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Definition
| if you are guilty is better to go w/ jury |
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| Jeopardy attaches when...? |
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Definition
the witness or jury is sworn
5th & 14th amendment |
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| sworn in/ open statement/ questioning/ evidence/ closing statements/ jury instructions/ jury deliberation/ verdict/ sentencing |
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| giving theory of case in story form. Telling WHY |
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| Proof beyond a reason of a doubt |
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| prosecution must prove... |
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Definition
| who the defendant is, jurisdiction, subject matter & personal jurisdiction |
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| Defense opening statement can be presented... |
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Definition
| after the prosecution opening statement/ or before prosecution questioning |
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| Opening & closing statements |
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Definition
| can not be used as evidence. Only as framework or abstract |
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| what is specified in the law |
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| no reason/ unless by race or gender |
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| written indictment accusing of a crime (to consider whether there is sufficient evidence) |
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he or she can reorder a fair judgment under evidence presented.
Pick venire then pick death Q jury |
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Term
| What is the smallest size jury you can have in a state and federal case? |
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| can only be used on the things that the prosecutor is charging for |
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| Grand Jury belongs to what branch of gov't (legislative, executive, judicial)? |
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| PC exist or does not exist in regards to the crime |
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| Handed down by grand jury |
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| Person can officially be charged by |
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| more than one way it can occur |
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| right to have a quick trial (3 months Misd/ 6 months felony) |
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| Speedy trial rule stops when... |
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Definition
| defense asks for a countenance |
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Definition
| must be asserted immediately or defendant loses right to assert later |
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| Pretrial discovery= request info including victim info |
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Definition
| Remove so they will not be a harm to society |
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Definition
| Stop sentence from taking place |
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Definition
| defendant says that they are not guilty but it is in their best interest to take plea |
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| not pleading either way, but judge treats it as guilty |
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| issues warrant from bench |
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Definition
| aids in preventing police misconduct |
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Term
| Bench trial vs. Jury trial |
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Definition
Bench Trial: bench trial is one in which the judge decides your innocence or guilt
Jury trial: trial by jury is where jury decides if you’re guilty or innocent |
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Term
| Article III (Judicial Branch) section 2 clause 3 |
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Definition
| The Trial of all Crimes, except in Cases of Impeachment; shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places at the Congress may by Law have directed. |
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| *Right to a Trial by Jury |
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Definition
| – [t]he Trial of all Crimes, except in cases of Impeachment, shall be by Jury. |
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| : a defendant who is too poor to hire his or her own lawyer. Standards used by judges include being unemployed, not having a car, not having posted bail, and not having a house |
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Term
| Court appointed vs. Retained counsel |
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Definition
Court appointed Counsel: method of appointing counsel/ attorney for an indigent defendant. An Indigent defendant has no right to designate an attorney of his or her choice. The selection of a defense lawyer is made purely at the discretion of the court, although the judge may allow the accused some input in the process.
Retained Counsel: Is an attorney chosen and paid by the accused. |
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Definition
| A jury that is not consciously restricted to a particular group |
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Definition
| . Williams vs. Florida, Supreme Court upheld a Florida law providing for a 6-member jury in all state criminal cases except those involving capital offenses. |
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Term
| Unanimous verdict—when required |
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Definition
| The Constitution does not require that guilty verdicts in criminal cases be unanimous. In federal criminal case, a unanimous jury verdict is required, but a non-unanimous verdict suffices in some state trials. |
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Definition
when allowed: What this means is that a state can provide for less-than-unanimous verdict for conviction (usually by law) and that such a procedure is constitutional. Apodaca v. Oregon, the Court held that a 10-2 vote for conviction is constitutional. And in Johnson v. Louisiana, the Court upheld the constitutionality of a 9-3 vote for conviction. The court has not decided whether an 8-4 or a 7-5 vote for conviction would also be constitutional.
