Criminal Justice Final

274. What is "hot pursuit"? (You can insert a joke about Clinton and interns here.)

Hot pursuit is the right of police to cross jurisdictional lines to apprehend a suspect or criminal the fourth amendment doctrine allowing warrantless searches and arrests where police pursue a fleeing suspect into a protected area

430. Why can venue be considered "geographic jurisdiction"? What determines venue?

IN all cirminal prosecutions, the accused shall enjoy the right to a public trial by an impartial jury of the State where in the crime shall have been committed

367. What happens to the interrogation if the defendant asks for an attorney?

If he indicates in any manner and at any stage of the questioning that he wishes to consult with an attorney, there can be no questioning.

417. What is "excessive bail"? Why can't bail be excessive? What is the purpose of bail? How does a court determine the appropriate bail (i.e., what factors does it consider)?

Excessive bail is where a court requires a defendant to post an unreasonably large amount or imposes unreasonable conditions as a prerequisite for a defendant to be released.

583. What's the difference between punishments that are "cruel and unusual" and those that are "excessive"?

Excessive punishments are punishments that are disproportionate to the crime itself

346. How does the "fruit of the poisonous tree" doctrine apply to statements made in violation of a suspect's Miranda rights?

If police failed to provide the Miranda warnings, not only are the suspect's responses inadmissible, but also evidence derived from the unlawful questioning are also inadmissible

555. When can't a defendant be sentenced to probation? How long can probation last?

If the offense is a felony where the maximum term of imprisonment authorized is 25 years or more If offense is one for which probation has been expressly precluded If the defendant is sentenced at the same time to a term of imprisonment for the same or different offense

278. Does the 4th Amendment protect electronic communications? What does federal law have to say about such communications?

If the police methods used to intercept electronic communications infringe on a person's reasonable expectations of privacy, then they need a warrant. Title III of Omnibus Crime Control prohibits interception of electronic communication without a court order unless one party to the conversation consents. Title III permits wire taps ordered by federal or state courts.

314. On what basis did the Illinois Circuit Court suppress the evidence obtained by the police?

Illinois Circuit Court suppressed the evidence obtained by the police on the basis that the affidavit failed the Spinelli test

393. What does Biggers have to do with this case?

In Biggers, evidence consisting in part of the victim's visual and voice identification of Biggers at a one person showup seven months after the cirme In that case the issue was whether the confrontation was so suggestive as to violate due process? Court held, under the totality of circumstances, that the identification was reliable even though confrontation was suggestive. Evidence was The admission of testimony concerning a suggestive and unnecessary identification procedure does not violate due process so long as the identification possess sufficient aspects of relability

303. How did the Court change its analysis from Olmstead? What's the new catch phrase?

In Olmstead, court supposed that surveillance without any trespass and without the seizure of any material object fell outside the ambit of Constitution Court now holds that the Fourth Amendment governs not only the seizure of tangible items, but extends as well to the recording of oral statements, overheard without any "technical trespass" However, the Fourth Amendment protects persons and not places from unreasonable intrusion

298. What is the purpose of the warrant requirement? What is the justification for a "good faith" exception to the warrant requirement? Would the purposes of the warrant requirement continue to be served under a good faith exception?

Exclusionary rule is designed to deter police misconduct, rather than punish judicial errors No basis for believing the exclusion of evidence seized pursuant to a warrant will have a significant deterrent effect on the issuing judge In Leon, the costs of the exclusionary rule outweighed the benefits. The exclusionary rule is costly to society: Guilty defendants go unpunished and people lose respect for the law. The benefits of the exclusionary rule are uncertain: The rule cannot deter police in a case like Leon, where they act in good faith on a warrant issued by a judge.

293. If the restrictions of the 4th Amendment applied to the states, why wouldn't the exclusionary rule as well?

Exclusionary rule was not seen as an essential element to protect the fourth amendment from police abuse prior to Mapp

491. For what purpose is evidence of Battered Woman Syndrome allowed?

Expert testimony on the battered woman syndrome would help dispel the ordinary lay person's perception that a woman in a battering relationship is free to leave at any time. Expert testimony is admissible because it has been determined to be useful in explaining conduct exhibited by battered women toward their abusers

426. What is extradition? Is it usually a problem?

Extradition is the surrender of a person by one jurisdiction to another for the purpose of criminal prosecution. Objective is to prevent the escape of persons who stand accused or convicted of crimes and to secure their return to the original jurisdiction

530. How can fines be used as punishment? For what types of crimes are they generally used?

Fines require the defendant to pay a sum of money as punishment for their crimes Most misdemeanors cary fines and some felonies, especially serious economic crimes

479. Under what circumstances might the 1st Amd's guarantee of Free Press conflict with the 6th's right to a fair trial conflict? When the two are in conflict, which is more likely to win? What does it take for a court to close a courtroom to the press?

First Amendment of Free Press conflicts w/ 6ths right to fair trial when public interest is heightened by mass media coverage that could potentially prejudice the witnesses and jurors. When this occurs, the court must protect the defendant's right to a fair trial by taking steps to prevent theses influences from affecting the right of the defendant. Court concluded that trials may not be closed without findings sufficient to overcome the presumption of openness

325. What are the two corollaries Harlan sees to the Court's decision?

First corollary: if frisk is justified in order to protect the officer during an encounter with a citizen, the officer must first have constitutional grounds to insist on an encounter, to make a forcible stop. The right to frisk depends upon the reasonableness of a forcible stop to investigate a suspected crime Second corollary: Where such a stop is reasonable, however, the right to frisk must be immediate and automatic A limited frisk incident to a lawful stop must be rapid

525. For what types of crimes can one received the death penalty?

First degree murder or an aggravated homicide

488. In general, when will a court allow a new type of scientific evidence in the courtroom?

For 70 years the Frye test/general acceptance test was commonly applied in federal courts and in most states faced with the issue of whether new scientific tests should be admitted into evidence. In admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in particular field In Daubert v. Merrell, The court rejected the general acceptance test. A judge must make a preliminary assessment of whether the reasoning or methodology underlying the expert's testimony is scientifically valid and whether the reasoning or methodology can be applied to the facts in issue (Federal only)

553. How does the sentencing procedure in capital cases differ from that in other cases?

For the death penalty, the bifurcated trial is employed Jury must find beyond a reasonable doubt that the aggravating factors outweigh the mitigating ones

356. According to the dissenters, what is the ultimate question in determining the constitutionality of a confession?

For the dissenters, the ultimate question is "Does the Constitution prohibit the use of all confessions made after arrest because questioning is inherently coercive?

299. Will there be times when the police ought to know that reliance on a defective warrant is not reasonable? If so, when? Will police need legal training to make such determinations?

Four situations police ought to know the reliance on a defective warrant is not reasonable 1. If magistrate was misled by an affidavit that the affiant knew was false 2. If magistrate wholly abandons his judicial role 3. if the affidavit is so lacking in indicia of probable cause as to render belief in its existence unreasonable 4. If warrant is so facially deficient that the executing officer cannot reasonably presume its validity

283. Do searches in schools generally require a warrant? Why or why not?

Fourth Amendment protects children in public schools from unreasonable searches and seizures. Such searches are to be judged by a reasonableness standard and are not subject to probable cause requirement

246. What limitations does the 4th Amendment place on searches and seizures?

Fourth Amendment requires law enforcement officers to obtain a warrant before conducting searches and seizures. Law enforcement officers are not permitted to conduct searches and seizures arbitrarily or even based on their hunches. For a search to be reasonable, police generally must have probable cause.

247. To whom does the 4th Amendment apply? Has it always applied to the federal government? To state government?

Fourth Amendment was originally conceived as a limitation on the powers of the newly created national government. Fourth Amendment protections have been extended to defendants in state criminal prosecutions on basis of the 14th amendment's limitations on state action the Fourth Amendment protects a person's rights aginst the police and other government officials but not against searches and seizures of conducted by private individuals

453. What was the Court's decision in Stack and the basis for it?

**The Court holds that setting bail higher than what is necessary to ensure defendants' presence in court is excessive and in violation of the 8th Amendment. o But, there is no right to have bail set at a level you can afford. The presumption is that the defendant will be released on bail in non-capital offenses o Because being put in jail instead of released can really affect the case, and defendants are presumed innocent until proven guilty Pretrial release is conditioned on defendant's adequate assurance that he will stand trial and submit to sentence if found guilty. Bail must be based upon standards relevant to the purpose of assuring the presence of the defendant.

330. What are the four levels of police-citizen interaction noted by Scheb and Scheb?

1. Arrest 2. Investigatory detention 3. Use of roadblocks and sobriety checkpoints 4. Request for information or identification

563. What was the factual situation in Furman v. Georgia? What was the primary issue before the Court?

Furman, joined with the cases Jackson v. Georgia and Branch v. Texas, was granted certiorari and heard collectively by the Court. Furman was found guilty of murder while the other two appellants were convicted of rape by their courts of original jurisdiction. All three were sentenced to death by their respective states Does the imposition and carrying out the death penalty (in these cases) constitute "cruel and unusual punishment" of the eighth and fourteenth amendment?"

516. Who is primarily responsible for sentencing? What role do juries play?

Generally, judges are required to impose sentences that fall within the parameters of appropriate punishment specified by statute

467. How many jurors are required in federal cases? Is the same number required in all types of federal cases? If not, which require some other number? Must the verdict be unanimous in federal cases? If not, which allow some other number?

12 jurors are required for criminal cases in federal court. In federal criminal cases, jury verdict must be unanimous

473. What are the two ways jurors can be challenged during voir dire?

2 ways jurors can be challenged: Challenge for cause and Peremptory challenge

249. Does the 4th Amendment apply to searches conducted by private citizens? May the police use evidence obtained by a private citizen in an unlawful search? If so, under what circumstances?

4th Amendment doesn't apply to searches conducted by private citizens. The police may use the evidence obtained by a private citizen if the citizen wasn't motivated on basis of assisting government and gov't didn't know about the search

507. What was the basic factual situation in Batson v. Kentucky? Who wrote the opinion for the Court? What was the basic constitutional issue presented?

A black man was indicted in Kentucky. The prosecutor used his peremptory challenges to strike all four black persons on the venire, and a jury composed only of white people was selected. Defense moved to discharge the jury before it was sworn in on ground that the prosecutor's removal of the black veniremen violated petitioner's rights under the 6th and 14th amendments to a jury drawn from cross-section of community, and under the 14th amendment to equal protection of the laws. Jury convicted petitioner of both counts Does the defendant need to offer proof of circumstances under which prosecutors were responsible for striking black jurors beyond the facts of his own case, to make a prima facie case for discrimination?

526. What is a capital trial? How does the structure of a capital trial differ from a noncapital trial?

A capital trial is where trial oversees a case where the state seeks the death penalty Capital trials are bifurcated trials, there are separate phases for determining guilt and punishment If jury finds defendant guilty, then same jury considers the appropriateness of the death sentence in a separate proceeding. To impose the death penalty, the jury must find at least one of several aggravating factors specified by statute

331. Do citizens have a duty to cooperate with the police when asked questions in public? Is this true as a practical matter?

A citizen does not have a duty to cooperate with a cop when asked questions in public Although it may alert the officer to the need of further observation

341. What is a "citizen's arrest"? When can it be used?

A citizen's arrest is an arrest made by a person who is not a law enforcement officer. At common law, a private individual could make a citizen's arrest without a warrant for a felony or breach of the peace committed

374. What is White's basic complaint about the Court's decision?

A confession that is involuntary in the sense that the question provoked the response, is patently unsound to say response was compelled

273. What is a consent search? Who must give the consent? Who has the authority to give consent to search personal property, a home, or a particular room?

A consent search is police conducted search of person or property that was voluntarily permitted by a person

310. Why did Black dissent?

A conversation overheard by eavesdropping is not tangible and can neither be searched nor seized. Therefore, conversations are not protected by the Fourth

360. How does the Court define a custodial interrogation? Does this mean the warnings only apply to station house interrogations?

A custodial interrogation is questioning initiated by an officer after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way

504. What does it mean for a jury to be "deadlocked"? What happens if this occurs?

A deadlocked jury is a jury whose members cannot agree on a verdict. Referred to as a hung jury. If a jury reports a deadlock jury, judge can either declare a mistrial or urge jury to make further attempts (allen charge) Allen charge is a judge's instruction to jurors who are deadlocked, encouraging them to listen to one another's arguments and reappraise their own positions in an effort to arrive at a verdict. Basic thrust remains to urge that if much the larger number were for conviction, a dissenting juror should consider whether his doubt was a reasonable one... or if majority were for acquittal, minority ought to ask themselves whether they might not reasonably doubt the correctness of a judgement that was not concurred by majority

410. Can a defendant have a nonlawyer represent him in legal proceedings? Why or why not?

A defendant may not be represented by another person who is not a member of the bar.

362. Can a defendant waive any of these rights? If so, when or under what circumstances?

A defendant may waive those rights, provided the waiver is made voluntarily, knowingly and intelligently.

