california bar exam outline - criminal procedure






California Bar Exam Outline - Criminal Procedure
This is an outline which I created as part of my preparations for the July 2000 California Bar Exam. I started with the outline of subjects covered on the MBE exam provided by the National Conference of Bar Examiners. To that outline I added the additional topics tested on the California Bar Exam. I then filled in the substantive information for those categories from the following sources:
  • PMBR lecture tapes (24 tapes covering torts, K, property, con law, crim law, and evidence).
  • BarBri "Early Bird" lectures covering K, evidence, crim law, crim pro, con law, civ pro, bus org, community property, and property.
  • PMBR Multistate Workbook Volume 1 Outlines (torts, K, property, crim law, crim pro, evidence, con law)
  • PMBR Multistate Workbook Volume 1 MBE answers
  • PMBR Multistate Flashcards
  • Strategies and Tactics for the MBE, by Emanuel
  • PMBR 6-day lecture and �Early-Bird� Workbook (MBE answers and Multistate Issue Graphs)
Once I started the BarBri lectures, I stopped using this outline, and instead studied from flashcards (made in part from this outline), and checklists. Therefore, this outline does not contain any substantive information from BarBri, and any additions or corrections that I would have made using the BarBri information. You should not rely on this outline as an authoritative primary source.

  1. Criminal Procedure

  1. Exam approach

  1. Attack statement or confession on these four grounds: Miranda; right to counsel; Voluntariness; or fruits of illegal conduct.

  1. Remedy for violation is exclusion of the evidence from court.
  2. Fourth Amendment (illegal detention, arrest, search or seizure)

  1. Illegal Detention

  1. Detention occurs if reasonable person would not feel free to leave.
  2. PD may detain and question a person upon reasonable belief that criminal activity is afoot (specific and articulable facts, not merely looking suspicious), and may conduct a frisk of suspect�s outer clothing upon reasonable belief that person is armed. Persons on premises during lawful search may be detained.
  3. Detention must be temporary and no longer than necessary.
  4. Vehicle stops

  1. PD may not randomly stop vehicle to check license and registration without suspicion of wrongdoing. Unconstitutional due to too much discretion.
  2. Systematic stopping is permissible for inspection near border, but must have probable cause to search.
  3. May not order driver out of car absent lawful detention for traffic violation.
  4. Sobriety checkpoints are permissible.

  1. Illegal Arrest

  1. Arrest occurs when D is subject to physical restraint.
  2. PD must have probable cause to believe suspect committed a crime. Facts and circumstances within PD�s knowledge must be such that a reasonably prudent person would believe that D had or was committing an offense.
  3. Warrant not required except when PD enters a private premises to arrest suspect, unless emergency, consent, or hot pursuit.
  4. Invalid arrest is not a defense to the crime, but may create a civil COA.
  5. Who can arrest

  1. Police and private citizens for felonies committed in their presence.
  2. Police for felonies not committed in his presence if he has reasonable grounds to believe the person committed the felony.
  3. Private citizens for felonies not committed in his presence only if felony was in fact committed.
  4. Police can use deadly force against fleeing felon if D poses threat of serious physical harm, or D has committed crime involving infliction of serious harm. Must give warning, unless useless.
  5. PD and private citizens can arrest for misdemeanors committed in their presence and which amount to a breach of the peace.
Illegal Search and Seizure (focus)

  1. Governmental conduct

  1. Public police, private individual acting at direction of public police, or deputized private police.
  2. But doesn�t include evidence obtained by illegal search done by private citizen and given to PD.

  1. Standing to object: D must have substantial ownership interest in the thing seized or premises searched, or a reasonable expectation of privacy in the area searched.

  1. A sells drugs to B, police illegally search B and arrest A. A has no standing to object to illegal search of B.
  2. Overnight guest has standing, but passengers in a car do not. Account holder does not have ownership interest in bank records.
  3. Admission of ownership to establish standing cannot be used against D .
  4. Different from con law standing, which requires p to have personal stake in the outcome, and must establish direct, immediate injury and causation. TP standing denied unless close relation and special need demonstrated.
  5. No legitimate expectation of privacy where item is something of a public nature

  1. Voice
  2. Handwriting
  3. Bank records
  4. Telephone number dialed
  5. Paint on outside of car
  6. Prison cells
  7. Monitoring location of car on public street or driveway
  8. Sobriety checkpoints, so long as neutral criteria is used.
  9. Anything that can be seen across open fields or from public airspace
  10. Odors from luggage (dog sniff), but not person
  11. Garbage set out on curb for collection
  12. Private conversations: Speaker assumes risk of evesdropper or tattle-tale, including by technological aids, but not in a phone booth.
  13. Public school students, whose personal items can be searched upon reasonable belief that contraband will be found (lockers, desks and other school property unresolved).
Police must have valid search warrant
Issued by disinterested judge who independently evaluates probable cause Based on probable cause under oath (facts or circumstances sufficient that a reasonable person would conclude it to be more probable than not that such evidence or persons will be found).

