Flashcard Set Preview
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S/S4 Issues
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1. Governed by 4th2. Warrant3. Warrant Exception4. Unconst Ev. Admissible
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S/S1. Gov by 4thIssues
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1. Gov Agent2. Area or Item3. Phys Intrude/Reas Ex of Priv4. Standing
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S/S1. Gov by 4th1. Gov Agent
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1. Pub Paid Police2. Priv Cit - directing of police3. Priv Security Guards - deputized/power...
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S/S
1. Gov by 4th2. Area/Item
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1. Persons (bodies)2. Houses (hotel rooms) - curtilage: domestic use3....
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S/S
1. Gov by 4th2. Area/ItemNot Protected
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Public - Knowing ExposurePaul Achieved a Glorious Victory Over His Opponents1. Paint Scraping...
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S/S
1. Gov by 4th3. Phys Intrusion/Reas Ex Privacy
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1. Physical Intrusion - of protected space to obtain Info2. Reas Ex...
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S/S
1. Gov by 4th4. Standing
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Personal rights, not those of TPStanding - own - reside - overnight guest: used/common...
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S/S
2. Warrant Requirements
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1. Neutral Detached Mag.2. PC and Particularity3. Good Faith (if defective W)4. Property Executed
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S/S
2. Warrant Requirements1. Neutral and Detached Mag
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1. No Bias for Prosecution
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S/S
2. Warrant Requirements2. PC and Particularity
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"Fair Probability" - contraband/evidence of crime1. PC a. hearsay ok ...
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S/S
2. Warrant Requirements3. Good Faith
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Good Faith defeats Defective W, UNLESS1. Egregiously Lack PC2. No Particularity3. Mag Relies...
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S/S
2. Warrant Requirements4. Properly Executed
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1. Compliance w/ Terms - as to Areas and Items ...
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S/S
3. Warrant ExceptionsESCAPIST
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1. Exigent Circumstances2. SILA3. Consent4. Auto5. Plain View6. Inventory7. Special Needs8....
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S/S
3. Warrant Exceptions1. Exigent Circs
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1. Evanescent Evidence - dissipate/disappear2. Hot Pursuit Fleeing...
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S/S
3. Warrant Exceptions2. SILA
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1. Lawful2. Contemporaneous: Time/Place of Arrest3. Scope: Wingspan ...
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S/S
3. Warrant Exceptions2. SILAAutos
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1. Interior Cabin - incl closed containers2. NO TRUNK3. Once Secured ...
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S/S
3. Warrant Exceptions3. Consent
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1. STD: Voluntary and Intelligent - no req of cop disclosure of right...
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S/S
3. Warrant Exceptions4. Auto
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1. STD: - PC of Contraband or Evidence of Crime2. Scope: ...
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S/S
3. Warrant Exceptions5. Plain View
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Applies to All1. Lawful Access to Place (from which can see item in PV)2. Lawful Access to...
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S/S
3. Warrant Exceptions6. Inventory
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When - Arestees: booked into Jail - Autos:...
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S/S
3. Warrant Exceptions7. Special needs
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Beyond General Interest in Law Enforcement1. Random Drug Testing -...
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S/S
3. Warrant Exceptions8. Terry STOPDefinition
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1. Brief Detention2. Purpose of Investigating Suspicious Conduct3. Note: can happen ANYWHERE
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S/S
3. Warrant Exceptions8. Terry STOPWhen are you Detained?
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1. TOC2. Reas Person3. Not feel free to - leave ...
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S/S
3. Warrant Exceptions8. Terry STOPPolice Pursuit
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Only if 1. Submits to Authority2. Physical Restrain (tackle)
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S/S
3. Warrant Exceptions8. Terry STOPTraffic Stop
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1. Driver AND Passenger are "seized" - BOTH can challenge legality...
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S/S
3. Warrant Exceptions8. Terry FRISKDef
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1. Pat Down (body, outer clothing)2. Weapons3. Belief of Armed and Dangerous
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S/S
3. Warrant Exception8. Terry FRISKWhat can be seized?
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1. Weapons2. Contraband - if recognized w/o Manipulation
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S/S
3. Warrant Exceptions8. Terry FRISKCar Frisk
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1. Traffic Stop2. Belief of Dangerous Suspect3. Search Cabin4. Areas where Weapon could be...