45 states require unanimity in criminal cases, but 29 states do not require unanimity in civil trials. All states require a unanimous verdict in capital cases. The court prohibits a finding of guilty by lesss than a 6-person majority; therefore, in a 6-person criminal trial, the jury must always be unanimous in finding guilt. |
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Definition
| one for which more than 6 month’s imprisonment is authorized (Baldwin v. New York). In these cases the accused is entitled to a jury trial. |
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Definition
| , an offense whose maximum penalty is 6 months or less is considered “petty” for purposes of the right to a trial by jury (regardless of how that offense is classified by state law); therefore, the defendant has no constitutional right to a jury trial. |
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Term
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Definition
| Article III Section 2 Clause 3 |
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Term
The right to confront witnesses:
6th amendment |
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Definition
| In all criminal prosecutions, the accused shall enjoy the fight to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense. |
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Term
| Impact of marital privilege |
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Definition
| The Supreme Court has recognized two privileges that arise from the marital relationship. The first permits a witness to refuse to testify against his or her spouse. This is the testimonial privilege. The witness spouse alone holds the privilege and may choose to waive it. |
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Term
| second privilege, called the marital communications privilege |
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Definition
| communications between the spouses, privately made, are generally assumed to have been intended to be confidential, and hence they are privileged . . . .” The privilege (1) extends to words and acts intended to be a communication; (2) requires a valid marriage; and (3) applies only to confidential communications, i.e., those not made in the presence of, or likely to be overheard by, third parties. |
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Term
| Barker v. Wingo “Balancing Test” |
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Definition
| Held: A defendant's constitutional right to a speedy trial cannot be established by any inflexible rule, but can be determined only on an ad hoc balancing basis in which the conduct of the prosecution and that of the defendant are weighed. The court should assess such factors as the length of and reason for the delay, the defendant's assertion of his right, and prejudice to the defendant. In this case, the lack of any serious prejudice to petitioner and the fact, as disclosed by the record, that he did not want a speedy trial outweigh opposing considerations, and compel the conclusion that petitioner was not deprived of his due process right to a speedy trial. |
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Term
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Definition
| limitations on the court’s authority to close proceedings. A trial open to all persons interested in ensuring that the proceedings are fair and just. |
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Term
| Right to a fair and impartial trial—5th |
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Definition
| 5th- No person shall be held to answer for capital, or otherwise infamous crime, unless on a presentment or indictiment of a Grand jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. |
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Term
| Right to a fair and impartial trial—14th amendment guarantee |
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Definition
| 14th- Section I- All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. |
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Term
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Definition
| A defendant claiming undue pretrial publicity or other circumstances that would endanger his or her right to a fair and impartial trial locally can move to have the venue (place) of the trial changed to another county, form which more impartial jurors can be drawn. This allowable in both felony and misdemeanor cases. |
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Term
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Definition
| Is the practice of keeping members of the jury together and in isolation during a jury trial, to prevent their decision from being influenced by outside factors. If there is danger that jurors will be exposed to prejudicial publicity during the trial |
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Term
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Definition
| If the prejudice is severe, a continuance (postponement) may be granted to allow the threat to an impartial trial to subside. |
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Term
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Definition
| The judge may impose a gag rule prohibiting the various parties in the trial from releasing information to the press or saying anything in public about the trial. Gag orders usually include the participating attorneys, witnesses, the police, and members of the jury. These orders are valid for the duration of the trial |
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Term
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Definition
| . The press has the right to attend a criminal trial, but the media may be excluded if specific findings indicate that closure is necessary for a fair trial. The media do not have a Sixth Amendment right to attend a pretrial hearing in a criminal case |
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Term
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Definition
| for which legal reasons for the challenge must be stated – to exclude members of the defendant’s race from a jury solely on racial grounds violates the equal protection rights of both the defendant and the excluded jurors. |
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Term
| 3 steps of Challenge for Cause |
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Definition
Step 1. The side making the allegation must establish a prima facie (meaning at first sight) case of discrimination based on race or other forbidden grounds.
Step 2. The burden then sifts to the aide that made the peremptory strike to come pup with a race-neutral explanation for the strike.
Step 3. The trial court is then required to decide whether the side opposing the peremptory challenges has proved purposeful discrimination. |
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Term
| “Conviction prone” juries |
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Definition
| meaning juries that are more likely to convict and impose the death penalty because potential jurors whose opposition to the death penalty is so strong as to prevent or impair the performance of their duties at the sentencing phase are disqualified from it. |
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Term
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Definition
| In criminal law, circumstances that make a particular criminal act and the criminal himself more dangerous socially and that entail more severe punishment. |
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Term
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Definition
| Any major stage of the trial process where the offender or defendant is being taken in for a criminal offense and are in danger of going to jail or prison |
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Term
| Waiver of the right to counsel—what is the legal standard for a valid waiver? |
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Definition
| A waiver is the intentional relinquishment of a known right or remedy. The waiver of such rights must be intelligent and voluntarily made. |
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Term
| Responsibility of the defense counsel to his client |
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Definition
| loyalty of the defense lawyer is not to the public but solely to the client. This means that a lawyer is not an agent of the state but instead is obligated to give the client the best possible defense, whether the client is innocent or guilty. |
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Term
| Responsibility of prosecutor to society (compare) |
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Definition
| is to work for the good of the community. |
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Term
| Ineffective assistance of counsel |
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Definition
Strickland v. Washington standard:
The court assumes that effective assistance of counsel is present unless the adversarial process is so undermined by counsel’s conduct that the trial cannot be relied upon to have produced a just result. An accused who claims ineffective counsel must show the following: (1) deficient performance by counsel and (2) a reasonable probability that but for such deficiency the result of the proceeding would have been different |
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Term
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Definition
| : [communicative self incrimination] is that which in itself explicitly or implicitly relates a factual assertion or discloses information. It is in the form of verbal or oral communication |
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Term
| Privilege against self incrimination (scope)Physical self-incrimination |
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Definition
| involves real or physical evidence. I.e. the accused can be forced to submit to reasonable physical or psychiatric examinations, and the prosecution may introduce the evidence obtained- fingerprints, footprints, blood or urine samples or voice identification |
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Term
| Privilege: Privilege of a witness |
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Definition
- A witness can be forced: Any witness, other than an accused on the witness stand, has the privilege of a witness to refuse to disclose any information that may “tend to incriminate” him or her to testify if ordered by the court
- A refusal an result in a contempt citation
- A witness who testifies can refuse to answer questions that might result in criminal prosecution |
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Term
| Privilege of the accused and fair response |
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Definition
: The defendant in a criminal case has the privilege of the accused not to take the stand and not to testify. The court has ruled that the accused “may stand mute, clothed in the presumption of innocence.” No conclusion of guilt may be drawn by the prosecution from the failure of the accused to testify during the trial.