509. How does the majority propose to solve the problem in Batson? What must defendants, prosecutors, and judges do according to the majority?

A defendant must make a prima facie showing of purposeful discrimination in selection of petit jury. First defendant must show he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used the practice to exclude veniremen on account of their race Defendant may make a prima facie showing of purposeful racial discrimination in selection of the venire by relying solely on the facts concerning selection in his case Prosecutor must come forward with a neutral explanation for challenging the black jurors. Trial court will have duty to determine if defendant has established purposeful discrimnation

415. Why might a defendant be interested in pretrial release? Does the Constitution guarantee pretrial release?

A defendant would be interested in pretrial release because of desire for freedom, confer with counsel, locate witnesses, pursue employment and discharge family responsibilities Constitution allows for pretrial release

261. Who issues a search warrant? Who cannot issue a search warrant?

A detached and neutral judge or magistrate may issue a warrant A warrant cannot be issued by an official responsible for criminal prosecutions/executive branch (e.g state and federal attorney generals)

421. What is a grand jury? Who sits on it? What does it do?

A grand jury is comprised of 16-23 individuals who must agree whether there is probable cause to hand down an indictment against the accused

571. What was the factual situation in Gregg v. Georgia? What was the basic issue before the Court? What was the Court's decision? Was there a majority opinion?

A jury found Gregg guilty of armed robbery and murder and sentenced him to death. On appeal, the Georgia Supreme Court affirmed the death sentence except as to its imposition for the robbery conviction. Gregg challenged his remaining death sentence for murder, claiming that his capital sentence was a "cruel and unusual" punishment that violated the Eighth and Fourteenth Amendments. Is the imposition of the death sentence prohibited under the Eighth and Fourteenth Amendments as "cruel and unusual" punishment?

485. What are some of the evidentiary presumptions made by most courts?

A legal presumption of this type is called an irrebuttable presumption (e.g. child younger than seven was presumed to be incapable of committing a crime) Most presumptions in criminal law are permissive. These are evidentiary devices to aid a party who has the burden of proof. For example, under this type of presumption, once evidence establishes a fact, the jury may infer that something else is true.

347. May police use deception to obtain information or a confession?

A misstatement by police may affect the voluntariness of a confession, but the effect of any misstatements must be considered in light of the totality of circumstances

435. What is a motion to dismiss? When is it used?

A motion to dismiss is a formal request to a trial court to dismiss the criminal charges against the defendant Motion to dismiss is used when defense alleges gov't allegations do not allege a crime, or that the accustorial document is not correct in form; or that the undisputed facts do not establish a case of prima facie guilt against defendant A defendant may file a motion to dismiss on grounds of double jeopardy

475. What is a peremptory challenge? What reason must an attorney give to challenge a juror peremptorily? In general, how many peremptory challenges does each side get for different types of cases?

A peremptory challenge is an objection to the selection of prospective jurors in which the attorney making the challenges is not required to state the reasons of the objection. The number of peremptory challenges is usually provided by statute or court rule

542. What is a presentence report? What is in the presentence report? How is the report used, and by whom?

A presentence report contains the results of a presentence investigation: investigation held to aid court in determing the appropriate punishment before sentencing Its required when offender to be sentenced is a first offender or is under a certain age

270. What is a search incident to a lawful arrest? How broadly can the police search after an arrest?

A search incident to a lawful arrest is a search of a person placed under arrest and the area within the arrestee's grasp and control. Absent exigent circumstances, police cannot search a dwelling when arrest is made outside

257. What is a search warrant? What is required for the police to obtain a search warrant? What does a search warrant allow the police to do?

A search warrant is a judicial writ or order directed to a law enforcement officer authorizing the doing of a specified act Search warrants must be based on probable cause The officer's affidavit in support of a search warrant must always contain precised description of places or persons to be searched and the things to be seized

267. What does it mean to "execute" a search warrant? When can search warrants generally be executed?

A search warrant is executed when the officer serves the search warrant and performs the specified search Warrants are generally executed in the daytime

329. Does a seizure occur every time a police officer speaks with or questions a citizen? If not, when does a seizure occur?

A seizure doesn't occur everytime a cop speaks or questions a citizen. When a reasonable person believes that he is not free to go given the circumstances, a seizure occured

254. What constitutes a "seizure" for purposes of the 4th Amendment? Must the item seized be tangible? If not, give an example of something intangible that can be seized. Give an example of something tangible that can be seized.

A seizure is an action of police in taking possession or control of property or persons

345. Can one waive one's Miranda rights? What's required for this to occur? Why do courts look closely at such waivers?

A suspect may waive their miranda rights during questioning as long as he does so knowingly and voluntarily. Courts scrutinize such waivers to make sure they're not a product of some coercion or deception by the police

342. Why must suspects be told their rights prior to interrogation by the police? What are the rights of which they must be informed? In what case did the Court make this a requirement?

A suspect must be told their rights prior to investigation so they fully understand the nature and consequences of their confession. Otherwise, extracting a confession from an uninformed suspect is a violation of the Self Incrimination clause of the fifth amendment Police must inform suspects that they have the right remain silent and the right to counsel during questioning Miranda v. Arizona was the case the court made this requirement

334. How does the concept of a Terry-stop apply to traffic stops?

A traffic stop involves a seizure of the driver under 4th amendment even though the purpose of the stop is limited and detention brief. Police must have reasonable suspicion that criminal activity is afoot before stopping a vehicle. A cop may search areas of the car where weapons may be hidden if the cop has a reasonable belief that the suspect is armed and dangerous

392. What was the factual situation in Manson v. Brathwaite? What was the primary issue before the Court?

A trooper and an informant went to the apartment of a suspected narcotics dealer to purchase heroin, which they did. The suspected dealer was charged with dealing heroin. No lineup was ever conducted, and the respondent was identified on the strength of one photograph. No objection was registered by the defense to the identification procedures, but after sentencing the Court of Appeals reversed the District Court's denial of a writ for habeas corpus. Whether the due process clause of the Fourteenth Amendment of the Constitution compels the exclusion, in a state criminal trial, apart from any consideration of reliability, of pretrial identification evidence obtained by a police procedure that was both suggestive and unnecessary?

339. What is the problem regarding warrantless arrests that require forcible entry of a dwelling? What factors will courts consider in determining whether such a warrantless arrest is justified?

Absent exigent circumstances, a warrantless, nonconsenual entry into a suspect's home to make a routine felony arrest violates the Fourth Amendment Court generally are inclined to uphold warrantless arrests when following conditions are met 1. there is probable cause to arrest the suspect 2. police have good reason the suspect is on premises 3. good reason to believe suspect is armed and dangerous 4. strong probability suspect will escape or evidence will be destroyed if suspect is not soon apprehended 5. entry ca be effected peaceably 6. offense under investigation is a serious felony

262. What does it mean for a search warrant to become "stale"?

A search warrant becomes stale if the information provided by the affidavit is not sufficiently fresh to ensure the items to be seized are probably located on the premise to be searched

260. What is a supporting affidavit for a warrant? What must it contain?

An affidavit is a written document attesting to specific facts of which the affiant has knowledge, and sworn to or affirmed by the affiant The officer's affidavit in support of a search warrant must always contain precised description of places or persons to be searched and the things to be seized

498. What are the rebuttals that each side may present after the main cases have been presented?

At the conclusion of defendants case, prosecution is entitled to present rebuttal witnesses to dispute the testimony of defendant's witnesses. After examination and cross-examination, defense may present its rebuttal witnesses. These are also examined, and cross examined

565. What did Douglas say about the constitutionality of the death penalty? Did he think the men were the victims of racial discrimination? What did he have to say about the jury's discretion to apply the death penalty?

According to Douglas, public opinion as to what constitutes "cruel and unusual" can change over time, hence "evolving standards of decency". He went on to mention that the death penalty in practice violates the Equal Protection Clause of the Fourteenth Amendment because only minorities and the poor suffer from such a sentence. He adds that the punishment does not have to be obsolete to be "unusual" though. These jury discretionary statutes are unconstitutionally applied in their discriminatory use

405. When does counsel have to be appointed to satisfy the requirements of the 6th Amendment?

Actual imprisonment standard: standard governing the applicability of the federal constitutional right of an indigent person to have counsel appointed in a misdemeanor case. For the right to be violated, the indigent defendant must actually be sentenced to jail or prison after having been tried without appointed counsel Counsel must be provided to indigent defendants for all felony cases

569. What did Marshall say about the constitutionality of the death penalty? What does he have to say about the fact that the death penalty was clearly thought to be constitutional by the framers? What does he say about public opinion on the death penalty?

After his examination, he developed a four pronged test where anyone of these reasons would constitute a "cruel and unusual punishment" 1.Great physical pain is experienced 2.Unknown previous punishments that are inhumane 3.Excessive and serves no "legislative purpose" (the six purposes being retribution, deterrence, prevention of criminal acts, encouragement of guilty pleas, eugenics, and economy. 4.If public feels they are "cruel and unusual" He found that all four of these apply to the death penalty and the "legislative purposes" listed were either ineffective or invalid. As such the death penalty is, per se, invalid.

316. Can an affidavit be used to supplement the letter? Did it?

An affidavit was submitted to the Judge with a copy of the anonymous letter

574. What purposes are served by the death penalty? Are these legitimate purposes

Death penalty is an extreme sanction for the most extreme crimes

399. Does the Due Process clause apply to pretrial proceedings? If so, in what way?

Due process requires that persons accused of crimes be given fair notice of criminal charges and an adequate opportunity to contest them

266. What is an "anticipatory search warrant"? When can it be used?

An anticipatory search warrant is a search warrant issued based on an affidavit that at a future time evidence of a crime will be at a specific place Issued when there is probable cause if the triggering condition occurs there a fair probability that contraband or evidence of a crime will be found in a particular place and there is probable cause to believe the triggering condition will occur

326. What is an arrest? When does it occur?

An arrest is a deprivation of a person's liberty by someone with legal authority Usually occurs when police take someone into custody and charge them

328. Is an arrest a "seizure"? If so, of what? Also, if an arrest is a seizure, what are the legal implications in relation to the 4th Amendment?

An arrest is a seizure; a seizure of a person An arrest is governed by requirements of the fourth amendment. A

577. How did the voting lineups of the justices differ between Furman and Gregg?

Furman was a 5-4 decision Gregg was a 7-2 decision Stewart and White flipped

275. What is an emergency search? When might this occur?

An emergency search is a search by law enforcement officers in response to an emergency. In such an instance, police can seize evidence in plain view despite not having a warrant Police must have probable cause to make warrantless emergency seraches

403. What did the Court decide in Gideon v. Wainwright regarding the right to counsel?

In Gideon, Court held that the fourteenth amendment requires states to provide counsel to indigent defendants in all felony cases

419. What are the indictment and information? When is each used? What is the purpose of each?

An information is a formal accusatorial document detailing the specific charges against the defendant An indictment is a formal document handed down by a grand jury accusing one or more persons of the commission of a crime or crimes An information is filed to request a preliminary hearing or grand jury to determine the sufficiency of the information and hand down an indictment

531. What is the most frequently used punishment for violent crimes?

Incarceration is regarded as the only effective way to deal with violent offenders

327. What is an interrogation? When does it occur?

An interrogation refers to the questioning of a suspect by law enforcement officers to elicit a confession, an admission, or information that assists in solving a crime Typically an interrogation takes place behind closed doors in a law enforcement facility, today a suspect can be accompanied by an attorney

272. What is an inventory search? What are three reasons for allowing such warrantless searches? How thorough can an inventory search be?

An inventory search is generally regarded as an administrative search not subject to Fourth Amendment requirements. Inventor are justified by the need for protection of owner's property while vehicle remains in custody, protection of the police from claims of lost property, and protection of police from potential dangers that might be lurking inside closed cars An inventory search must be in accordance with established inventory procedures

333. What is an investigatory detention? What is a "Terry-stop"? Does a Terry-stop necessarily justify a frisk? When does it?

An investigatory detention is a brief detention of a suspect by a police officer who has reasonable suspicion that criminal activity is afoot. A terry stop is an encounter between a cop and a suspect where the suspect is temporarily detained and subjected to a pat down for search of weapons An investigatory detention doesn't permit a frisk The need for protecting the police justifies the frisk

340. What level of force may police use in effecting an arrest? Can deadly force ever be used? If so, when?

An officer is entitled to use whatever reasonable force is necessary to effect an arrest. Deadly force can be used only when officer reasonably believes that such force is necessary to prevent death or great bodily harm to himself or others or if such foce is necessary to prevent an arrest from being defeated by resistance or escape and person to be arrested has committed or attempted a forcible felony which involves infliction of great bodily harm or use of deadly weapon

335. Are arrests subject to probable cause and warrant requirements? If so, why?

Arrests are subject to probable cause and warrant requirements, though there are exceptions for warrantless arrests. Arrests are subject to the most stringent constitutional requirements because they are the most serious citizen-police enounter

512. What is Rehnquist's basic complaint about the majority's opinion? What are two problems with his argument?

As long as the State's use of peremptory challenges to strike blacks from jury involving black defendants, strike whites from jury involving white defedants, basically applied across the board to jurors of all races and nationalities, then their use doesn't violate Equal Protection Clause It is never going to happen where white venirmen will be removed when there is a white defendant

461. What is the basis for the right to a jury trial? Does the right extend to every criminal matter? If not, which criminal matters do not require a jury trial?

