Warrant Clause.” The Warrant Clause applies to the issuance, content, and execution of arrest warrants and search warrants. Under the Reasonableness Clause, a court decides the legality of a warrantless search by balancing the intrusion on a person’s privacy with how necessary the search is to promote legitimate governmental interests.
- A person talking on the telephone inside a public telephone booth with the door closed has a reasonable expectation of privacy in his conversations. In order for the Government to listen to that conversation, it must have probable cause to hear or record it. , talking loudly in a public place) and in part on the social context ( , using a telephone booth to conduct a phone conversation). Talking loudly in a booth makes the person’
- Police can observe activity on the curtilage from a public street, but police presence the curtilage itself is Fourth Amendment activity. The curtilage is the land “immediately surrounding and associated with the home,” , the front porch. Courts look to a four-factor test to determine whether a particular area is within the “curtilage”: 1) its proximity to the home, 2) whether it is enclosed, 3) the nature of its uses, and 4) the steps taken to protect it from observation.
- The Fourth Amendment to the United States Constitution states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
- Without prior existence of probable cause, police installation of a GPS tracking device on a defendant’s vehicle to monitor the vehicle’s movements constitutes a “search,” and violates a defendant’s Fourth Amendment rights. , the majority emphasized the intrusive nature of the secret installation of a GPS device on the defendant’s automobile.
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- Publication Date: September 30th, 2019
- ISBN: 9781684676934
- Subject: Criminal Procedure
- Series: Short & Happy Guides
- Type: Overviews
- Description: This Short and Happy Guide makes the law about police practices and criminal trial proceedings accessible and easy to remember. Learn the key points of search and seizure law, police interrogation, the right to counsel, the exclusionary rule, pretrial release, grand jury investigations, joinder, criminal discovery, plea bargaining, jury trials, pretrial publicity, double jeopardy, appeals, and post-conviction standards. Dominate your classes in Criminal Procedure and your skills courses in Trial Advocacy!
