Criminal Procedure Adjudication
Fifth Amendment and Double Jeopardy
"Nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb."
5th amendment self-incrimination standard/limits before a Grand Jury
-5th Amendment privilege is limited to where the Defendant has "reasonable cause to apprehend danger" that answering the question would endanger or incriminate the Defendant. Defendant does not have to articulate the reason he apprehends the danger. -Court must determine whether the apprehension was reasonable. Standard: It must be "evident" from the question and the circumstances that answering the question "might be dangerous because injurious disclosure could result." Bar is low.
When can a criminal defense attorney refuse to offer their clients testimony?
-A criminal defense attorney can refuse to offer their clients testimony when the defense lawyer "knows" the defendant will testify falsely. -Whiteside -Knowledge must be based on the clients expressed admission of intent to testify falsely. -This issue can arise under the sixth amendment right of effective assistance of counsel.
Defendant's right to testify
-A defendant has the right to NOT testify and be free from negative comment -Griffin -A defendant has the right to NOT testify and instruction from judge to jury that they can't make an inference - Carter Mitchell extends Griffin right from trial to sentencing.
Remedy for a violation of the right to a speedy trial?
-A remedy is difficult to fashion for such a violation. Remand exacerbates the violation and its associated evidentiary problems -Dismissal with prejudice can be undesirable because the Defendant could be clearly guilty and be convicted but is released anyway. -Because remedies are hard to fashion, courts are less likely to acknowledge the violation of the speedy trial right.
What is testimonial evidence in the context of the confrontation clause?
-A solemn declaration or affirmation made to establish or prove some fact. -No ongoing emergency at the time but the hearsay proves past events for the prosecution. E.g.; An informer who makes an accusing statement to a gov't officer. The statement would be testimonial if it was made to establish or prove some fact.
Jury Nullification
-Bringing a verdict inconsistent with the law or the facts or both. -Implicit in the concept of jury nullification is that the jurors know the inconsistency & intentionally disregard the judge's instructions or his explanation of the law. -Juries have the power to nullify, but they don't have the right to nullify. -Defense attorneys do not have authority to inform juries of the power to nullify. Neither does the prosecutor. -A juror can be dismissed after deliberations have started if the juror is defiantly unwilling to apply the law.
When does the clock for a speedy trial begin?
-Clock for speedy trial starts on indictment. -The speedy trial right under the Sixth Amendment applies to "criminal prosecutions" and there is no prosecution until an indictment, so a prosecutor can avoid violation of the right to a speedy trial by not bringing the indictment until later. -However, this may still be a violation of due process, especially if it created prejudice against the D and the State lacked good reason
Grand Jury Case Screening Rules
-Consist of 16-23 members. -Defendant does not have a right to be present before the grand jury unless appearing as a witness. -At least 12 members must agree for a grand jury to indict.
Fair-Cross Section Requirement & Jury Selection
-Constitutionally required that jury be selected from fair cross-section of community. -The actual jury can be exclusively men or women so long as the pool they were chosen from is a fair cross section of the community.
Bail Reform Act
-Default position is that defendant should be released prior to trial on a condition that they do not commit any crimes while on release and do not pose a threat to the community unless they are a flight risk or danger to community. -No factual evidence required for bail besides to show defendant is a flight risk because previous defendants have been a flight risk.
What is the rationale for accepting a guilty plea even when the defendant claims innocence?
-Defendant must be permitted to judge for himself or herself how best to manage his or her case & the D ultimately has to bear the consequences of his decision. -It may be rational in some instances for a factually innocent D to plead guilty. -Autonomy trumps unfairness. (Similar to rationale for a right of self-representation)
Preemptory Challenges
-Excluding or striking a juror for any cause or no cause at all -Means to an end. The end is obtaining an impartial jury -No requirement to explain to the court why the prospective juror is unsuitable -Each side gets a limited # of peremptory challenges
Why may a defendant not want a speedy trial?
-If Defendant is out on bail and believes it is likely he will be convicted -Witnesses have time to forget -Evidence can get lost -More time to prepare a defense
Legislative intent and double jeopardy
-If legislature clearly intended D's to be subject to prosecution for both crimes, that trumps the Blockburger Test. -Blockburger should only be applied when legislative intent is unclear. Legislative intent trumps Blockburger - when intent is clear, do not apply Blockburger.
When does a defendant have the right to appointed counsel during the trial stage?