As now interpreted, the Sixth Amendment guarantees an accused the right to a jury trial in criminal cases where a penalty of more than six month's can be imposed. Typically a defendant is not entitled to a jury trial for petty offenses. There is no right to a jury trial for juveniles under the federal constitution

495. What does it mean for a communication to be privileged? Why should some types of communications be privileged? What are some common types of privileges?

At common law, individuals who were in certain close relationships were privileged not to testify about certain matters. A person who asserts a privilege must establish the existence of the required relationship Privileges protect a person's confidentiality Eg Attorney-client privilege, marital privilege, clergy-pentient privilege

502. What happens after the judge instructs the jury? How is a foreperson selected?

At conclusion of closing arguments, judge either read either the indictment or information or explains the charges against the defendant to jury. Followed by an admonition that the defendant is presumed innocent unless the government proves defendant guilty beyond a reasonable doubt. Judge defines elements of any crime charged and explains any technical legal terms. When applicable, court generally instructs on an attempt. Where the jury may convict the defendant of a lesser offense, the judge must go further than merely defining the crime charged Foreperson is the person selected by fellow jurors to chair deliberations and report the jury's verdict

496. What is a directed verdict? Why would the defense ask for this after the prosecution rests its case?

At the close of prosecution's evidence, the defense will move to grant a directed verdict. The purpose of this motion is to have the trial judge determine whether the evidence presented by the prosecution is legally sufficient to support a verdict of guilty. If the motion is granted, the defendant is discharged. The defense no longer has to proceed with their case

441. What is arraignment?

At this stage, the accused must enter a plea to the charges contained in the indictment or information

390. Why does Blackmun not think the speech was unconstitutional per se?

Police did not deliberately isolate Williams from attorneys Leaming's purpose was not solely to obtain criminal evidence Leaming's comments were not an interrogation

250. Does the 4th Amendment protect abandoned property? What are some examples of "abandoned" property?

Police may search abandoned premises and seize abandoned property without the necessity of legally justifying their actions

343. What is the public safety exception to Miranda? When does it apply?

Public safety exception to miranda allows police to ask suspects questions motivated by a desire to protect public safety without jeopardizing the admissibility of suspect's answers to those questions or subsequent statements

519. What are the four legal justifications of criminal punishment presented in the book?

Retribution Rehabilitation Incapacitation Deterrence

309. Who is most likely to determine whether an expectation of privacy is "reasonable"?

Society recognizes whether an expectation of privacy is reasonable

544. What are the various types of sentences that can be imposed?

Suspended sentences Credit for time served Concurrent sentences Consecutive sentences

437. What is usually at issue in a motion to suppress evidence?

The issue of whether the defendant's Fourth Amendment rights were violated when obtaining evidence

289. Did the police have a warrant in Mapp? If not, why not? Was there a rush to get in for fear of losing evidence? Did the police even need a warrant?

The police did not have a warrant

527. Why do some argue that the death penalty is applied in a racially discriminatory manner? What did the Court say about this in McClesky v. Kemp?

Baldus study found significant disparities in the imposition of the death penalty based primarily on the race of the murder victim. Black who killed whites were more than 7 times more likely to receive the death penalty than whites who killed blacks Defendant cannot prevail on appeal unless the defendant can show that the death sentence was imposed because of race discrimination in this case McClesky v Kemp

308. Why might his mention of a field not have been a good example of where no expectation of privacy exists?

Because one can have an expectation of privacy if the field is curtilage

493. In generally, what are the legal requirements that must be met before evidence is admitted at trial?

Before evidence is admitted in court, it must meet specific legal requirements. All evidence must be relevant (that is, it must tend to prove or disprove a material fact in issue). Toe be admissible in court, evidence must also be competent. In determining whether a witness is competent to testify, the trial judge must consider the ability of witness to receive and recollect impressions, to understand questions, and to appreciate the moral duty to tell the truth

438. What is the main issue in a motion to suppress a confession or other statement by the defendant?

Whether such a confession was obtained in violation of the Miranda rules

554. Are jury recommendations for the death penalty reviewable by higher courts? If so, when?

Yes Immediately following their sentence

540. What are some of the other creative forms of punishment that have been tried in recent years? On what basis have some of these been challenged?

Billboards are erected bearing names of people convicted for driving while under the influence Some jurisdictions publish names of people who patronize prostitutes A child molestor had to display on his front door "Dangerous sex offender: No children allowed: These practices have been upheld against Eighth amendment attacks

536. What is a prison "boot camp"? What is its purpose? Why is it sometimes used as an alternative to regular incarceration?

Boot camp is an institution that provides systematic discipline in a military like environment designed to rehabilitate an offender; employed as a sentencing alternative

395. What are the interests the Court considered in making its choice of which rule to use?

Both rules require aspects of reliability of suggestive confrontations Per se approach has the most significant deterrence effect, but totality approach still influences police behavior Per se approach denies trier reliable evidence, and may result in the guilty goin free. Because of its rigidity, per se approach may make error and its rigidity will frustrate administration of justice

585. How does the Court determine what constitutes an evolving standard of decency?

the clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country's legislatures

480. Are cameras allowed in courtrooms? If so, under what circumstances? Is this true of federal courts as well?

Cameras are allowed in the courtrooms of almost all states. Court declined to prohibit television cameras from state courts but said that defendants have a right to show that such use prejudiced them in obtaining a fair trial. Federal rues prohibit taking photos in federal courts. Federal appeals court are permitted to tv, radio, and photos for civil cases

474. What is a challenge for cause? What are some of the causes for which a juror can be challenged? What happens to a juror who is challenged for cause? How many challenges for cause does each side get in a felony case? In a misdemeanor case?

Challenge for cause is an objection to a prospective juror on some specified ground (e.g. a close relationship to a party in the case). Most common challenges for cause are directed a characteristic of the prospective juror that disqualifies them to be fair and impartial. Such reasons for disqualifications are close relationship with counsel, significantly involved in the case as witness, or having formed a definite opinion on the case. There are no limits to the number of challenges for cause

589. What are Rehnquist's main criticisms of the Court's opinion?

Chief Justice Rehnquist criticized the majority for basing its decision on the fact that 18 states have laws barring execution of mentally retarded defendants, since the laws of 20 states would have otherwise continued to leave the question of proper punishment to the individuated consideration of sentencing judges or juries familiar with the particular offender and his or her crime The sources, foreign laws/religious orgs/polling, used in the majority fail to show the public acceptance of prohibiting the imposition of the death penalty on mentally retarded defendants

384. What is the primary basis of Burger's dissent?

Chief Justice Warren Burger ("J. Burger") dissented, arguing that the defendant was reminded of his rights multiple times and chose to waive them when he disclosed the body. Under the majority's reasoning, a suspect can never waive his rights to counsel.

321. What was the factual situation in Terry v. Ohio? What was the main issue before the Court in this case?

Cleveland Detective noticed two strangers appearing to case a joint. The officer followed the two men meet with a third person. The officer patted down the petitioner and felt a gun. He pulled all three into the store where he patted down the outer clothing of Chilton and Terry. He removed a pistol from Chilton. The petitioner and Chilton were charged with carrying concealed weapons. Defense moved to suppress weapons. Trial court denied motion. Court distinguished between an investigatory stop and an arrest, and between a frisk of outer clothing and a full blown search. Petitioner and Chilton found guilty, an appellate court affirmed, and State Supreme Court dismissed the appeal Whether a search for weapons without probable cause for arrest is an unreasonable search under the Fourth Amendment to the United States Constitution

501. What are the closing arguments? What is their purpose? Who goes first? Who gets the last word?

Closing arguments are arguments presented at trial by counsel at conclusion of the presentation of evidence. Closing arguments are designed to assist the jury in recalling and evaluating the evidence and in drawing inferences therefrom. The prosecution usually aruges first, followed by defense, with prosecutor having opportunity for brief rebuttal

539. What is "community control" as a punishment?

Community Control, house arrest, places a guilty offender in an individualized program of nonistitutional confinement. Offender is allowed to leave home only for employment and approved community service

538. How is community service used as a punishment? What is a problem with using this form of punishment？

Community service requires offender to perform a specified number of hours of service to the community doing specified tasks It is difficult for community to reap any benefit without providing a degree of training and supervision, which can be costly. Many instances these costs exceed the value of the community services being performed

545. What is the difference between concurrent and consecutive sentences?

Concurrent sentences are when separate sentences are served at the same time Consecutive sentences are separate sentences in which the court imposes a sentence to be served following the completion of a prior sentence or sentences

529. Can juveniles be executed? If so, under what circumstances?

Constitution forbids executing juveniles who are 15 or younger (Thompson v Oklahoma) Court held that a juvenile 16 or older at the time of the capital crime may be sentenced to death (Stanford v Kentucky) Applying the evolving standards of decency, Court in Roper v simmons held that the execution of anyone who was under 18 at the time of crime is forbidden. Rope effectively ended the execution of juveniles in US

450. What did Clark add in his concurring opinion?

Constitution makes no distinction between capital and non capital cases Fourteenth Amendment requires due process of law for the deprival of libery as well as deprival of life,

523. Aside from the death penalty, what other forms of corporal punishment are still allowed? What is corporal punishment?

Corporal punishment is physical punishment such as flogging or caning No longer allowed

386. What is Burger's argument about the speech being just a technical error and the application of the exclusionary rule?

Court fails to realize that the benefits from the application of the exlusionary rule [deterring unlawful police conduct] are outweighed by the social cost [ letting a murderer go free] Should apply the exclusionary rule on the basis of its benefits and costs

344. What constitutes an interrogation? Where can it occur?

Court has defined interrogation as express questioning or its functional equivalent including words or actions on the part of police that the police should know are reasonably likely to elicit an incriminating response Normally occurs at the station house after arrest, can occur anywhere

572. What were the new features of the Georgia death penalty statute? What procedures had to be followed? What role did aggravating and mitigating circumstances play?

Georgia narrowed the class of murderers subject to capital punishment by specifying 10 aggravating circumstances One of the circumstances must be found by jury to exist beyond a reasonable doubt before a death sentence can be imposed Jury must find any mitigating circumstance in order to make a recommendation of mercy that is binding to the court the new rules require jury to consider the circumstances of the crime and the criminal before it recommends sentence. Aggravating and mitigating circumstances give guidance and direction on deciding whether defendant should live or die

448. What was the factual situation in Gideon v. Wainwright? What was the primary issue before the Court?

Gideon was charged with breaking and entering and asked the court to appoint a lawyer to represent him -- the court refused because it was a non-capital case D conducted his own jury trial and was convicted Should Betts v. Brady be overruled as being inconsistent with the fundamental right of fairness at trial?

286. What is the good faith exception to the Exclusionary Rule? What are the requirements for this exception?

Goodfaith exception is an exception to the exclusionary rule. The exception allows use of the evidence obtained by an invalid search warrant if the police relied in good faith on the search warrant.

425. What are the powers of the grand jury? Can it force witnesses to testify?

Grand juries have the authority to compel the appearance of witnesses, to subpoena documents, to hold individuals in contempt, and to grant immunity from prosecution in exchange for testimony

424. How are grand jury sessions conducted? Are attorneys allowed? What rights to witnesses have before a grand jury?

Grand jury sessions are conducted in secret Attorneys are not allowed Grand jury witnesses retain their fifth amendment privileges against compulsory self incrimination

442. What are the defendant's choices for a plea? What are the implications of each?

Guilty plea in which no trial is necessary. Sentencing immediately follows Not guilty plea in which case plea is noted and trial date is set Alford plea or guilty plea containing protestation of innocence, can be made when a defendant intelligently concludes that his interests require the entry of a guilty plea No contest plea, functionally equivalent to guilty plea, with advantage of not being construed as admission of guilt in a civil suit

552. What is a habitual offender statute? What problem can occur with these statutes?

Habitual offender statutes impose an additional punishment on a criminal who has previously been convicted of crimes The increased punishment can be significantly disproportionate to the crime and invalid under Eighth amendment

408. Does a defendant have a right to self-representation in criminal proceedings? Does the defendant have to have a law degree or legal training to do so? What will the court need to determine before letting a defendant represent himself? What do many courts to do minimize problems with self-representation?