  1. Administrative warrant doesn�t need probable cause to search for health or safety violations (i.e. code enforcement), or closely regulated businesses, or drug testing of railroad employees (due to public need).
  2. Informants: Tip must be credible under the totality of the circumstances, including these factors: credible information, reliable informant, police corroboration, declaration against interest. Identity not required to be revealed.
  3. Warrant will be upheld unless there is a substantial showing of false statements which were made intentionally, knowingly, or in reckless disregard for the truth, and the magistrate�s finding of probable cause could not have been made without the false statements.
  4. Information giving probable cause must not be so old that it is stale.
Sufficiently precise as to things to be seized and place to be searched, absent reasonable suspicion. Validly served (PD must knock and announce, unless exigent circumstances such as threats to officer safety, escaped prisoners, or risk of destruction of evidence) Limited in duration Search not to exceed the express scope of the warrant (i.e. once PD finds the stuff described in the warrant, the search is over). The warrant must be reasonable, i.e. no removal of deeply embedded bullet from a person. Good faith exception: Exclusionary rule does not bar admission of evidence obtained by invalid warrant if warrant issued by neutral and detached magistrate and officer had objective reasonable belief that warrant was valid.Unless warrant not required (I C APE)

  1. Warrant is required to search crime scene � no exception just because it�s a crime scene.
  2. Incident and contemporaneous with lawful arrest, limited to persons and areas within D �s immediate reach. If arrested in a car, wingspan includes the entire interior of the car, but not the trunk. Protective sweep of adjoining rooms, and entire domicile if reasonable suspicion of accomplice. PD need not fear for safety. Evidence admissible even if person searched wasn�t the criminal the PD was looking for at the time of the stop.  Consent which is voluntary under the totality of the circumstances, limited to the scope of the consent given by one with authority.

  1. PD don�t have to tell D that consent is voluntary and not required.
  2. Consent is per se nonconsensual when given pursuant to an invalid warrant.
  3. 2+ people with joint control and use of property, either can consent. PD needs only reasonable belief that the consenting person has authority. Consent doesn�t apply to non-consenting person�s private areas. LL, motel owner cannot consent for tenant, nor can employer for employee.
  4. Consent can be revoked, and limited in scope. Some consent is implied, such as highly regulated industries, airports, and US borders.
Autos and motorhomes can be searched if probable cause to believe auto contains contraband. Includes entire vehicle, including locked packages and containers which could reasonably contain the item being sought.

  1. Probable cause can arise after vehicle stop.
  2. PD can take car to station house and search it there (neither movement nor passage of time affects exception).
  3. Even if vehicle is sitting on a public street, unoccupied, police can bust it open.
  4. Search incident to lawful arrest (including interior of car).
  5. Impounded autos subject to inventory search.
Plain view: Items in plain view can be seized if PD is legitimately present where he observes the evidence, which, based on subjective knowledge and experience, gives probable cause to believe criminal activity. Example: PD who lawfully follows D into his house in hot pursuit can seize any contraband in plain view. The item must be "readily apparent" that it is evidence � can�t go looking for serial numbers and stuff.  Exigent circumstances: Delay would endanger PD or public, allow destruction or removal of evidence, or PD in hot pursuit (PD can enter house where felon runs to and seize evidence in plain view). "Terry" stop and frisk upon reasonable suspicion that person is armed and dangerous, or has committed a felony or breach-of-peace crime. The search can only be in pursuit of weapons, but if officer finds other contraband, it�s admissible. Suspicion cannot come from an anonymous tip alone. Inventory

  1. When validly arrested individual is booked, PD can make full inventory search of person and clothes.
  2. Vehicle: Once lawfully impounded, items found during inventory search can be seized.
  3. Purpose of search is to safeguard D �s property and protect PD against false claims of theft.
Administrative searches

  1. Highly regulated industries such as firearms wearhouse
  2. Airports: Federal law provides for warrantless searches when PD has "articulable suspicion."