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S/S
3. Warrant Exceptions8. Terry FriskProtective Sweep
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1. In Home Arrest2. Sweep3. Criminal Confederates4. Threaten Officer Safety
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S/S
3. Warrant Exceptions8. Terry STOP and FRISKEvedentiary STDs
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Reasonable Suspicion (Less than PC)1. Stops: - Specific and Articulable...
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S/S
3. Warrant Exceptions8 Terry Stop/FriskProtective SweepEvedentiary STD
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1. Reas Suspicion 2. House harbors person posing dangerMore remote areas - additional...
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S/S
4. Unconstitutional Evidence AdmissionExclusionary Rule
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Fed: - Ev in Violation is Inadmissible against person whose rights were violatedNC: -...
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S/S
4. Unconstitutional Evidence Admission
Exclusionary RuleLimitations
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1. Case in Chief (only) - can use to impeach D on Cross2. Knock and...
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S/S
4. Unconstitutional Evidence Admission
Exclusionary RuleLimitationsFruit of Poisonous...
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1. Independent Source (another officer)2. Inevetable Disco (body.search)3. Attenuation - Purge...
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S/SMiscWiretappingObtaining a Wiretap Warrant
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Screen Telephone Calls Carefully1. Suspected Persons: 2. Time3. Crime4. Conversations
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S/S
MiscEavesdropping
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Unreliable Ear - talk to someone w/ wiretap - No Protection ...
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ArrestWhen does it occur?
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1. Police2. Person in Custody3. Against Will4. Prosecution OR5. InterrogationDe facto: -...
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ArrestSTD
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PC
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ArrestWhat offenses?
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ALL - even those punishable by fine only
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ArrestWhen is an arrest warrant (not) needed?
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Needed1. Someone in their Home - absent an Emergency2. Someone in Home...
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ArrestCommon Enterprise Theory
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1. Traffic Stop2. Police disco ev of unlawful conduct3. that Suggests common enterprise between...
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ConfessionsFed Const Challenges to Exclude Confession
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1. 14th - DPC2. 6th - Rt to Counsel3. 5th - Miranda
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ConfessionsFed Const Challenges to Exclude Confession14th - DPC
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STD: Involuntariness - product of police coercion - overbears suspects will
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Confessions
Fed Const Challenges to Exclude Confession6th - Rt to Counsel
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1. Express guarantee2. Attaches when Formally Charged (not arrested)3. applies to all "Critical...
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5th AmendmentMirandaElements of Statement
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1. Silent2. used against you3. Atty4. no money, AppointedImplied Right - Self incrim clause...
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5th AmendmentMirandaRequirementsWhen is it Necessary?
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1. Custody2. Interrogation
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5th Amendment
Miranda
RequirementsCustody
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1. Atmosphere2. Viewed Objectively3. Characterized by - Police Determ. ...
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5th Amendment
Miranda
RequirementsInterrogation
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1. conduct police Know or Should Know2. likely Elicit 3. Incriminating Response*Miranda does...
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5th Amendment
Miranda
RequirementsPublic Safety Exception
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1. Custodial interrogation2. prompted by immediate concern3. for Public SafetyMiranda is then...
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5th Amendment
Miranda
RequirementsCommunicating the Rights
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1. Before Questioning2. "reas convey" the core of the rtscan then use incrim statements against...
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5th Amendment
MirandaWaiverRequirements
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1. Knowing and Intelligent - nature - consequences2....
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5th Amendment
MirandaWaiverExecuting the Waiver
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1. Express2. Implied - conduct indicating desire to speak w/ cops ...
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| 53 |
5th Amendment
MirandaWaiverBOP
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1. Prosecution 2. Preponderance of the Evidence
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5th Amendment
MirandaInvoking the RightsRight to Remain Silent
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1. unambiguoslyOnce done, the officers must2. scrupulously honor -...
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5th Amendment
Miranda
Invoking the RightsRight to Counsel
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1. Once you request counsel - ALL interrogation must stop - unless...
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5th Amendment
Miranda
Limitations on Ev. Exclusion
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1. Case in Chief - can use to impeach D testimony on cross - not testimony...
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5th Amendment
Miranda
Limitations on Ev. ExclusionWaiver After No Miranda Given
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- No Miranda
- Mirnada Waiver
- Everything...
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| 58 |
5th Amendment
Miranda
Limitations on Ev. ExclusionImproperly Admitted Miranda Violations
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1. Violations of Miranda (should be excluded)2. Admitted to Ct3. D Convicted4. ALLOWED, IF ...