Court has held that there is a constitutional right to represent oneself in a criminal prosecution Court said the defendant's legal knowledge or skill has no bearing on the right to self-representation Court stressed that the defendant who waives the right to counsel and proceeds pro se must do so knowingly and intelligently. Trial court must conduct a thorough Faretta hearing to determine whether the defendant has competently and intelligently exercised the right to choose self-representation before approving self-representation. Judges sometimes appoint stand by counsel to assist defendants who choose self-representation

64. Was there a majority opinion in Furman? How does this affect the meaning of the case?

Court holds that imposition and carrying out of the death penalty in these cases constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth amendments Judgement of each case is reversed insofar as it leaves undisturbed the death sentence imposed cases are remanded for further proceedings

355. The majority held that a 36-hour interrogation was unconstitutional. How long could an interrogation be and still be constitutional? (In other words, what's the time limit for constitutionality?)

Court only gives an upper limit of 36 hours, saying that its coercive to interrogate for 36 or more hours

584. What is the significance of the states that had enacted legislation on the issue?

Court reviewed the judgement of legislatures that have addressed suitability of imposing the death penalty on mentally retarded and then considered for agreeing or disagreeing with their judgement

369. What was the basis for Clark's dissent in three of the four cases?

Court shouldn't create a new arbitrary Fifth Amendment rule, instead should follow Due Process clauses of Fifth and Fourteenth Amendment Clark ("J. Clark") argued that the Due Process Clauses of the Fifth and Fourteenth Amendments of the Constitution would apply to interrogations. There is not enough evidence to demonstrate a need to apply a new rule as the majority finds here.

515. What is the essence of Stewart's dissent?

Court stretches the concept of compulsion beyond all reasonable means, and whatever compulsion may exist derives from the defendant's choice not to testify, not from any comment by court or counsel. Self-Incrimination clause forbids compulsion to testify against oneself; commenting on the defendant not testifying isn't compulsion It is interesting that Stewart and White (who are liberal on criminal procedure) dissented.

372. What amendment does Harlan think is the basis for the Court's decision?

Court's opinion has no basis for extending the Fifth Amendment's privilege against self-incrimination to the police station The new rules actually derive from quotation and analogy drawn from precedents under the Sixth Amendment

407. How does a court determine who is indigent?

Courts are generally inclined to appoint counsel if the hiring of a lawyer would prevent the defendant from making bail

518. How much discretion do judges have in sentencing? What limitations might be placed on them?

Courts exercise substantial discretion. Concern over sentencing disparities has resulted in a variety of measures aimed at reducing the range of judicial discretion Statutory penalties are limited by the Eighth Amendment prohibition of cruel and unusual punishment, Due Process Clauses of the Fifth and Fourteenth Amendments, and similar provisions in all fifty state constitutions

541. What occurs during the sentencing stage of the criminal process? Is this always done in open court? If not, under what circumstances is it held elsewhere?

Criminal sentences are imposed in the sentencing stage in open court, although juvenile offenders may be sentence in camersa

253. What is "curtilage" and why is it important for search and seizure law? How does it contrast with "open fields"?

Curtilage is the enclosed space of ground surrounding a dwelling. Court has held that Fourth Amendment provides the same protection to the curtilage as to the house itself. The open field surrounding the house and curtilage are not entitled to fourth amendment protection

492. Is DNA evidence allowed in court? What have been some recent problems in the use of such evidence?

DNA evidence is allowed if it passes the test courts follow for admission (Daubert test or Frye Test). Courts became increasingly concerned over the issue of reliability of tests due to documented instances of false positive and false negative entries. Trend has been to take a more rigorous approach

478. What is a "death qualified" jury? What is the reason for qualifying a jury in this way? What is an argument against doing so?

Death qualification of a jury is the exclusion of prospective jurors who will not under any circumstances vote for imposition of the death penalty. A death qualified jury is designed to obtain a jury that can properly apply the law to the facts at both the guilt and sentencing phases of a capital trial. The Court held that removal before the guilt phase in a capital trial of prospective jurors whose opposition to death penalty would impair their performance is constitutional. Dissenters argue juries decide hear evidence bearing on the defendant's guilt or innocence; then, only if a guilty verdict is rendered, the jury receives evidence on whether death penalty should be imposed.

457. What was the factual situation in Boykin v. Alabama? What was the main issue before the Court?

Defendant Boykin was African-American charged with common-law robbery, which carried a death sentence in Alabama. He was appointed counsel and pleaded guilty. Under Alabama law, the jury still provided a sentence of death. Whether "the record must show, or there must be an allegation and evidence must show, that an accused" made a voluntary guilty plea

431. Can venue be changed? What factors will the court consider in deciding a change of venue request?

Defendants can seek to change a venue Court considers the nature of the pretrial publicity, the connection of gov't officials with the release of the publicity and trial, the length of time elapsing between the dissemination of the publicity and the trial, the severity and notoriety of the offense, the area from which the jury is to be drawn, another events occurring in the community that either affect or reflect the attitude of the community or individual jurors toward the defendant, and any factor likely to affect the veracity of prospective jurors

452. What was the factual situation in Stack v. Boyle? What was the primary issue before the Court?

Defendants were charged with conspiring to overthrow the U.S. government by violence or destruction (under Smith Act). The government argued that previous persons arrested under the Smith Act forfeited bail, but it did not produce evidence that previous persons were related to current defendants. The court set bail at $50,000 for every defendant. Defendants argued that $50K constituted excessive bail under Eighth Amendment

548. What are definite and determinate sentencing?

Definite sentencing is legislatively determined sentencing with no discretion given to judges or corrections officials to individualize punishment Determinate sentencing is where judge sets a fixed term of years within statutory parameters. Offender must serve term without possibility of early release

389. What is the basis of Blackmun's dissent?

Detective Leaming's Christian Burial speech cannot be held as unconstitutional per se

354. Do the dissenters feel a forced confession is constitutional? If not, then why are they dissenting?

Dissenters feel a forced confession is unconstitutional. They are dissenting because 1. They feel ashcraft's confession wasn't coerced 2. The court is creating an arbitrary limit to interrogations in terms of coerciveness

292. What was the "silver platter" doctrine?

Doctrine allowed federal judicial use of evidence seized in violation of Constitution by state agents

513. What was the basic factual situation in Griffin v. California? What was the main issue presented? Who wrote the majority opinion?

Douglas wrote majority Griffin was convicted of murder in first degree after jury trial. He did not testify on the issue of guilt. Jury was instructed if defendant does not testify. if he fails to deny or explain such evidence, the jury may take that failure into consideration as tending to indicate the truth of such evidence Jury was told that failure of defendant to deny evidence which he had knowledge does not create a presumption of guilt nor by itself warrant an inference of guilt nor relieve prosecution of burden of proof Prosecutor made much of the failure of the defendant to testify Issue here is whether the prosecutor's comment on the failure to testify violated the Self-Incrimination clause of 5th Amendment

282. What are "drug courier profiles" and how are they used? Can the police detain anyone fitting the profile?

Drug courier profiles are sets of characteristics that are believed to typify drug couriers. They are used to identify and apprehend drug smugglers. Fiting the drug courier profile by itself is not sufficient to give rise to reasonable suspicion necessary for police to detain someone

579. What types of prohibitions are prohibited by the Eighth Amendment's cruel and unusual punishment clause? Where does mental retardation fit into the recognized criteria?

Eighth Amendment's categorical prohibition upon the infliction of cruel and unusual punishments applies to practices condemned by common law at time of Bill of Rights, as well as prohibiting punishments which offend our society's evolving standards of decency Common law prohibits punishment of idiots= people totally lacking in reason, understanding, or ability to distinguish good from evil. Such people are not likely to be convicted thanks to modern defense of insanity

276. What is evanescent evidence? Why is this an exception to the warrant requirement?

Evanscent evidence is evidence that tends to disappear or be destroyed. Where there is a reasonable belief that loss or destruction of evidence is imminent, a warrantless entry of premise is justified. Destruction of evidence doesn't constitute exigent circumstances if underlying crime is minor

304. Why could Katz expect privacy in a glass booth?

Even in a public place, a person may have a reasonable expectation of privacy in his person. Although the petitioner did not seek to hide his self from public view when he entered the telephone booth, he did seek to keep out the uninvited ear.

268. What are the exceptions to the warrant requirement listed in S&S?

Evidence in plain view Emergency searches Preservation of evidence Search incident to a lawful arrest Hot pursuit Automobile searches and roadside searches of motor vehicles

487. What are the classifications of evidence discussed in the book?

Evidence may be real or testimonial. Evidence may be direct or indirect. Direct evidence includes eye witness testimony, whereas indirect evidence usually consists of circumstantial evidence- that is, attendant facts from which inferences can be drawn to establish other facts

391. As a follow up to Williams I, what happened in Nix v. Williams (Williams II)? What was the basis of the Court's decision in that case? What did the various dissenters say about it?

Evidence obtained from illegal activity can still be admitted if it can be shown by a preponderance of evidence that it would have inevitably been discovered through lawful means Dissenters agreed that inevitable discovery doctrine is constitutional, but the prosecution must prove by clear and convincing evidence

508. What did the Court decide in Swain v. Alabama and how does it relate to Batson?

Evidentary burden placed on a criminal defendant who claims that he has been denied equal protection through the State's use of peremptory challenges to exclude members of his race from the petit jury

377. Based on the Hoffman article, did Harlan's and White's predictions come true?

Harlan and Whites predictions did not come true They predicted this ruling will reduce the incidence of confessions and pleas of guilty, and increase number of trials Hoffman article states after three decades of rulings that have undercut Miranda's reach, and the increasingly savvy tactics of investigators, the warnings have become an easily slipped latch to the interrogation room, with the vast majority of suspects waiving their rights. Once a suspect voluntarily enters that room, courts permit interrogators to use tricks, deceptions and lies -- anything short of threats of violence or promises of lenience -- to extract confessions.

566. What did Brennan say about the constitutionality of the death penalty? What does he have to say about the fact that the death penalty was clearly thought to be constitutional by the framers?

He also found value in the concept of "evolving standards of decency" and the Court cannot merely look at original intent. "Cruel and unusual punishment(s)" were not enumerated Congressman Livermore had mentioned in the Constitutional Convention that if such enumeration was not given the courts will eventually rule the death penalty to be in violation Brennan also listed four principles that would constitute "cruel and unusual punishment", which were: They are "unusually severe" Strong likelihood that they are "inflicted arbitrarily" They are "substantially rejected by society" There exist less severe methods He found that the death penalty falls under all four prongs and is thus invalid in all cases

490. Is polygraph (lie detector) evidence generally allowed? Why or why not? How do police often use such evidence?

Historically federal and state courts have declined to admit polygraph evidence. The reliability of polygraph testing has not been scientifically demonstrated to such a degree of certainty.

514. What was the basis for the Court's earlier decision in Wilson v. United States? Why does this pose a bit of a problem for the Court in Griffin? How does the majority get around this problem?

In Wilson, it is declared that failure of the defendant in a criminal action to request to be a witness shall not create any presumption against him If this case was in federal court, reversible error would have been committed according to Wilson Question is did the comment made in California court violate the Fifth Amendment? The court gets around this by substituting the Fifth Amendment for Act and Statute in the Wilson decision, thus reflecting the spirit of the self-incrimination clause. Court holds Fifth Amendment, in its bearing on the states by reason of 14th amendment, forbids either comment by prosecution on accused's silence or instructions by court that such silence is evidence of guilt Reversed

291. What had the Court held in Wolf v. Colorado? Why is this important to Mapp?

In Wolf v. Colorado the court refused to require the states to follow the exclusionary rule, saying that it was not an essential element of fourth amendment protection

444. What is plea bargaining? When does it occur? Is it Constitutional? Why is it advantageous to the prosecution? To the defense?

In a plea bargain, the accused agrees to plead guilty in exchange for a reduction in the number or severity of charges or a promise by the prosecutor not to seek the maximum penalty allowed. Defense gets reduced severity of penalties Parties can obtain a prompt resolution Enables parties to avoid delay and uncertainties of trial and appeal, and permits swift and certain punishment

368. What was the specific basis for the Court's ruling in each of the four cases combined in Miranda?

In each of these cases, the defendant was questioned by police officers, detectives, or a prosecuting attorney in a room in which he was cut off from the outside world. In none of these cases was the defendant given a full and effective warning of his rights at the outset of the interrogation process. In all the cases, the questioning elicited oral admissions and, in three of them, signed statements that were admitted at trial

582. What standards does the Atkins Court use to determine whether a particular punishment is prohibited by the Eighth Amendment?

In its reasoning the Court confirms the previous opinions that a punishment is excessive if it is not graduated and proportioned to the offense and that such claim should be judged by "evolving standards of decency". Proportionality review under those evolving standards should be informed by objective factors, the most reliable of which legislation enacted by states. In particular, the large number of States prohibiting the execution of mentally retarded persons (and the complete absence of legislation reinstating such executions) provides "powerful evidence that today society views mentally retarded offenders as categorically less culpable than the average criminal".