  1. Luggage keyed by dogs: Detention of passenger must be brief, and seizure of luggage is subject to 4th Amendment limitations.

  1. Border searches (including international airports)

  1. No probable cause needed to search persons and things because of national sovereignty.
  2. Body cavity search needs clear indication that there is contraband. If reasonable justification exists, if D refuses x-ray, D can be detained until he poops.
  3. Vehicles can be stopped at fixed checkpoints without cause for questioning, but probable cause is required to fully search.
  4. Roaving patrols can stop vehicles upon reasonable suspicion (more than just ethnicity), but searched only with probable cause.
Evesdropping
Wiretapping always requires consent by one of the parties, or a warrant describing the particular conversation to be overheard. Wiretap must be valid only for a brief period.

  1. No warrant required for matters of foreign national security. But for domestic security, not even the President can request a warrantless wiretap.
Everyone assumes the risk that the person they are speaking to is wired and will repeat what is discussed to the police. Electronic tracking device on a car is not a search, and PD can use without warrant. Theory: Same as if PD visually tailed the car.Exclusionary rule (focus)

  1. Illegally obtained evidence and its fruits are inadmissible as evidence, except:

  1. If prosecutor can show the evidence originated from an independent source, or that PD would have inevitably discovered the evidence.
  2. Intervening acts of free will by D between illegal arrest and evidence
  3. To impeach trial testimony, unless person was coerced or immunized.
  4. In grand jury, civil proceedings, habeas corpus proceedings, and parole hearings
  5. Good faith exception

  1. Where the police rely in good faith on a judicial opinion later changed by another opinion.
  2. Where the police rely in good faith on a statute or ordinance later declared unconstitutional
  3. Where the police rely in good faith on a defective search warrant or computer error where recordkeeping is not attributable to the police.
  4. Does not apply when:

  1. Affidavit is so lacking in probable cause that no reasonable police officer would have relied on it.
  2. Warrant is invalid on its face (failure to state with particularity the place to search or things to seize)
  3. If affiant lied to or misled magistrate
  4. Magistrate has wholly abandoned his judicial rule

  1. Procedural: D has right to suppression hearing outside of jury�s presence where D must prove by a preponderance that the evidence should be suppressed. D �s suppression hearing testimony cannot be used against him on the issue of guilt.
  2. Harmless error standard: Admission of illegal evidence is reversible error unless p can show beyond a reasonable doubt that the admission of the evidence did not contribute to D �s conviction. D must make a timely objection to the evidence, otherwise objection is waived. Not harmless: Involuntary confession introduced into evidence for any reason, improper denial of counsel at trial.
Asset forfeiture
Permissible as punishment for public nuisance (i.e. prostitution � car seizure), even if the property belongs to an unknowing TP. Government does not have to compensate owner.Fifth Amendment (voluntariness, Miranda, right to attorney)

  1. Confessions must be voluntary, given the totality of the circumstances. Coercion or threats of violence make the statement involuntary.

  1. Police have broad powers to trick and deceive D , but may not offer false promises of dropping charges or physical abuse.
  2. Harmless error standard applies.

  1. Confession obtained after formal charges have been filed in violation of 6th amendment right to counsel must be excluded

  1. Applies even if D out on bail or in jail.
  2. Once right attaches, subsequent waiver as to police-initiated interrogation is invalid.
  3. Offense specific: Attorney serves only for the case in which he or she was hired or appointed, and privilege only applies to the crime to which D is charged (PD can interrogate re: another crime without attorney present).
  4. Example: Paid informant in jail cell is violation, as is "Christian burial speech" because it�s equivalent to interrogation. Passive listening is ok, because it�s not police initiated.

  1. Self-incrimination

  1. The 5th Amendment privilege against self-incrimination must be asserted in order to not incriminate oneself by testimony (not physical or demonstrative evidence, such as scars, blood samples, name/address, or being told to speak in a line-up) that is potentially incriminating.
  2. The privilege is available to anyone who is under oath.
  3. Must be claimed in civil proceeding to bar evidence from later criminal prosecution, else waived for all subsequent criminal prosecutions. Unconstitutional for the prosecutor to make a negative comment or inference about D �s failure to testify or silence on hearing Miranda, and jury may not make an inference (per 5th and 14th). Same with failure to call a witness who is available to both sides. No right to warning re: 5th, except custodial interrogation. Elimination