1. 6th amendment right to appointed counsel when charged with a felony. -Gideon 2. 6th amendment right to appointed counsel when charged with a misdemeanor but actual imprisonment is a punishment. -Scott
Severance of Counts: What are three bases that might justify severing different charged crimes?
1. Defendant may become embarrassed or confounded in presenting separate defenses 2. The jury may use the evidence of one of the crimes charged to infer a criminal disposition on the part of the D from which is found his guilt of the other crime or crimes charged 3. The jury may cumulate the evidence of the various crimes charged and find guilt when, if considered separately, it would not so find.
Batson Challenge Standard
1. Defendant must make a prima facie case establishing that the prosecutor used peremptory to exclude prospective jurors on the basis of race. -Can do this by showing prosecutions pattern of excluding jurors on the basis of race in previous cases. 2. If a prima facie case is established, the burden shifts to the prosecution to rebut this inference by providing a race neutral reason. 3. Trial Court then assesses whether the prosecution has met the burden of persuasion.
What must be proved under the prejudice prong when an attorney fails to inform his client of a plea deal?
1. Defendant would have accepted the plea deal; 2. Prosecutor would not have withdrawn the offer; 3 Court would have accepted the plea; AND 4. Outcome would have been more favorable to the D but for the counsel's deficient performance
What is Rule 11(c)(I)?
-Judges are allowed to facilitate plea bargaining but are NOT allowed to participate. -If a judge is overly involved in the plea negotiations, the voluntariness of acceptance of the plea bargain may reduced BUT, "knowing" element of the plea may be facilitated as Defendant may get a good sense of the judge's view of the case & what possible sentence Defendant may receive
Is there a right to plead guilty?
-NO. There is no federal constitutional right for a defendant to have his guilty plea accepted, even if it meets the standards of constitutional validity. -States may, by statute or its constitution, give a defendant the right to have his guilty plea accepted. -However, States can bar Alford pleas (Defendant pleads guilty but claims factual innocent) because Rule 11 Requires factual basis.
Withdrawing a guilty plea?
-No right to withdrawal guilty plea once accepted by the court. -Court has discretion to withdraw if D has "fair and just reason" for request under rule (11(d)(2)(B). -Does a D have a right to withdraw a guilty plea? Not if it has been accepted by the court -May the court withdraw it? Yes under their discretion if the D shows a fair and just reason but no right once a court accepts it if the D can show a fair and just reason or if they reject it
What consists of non-constitutional discovery?
-Not unconstitutional for the government to withhold their prospective witness list from defendant. -Witness statements are also generally protected and do not have to be disclosed by government.
What is the rule of lenity?
-Policy of not attributing to Congress, in the enactment of criminal statutes, an intention to punish more severely than the language of its laws clearly imports in the light of pertinent legislative history
Defense Attorney Competency in Plea Negotiations
-Relates to 6th Amendment right to effective assistance of counsel -Same deficient performance prong -Prejudice prong is slightly different: "Reasonable probability the D would not have plead guilty but for the deficient performance of counsel"
What are the reasons behind the 6th amendment right to a speedy trial?
-Reliability of the evidence -Evidence degrades over time -Witnesses forget -Prevents a lengthy pre-trial detention and the associated anxiety when Defendant is not out on bail.
Motion to Suppress Evidence
-Rule 12 mandates this motion to be filed before trial. -Defendant was put in a coercive dilemma where he had to relinquish one of his constitutional rights in order to protect another constitutional right -In order for him to assert a Fourth Amendment claim, he would be forced to provide self-incriminating testimony General constitutional principle: When there is a conflict between constitutional rights the Defendant should not have to pick, but should be entitled to all of those constitutional rights
Is it constitutional for a State to require a Defendant to notify the prosecution prior to trial of any alibi he will rely on or does it violate the 5th amendment?
-SCOTUS held the alibi rule did not violate the 5th amendment and reasoned it did not require that the Defendant incriminate himself. -Court also reasoned that the defendant would eventually have to disclose the information anyway.
When do you have the right to a jury trial?
-SCOTUS rules there was a right to a jury trial for non-petty offenses.
Motion to Change Venue in General
-Sixth Amendment provides opportunity for trial where the crime occurred. -The rationale is convenience of the defendant, victims, and witnesses. -Two Grounds for it.
Speedy Trial
-The 6th amendment provides for a right to a speedy and public trial in all criminal prosecutions. -Not how fast a trial proceeds once it starts. It is how much time elapses between the time formal charges are brought and the time the trial commences.
What are the constitutional basis for a Selective Prosecution Claim on the basis of race?