549. What is indefinite sentencing?

Indefinite sentencing is a form of criminal sentencing whereby a judge imposes a term of incarceration within statutory parameters and corrections officials determine actual time served through parole Unlike determinate sentencing, indefinite sentencing allows for parole

547. What is indeterminate sentencing? How frequently is this method used today?

Indeterminate sentencing is where criminals are sentenced to prison for indeterminate periods until corrections officials determine that rehabilitation has been accomplished Most jurisdictions have abandoned the concept

476. How does Iowa handle peremptory challenges? What does it call them? How many peremptory challenges does each side get in a class "A" felony? In other felonies? In misdemeanors?**

Iowa calls them peremptory strikes Each side has 4 strikes

524. How many states currently authorize the death penalty? Is Iowa one of them? What was the first state to abolish the death penalty?

Iowa does not authorize the death penalty 38 states authorize death penalty for first degree murder and other types of aggravated homicide Michigan was first state to abolish capital punishment

432. What does "joinder of offenses" mean? When does it usually apply? What is the Blockburger test? How might double jeopardy apply here? What about res judicata?

Joinder of offenses means the uniting of different charges or counts alleged in an information or indictment into one case for trial In deciding whether to proceed on multiple charges jointly or separately, a prosecutor must consider the double jeopardy clause of fifth amendment Court holds that the test of whether there are two separate offenses is whether each provision requires proof of an additional fact that the other does not

481. Trial court judges have the power the control the security in their courtrooms. How might a judge handle problems with spectators, lawyers, and defendants?

Judges control disruption and defiance by defendants and others through exercise of the power of contempt.

484. What is "judicial notice"? What are the kinds of things of which a court will take judicial notice?

Judicial notice is the act of a court recognizing, without proof, the existence of certain facts that are commonly known. Courts should not exclude consideration of matters of general knowledge that are well known to informed members of public. Courts take notice of who is president, that a particular date in a given month was on a certain day. Take notice of geographic facts, notice of law

503. What are the two general forms of jury deliberations? What is an advantage of each?

Juries either deliberate and escorted home, or judge orders the jury to be sequestered, where jury is escorted to a hotel to ensure that no outside infuences are brought to bear on their judgement.

427. What are jurisdiction and venue and why are they important to courts?

Jurisdiction is the authority of a court to hear and decide certain categories of legal disputes. Jurisdiction relates to the authority of a court over the person, subject matter, and geographical area Venue is the location of the hearing and trial Although venue lies in the district where the offense occurred, there are unique situations in which the nature of the crime makes it difficult to determine in which of two districts the crime occured

505. What is a "jury pardon"? What is "jury nullification"? Are these legal? What happens if they occur?

Jury Pardon is an action taken by jury, despite the quality of evidence, acquitting a defendant or convicting the defendant of a lesser charge. Jury nullification is the fact that a jury disregarded the court's instructions and rendered a verdict on the consciences of the jurors. Both are legal.

500. What are the jury instructions? Who decides on what instructions to give the jury?

Jury instructions are the judges' explanations of the law applicable to a case being heard by a jury. The prosecution and defense may be asked to present proposed instructions for the court to consider

456. Why did the dissenters object to the prosecutor's actions? What could the prosecutor have done differently to avoid the problem as seen by the dissenters?

Justice Blackmun dissented, noting that the prosecutor's admission that his reason for the new indictment was to discourage the respondent from exercising his right to trial, thus his only reason for asking for an enhanced sentence was in vindication. Justice Powell dissented, maintaining that while the plea-bargaining process is essential to the functioning of the criminal-justice system, it normally affords benefits to defendants as well as to society; in this case respondent was denied any benefits. Had prosecutor pursued the recidivist indictment before the plea bargaining, then dissenters wouldn't have had a problem. Prosecutor would not seem vindicative

590. What are Scalia's main criticisms of the Court's opinion? What does he say about the majority's view of national consensus, including the number of states that have passed legislation prohibiting the execution of the mentally retarded? What does he have to say about the reasons for the death penalty as applied to the mentally retarded? Why does he feel that the Court's decision is an exercise in raw judicial power?

Justice Scalia's opinion that the majority's assessment of the current legislative judgment more resembled a post hoc rationalization for the majority's "subjectively preferred result" than "any objective effort to ascertain the content of an evolving standard of decency."

312. Does the Court's holding in Katz mean that it recognizes a general right of privacy grounded in the Fourth Amendment?

Katz doesn't recognize a general right to privacy but rather a reasonable expectation of privacy that cannot be intruded on without a warrant

311. What's the status of Olmstead after Katz?

Katz overruled Olmstead and abandoned the trespass doctrine, saying Fourth Amendment protects people not places

379. What was the "Christian burial speech"? Why was it given?

Knowing Williams was deeply religious, Detective Leaming argued that the incoming storm will make finding the body unlikely and that she deserved a christian burial. Leaming said we should stop and look for it instead of waiting after the storm

568. What did White say about the constitutionality of the death penalty? What does he think is the problem in these cases?

Like Stewart, he concurred that the jury is inconsistent with their decisions. The death penalty is exacted with great infrequency even fro the most atrocious crimes and that there is no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not

471. How are lists of potential jurors compiled? How does Iowa compile its list?*

Local officials compile a list of people qualified to serve as jurors, generally from the rolls of registered voters, driver's licenses. or some combination

263. Can information from informants and anonymous sources be used to support the application for a search warrant? What is the problem with such information?

Magistrates may apply the aguilar-spinelli test to determine if the officers affidavit supported by informant or anonymous source information shows probable cause Aguilar Spinelli Test is two pronged 1. The affidavit had to demonstrate that the informant was both credible and reliable 2. The affidavit had to reveal the informant's basis of knowledge Supreme court relaxed the test and permitted magistrates to consider the totality of circumstances when evaluating applications based on hearsay evidence

400. What are the main components of the pretrial process?

Main components of pretrial process are the initial appearance before a magistrate, the preliminary hearing, the grand jury proceeding, and the arraignment

550. What is mandatory sentencing? Who provides the mandate?

Mandatory sentences results from legislative mandates that offenders who commit certain crimes must be sentenced to prison for minimum periods Judges have no option to place offenders on probation

423. What types of evidence can a grand jury hear? Can it only hear evidence that would be admitted at trial?

Many rules of evidence that apply to criminal trial do not apply to the grand jury. Hearsay evidence is generally admissible. Evidence excluded from trial on Fourth or Fifth Amendment grounds is admissible before the grand jury

510. Why does Marshall think the majority did not go far enough? What would he do differently?

Marshall thinks the majority's remedy does not go far enough to eliminate that discrimination. Marshall would ban the use of peremptory challenges from the criminal justice system

587. What does mental retardation have to do with culpability? Why is this important to the death penalty?

Mentally retarded defendants face a special risk of wrongful execution "because of the possibility that they will unwittingly confess to crimes they did not commit, their lesser ability to give their counsel meaningful assistance, and the facts that they are typically poor witnesses and that their demeanor may create an unwarranted impression of lack of remorse for their crimes Mentally retarded people often act on impulse rather than pursuant to a premeditated plan. Their deficiencies do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability

414. What types of offenses are handled summarily at the initial appearance? What is the typical sentence for such offenses? Are attorneys typically present for such dispositions?

Minor misdemeanors (petty offenses) are summarily handled at the initial appearance Typically fines or short jail terms are the only prescribed punishments Defendants have a right to hire attorneys, few exercise that right

358. What was the factual situation in Miranda v. Arizona? What was the primary issue before the Court?

Miranda was arrested at his home and taken in custody to a police station where he was identified by the complaining witness. He was then interrogated by two police officers for two hours, which resulted in a signed, written confession. At trial, the oral and written confessions were presented to the jury. Miranda was found guilty of kidnapping and rape and was sentenced to 20-30 years imprisonment on each count. On appeal, the Supreme Court of Arizona held that Miranda's constitutional rights were not violated in obtaining the confession.

364. The Court notes that modern interrogation techniques are psychologically rather than physically oriented. What does this mean? What does it mean in terms of the rights mentioned in Miranda warnings?

Modern interrogation techniques no longer use torture to elicit confessions. There is potential for compuslion and self incrimination when one is thrust into an unfamiliar atmosphere and run through menacing police interrogation procedures Miranda warnings protect defendant from compulsion Appropriate safeguards insure that the statements were truly the product of free choice

517. What types of sentences are possible? Can they be used in combination?

Monetary fines, probation, community service, incarceration and the death penalty Can be used in combination

532. By the end of 1996, about how many people were in state and federal penal institutions in the US?

More than 1.5 million inmates are housed in state or federal penal institutions

459. About what percentage of felony cases are disposed of prior to trial? Misdemeanor cases? What happens to the cases that don't go to trial?

More than 90% of felony charges and an even higher percentage of misdemeanors are disposed of before trial.

468. How many jurors are required in state cases? Is the same number required in all types of state cases? If not, which require some other number? Must the verdict be unanimous in state cases? If not, what other verdicts are allowed?

Most states require 12 jurors for felonies. All require 12 for capital cases. Many use fewer than 12 for misdemeanors. Most states require unanimous verdicts, but a few states accept less than unanimous verdicts.

440. What is a motion for a continuance? When might it be granted?

Motion for a continuance is a motion for a delay of a judicial proceeding. Might be granted for reasons of illness or emergency that make it impossible for defense, prosecution or witnesses to be present as scheduled; unavailability of significant witness or piece of documentary evidence; lack of time to prepare for trial

439. What is usually at issue in a motion to suppress a pretrial identification?

Motion is designed to determined whether the pretrial identification procedures employed by police in having an eyewitness identify the accused violated the due process standards outlined in Neil v. Biggers

337. Does the officer have to personally witness the activities that form the basis of probable cause? If not, where might the officer get such information?

Officers do not have to personally witness the activities that form basis of probable cause Officers can obtain their information from crime victims, eyewitnesses, official reports, or informants

575. For what crimes can the death penalty be imposed? Is it disproportionate for these crimes? What about other crimes?

Only for the crime of murder

482. What are the "opening statements"? What is their purpose? Who goes first? Does the other side always give its opening statement immediately afterward?

Opening statements are a prosecutor's or defense lawyer's initial statements to the judge or jury in a trial. Opening statements are designed to orient the jury. The prosecution goes first. Defense often defers to make opening statement until prosecution rests their case

449. What was the Court's decision in Gideon? What was the basis for the decision?

Overrule Betts: Court in Betts was wrong in concluding that the 6th Amdt.'s guarantee of counsel is not one of the fundamental rights essential to a fair trial Both precedents and reason require one to recognize that in the adversary system, one cannot be assured a fair trial unless counsel is provided for him Lawyers in criminal courts are necessities, not luxuries Reversed

559. What is parole? What conditions might be placed on a parolee? When and how can parole be revoked?

Parole is the conditional release from jail or prison of a person who has served part of their sentence Parole can be revoked if offender violates the conditions of release. Before the revocation, the parolee has the right to a hearing within a reasonable time after being retaken to custody.

279. What are pen registers? Can such information be seized in terms of the 4th Amendment?

Pen registers are devices that enable law enforcement to obtain the numbers that have been dialed by use of a specific telephone instrument

551. What are enhanced sentences? Are they constitutional?

Penalty enhancement statutes increased the penalties when certain conditions were present in crime- racial motivations Any fact that increases criminal punishment beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt (Apprendi v New Jersey)

578. What was the basic holding of the Court in Penry regarding the execution of the mentally retarded? Did the Court hold that the execution of the mentally retarded was prohibited by the Eighth Amendment?

Penry, a retarded man with the mental age of barely seven years, was convicted of murder and sentenced to death. During the trial's proceedings, the jury was not instructed that it could consider the mitigating circumstances of Penry's mental retardation in imposing its sentence. The Court partially affirmed and partially reversed the lower court's decision. Justice O'Connor argued that the jury was improperly instructed and should have been told that it could have considered Penry's mental deficiencies when imposing its sentence. However, she rejected Penry's blanket claim that generally the Eighth Amendment does not allow death sentences for retarded defendants.

511. What is Burger's basic argument against the majority's decision? On what point does he agree with Marshall? Was Burger correct in his argument that the Court's reasoning would be quickly expanded to apply to other areas?

Permitting unexplained peremptories has long been regarded as a means to strengthen our jury The court never applies the conventional equal protection framework to the claims at hand. If conventional equal protection analysis is applied, then presumably defendants can object to exclusions on the basis of race, sex, age, religion, political affiliation etc. Burger agrees with with Marshall that imposing any limits on the prosecutor's use of peremptory challenges will have to lead to limit the defense's use too Burger was correct that the Court's reasoning would quickly expanded to apply to other areas- defense, other categorizations like gender, ethnicity

416. What are the four main forms of pretrial release?

Personal recognizance Release to the custody of another Posting individual bond Posting a surety bond

269. What does it mean for something to be in "plain view"? Does plain view include items seen during the course of a valid search for something else?

Plain view doctrine: the fourth amendment doctrine under which a police officer may seize evidence of a crime that is readily visible to naked eye as long as the officer is legally in the place where the evidence is visible Plain view doctrine includes items seen during the course of a valid search of something else

455. Did the Court think the prosecutor's actions were a problem? Why or why not?

Plea bargaining has an important role in the judicial system and has been accepted by all courts. The prosecutor has a legitimate interesting persuading a defendant to relinquish his or her right to plead not guilty and "threatening a stiffer sentence is permissible and part of any legitimate system which tolerates and encourages the negotiation of pleas."