  1. Grant of use or transactional immunity: Will not use testimony nor anything derived from it to convict, but can prosecute based on something obtained before grant of immunity. Can use immunized testimony to prove perjury.
  2. If there is no possibility of incrimination (example: statute of limitations has run on underlying crime).
  3. Waiver of privilege. Criminal D waives by taking the witness stand, and can be cross-examined on all legitimate subjects on the substance of his direct testimony.
Miranda
Warning must be given for D �s statements to be admissible when both are present:

  1. Custody: Not free to leave. Significant deprivation of freedom of movement. Excludes probation interviews, Terry stops and routine traffic stops.  Interrogation: Any official conduct where PD knows or should know that they are reasonably likely to get damaging statement.

  1. Includes banter between officers calculated to elicit an incriminating response (the Catholic proper burial speech), but not mere commenting that it would be a shame for a kid to find the missing gun.
  2. Investigatory questioning, such as in an emergency situation where public safety is in danger (missing gun in a movie theatre), don't count as interrogation, and those statements are admissible.
Rule
Warning must have been given (not verbatim � just enough so D is informed of rights)

  1. Right to remain silent
  2. Anything said can be used against D in court
  3. Right to presence of attorney
  4. If D cannot afford attorney one will be provided for him
Get knowing, voluntary and intelligent waiver. Voluntariness is evaluated given the totality of the circumstances.

  1. p has heavy burden to show waiver proper.
  2. Writing not required.
  3. Must be express � cannot be presumed from silence.
  4. Police may not over-reach, but trickery, misrepresentation of facts and withholding of information is usually ok.
  5. Not involuntary when PD withhold information that attorney has sought to consult with D .
  6. Intoxication or mental illness doesn�t negate voluntariness, unless PD take advantage of disability.
Once D asserts rights, all questioning must cease until: Suspect initiates subsequent discussion with police; adequate warnings are given; and no intervening interrogation occurred.

  1. Questioning can take place about an unrelated crime, following significant lapse of time and issuing new warnings.
Significant (but not short) break in questioning requires new warnings. No inference can be made from taking the 5th (per 5th and 14th). Silence prior to custody can be used as an adoptive admission, but not following custody if Miranda warnings were given. Once warning is given, any admission is admissible.Exceptions
Spontanious unsolicited statements: D runs up to PD and blurts "I did it!!". That statement is admissible, but nothing else without warning. Jailhouse informant questioning isn�t official interrogation. Questioning by private security guards On-the-scene questioning of a general nature ("what happened?") IRS interrogation Public safety exceptions, such as answer to "Where�s the gun?" right after a chase. Harmless error rule Use for impeachment if D testifies on his own behalf at trial. For use in a grand jury proceedingSixth Amendment (right to effective assistance at all critical stages of proceedings)

  1. Only applies at critical stages of criminal procedure: Custodial interrogation, post-indictment lineups, preliminary hearing, arraignment, felony trials, misdemeanors where imprisonment actually imposed (no jail time unless right to attorney granted), sentencing, appeals as a matter of right. But not: Preliminary ID procedures, pre-indictment line-ups, non-adversarial detention hearings, grand jury, discretionary appeals, probation and parole revocation, habeas corpus.
  2. Appointed counsel: State must provide counsel for indigents for all felonies, mandatory appeals, and misdemeanors where jail time is actually imposed. Jail time cannot be imposed unless D had an attorney.
  3. Waiver: If knowing and intelligent, and D is competent in the opinion of the court, then waiver must be respected, and failure to respect waiver is grounds for reversal. Court may appoint a stand-by or advisor counsel even over D �s objection, so long as D has actual control and appears to be in control of his case.
  4. Attorney cannot represent more than one D whenever conflict of interest is present. That is grounds for reversal as a violation of 6th Amendment.
  5. Withdrawal: Atty can withdraw if no valid issues, and additional counsel need not be appointed. But colorable issues require appointment of attorney.
  6. Violation of this section or denial of right to counsel is grounds for automatic reversal, subject to harmless error rule. Example: Judge can�t instruct D that he can�t consult with attorney during an overnight recess.
  7. Ineffective assistance

  1. Deficient performance by counsel (fell measurably below performance ordinarily expected of fallible lawyers); and
  2. But for such deficiency, there is a reasonable probability that the result of the proceeding would have been different (i.e. D was not guilty).
  3. Examples: Inexperience of counsel which results in specific errors, and government wiretap or informant violating privilege. But not choices of strategy, choosing appellate issues, or misinformation re: length of sentence.
Identification procedures