-The constitutional basis for selective prosecution claims on the basis of race fall under the equal protection and due process clause of the 5th amendment. -Defendant normally is looking to be entitled to specialized discovery from the government when making a selective prosecution claim.
When is there a 6th amendment right to counsel of choice?
-There is a 6th amendment right to counsel of choice if it is retained counsel, but no right to counsel of choice if it is appointed counsel. -There are clearly limits on this. E.g. Defendant retains counsel he wants but a conflict of interest exists and etc.
Unit of Prosecution Hypo: Prosecutor charges a beer seller with 1,800 counts of selling beer without a license.
-This could be allowed under Ebeling if the unlicensed beer seller kept selling beer without a license 1,800 times. -Under Blockburger, it could be allowed (if the impulse were separate for each sale) or it could have a different result (if the impulse were just the 1 to sell beer without a license).
When may a defendant self-represent himself at trial?
-Under the 6th amendment, a defendant has the right to represent himself at trial as long as his decision to do so is 1) voluntary and 2) intelligent. -Defendant must be aware of the advantages and disadvantages of not having counsel in order for it do be deemed voluntary and intelligent.
What three factors move judges to choose one permissible outcome over another?
1. Individual liberties v. security 2. Federalism 3. Racism
What factors do the court look at when deciding whether the defendants right to a speedy trial has been violated?
1. Length of the delay 2. Reason for the delay 3. Defendant's assertion of his right 4. Prejudice to the Defendant
What are the purposes of a defendant's first appearance in the Magistrate Court?
1. Magistrate judge informs the defendant of the charges and his rights. 2. Determination of indigence - appointed counsel. 3. Setting of bail.
What are the two types of discovery?
1. Non-Constitutional Discovery 2. Constitutional Discovery
What are the two types of arrests?
1. Non-custodial arrest: Officer merely gives a ticket or citation for a crime or infraction. 2. Full Custodial arrest: Arrestee taken into custody.
What is the chronology of Criminal Adjudication?
1. Pre-Arrest Investigation 2. Arrest 3. Booking 4. Post-arrest investigation 5. Decision to bring forward charges via complaint 6. First appearance in Magistrate Court 7. Preliminary Hearing or Grand Jury Indictment 8. Arraignment 9. Post-arraignment 10. Pre-trial motions 11. Trial 12. Sentencing 13. Appeal 14. Post appeal/post conviction
What are the two grounds that a Defendant can motion for change of venue?
1. Prejudice against the defendant (difficult) 2. Convenience of the Parties.
What are the three levels of case screening?
1. Prosecutorial: prosecutor has discretion in deciding what cases are suitable to prosecute. 2. Judicial: Court holds preliminary hearing to determine if there is sufficient probable cause to bind defendant over for a trial. 3. Grand Jury Indictment: Determination by the people on whether there is sufficient evidence to call for an indictment and proceed to trial.
When does a defendant have the right to appointed counsel during the appeal process?
1. Right to appointed counsel for appeal by right. (statute provides defendant automatic right to appeal) -Douglas -Comes with the lesser right to a transcript. 2. No right to appointed counsel for discretionary appeal. -Ross 3. There is a right to counsel at the first appeal, whether appeal by right or discretionary. -Halbert
What does the defendant have to prove in order to prevail on a selective prosecution claim?
1. The decision to prosecute was motivated by a discriminatory purpose 2. That decision had a discriminatory effect. [established by showing that similarly situated defendants of other races, genders, etc. could have been prosecuted but were not] "Chicken and egg" problem, because sometimes you need the specialized discovery to meet the requisite showing, but you can't get the specialized discovery until after you make the requisite showing.
What are the two types of immunity that a prosecutor can impose on a witness testifying before a Grand Jury?
1. Transactional Immunity 2. Use Immunity
What are the elements of a constitutionally valid guilty plea?
1. Voluntary 2. Knowing 3. Intelligent
What factors are considered when determining whether and what conditions of release will reasonably assure the appearance of the defendant at subsequent court proceedings?
18 U.S.C. § 3142(g) 1. Nature and circumstances of the offense charged 2. Weight of the evidence against the person 3. History and characteristics of the person 4. Danger to any person or the community if the defendant were to be released.
When is a guilty plea deemed voluntary?
A guilty plea is voluntary if Defendant is fully aware of the direct consequences unless the guilty plea was induced by threats, misrepresentation, or improper promises
What is one circumstance that would lead the court to concluding that a plea was entered into involuntarily?