306. Could the police have gotten a warrant in Katz? Why didn't this change the result?

Police could have gotten a warrant They did not begin their electronic surveillance until investigation of the petitioner's activities had established a strong probability that he was using the telephone to transmit gambling info A magistrate specifically informed of the basis on which the surveillance was to proceed could constitutionally have authorized the very limited search and seizure

338. Are warrantless arrests ever allowed? If so, under what circumstances?

Police have the authority to make warrantless arrests in public, assuming they have probable cause to do so Court approved warrantless arrests 1 where crimes are committed in plain view of cops 2 officers possess probable cause to make an arrest but exigent circumstances prohibit them from obtaining a warrant

506. What does it mean to poll the jury?

Polling the jury is the practice in which a trial judge asks each member of the jury whether he or she supports the jury's verdict

401. What is the basic purpose of the various pretrial proceedings?

Pretrial procedures are designed to eliminate from the system those cases for which there is insufficient evidence of criminal wrongdoing and to set the stage for a fair and orderly resolution for which evidence is strongly sufficient to proceed to trial

290. What is the exclusionary rule? What is it's purpose? Where does it come from? Prior to Mapp, did it apply to the states? Why or why not?

Prior to Mapp, the exclusionary rule did not apply to the states the court refused to require the states to follow the exclusionary rule, saying that it was not an essential element of fourth amendment protection

294. Does it matter how many states supported application of the exclusionary rule to the states at the time of Wolf? What about the time of Mapp? What does Harlan have to say about this?

Prior to Wolf, almost two thirds of states opposed the use of the exclusionary rule At the time of Mapp, more than half of those states had adopted the exclusionary rule If the Fourth Amendment was applied without the Week rule, the Amendment would be "mere words"

361. What are the rights of which a detainee must be warned? What is the basis for each of these rights?

Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney

558. What disciplinary measures can be used against prisoners? What procedures must be used to discipline a prisoner?

Prison disciplinary measures: By removing good time credits that the prisoners earn for exemplary behavior, officials punish misconduct Must be written notice of the disciplinary action, and inmate has the right to an administrative hearing with a written record, where the inmate has the right to produce evidence to refute the charges of misconduct

533. Why do some question the efficacy of prisons? Does this questioning depend on the purpose one thinks prisons serve?

Prisons are regarded as little more than a factory for producing future criminals The efficacy answer depends on the purpose of prisons Prisons are effective incapacitators Rarely effective in rehabilitating

259. If probable cause exists, does it mean the defendant is guilty? Why or why not?

Probable cause does not mean the defendant is guilty.

258. What is "probable cause"? What is its relationship with the warrant requirement?

Probable cause exists when prudent and cautious police officers have trustworthy information leading them to believe that evidence of crime might be obtained through a particular search With exception of warrants permitting administrative searches, search warrants must be based on probable cause

336. What does "probable cause" mean in the context of an arrest? What's required for probable cause?

Probable cause in the context of arrest means the same thing in context of search and seizure Probable cause exists where the facts and circumstances within the officer's knowledge and of which they had reasonably trustworthy information sufficient in themselves to warrant a man of reasonable caution in the belief that a particular crime had been or was being committed

318. Does the Court think probable cause can be precisely defined? Why or why not? What approach does the Court prefer in defining probable cause?

Probable cause is a fluid concept, not readily reduced to a neat set of legal rules. Probable cause deals with probabilities, these are not technical; they are factual and practical considerations Common sense conclusions Totality-of-circumstances approach is far more consistent with our prior treatment of probable cause

537. What is probation? When is it usually used? What kinds of conditions might be placed on a probationer? Are such limitations constitutional?

Probation is the conditional release of a convicted criminal in lieu of incarceration Certain conditions are standard- probationer will not commit further crimes, will avoid certain people or places, will maintain gainful employment, will not travel outside court's jurisdiction without permission Court holds that probation conditions must serve the ends of justice and the best interest of both the public and the defendant

556. When might probation be revoked? What procedures must be followed to revoke probation?

Probation may be revoked when offender does not abide by conditions of probation Commission of a felony while on probation is grounds for revocation Probationer facing the loss of freedom is entitled to a fair hearing 2 step process before probation can be revoked: 1. a preliminary hearing to determine if there is probable cause to believe that a violation occured 2. if so, a revocation hearing

418. Do prosecutors have any discretion in determining what charge to bring? How does plea bargaining relate to this?

Prosecutors have broad discretion in deciding whether to proceed with criminal charges initiated by a complainant or the police. The prosecutor may decide to drop a case for a variety of reasons. Prosecutor may decide to proceed on a lesser charge Prosecutorial discretion facilitates the widespread practice of plea bargaining

406. What are the two main ways jurisdictions use to appoint counsel for indigent defendants? What are the advantages and disadvantages of each system?

Public defender system or attorneys appointed ad hoc by court who are new members of the bar Advantages to public defender system: public defenders are full time specialists in criminal law Disadvantages: Public defenders are in constant contact with prosecution which undermines adversary system Outside attorneys are appointed when codefendants pursue inconsistent defenses

436. What is the purpose of a motion to determine the competency of the accused to stand trial?

Purpose of motion to determine competency is to determine whether defendant has a rational and factual understanding of pending proceeding and the ability to consult with his lawyer with a reasonable degree of rational understanding Defendants deemed incompetent cannot stand trial

255. What does the phrase "reasonable expectation of privacy" mean? According to Justice Harlan, what are the two requirements?

Reasonable expectation of privacy is the doctrine holding that the Fourth Amendment protects people from official intrusions as long as they have a subjective expectation of privacy that society is prepared to accept 1. A person has exhibited an actual (subjective) expectation of privacy 2. The expectation be one that society is prepared to recognize as reasonable

570. Who dissented in Furman? What did they have to say about the constitutionality of the death penalty? What role does judicial restraint play in their decisions? What does Powell say about the five opinions of the justices in the majority?

Rehnquist, Blackmun, and Powell dissented The role of the judicial restraint is to confine the constitutional inquiry to the meaning and applicability of the uncertain language of the eighth amendment. Dissenters are not persuaded by the argument that since capital punishment has always been cruel, and has become unusual due to decreased use that it is now cruel and unusual For Powell, None of the five opinions provide a constitutionally adequate foundation for the decision

398. Do they think the facts of this case would pass the totality test? If not, why not?

Reliability factors: Observation was probably only for 5-10 seconds Mere fact that Glover was trained is no guarantee -- should be scrutinized to the same level A witness is not likely to go back on his previous ID while testifying Memory loss occurs within hours after last sight Only general summary of perp's features Single photo unduly suggestive

404. What happens to the right to counsel if the defendant is too poor to afford one? In what cases did the Court deal with this issue?

Representation is provided to indigent defendants through the form of a public defender or an attorney appointed ad hoc by the court Powell v. Alabama Gideon v. Wainwright Scott v. Illinois

454. What was the factual situation in Bordenkircher v. Hayes? What was the primary issue before the Court?

Respondent, Hayes, was charged with forgery of a check, I the amount of $88.30, an offense which carried a two-to-ten year prison sentence. During plea negotiations, the prosecutor offered to pursue a five year sentence if Hayes would plead guilty. The prosecutor also made it clear that, if Hayes did not, he would seek indictment under the Kentucky Habitual Crime Act because Hayes had two prior felony convictions on his record. Hayes chose not to plead, was found guilty and was sentenced to life in prison. The Kentycky Court of Appeals rejected Hayes objections and he took habeas corpus to the District Court. The Sixth Circuit court of appeals reversed on the ground that the prosecutor's conduct was vindictive. Whether it is unreasonable for a prosecutor to ask for an enhanced sentence when a defendant refuses to take a guilty plea?

561. What is restitution? Where does the money to compensate crimes victims come from?

Restitution is the act of compensating someone for losses suffered Refers to the return of a sum of money, an object, or the value of the object that the defendant wrongfully obtained in course of committing the crime Compensation comes from either the defendant seeking probation or a states victims' compensation commission

588. What does the Court say about retribution and deterrence in relation to the execution of the mentally retarded?

Retribution and deterrence of capital crimes, principal justifications for the death penalty, do not apply to mentally retarded offenders.

520. Why was the concept of retribution by the state a leap forward in dealing with injuries to property

Retribution by the state replaced personal or familial vengeance that frequently followed injury to persons or property. Retribution was carried with a sense of proportionality

447. What does it mean to have a right to a speedy trial? Is there a specific time limit? What are some factors to consider?

Right to speedy trial is the constitutional right to have an open public trial without unreasonable delay Court refuses to mandate a specific time limit between filing charges and the commencement of trial Courts must consider whether the defendant was denied the right to speedy trial by the length of delay, the reasons for the delay, the defendant's assertion of the right, and the prejudice to the defendant

332. What are roadblocks and sobriety checkpoints? What is the purpose of such traffic stops? Does the Court consider them constitutional? If so, under what circumstances?

Roadblocks are barriers set by cops to stop motorists. Sobriety checkpoints are roadblocks at predetermined sports where police check for signs of intoxication by drivers. All Roadblocks and sobriety checkpoints are recognized as Fourth Amendment seizures since they constitute a restraint on the liberty of the motorist Sobriety checkpoints are constitutional since they eliminate a public safety threat

535. What can happen when prisons become overcrowded? What are the approximate lengths of time convicts serve for various crimes compared to their maximum sentences?

See notes

433. What is "severance"? When might it apply?

Severance of charges is the conducting of multiple trials for multiple charges, as distinct from joinder, which refers to trying all charged offenses at once. Where two or more related offense are charged in a single indictment, the trial judge often grants severance of the charges on the motion of either defense or prosecution

434. When might it be appropriate to sever the trials of joint defendants? What might be a disadvantage to the prosecution of severing trials? Are there any advantages for the prosecution?

Severance of defendants is almost always granted when jointly charged defendants pursue inconsistent defenses, where their interests are otherwise antagonistic, or when one defendant chooses to testify and the other does not Severance is required when a codefendant's confession impliactes another, nontestifying codefendant

402. Is there a right to counsel during pretrial proceedings? What is the basis for the right to counsel? What is the basic role of the attorney during pretrial proceedings?

Sixth Amendment of Constitution provides "in all criminal prosecutions, the accused shall enjoy the right to have assistance of counsel for his defense Defense attorney not only represents the accused in pretrial court proceedings, but also advises on strategy, and often serves as the negotiator between defendant and prosecutor

317. What was the Spinelli two-part test? What was it for? What does the Court do to the Spinelli test in this case?

Spinelli test Anonymous letter had to satisfy each of the two independent requirements: 1. Letter had to reveal the informant's basis of knowledge 2. Letter had to provide facts to sufficiently establish the veracity of affiant's informant, the reliability of the informant's report Totality-of-circumstances approach is far more consistent with our prior treatment of probable cause

287. Who has standing to invoke the Exclusionary Rule?

Standing is the right to initiate legal action or challenge based on the fact that one has suffered or is likely to suffer a real and substantial injury Court grants automatic standing to anyone who was legitimately on the premises searched Court restricted Jones doctrine by refusing to allow passengers of an automobile to challenge the search of the vehicle

581. Why did the Court decide to revisit the issue of executing the mentally retarded in Atkins? What seemed to have changed in the time since Penry?

State legislatures, American public, scholars, and judges had since shifted their stance and viewed imposing the death penalty on mentally retarded defendants as cruel and unusual

470. What general qualifications for jurors do most jurisdictions have?

Statutes commonly require that jurors be at least eighteen years of age and registered votes in the state or district. Convicted felons whose civil rights haven't been restored usually are excluded.

277. What is a "stop-and-frisk" search? What is the justification for such a warrantless search? How thorough can such a search be?

Stop and frisk is an encounter between a police officer and a suspect during which the suspect is termporarily detained and subjected to a pat down search for weapons A stop and frisk is limited in intrusiveness and protects the police officer from danger

429. What does it mean for a court to have subject matter jurisdiction (i.e., jurisdiction to hear a particular case)?

Subject-matter jurisdiction is the requirement that the court have power to hear the specific kind of claim that is brought to that court. The requirement that a court have subject-matter jurisdiction means that the court can only assume power over a claim that the laws of the jurisdiction authorize it to hear.

464. What does it mean to have a "public" trial? Does it include pretrial proceedings?

Supreme Court has ruled that the requirement of openness extends to all phases of the trial.