  1. Pre-indictment: Due process standard. Procedure must not be unnecessarily suggestive or conducive to irreparable mistaken ID, such as when victim says suspect is black and suspect is only black person in the line-up. But exigent circumstances may allow some leeway. Reliability is based on totality of circumstances, and balances degree of suggestiveness against: Opportunity to view criminal at scene, witness� degree of attention, accuracy of descriptions, degree of certainty of W, time interval between crime and ID.  Post-indictment: Denial of right to counsel standard. D has right to counsel at ID�s once adversary criminal proceedings have begun. No right to counsel at showing of photographs. Harmless error test applies for appeal: ID in no way contributed to conviction.  Remedy: Strike in-court identification, unless p can show adequate independent source for in-court identification (i.e. independent of the excluded line-up). One such source is ample time to observe D at time of crime. Being told to speak or move a certain way or wear certain clothes in a line-up does not violate right against self-incrimination.
Trial

  1. Chronology
Arrest Booking

  1. ID and evidentiary tests (blood, fingerprints)
Initial appearance

  1. Notice of charges
  2. Bail set: No federal right to bail, but if imposed, it cannot be excessive given the circumstances of offense, weight of evidence, and D �s character (8th). No bail for capital offenses. Bail issues are immediately appealable.
  3. If arrest was without warrant, judge will determine probable cause to detain. Hearing is informal � no right to counsel, hearsay allowed.
Preliminary hearing to determine probable cause to prosecute

  1. D has a right to this hearing within 48 hours of arrest.
  2. D may waive
  3. Right to counsel attaches
  4. Both sides can present evidence
  5. Testimony doesn�t waive 5th Amendment privilege, and evidence given is inadmissible at trial, nor may p comment on it.
Information / Indictment (grand jury)

  1. Used to determine if p �s evidence justifies a trial.
  2. Federal right to grand jury indictment in all federal felony cases (waivable, but mandatory in capital offenses), but states do not have to use grand juries, and CA does not.
  3. Miranda warnings not required, and witness is under penalty of perjury. Exclusionary rule does not apply to grand juries � indictment may be based on illegally obtained evidence or hearsay. Witness can be compelled to testify based on illegally seized evidence.
  4. Proceedings of grand juries are secret.
  5. D has no right to appear and no right to send or confront witnesses nor introduce evidence.
  6. Witness has no right to counsel, but can leave to discuss w/counsel.
  7. Jury pool must not have been chosen in racially discriminatory manner � reversal of conviction required.
  8. When a grand jury isn�t used, the p files "information"
Pre-trial motions

  1. To dismiss
  2. To suppress
  3. To compel discovery.
Arraignment

  1. Nolo contender (no contest)

  1. Waives trial, but doesn�t admit guilt
  2. Admissible to prove guilt in subsequent criminal and civil cases.

  1. Not guilty / silence

  1. Counsel appointed for felony cases.
  2. Election of trial by judge or jury (if available)

  1. Guilty pleas (waiver of trial) (focus)

  1. Must be voluntary and intelligently made on the record.
  2. Judge must personally be certain D understands:

  1. Nature of charges against him
  2. Maximum possible sentence and any mandatory minimum penalty
  3. Right not to plead guilty
  4. Waiver of constitutional rights
  5. By pleading guilty, right to jury trial is waived

  1. D can withdraw involuntary plea at any point; voluntary plea can be withdrawn only before sentence is imposed.
  2. Courts will not disturb plea after sentence, even if there was something illegal prior to the plea (grand jury racial discrimination), unless p failed to keep bargain, court lacked jurisdiction (b/c double jeopardy exists), or ineffective assistance of counsel..
  3. Plea bargain (plead guilty in return for p �s recommendation for lesser sentence) is treated as K � both sides are held to the K. Upon breach, D can withdraw plea or hold p to specific performance. During negotiations, p can threaten with more serious charge if he does not plead guilty.
TrialDiscovery
D must have as much rights to discovery as p has. Prosecutor�s duty to disclose exculpatory and favorable information, upon request by D . Unrequested information must be disclosed only when it creates a reasonable doubt that did not otherwise exist. Failure to disclose evidence which affected outcome of conviction or which leads to conviction requires automatic reversal.