A plea is involuntary when the defendant is not informed of a critical element of the crime charged. E.g.; SCOTUS ruled a plea was invalid when the defendant lacked notice that an element of the offense he was charged with was intent.
Transactional Immunity
All offenses to which compelled testimony relates. -Gives the witness immunity from prosecution for any crime to which their testimony relates -Gives incentive for witness to disclose every possible infraction so as to preclude future prosecution -If you do not testify to a crime, then the door is still open to prosecution for that crime.
What is the Ebeling unit of prosecution test?
Test: What counts as one violation counts as multiple violations if repeated. -Therefore, a single impulse to cut multiple mail bags constituted multiple counts Ebeling test is easier to apply than Blockburger.
Jury Size
At least 6, no more than 12. 5 has been held to be unconstitutional.
When can bail be denied?
Bail can be withheld when there is a legitimate, permissible, constitutional basis: 1) when defendant is charged with a capital crime 2) when defendant threatens integrity of judicial process
Derivative Use Immunity
Bars use of the compelled testimony in a potential prosecution but does prevent prosecution for any crime related. -Blocks the use of Defendant's testimony and "any information directly or indirectly derived from the testimony or information." -Only independently obtained evidence can be used to prosecute the witness. -Prosecution bears burden of showing that evidence used against D in subsequent prosecution was independent from the testimony given by D.
What must a defendant show in order to establish a prima facie violation of the Fair Cross Enforcement Requirement?
That the group alleged to be excluded is a "distinctive" group in the community. 3 elements for determining if a group is "distinctive" 1. Defined & limited by some factor 2. Shares a common thread (or a basic similarity in attitude, ideas, or experience runs through the group) 3. Shares a community of interest
What requirements other than voluntary, knowing, and intelligent must be present in order for a guilty plea to be valid?
Competent counsel or a knowing, intelligent, voluntary waiver of counsel
What is the defendant's right to compulsory process?
Correlative to the Confrontation Clause, the 6th amend gives Defendant the power to compel, through subpoenas, the appearance of witnesses in his favor.
What must be present in order for there to be a Fifth Amendment incrimination problem?
For there to be a fifth amendment self-incrimination problem, 3 factors must be present: 1.Witness must be compelled (Compulsion) 2. To testify [requires a cognitive, communicative act] [submitting to a police lineup or a blood test does not count] [not cognitive or communicative act, no think] [complying with a subpoena to produce 1 diary will not suffice as testimonial but if the D has to choose between diaries or letters to produce it will likely be deemed testimonial.] (Testimonial) 3. In a way that might incriminate himself. (Incriminating)
What is the Blockburger test for Unit of Prosecution Issue (how many counts)?
For unit of prosecution issue, look at the "impulses" of the defendant. Each impulse is a separate count. If there are multiple impulses for one act, there can be multiple counts.
When is a guilty plea entered into knowlingly?
Defendant is aware of the nature of the charges and the consequences that come with those charges.
When is a guilty plea entered into with intelligence?
Defendant must know the nature of the rights being waived by pleading guilty
Dual Sovereignty Exception
Double Jeopardy is only applicable within a certain sovereignty - there is no cross sovereignty.
For Cause Challenges
Either side can make an unlimited number of challenges "for cause" to eliminate potential jurors from being on the jury.
Grand Jury & Exculpatory Evidence
Exculpatory evidence is evidence favorable to the defendant in a criminal trial that exonerates or tends to exonerate the defendant of guilt. Courts do not have authority to dismiss an indictment for the prosecutions failure to present to the grand jury exculpatory evidence. Requiring prosecutor to disclose exculpatory evidence to the grand jury would allow a defendant to use the prosecutor to present his defense to the grand jury.
What factual basis for a guilty plea is required?
Fed. Rule 11 -Requires a factual basis for a guilty plea. -Doesn't have to be strong. Something like probable cause. -Does NOT require factual basis for nolo contendere Note: Constitution Does NOT require factual basis, only that it is knowing, voluntary, and intelligent; thus, court can accept guilty plea even if he does not believe it Judge can believe the D is innocent and still find a factual basis for the plea
Former Conviction Doctrine
If a conviction is appealed & reversed, can D be re-tried? -Yes, by appealing the conviction D waives double jeopardy If a conviction is reversed due to insufficient evidence, can D be re-tried? -No, if the evidence was insufficient then no rational jury could rightly find the D to have been guilty -Defendant has a constitutional right to an acquittal If a conviction is reversed b/c the conviction was against the weight of the evidence, can D be re-tried? -Yes, just b/c the appellate court didn't find the evidence to weigh in D's favor does not mean that no rational jury could find that it did
What does the 5th amendment provide in the context of Grand Jury Testimony?