280. What is a border search? Does it require a warrant? Why or why not?

Suspicionless border searches are justified by the view that persons crossing the national border are not entitled to fourth amendment protections Border searches exemption to the Fourth amendment extends to searches conducted at established stations near the border

352. What was the basic position of the dissenters in Ashcraft?

The Court made an irrebuttable presumption that the interrogation was inherently coercive. Court refuses to resolve the conflicts in evidence to determine whether other state evidence is sufficent to overcome the presumption Constitutional admissibility of a confession is no longer measued by the mental state of the individual confessor but by a general doctrine dependent on the clock because of physical violence or fraud or threats Prima facie involuntary under those conditions But interrogation is not per se unlawful SCOTUS has no power to discipline state law enforcement officers or to reverse convictions obtained through conduct of which the justices don't personally approve Exceeds bounds of power to say that a 36-hour interrogation is "inherently coercive" Custody and examination in general are coercive Vountariness shouldn't be a function of time With a conflict in testimony between the officers and a D, the court should accept the officers Not "secret" because many people participated

373. What does Harlan think will happen to law enforcement as a result of the Court's decision?

The Court's ruling will impair law enforcement and reduce the number of confessions. Ruling handicaps questioning and interrogating. Invitation to counsel ensures end of interrogation

370. What was the basis for the dissents of Harlan, Stewart, and White?

The Courts ruling is not compelled by or strongly suggested by the Fifth Amendment The second dissent written by Justice John Harlan ("J. Harlan") also argues that the Due Process Clauses should apply. J. Harlan further argues that the Fifth Amendment rule against self-incrimination was never intended to forbid any and all pressures against self-incrimination. Justice Byron White ("J. White") argued that there is no historical support for broadening the Fifth Amendment of the Constitution to include the rights that the majority extends in their decision. The majority is making new law with their holding

580. What's the difference between a categorical prohibition against executing the mentally retarded and the use of mental retardation as a mitigating factor?

The Eighth amendment does not categorically prohibit the execution of mentally retarded capital murderers Retardation is regarded as a factor that may diminish the culpability and may result in complete exculpation Use of retardation as a mitigating factor allows juries to make individualized determinations whether the death penalty is appropriate

297. Does the 4th Amendment expressly prohibit the use of unlawfully obtained evidence? If not, does it mean there are no restrictions on the police?

The Fourth Amendment doesn't expressly prohibit the use of unlawfully obtained evidence. The exclusionary rule is a judicially created remedy to safeguard against overzealous police intrusion

256. Does the 4th Amendment protect places?

The Fourth Amendment protects people not places

305. Under what circumstances would Katz's expectation have been unreasonable?

The Government's activities in electronically listening to and recording the petitioner's telephone conversations constituted a search and seizure under the Fourth Amendment and absent a search warrant predicated upon sufficient probable cause, all evidence obtained is inadmissible.

463. Is there a right to a public trial? If so, what is the basis for the right?

The Sixth Amendment guarantees the right to a speedy and public trial and the Supreme Court has recognized that open trials are essential to our system of justice. There is no right to allow a private trial. Framers of the Bill of Rights wanted to protect citizens from situations similar to Star Chamber, where it met in secret, dispensed with jury trials, and afforded the accused no legal protections. A public trial ensures the judge and prosecutor carry out their duties responsibly

462. Can an accused waive the right to a jury trial? Is the waiver automatic? Does the accused have the right not to have a jury trial? Under what circumstances might an accused not want a jury trial? When might the prosecution want a jury trial? ***

The Sixth Amendment right to a jury trial does not afford a defendant the corresponding right to be tried before a judge without a jury. Many people who plead not guilty to misdemeanor charges elect a bench trial.

323. What's the justification for a quick pat down of a suspect? Can the police frisk everyone they come in contact with? What must be their justification? Did the officer in Terry have sufficient justification for the frisk?

The Supreme Court of the United States ("Supreme Court") held that it is a reasonable search when an officer performs a quick seizure and a limited search for weapons on a person that the officer reasonably believes could be armed. A typical beat officer would be unduly burdened by being prohibited from searching individuals that the officer suspects to be armed. A terry stop is justified when the officer observes unusual conduct which leads him to reasonably conclude in light of his experience that criminal activity may be afoot and that the suspects may be armed and dangerous

534. About how much does it cost to keep a person in prison per year? Why might this be a "bargain"?

The annual average taxpayer cost in these states was $31,286 per inmate Cost savings in future crimes prevented

543. What occurs during the sentencing hearing? Who can present evidence at the sentencing hearing? Do the regular rules of evidence apply?

The court considers the evidence received at trial. the presentence report, any evidence offered in aggravation or mitigation of sentence, and any statement the defendant wishes to make The rules of evidence are relaxed during sentencing. A defendant has been offered an opportunity to make a statement on his or her own behalf (right of allocution)

443. What must a court determine if the defendant pleads something other than not guilty?

The court must determine if that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement

586. How do the laws of other countries, the positions of various organizations, and opinion poll data figure into the Court's decision?

The court suggest these sources are relevant to the constitutional question.

469. Does a defendant have a right to self-representation in a criminal trial?

The defendant has the constitutional right to elect self-representation if that choice is made knowingly and intelligently and that the defendant's legal knowledge has no bearing on the election

348. What factors do judges use in evaluating confessions?

The duration and methods of the interrogation, the length of the delay, the attitudes of the police toward the defendant, the defendant's physical and psychological state, and anything else that might bear on the defendant's resistance

381. Was the speech an interrogation? Did the speech itself require a response (like a question)? Was it designed to elicit a response from Williams? If so, how?

The evidence should be suppressed because the defendant was denied counsel during an interrogation environment. Once judicial proceedings begin, such as the arraignment, assistance of counsel is required. In this case, the defendant not only did not waive his right to counsel, he affirmatively maintained it through several exchanges between the officers.

271. What is the justification for the motor vehicle exception? How thoroughly can the police search one's car without a warrant?

The exception allows the warrantless search of a vehicle by police who have probable cause to search but because of exigent circumstances are unable to secure a warrant. Court held that a police officer who has probable cause to believe that evidence of a crime is concealed within an automobile may conduct a search as broad as one that could be authorized by a magistrate issuing a warrant

285. What is the Exclusionary Rule? Where did this rule originate? Does it apply to both the state and federal governments? What is the purpose of the rule? How broadly does the rule apply? What does the phrase "fruit of the poisonous tree" mean?

The exclusionary rule is a judicially created rule that prohibits the use of illegally obtained evidence in a criminal prosecution of the person whose rights were violated by the police in obtaining that evidence Weeks v. United States Court first held that evidence obtained through an unlawful search an seizure and seizure could not be used to convict a person of a federal crime Exclusionary rule also applies to the states because its the only effective means of enforcing fourth amendment against overzealous cops Fruit of the poisonous tree doctrine is based on the judicial interpretation of the fourth amendment that holds evidence derived from other illegally seized evidence cannot be used by the prosecution

296. What was the factual situation in United States v. Leon? What was the primary issue before the Court in this case?

The exclusionary rule requires that evidence illegally seized must be excluded from criminal trials. Leon was the target of police surveillance based on an anonymous informant's tip. The police applied to a judge for a search warrant of Leon's home based on the evidence from their surveillance. A judge issued the warrant and the police recovered large quantities of illegal drugs. Leon was indicted for violating federal drug laws. A judge concluded that the affadavit for the search warrant was insufficient; it did not establish the probable cause necessary to issue the warrant. Thus, the evidence obtained under the warrant could not be introduced at Leon's trial. Whether the Fourth Amendment should be modified so as to not bar the use in prosecution's case in chief of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached magistrate but ultimately found to be unsupported by probable cause? Good Faith Exception

300. According to Brennan and Marshall, is deterrence the primary justification for the exclusionary rule? If not, what is?

The exclusionary rule was part and parcel of the Fourth Amendment's limitation upon governmental encroachment of individual privacy. The Court's only support for its decision is that even though the costs of exclusion are not very substantial, the potential deterrent effect in these circumstances is so marginal that exclusion cannot be justified. The chief deterrent function of the rule is its tendency to promote institutional compliance with the Fourth Amendment of the Constitution.

375. What does White think about the Court's reliance on the manuals and texts?

The factual basis for the Court's premise is patently inadequate Doesn't take into account changes in technique from previous rulings, or interrogation transcripts from the cases

394. What are the two rules for showups used by lower courts? Which does the Court apply here?

The first rule is a per se approach, which focuses on the procedures employed an requires exclusion of the out of court identification of evidence, without regard to relaibilty, whenever it has been obtained through unnecessarily suggested confrontation procedures The second, more lenient, approach is on that relies on the totality of circumstances. It permits the admission of the confrontation evidence if the out of court identification possess certain features of reliability Court goes with the second totality approach

252. Does the 4th Amendment apply to searches in other countries?

The fourth amendment does not apply to searches and seizures conducted by US agents outside the territory of the US

301. What do Brennan and Marshall think will happen as a result of the good faith exception?

The good faith exception will encourage police to provide only the bare minimum necessary for securing a search warrant.

422. Who "runs" the grand jury? Why do some think this might be a problem?

The grand jury operates in secrecy and the normal rules of evidence do not apply. The prosecutor runs the proceedings and no judge is present. Grand juries rarely refuse to hand down indictments sought by prosecutors, causing some critics to question the institution's use as a safeguard for the rights of the accused

315. Was the letter alone sufficient to establish probable cause? Why or why not?

The letter alone was not sufficient to establish probable cause. The anonymous tip had no indicia of the informer's basis of knowledge to establish probable cause

324. Must the officer's justification for a frisk rise to the level of probable cause? Why or why not? If it did, would we even need to worry about frisks?

The officer's justification for a frisk didn't rise to level of probable cause. The facts and circumstances observed by the officer allowed him to infer from his experiences that the defendant was armed and dangerous

396. What are the factors to consider in judging the totality of the circumstances?

The opportunity of witness to view the defendant and the crime The degree of attention made by witness The accuracy of the description The witness' level of certainty The time between crime and confrontation

302. What was the factual situation of Katz v. United States?

The petitioner used a public telephone booth to transmit wagering information from Los Angeles to Boston and Miami in violation of federal law. After extensive surveillance, the FBI placed a listening device to the top of the telephone booth and recorded the petitioner's end of the telephone conversations which was then used as evidence against him at his trial. The petitioner moved to have the evidence suppressed under the Fourth Amendment of the Constitution, and that motion was denied. The Court of Appeals rejected the contention that the evidence is inadmissible. Certiorari was granted.

313. What was the factual situation in Illinois v. Gates? What was the main issue before the Court in this case?

The police received a highly detailed anonymous tip that the defendants were trafficking drugs. The police, following up on the tip, observed the defendants conducting specific activities which were outlined in the tip. On the basis of the tip and the defendants' corroborating activities, the police obtained a search warrant. Upon execution of the warrant, the police found drugs, weapons and other contraband in the defendants' automobile and home. May a magistrate issue a valid warrant on the basis of an anonymous tip where there is no indicia of the informer's "basis of knowledge" if the information contained in the tip is corroborated with police findings?

420. What is the purpose of the preliminary hearing? Is it always necessary?

The preliminary hearing serves the interests of both the prosecution and the defense by providing an inquiry into the probable cause for arrest and detention, a screening device for proesecutors, and an opportunity for the defense to discover the prosecutor's case Preliminary hearing can be substituted for a grand jury

446. What occurs during pretrial discovery? What evidence is a defendant entitled to discover?

The process by which the defense and prosecution interrogate witnesses for the opposing party and gain access to the evidence possessed by the opposing party prior to trial Defendant is entitled to exculpatory evidence, evidence that would exonerate or tends to exonerate a person from fault or guilt

359. What was the Court's basic holding in Miranda?

The prosecution may not use statements, whether exculpatory or inculpatory, stemming fro custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination

413. What happens at the initial appearance? What is the main purpose of this appearance?

The purpose of the initial appearance is to begin the formal charging process. The charges must be read so that the accused knows exactly what he or she is being charged with. The accused must be informed of relevant constitutional rights, including right to remain silent and right to counsel. A determination must be made of whether the accused should be released pending trial or remanded to custody to await the disposition of the case

458. What did the Court say needed to happen to make the plea valid?

The record must disclose that the defendant voluntarily and understandably entered his pleas of guilty. This didn't happen

466. What does it mean to say that the defendant has a right to compulsory process? Does the prosecution also have this right?

The right affords the defendant the right to obtain a subpoena to compel witnesses to appear in court. Proesecution can also compel the attendance of witnesses

465. What does it mean to say that a defendant has a right to confront witnesses against him? What did the Court say about this in Coy v. Iowa? Why were the witnesses initially shielded from the defendant? What did the Court later say about this in Maryland v. Craig? How did the situation in Craig differ from that in Coy? How did the voting of the justices differ in the two cases?**

The right of confrontation: 1. Insures that the witness will give statements under oath 2. forces the witness to submit to cross examination 3. permits the jury to observe the demeanor of the witness thus aiding the jury in assessing credibility In Coy v. Iowa, the court held that a defendant's Sixth Amendment right to confront witnesses was violated in a sexual abuse case in which the trial judge allowed a screen to be erected between the defendant and the two thirteen year old girls that he was accused of assaulting. In Maryland v. Craig, Court held that the Confrontation Clause of the Sixth Amendment does not absolutely prohibit states from using one-way closed circuit television to receive a child's testimony

483. What is the right to cross-examination? What is its purpose? What is the scope of the questions that can be allowed on cross-examination?