  1. Conviction also reversed when nonpreserved evidence was actually exculpatory, and which D was unable to obtain on his own.
  2. No right to learn secret informant�s name from prosecution unless prosecution intends to call the informant as a witness. Based on public policy of encouraging informants to come forward without fear of ID.
Alibi: D may be compelled to give p advance notice of intent to present alibi defense in some states, including disclosure of who the alibi witnesses are (no 5th privilege). p must reciprocate for refuting witnesses. p may not comment on failure to present alibi, but can use to impeach.Right to public trial in criminal prosecutions

  1. Subject to some limits by the judge.
  2. Press and public have a 1st Am. and 6th Am. right to be present at all criminal proceedings except grand jury. Judge can exclude if he specifically finds some overriding interest to require closed trial.
  3. D has 6th Am. right to impartial jury unaffected by media coverage. Adverse pretrial publicity can amount to denial of due process, and judge can exclude public or press if no other reasonable alternatives exist to protect D �s right to fair trial.

  1. Problem of inadmissible evidence prejudicing jury is a factor before trial, at the trial stage judge can prevent jury from considering that evidence.
  2. Prejudicial error occurs and right to fair trial is violated where jurors are exposed to out-of-court media information re: trial.
  3. TV coverage may be permitted where D and jurors not unfairly or prejudicially affected.
Right to speedy trial (6th Am.)

  1. Applies to the states.
  2. Federal indictment must follow within 30 days after arrest and trial within 70 days after indictment (but refilling is permitted).
  3. Factors: Length of delay, reason for delay (D may waive if he willfully delays; p may have good faith reason); D �s assertion of right; prejudice to D .
  4. Violation results in complete dismissal of charges against D . Attaches upon accusation (arrest or filing of charges).
Competency
Right to understand the nature of the charges against him and have the capacity to consult with counsel in preparing defense. (14th due process) Right to competency hearing to determine if D is oriented as to time and place, and have a fair recollection of the events surrounding the charge. Issue can be raised even at end of trial. Incompetent D sent to mental hospital for definite period, after which criminal proceeding is restarted.Right to unbiased judge
No financial interest in outcome of case No actual malice against DJury trial (focus)

  1. Attaches any time D tried for offense which may be punished by more than 6 months in jail.

  1. If the sum of the sentences for criminal contempt are more than 6 mos, D can get a jury trial. No jury for civil contempt.
  2. No aggregation of prison terms for multiple petty offenses � i.e. three offenses of 3 months each = 9 months, but no right to jury trial.
  3. Right can be expressly and intelligently waived, which must be respected by the judge (else grounds for reversal).

  1. Size

  1. State: 6 members ok for non-capital cases, but unanimous required. 5 is unconstitutional violation of due process. If 12 is used, the verdict can be unanimous, 11-1, 10-2 or 9-3.
  2. Federal: 12 required, and verdict must be unanimous.

  1. Selection

  1. Intentional discrimination is illegal in both criminal and civil cases. Preemptory challenges based on race or gender are permissible, since no reason for the challenge has to be given, but unconstitutional if systematic (i.e. attorney uses all of his challenges to exclude blacks).
  2. D has right to jury selected from a pool of the cross-section of community, but jury does not have to be ethnically balanced. Selection procedures need only be racially neutral. Standing to challenge exists even when D is not a member of the underrepresented racial group.
  3. In death cases, state cannot automatically exclude jurors who express reservations about imposing the death penalty, but can exclude jurors who�s views would prevent or substantially impair their duties.
Right of confrontation (6th)

  1. Purpose is to give D the right to cross-x witnesses against him.

  1. Prohibits hearsay, unless indications of strong reliability (hearsay exceptions).
  2. Testimony from preliminary hearing can be used against D at trial if witness is now unavailable and D had adequate opportunity for cross-examination at the preliminary hearing.