The 5th amendment gives the Defendant the ability to claim his right against self-incrimination before a Grand Jury.
What interests are at play for a defendant when it comes to bail and other custodial releases?
Liberty Interests at Play 1. Pre-trial detention hinders defendant's trial preparation. 2. Detainment prior to trial hinder employment and family relations. 3. D is statistically more likely to be convicted if detained prior to trial rather than being released on bail.
Can a guilty plea be deemed invalid if a defendant is able to demonstrate that the plea occurred only bc of a coerced, invalid confession?
No. A guilty plea is still valid because defendant's claim of an involuntary plea is nothing more than a mistaken assessment of whether the coerced confession would be admissible at trial or not. Rule: An otherwise constitutionally valid guilty plea (one that is knowing, intelligent, & voluntary) waives constitutional violations prior to the plea as the basis for challenging the plea. Exception: Unless the prosecution did not have the authority to bring the charges at all.
Is it a violation of a defendant's due process rights when a prosecutor threatens that they will face more serious charges if they go to trial but lesser if he accepted the deal?
No. NOT a violation when they carry out the threat if the D refuses to plea guilty to a lesser charge. -SCOTUS distinguished plea bargaining from a prosecutor penalizing their right to trial. -It is inevitable in pleas to have this happen -In the give and take of plea bargaining there is no such element of penalizing, vindictiveness or retaliation -As long as there is give and take there cant be prosecutorial vindictiveness or retaliation or penalization of their right to a trial Involved mutuality of an advantage
Is there a constitutional right to self representation on appeal?
No. No constitutional right of self-representation on appeal b/c autonomy is less important at appellate level.
Hypo: Defendant commits conduct including elements: A, B, C, D. Crime 1 elements are A, B, C and Crime 2 elements are A, B, D. Are they the same offense under the Blockburger Definitional Issue?
No. They are not the same offense for double jeopardy purposes b/c each requires an element the other does not.
What standard is used by police during their pre-arrest investigation?
Probable cause the defendant committed a crime.
What is the 8th amendment right in the context of bail?
Provides a constitutional right to "no excessive" bail but does not give the right to bail in "all" cases.
Scope of Prosecution: Joinder and Severance
Purpose of joining counts and/or defendants is efficiency and greater likelihood of conviction.
Confrontation Clause (6th Amendment)
Right to face to face confrontation. However, the Court has held it is okay for a witness to testify by video bc the witness is still under oath, still cross examined, and the jury can still observe the witness's demeanor.
What does Rule 11(a)(2) provide?
Rule 11(a)(2) provides that a Defendant may enter a "conditional plea" of guilty, reserving in writing the right to have an appellate court review an adverse determination of a specified pretrial motion (like a motion to suppress a confession that the defense believes was coerced).
What is the rule for joinder of offenses and what are the bases for joinder of offenses under that rule?
Rule 8(a): Joinder of offenses is proper: 1. If the offenses are the same or of similar character, are based on the same act or transaction OR 2. Are connected with or constitute parts of a common scheme or plan.
What is the rule for joinder of defendants and what are the bases for joinder of defendant under that rule?
Rule 8(b): Only one basis, which is if the defendants are alleged to have participated in the same act or transaction.
What limits have been placed on a defendant representing themselves under the 6th amendment?
Standby Counsel. Two Part Test: 1. If a self-represented D acts disruptive or obstructive while representing themselves, a court will have standby counsel ready to step in. The State has the right to determine if the misconduct requires assistance. 2. However, standby counsel will violate D's right to self-representation if counsel's participation over D's objection "effectively allows counsel to substantially interfere with any significant tactical decision, or to control the questioning of witnesses, or to speak instead of the defendant on any matter of importance."
How can one determine whether an offense is non-petty or petty?
The Court looks at the authorized punishment that comes with the offense. Typically, if the authorized punishment is greater than 6 months imprisonment then the offense is non-petty and there is a right to trial by jury a vice versa.
When can an out of court statement be admitted into evidence and satisfy the confrontation clause?
The confrontation clause only bars "testimonial" statements from being admitted into evidence. For testimonial evidence to be admitted under the confrontation clause, the 1) witness must be unavailable and 2) the defendant must have had a prior opportunity to cross examine the witness.
What consists of constitutional discovery?