The right to cross examination is the right to question witnesses for the opposing side. The purpose cross examination is to discover the truth. Questions are limited 1. questioning the witness about matters he or she testified to 2. asking any questions that might tend to impeach the witness's credibility or demonstrate any bias, interest, or hostility of witness

295. Why don't Harlan and the other dissenters think the rule should be extended to the states?

The rule shouldn't be imposed on the states since a majority still don't allow it. Fourteenth Amendment doesn't give Court the ability to mould state remedies in effectuating the right of freedom from arbitrary police intrusion The coerced confession rule is not analogous to the exclusionary rule

376. What does White think will happen as a result of the Court's decision?

The rule will prevent interrogations, reduce confessions, and increase trials

477. What is the reason for using paid consultants during jury selection?

The theory behind SJS is that juror attitudes predict voting preferences most effectively. By discovering what relationships exist between certain attitudes, attorneys can exclude those from the jury whose attitudes would predispose them to a bad verdict

349. What are the three common methods of witness identification and what are some important aspects or problems associated with each?

The three common methods include lineups, showups, and photo packs In a lineup, a group of individuals, one of whom is the suspect, appears before the victim or witness, who makes a positive identification Court held there is no fifth amendment immunity against being placed in a lineup as an identification process Courts must guard against the possibility that lineups are subtly suggestive of who the suspect is In a showup, police usually take the victim to the suspect to determine whether the victim can make an identification This form of on the scene confrontation between eye witness and a suspect is inherently suggestive A photo pack is a set of mug shots shown individually to the victim or eyewitness in hope that they will identify the perpetrator

489. Is hypnotically induced testimony (recovered memories) generally allowed as evidence? Why or why not?

The trend seems to have moved in the direction of not allowing hypnotically enhanced testimony as evidene

445. What must a court determine if a plea bargain is made?

The trial court must determine whether the accused has knowingly waived his rights and agreed to plead guilty without coercion by the state

351. The majority held that the situation in Ashcraft was inherently coercive? What was the basis for this conclusion? Why does it matter if a custodial interrogation is inherently coercive?

The uncontradicted evidence in the case is so inherently coercive The constitution stands as a bar against the conviction of any individuals in an american court by means of a coerced confession

320. Why do Brennan and Marshall think the warrant would have been defective even under the Court's new test?

The warrant is defective since the new test provides no structure for magistrates to determine probable cause

307. What was the important part of Harlan's concurring opinion? Why is Harlan's opinion important? Why didn't he agree with the Court?

There is a twofold requirement for what protection is afforded to those people. First, that a person has exhibited an actual expectation of privacy and, second, that the expectation be one that society is prepared to recognize as reasonable. The critical fact in this case is that a person who enters a telephone booth shuts the door behind him, pays the toll, and is surely entitled to assume that his conversation is not being intercepted. On the other hand, conversations out in the open public would not be protected against being overheard as the expectation of privacy would not be reasonable.

322. As used in this case, what's the difference between a "stop" and an "arrest" and between a "frisk" and a "search"?

There is no difference between a stop and an arrest There is no difference between a frisk and a search Stops and frisks are subjected to the Fourth Amendment's protection against unreasonable searches and seizures

576. What weight to these justices place on statistical attempts to evaluate the deterrent effect of the death penalty?

These justices place no regard for evaluating the deterrent effect the Court was not prepared to overrule the Georgia legislature's finding that capital punishment serves as a useful deterrent to future capital crimes and an appropriate means of social retribution against its most serious offenders.

573. Did Stewart, Powell, and Stevens hold the death penalty to be unconstitutional per se? What occurred since Furman that undercut the "standards of decency" argument?

They do not hold the death penalty to be unconstitutional per se Georgia passed new sentencing procedures to focus the jury's attention on the particularized nature of the crime and the particularized characteristics of the defendant The jury's discretion is channeled. No longer can a jury impose wantonly or freakishly the death penalty

357. Was this situation just a case of the police's word against Ashcraft's?

This situation was not a case of police's word agaisnt ashcrafts. A court reporter noted his treatment Two businessmen testified that the transcript was correct and Ashcraft refused to sign A family physician was called in to check on Ashcraft Ashcraft told him that he had been treated well

288. What was the factual situation in Mapp v. Ohio? What was the specific issue before the Court in that case?

Three Cleveland police officers demanded to search the home where they suspected a bombing suspect to be hiding. There was never a warrant produced. Appellant demanded a warrant and didn't consent to the search. Hours later police forced their way in, seized obscene material, and arrested the appellant. Can the State of Ohio (and states in general) be prevented from using the unconstitutionally seized evidence at trial?

486. What makes a person an "expert" witness? How are expert witnesses treated differently than regular witnesses? Which side in the case can call expert witnesses?

To qualify as an expert, a witness must present proper credentials and be received by the trial court as an expert. Opposing counsel may cross examine the prospective witness about his credentials. Both sides can call an expert witness. Unlike lay witnesses, an expert witness may respond to hypothetical questions and may express opinions within the realm of his expertise.

499. What does the jury do during the trial? Can jurors ask questions or take notes?

Traditional role of the juror has been to attentively listen to the evidence presented by both sides, to avoid any outside influences, and to withhold judgement until all evidence has been presented.Most judges allow jurors to take notes. Courts have increasingly allowed to submit questions to witnesses

546. What usually happens to someone given a suspended sentence?

Trial courts usually place the defendant on probation or community control

460. If the percentage of cases that actually go to trial is small, why do criminal trials seem so important?

Trials are generally held before the juries drawn from the community. Trials are the most visible aspect of the justice system and often attract widespread media coverage. Cases disposed of by trial have an important impact on the administration of justice

497. Does the defendant have to take the stand in a criminal case? Why or why not? What are some of the strategic concerns involved in this decision?

Under the fifth amendment, the defendant does not have to testify in a criminal case. prosecution can use illegally obtained evidence to impeach statements made by the defendant in cross-examination.

472. What is the venire? What is voir dire?

Venire is body of people summoned to be jurors Voir doire (to tell the truth): enables the court and counsel to obtain the information necessary to ensure the selection of a fair and impartial jury

350. What was the factual situation that involved Ashcraft? What was the primary issue before the Court?

Victim Zelma Ashcraft was found dead on the side of the road and later that night, officers talked to the petitioner husband. On a Saturday nine days later, the petitioner was taken by police to an office at their jail where they sat him at a table with a light overhead, and proceeded to question him in relays until the following Monday morning. The petitioner was never given the opportunity to rest during this interrogation and claimed that after much suggestion that he was to confess, the state ended up admitting into evidence a statement by Ashcraft that he had paid the other petitioner Ware to murder his wife. The petitioners were convicted of murder and accessory before the fact and the Supreme Court of Tennessee affirmed. The petitioners were granted certiorari claiming that their confessions had been extorted from them in violation of the Fourteenth Amendment. Are confessions obtained after police question a subject for more than 36 hours straight without rest violative of the Fourteenth Amendment as made involuntarily, and thus inadmissible?

562. What are victim impact statements? When can they be used? Why do some have concerns about them?

Victim impact statements are statements read into the record during the sentencing phase of a criminal trial to inform the court about the impact of the crime on the victim and their family Impact statements may inject too much emotionalism into the jury's sentencing deliberations

388. What does White mean by saying that waiver is not a formalistic concept? How does he apply that notion in this case?

Waiver is shown whenever the facts establish that an accused knew of a right and intended to relinquish it Waive was not expressed but shown by the facts

281. Are warrants required for most airport searches? Why or why not?

Warrants are not required for most airport searches given the minimal intrusiveness, gravity of the safety interests, and reduced privacy expectations

528. Why might the deterrent effect of the death penalty be limited? To the extent the death penalty does not deter others, what are the justifications for it?

Whatever the possible deterrent value of the death penalty, its actual deterrent effect is reduced by the years of delay between sentencing and execution death penalty has no value as a means of rehabilitation Death penalty is proportionate for crime of murder (retribution) Death is a complete incapacitator

494. What does it mean for an attorney to "object" to a question or testimony? What happens after such an objection? What are some common types of objections?

When an attorney objects, they raise an objection against witness's testimony or introduction of evidence. There are two types of objections: general or specific. Objection on the ground of hearsay: when a witness testifies as to a statement made by another if that statement is offered as proof of the matter asserted/ Objection on the ground of best evidence rule: primary evidence must be used to prove a fact like the original document that evidences a communication or transaction Objection on the ground that the question calls for an opinion from the witness: Lay witnesses cannot give opinions on matters beyond the common experience and understanding of laypeople

319. Why does White only concur in the judgment? What would he do with Spinelli?

White agrees that the warrant should be upheld, but on the basis that it passes the Spinelli test He does not join the majority's opinion rejecting the Spinelli rules

387. What is the basis of White's dissent? Does he think there was a waiver?

White thinks Williams waived his rights The statement made by the detective was not coercive, it was accompanied by a request to not respond Williams made the waiver knowingly and intentionally

382. Was Williams' response voluntary? If not, was it coerced? Does it matter?

William's self incriminating response was involuntary It doesn't matter in the case before the Court

380. Had Williams invoked his right to counsel? If so, how?

Williams did not express a willingness to be interrogated in the absence of an attorney

383. Did Williams waive his right to counsel? What would the state have to show to prove he did? Did the state meet this burden?

Williams didn't waive his right to counsel The state must prove an intentional relinquishment or abandonment of a known right. State fell short of meeting the burden

385. On what basis does Burger argue that Williams waived his right to counsel?

Williams was given more than five warnings of his rights to remain silent and to counsel. He spoke and acted with full awareness of his rights

397. What is the basic position of the dissenters?

Wrong evaluation of factors: Court wrongly evaluates 3 factors in considering the approaches and should have chosen the per se approach Deterrence would serve to make it unquestionably clear that police may never use a suggestive procedure when a fairer alternative is available Dangers of mistaken IDs are simply too great to permit unnecessarily suggestive IDs Not "inflexible" because a suggestive procedure can be repeated in a fairer way

560. Do crime victims have any rights? If so, what are they? What is the Uniform Victims of Crime Act?

Yes the crime victim has rights 1. right to be reasonably protected from the accused 2. right to reasonable notice of any public court proceedings involving the crime or of any release 3. right not to be excluded from any such public court proceeding, unless the court, after clear and convincing evidence, determines that testimony by the victim would materially altered if victim heard other testimony 4. right to be reasonably heard at any public proceeding in district court involving release, plea, sentencing, or parole 5. reasonable right to confer with attorney for gov't in case 6. right to full and timely restitution 7. right to proceedings free from unreasonable delay 8. right to be treated with fairness and with respect for victim's dignity and privacy Uniform Victims of Crime Act proposed by the uniform law commission designed to provide uniform rights and procedures concerning crime victims

353. Do the dissenters view the facts differently than the majority? If so, how?

Yes they view the facts differently Dissenters do not view the defendant's confession as coerced and his testimony is uncorroborated. Facts are defendant was offered food and rest, and doctor who checked the defendant said he was normal

378. What was the basic factual situation in Brewer v. Williams? What was the primary issue before the Court?

e defendant had recently escaped from a mental hospital and was staying at a Des Moines YMCA where the girl was last seen. The defendant was seen leaving the YMCA with a large bundle with two small legs protruding from it. A warrant for his arrest was issued, and his attorney in Des Moines advised the defendant to turn himself in to the nearby Davenport authorities. The defendant had counsel in Davenport as well. Both attorneys advised the defendant not to speak to the officers without their presence, and he indicated on several occasions to officers that he wished to talk only with the assistance of counsel. During the ride back to Des Moines, with only an officer and the defendant in the car, the officer decided to leverage his knowledge of the defendant's religious nature by mentioning that he hoped they found the body before snowfall so they could give her a decent Christian burial. The defendant then gave the officer the location of the body. Whether the officer's conversation with the defendant constitutes an interrogation that violates the defendant's right to counsel, and therefore requires the suppression of the evidence?

409. What does pro se mean?

pro se means fro oneself

567. What did Stewart say about the constitutionality of the death penalty? What does he mean that the death penalty differs in kind, not just degree from other punishments? Did he think the imposition of the death penalty in these cases was cruel? Unusual? What is his basic concern about these cases?

the fact that the death penalty was not automatic for such crimes in those states led this associate justice to believe that the prosecution and jury will pick and choose the punishment of death for certain criminals. Unlike some of the others in the majority, he believed that retribution would be a valid reason to sentence a person to death. The imposition of death penalty in these cases were cruel because they excessively go beyond the punishments legislatures determined to be necessary Unusual in the sense that the penalty of death is infrequently imposed for murder, and its imposition for rape is extraordinarily rare

371. Does Harlan see "voluntariness" differently than the majority? If so, how?

the rule's aim is toward voluntariness in a Utopian sense, or voluntariness with a vengeance There is no pressure to confess with new rule