  1. Right is not absolute, and may be waived (i.e. D can elect not to be present).

  1. Disruptive D who has been warned can be removed (or bound & gagged).

  1. Does not exist in grand jury.
  2. Child: Screen between child victim and abusor D violates confrontation, but excluding D and electronically transmitting testimony to him is ok.
  3. Right to compulsory process: Criminal D has the right to subpoena witnesses.
Right of severance
Granted if either co-D is unfairly prejudiced at any stage of joint trial (i.e. differences in proof or confession of one incriminating the other). Doesn�t apply if co-D takes the stand and is subject to cross-x. Harmless error rule applies (independent overwhelming evidence of D �s guilt).Procedural rights for conviction

  1. Burden of proof: p must prove D �s guilt beyond a reasonable doubt. Applies to each element of the crime. D may be required to prove affirmative defense by preponderance of the evidence. Once D raises insanity, p must prove sanity beyond reasonable doubt.
  2. Presumption of innocence: No absolute right to jury instruction on presumption of innocence, so failure to instruct isn�t reversible error.
  3. Presumptions: A mandatory presumption which the jury must accept is unconstitutional as a violation of D �s due process. Permissive presumption is allowed only where a rational connection exists between p �s proof of basic fact and jury�s inference of ultimate fact or element of the crime.
Post-trial

  1. Sentencing

  1. Right to counsel applies
  2. No confrontation of witnesses, and hearsay can be used (but not capital punishment).
  3. Judge has discretion to consider D �s conduct and factors apart from trial record. Generally not reviewable on appeal if it complies with jurisdictional requirements.
  4. Resentencing: If D has appealed and has been reconvicted, judge may not impose more severe penalty upon retrial. Harsher sentence allowed only if based on new, objective information about D �s conduct occurring after first sentence was decreed. Increased punishment can result upon trial de novo.
Punishment

  1. Cruel & unusual (8th)

  1. Prohibits sentences which are inherently cruel and unusual, or grossly disproportionate to the crime.
  2. 3-strikes laws (recidivist statutes) are constitutional.
  3. Status crimes: Can�t punish someone for being an addict or merely being under the influence (even of an illegal drug). But can convict for drunk in public.
  4. Equal protection: Can�t imprison someone for inability to pay a fine. Discrimination against poor people.
Capital
Not considered cruel & unusual, so long as procedural safeguards exist so that it is not arbitrary or discriminatory.

  1. But disproportionate imposition on one race is not unconstitutional.
Death penalty for rape is generally disproportionate and unconstitutional, but can be imposed on D who didn�t intend to kill so long as participation in the felony was major, and exhibited reckless indifference for human life. Bifurcated trial: One jury determines guilt, another recommends the sentence. Aggrivating factors: p must present evidence of aggravating circumstances. Mitigating factors: Court must review before imposing death penalty, and statute prohibiting or limiting such review is unconstitutional. There can be no automatic category for imposition of the death penalty, because that would not allow discretion for mitigating factors. Jury must be allowed to return verdict of guilty of a lesser included offense which evidence supports. Person who was a minor when crime was committed can be executed, as can someone who is mentally retarded.Appeal
No constitutional right to appeal. States may provide right. If states grant a first appeal to all individuals as a matter of right, indigents must be provided with appointed counsel (equal protection � but not second discretionary appeal). Includes free transcript of trial proceedings. State can recover costs from indigent who is convicted and later able to pay. If appeals court reverses conviction, D can be retried. D may not get a harsher sentence on retrial after successful appeal, and may not be retried for a crime more serious than the crime for which D was convicted.Habeas Corpus (petition for writ of�)

  1. Civil proceeding, separate from criminal proceeding, which collaterally attacks the lawfulness of the detention.
  2. Respondent is director of department of corrections.
  3. No right to counsel
  4. p bears burden to demonstrate unlawfulness of detention by a preponderance of the evidence.
  5. State may appeal granting of the writ, and/or state may retry D . No double jeopardy problem.
  6. Standing: D must be in custody (in prison, bail, probation, parole) to make the petition � includes everyone except those who have fully served their entire sentence.
  7. Jurisdiction: State prisoners may seek writ in either state or federal court; federal prisoners may proceed only in federal court.
  8. Federal challenge of state detention

  1. State detention must be in violation of federal constitutional rights.
  2. p must have followed all state procedural rules at trial or be denied relief.
  3. All state remedies must be exhausted.
  4. Factual findings of state court will be reviewed only upon clear and convincing evidence of error by federal court.
  5. 4th Amendment violation claim will not be heard if p had full and fair opportunity to raise claim in state court.
Examples of valid claims

  1. Challenges to sufficiency of evidence will be reviewed if no rational trier of fact could have found D guilty after viewing evidence as favorably as possible to the prosecution. New evidence showing innocence is a valid claim.
  2. Grand jury racial discrimination
  3. Ineffective assistance of counsel.
Rights of prisoners