Two scenarios this issue could arise: 1. Evidence specifically requested by the defense but the prosecution did not disclose: Rule: Failure of prosecutor to disclose evidence violates due process if: 1) Suppressed evidence was specifically requested by Defendant and 2) Suppressed evidence was material to the guilt or sentence of the Defendant Materiality standard: Reversal is proper if there is any reasonable likelihood that the suppressed evidence could have changed the judgment of the jury. 2. Prosecution failed to disclose evidence they knew or should of known was perjured Rule: Reversal of the conviction if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury
Number of victims double jeopardy test?
The number of victims = the number of counts.
What are the public interests in detaining a defendant prior to trial?
The risk of flight 1. Deterrent and retributive purposes of detention would be frustrated if D was released prior to trial. 2. Defendant on release may destroy evidence. 3. Intimidate or harm witnesses 4. Commit further crimes.
What is the Blockburger Test for Definitional Issue (separate offenses)?
The test is to determine whether two different statutes, provisions, or sections of the criminal code are the same for double jeopardy purposes: Test: Whether "each" provision requires proof of an additional fact or element which others do not.
What if a prosecutor makes a promise to the defendant he had no authority to make that leads to the defendant entering into a plea deal?
There is no remedy and the plea deal is still somehow valid lmaoo (make it make sense)
What if a defendant pleads guilty in exchange for the prosecutor's promise to recommend probation, but at sentencing, the prosecutor argues the defendant is not eligible for probation?
This constitutes a breach, which renders the plea deal invalid.
What is the duty of the State to preserve evidence that might be exculpatory?
To reverse a conviction because the State failed to preserve evidence that might have exonerated the Defendant, the Defendant must show bad faith on the part of the State to fail to preserve the evidence Could be said that there is no satisfactory remedy if the state does not preserve such evidence.
What is the test to show that the defendant's right to effective assistance of counsel has been violated?
Two prong test: 1. Performance Prong: Counsel's performance was deficient, making serious errors. 2. Prejudice Prong: Defendant must show that the deficient performance prejudiced the defense. -Defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. -There is a strong presumption that counsel's assistance was effective.
Immunity Hypo: Witness testifies regarding: Robbery of Victim 1 Burglary of Victim 2 Murder of Victim 3 Witness does not testify regarding: Robbery of Victim 4
With transactional immunity: Cannot be prosecuted for: Robbery of Victim 1 Burglary of Victim 2 Murder of Victim 3 Can be prosecuted for: Robbery of Victim 4 With use immunity: Can be prosecuted for any of the crimes but the prosecution may not use any of the testimony against D in subsequent prosecution.
Is there a constitutional right to waive the right to jury by trial?
Yes but the judge and prosecutor both have to consent under Fed Rule of Procedure 23(a). "Sticky right"
Whether a prosecutor filing an indictment for an increased charge after a defendant files an appeal for a conviction on a lesser charge is a violation of 14th amendment due process?
Yes, it is vindictive and unconstitutional to seek a higher sentence in response to a protected right to appeal.
Is there a right to counsel when bail is set?
Yes, the right attaches during the bail hearing, but you don't get the benefit of having appointed counsel until after.
Can a judge believe the D is innocent and still find a factual basis for the plea?
Yes.
Is immunity given to grand jury witnesses cross-sovereign?
Yes. Immunity given in federal court cannot be used in state court and vice versa.
Is a unanimous verdict required?
Yes. No constitutionally required that jury verdict be unanimous.
Can a prosecutor compel a witness to testify before a grand jury even when the witness has a valid 5th amendment claim?
Yes. Prosecutors can get around the Fifth Amendment by offering (imposing) immunity. The witness cannot decline immunity because the risk resulting from the answer has gone away because there is no longer any incrimination.
Hypo: Defendant commits conduct including elements: A, B, C, D. Crime 1 elements are A, B, C and Crime 2 elements are A, B. Are they the same offense under the Blockburger Definitional issue?
Yes. Same offense for double jeopard purposes b/c crime 2 does not require proof of any additional elements which crime 1 does not.
Does the Constitution allow a Defendant to plead guilty without formally admitting guilt?
Yes. The normal basis for guilty pleas are the defendant's admission of guilt and the defendant's consent to a judgment of guilt without trial. Here, the second basis is met. However, some federal courts and state courts reject guilty pleas on the grounds they are unfair to defendant.
Does the defendant have the right to counsel at a preliminary hearing?
Yes. Under the 6th amendment, the defendant has the right to counsel at a preliminary hearing because it is a critical stage of the prosecution. The remedy for a violation of this right is non satisfactory according to scholars.