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Pretrial IdentificationsTypes
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1. Line ups: ID from a group2. Show ups: one on one confrontation3. Photo Arrays: like the...
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Pretrial IDsChallenges
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1. Denial of Rt to Counsel2. Violation of DP
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Pretrial IDs
ChallengesDenial of Rt to Counsel
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1. 5th Amendment: NO RIGHT2. 6th: After Formally Charged, applies to ...
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Pretrial IDs
ChallengesViolation of DP
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1. Unnec. Suggestive - creating Sub Likelyhood of Irreparable MisID2....
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Pretrial IDsRemedial Considerations
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1. Exclusion of witnesses IN COURT ID.2. Exception - pros can prove...
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Grand JuriesWhat do they do?Proceedings Public?Do have to use as part of charging process?
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1. Issue Charges/Indictments2. No3. No, most dont.
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Pretrial DetentionSTD
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PC - to bind a D over for a trial - to detain him in jail before
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Pretrial DetentionDetention Hearing (Gerstein)
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Hearing to Determine PCUnnec to justify pretrial detention if1. grand jury issued an Indictment2....
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Pretrial DetentionFirst Appearance
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Shortly After ArrestD must be brought to magistrate1. advises of rights2. sets bail3. appt...
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Pretrial DetentionBail
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Immediately Appealable
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| 69 |
Trial RightsEvedentiary Disclosure
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Pros must disclose to a crim D, ALL1. Material Ev2. Exculpatory EvBrady
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| 70 |
Trial RightsJudges
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Right to an Unbiased Judge1. no financial stake2. no actual malice to D
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Trial RightsJuriesFundamental Protection
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1. Fair2. Impartial
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Trial Rights
JuriesRight to Jury Trial
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When Max Authorized Sentence - exceeds 6 monthsNC: even for petty offenses
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| 73 |
Trial Rights
JuriesReq #
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Fewest - 6NC: 12 in all Crim trials
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| 74 |
Trial Rights
JuriesUnanimity
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Only if 6 jurors are usedNC: ALWAYS Must be UNANIMOUS
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Trial Rights
JuriesCross-sectional Req
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POOL from which juries is drawn be representative of community - not jurors who actually...
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Trial Rights
JuriesPeremptory Challenge
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Permit Both sides from Exluding Jurors w/o stating reason - cant be for race or gender
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Trial RightsConfronting Adverse Witness
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Rt to Confront under Confrontation Clause - 6thDoes not apply when it would contravene important...
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Trial RightsRight to Effective Assistance of Counsel
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1. Defeciency Req: - counsel performance below ob std of reas...
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Guilty Pleas and Plea BargainValid Plea
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(guilty)1. Vol.2. Intel
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Guilty Pleas and Plea BargainPlea-Taking Colloquy
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1. Before guilty plea2. Judge In Open Court3. Adress on the Record ...
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Guilty Pleas and Plea BargainWithdrawing the Plea
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May withdraw after sentancing only if1. Invol - due to defect in plea-taking colloquy2. Judicial...
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Punishment8th Amendment STD
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Against Cruel and Unusual Punishment - grossly disproportionate
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Punishment8th Amendment and Death Penalty
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1. Stat Lim: Death Penalty Stat violates 8th Amendment - when it AUTOmatially impositions...
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Double JeopardyAttachment
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1. Jury Trial - Jury is sworn2. Bench trial - 1st witness sworn3. guilty plea - when ct accepts...
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Double JeopardySame Offense Req
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1. Two offenses are NOT "same offense" if - each contains an element the other does not2....
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Double JeopardySame sovereign Req
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state and fed - doesnt countdifferent states - doesnt countstates and municpalities w/in them...
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Double JeopardyExceptions
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1. Hung Jury2. mistrial for Manifest Necessity - NC: when prosecution...
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Taking the 5thWho can take it?
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Anyone
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Taking the 5thWhen?
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Any proceeding in which you testify under oath
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Taking the 5thOnce provide testimony...
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Cannot seek to use the F-I-F in subsequent proceedings when asked the same question
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Taking the 5thScope
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Testimonial - doesnt apply to taking bloodNote: disallows neg pros comment on d;s1. decision...
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Taking the 5thEliminating the Privilege
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1. Grant of Immunity2. Taking the Stand3. Statute of Lim
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