  1. No right to parole or probation.
  2. Where state law provides for the right, a prisoner who is denied parole must be granted opportunity to be heard and notice of reason for denial.
  3. Revocation of probation entitles D to right to counsel if new sentence is imposed. Otherwise right to counsel is limited and determined case-by-case. D gets both pre-revocation hearing and a revocation hearing. Evidence may be presented and confrontation of witnesses is allowed at discretion of court.
  4. Reasonable access to the courts and to legal counsel
  5. Some form of communication with the press (although personal interviews with media may be prohibited so long as other channels of communication exist)
  6. No right to unionize
  7. Mail can be censored subject to strict guidelines, and letters to inmates from their attorneys may be opened by prison but not read
  8. Medical care.
Rights of juveniles

  1. Written notice of the charges
  2. Right to counsel where juvinile�s freedom is curtailed
  3. Right to confront and cross-examine witnesses
  4. Privilege against self-incrimination
  5. Right to have guilt proved beyond a reasonable doubt
  6. Right not to be placed twice in jeopardy for the same offense, once juvenile has been adjudicated a delinquent.
  7. NO right to jury, bail, or public trial.
Double jeopardy (focus)

  1. Attaches when jury is sworn, or when first witness is sworn if no jury.
  2. Applies to bar two punishments for the same offense.

  1. Punishment includes jail time and the burden of the trial itself.
  2. Same offense: Two crimes are not the same offense if each crime requires proof of an additional element or fact that the other does not, even if the crimes arise from the same act. Example: Kidnapping and murder are separate crimes.
  3. Lesser included offenses (i.e. robbery/larceny) cannot be tried separately � once jeopardy attaches for the lesser crime, retrial is barred for the greater offense. Acquittal of D doesn�t matter. Exception: Incomplete offense, i.e. conviction for battery can be followed by trial for murder if victim dies after first trial. If p wishes to try closely related charges together, D may make motion for separate trials, and thus waives double jeopardy.
  4. Felony-Murder: D may not be tried separately for felony murder and the underlying felony, but can be tried at the same time for both. If convicted of both, sentences must be concurrent, not consecutive. If D was previously acquitted of the felony, he cannot be retried for felony-murder.
Separate sovereignties doctrine: State and federal government can separately prosecute for the same crime, as can separate states. But state and localities are one sovereignty. No double jeopardy in civil case: Criminal case can be followed by civil case on same matter.  Exceptions permitting retrial

  1. If prior trial didn�t conclude with a determination on the merits (an acquittal or conviction)

  1. Mistrial on D �s motion
  2. Hung jury).

  1. After successful appeal by D based on error made at trial � treated as waiver of double jeopardy.

  1. Retrial not permitted if appeal won based on insufficient evidence (no reasonable person could find guilt) � retrial ok if based on weight of evidence.
  2. Limitation: The retrial cannot be for a greater offense than previously tried.
Breach of plea bargain by defendant: Original charges can be reinstated.Appeal by prosecution possible only based on:

  1. Appeal of acquittal not based on merits, such as failure to grant speedy trial; or
  2. Where successful appeal would not require a new trial, such as when trial judge set aside jury�s guilty verdict as a matter of law (appeal will either affirm, or reinstate jury�s verdict).
Application to sentencing

  1. Harsher sentence from retrial can be given only where judge makes affirmative showing of new information on the record, unless trial by jury or trial de novo.
Collateral estoppel

  1. Precludes relitigation of issues which were actually and necessarily previously determined.
  2. Example: After acquittal of robbing one of six people because of alibi, D can�t be retried for robbery of other 5 persons. The issue of D �s alibi is a proven fact.
  3. D cannot be retried for a greater offense after being acquitted of a lesser included crime.
Misc. procedural considerations

  1. Retroactivity of USSC decisions: Creation of a new constitutional right is fully retroactive to all D �s in pre-trial, trial, or direct appeal stage. Applies to habeas corpus petitioner only if the crime itself is decriminalized, or the prosecution is fundamentally unfair and the new rule maximizes the truth-finding function of trial.  Ex post facto crimes: Crime must be on-the-books at the time of the offense in order to punish D . Doctrine prohibits criminalization of non-criminal conduct, increasing punishment of the offense, and removing a defense which was viable at the time of the offense.  Independent state grounds (10th Am. reservation of powers to states): State courts can give D �s greater protections than are federally required, but must indicate such a decision based on "adequate and independent state grounds" and must not entangle with federal cases, which would trigger federal jurisdiction. Thus, in a state prosecution, a good D will make a separate set of solely state constitutional arguments.
 

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