- an accused cannot be forced to testify
- a refusal cannot be commented on by the prosecution
- an accused who testifies cannot refuse to answer incriminating questions because the privilege at that state is considered waived. |
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Term
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Definition
| The witness is the holder of the privilege, and the only witness (or his or her lawyer) can asset it. If the witness fails to assert the privilege at the time an incriminating question is asked, the privilege is waived |
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Term
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Definition
| When the witness discloses a fact that he or she knows to be self-incriminating, the witness also waives his or her privilege with respect to all further facts related to the same transaction. |
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Term
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Definition
| that the recipient may not be prosecuted for any aspect of the criminal act in which he was involved. Use immunity means only that the testimony of the immunized person, given in return for immunization, may not be used against that person or coconspirators in a criminal act unknown to the prosecutor prior to the granting of immunity. |
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Term
| Use and derivative use Immunity- |
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Definition
| means that the witness is assured only that his or her testimony and evidence derived from it will not be used against him or her in a subsequent prosecution. |
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Term
| The Blockburger "same elements" test |
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Definition
| -Blockburger v. United States. The test is known today as the Blockburger test and is usually stated as follows: when the same criminal conduct violates more than one statute, offenses are different if each requires proof of an element that the other does not. If each requires proof of an element the other does not, then neither can be included within the other. |
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Term
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Definition
Those facts and circumstances that would lead a reasonably trained officer to believe that a crime has or is going to be committed
-on the scale of 1-10 PC is 5.1 or above 50% |
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Term
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Definition
| orginal 2 pronged test was applied based on reliability of informant and information itself, both prongs had to be met which made it very difficult for officers to establish they had PC |
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Definition
| information from the informant must be corrorabated by a police investigation [reasonable suspicion] |
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Definition
| Process which relates to paneling a jury |
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Term
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Definition
| one for which you can get more than 6 months in prison |
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Definition
| a reason specified in the law that makes a person ineligible to serve for cause for guilt |
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Term
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Definition
| freedom of speech, religion, press, and peaceful assembly |
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Definition
| agianst unreasonable searches and seizures |
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Definition
| due process, grand jury, double jeopardy and self-incrimination |
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Definition
| speedy and public trial by impartial jury, venue, and notice of accusation |
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Definition
| prohibits the federal government from imposing excessive bail, excessive fines or cruel and unusual punishments |
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Term
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Definition
Rights allotted by the federal gov apply to local and state govs as well
Article III section 1- vests the judicial power in federal courts, requires a supreme court, allows inferior courts, requires good behavior tenure for judges, and prohibits decreasing the salaries of judges |
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Term
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Definition
| general rights that reserve to the individual the power to possess or to do certain things, as opposed to the government's alternative desires. These are rights like freedom of speech and religion. |
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Term
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Definition
| dictate how the government can lawfully go about taking away a person's freedom or property or life, when the law otherwise gives them the power to do so. |
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Term
| United States Supreme Court |
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Definition
Rule of four- must have 4 for certiorari
# of Justices- 9 (6 for quorum)
Number of Justices needed to decide a case- 5 to win
En banc- as one body, never in division |
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Term
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Definition
the power of any court to hold unconstitutional and hence unenforceable any law, any official action based on a law, or any other action by a public official that it deems to be in conflict with the constitution
Judicial precedent – meaning that decisions of courts have value as precedent for future cases similarly circumstanced |
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Definition
| are not heard by Supreme Court. Did not get certiorari |
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Term
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Definition
| means “to abide by, or adhere to, decided cases” |
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Term
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Definition
| meaning the case is brought to the court directly instead of on appeal |
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Term
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Definition
| refers to the power of a court to try a case |
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Term
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Definition
| place of trial may be changed to ensure fair trail |
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Term
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Definition
| court order to hear an appeal |
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Term
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Definition
| bring forth the body/ motion fro detainer to prove why detention is justified |
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Definition
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Term
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Definition
| originated from ancient and unwritten laws of england |
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Definition
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Definition
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Term
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Definition
| no person is above the law, every person from the most powerful public official down to the least powerful individual is subject to the law and can be held accountable in court for their actions |
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Definition
| serious offenses entitle the accused to a jury trial |
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Term
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Definition
| double jeopardy applies to state and federal proceedings |
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Term
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Definition
| an invalid arrest is not a defense to being convicted of the offense charged |
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Term
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Definition
| right to speedy trial applies in state and federal cases |
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Term
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Definition
| privilege against self incrimination is applicable in state criminal proceedings |
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Term
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Definition
| Due Process clause of the 14th amend. applies to the states and incorporates those provisions of the Bill of Rights that are “of the very essence of a scheme of ordered liberty” |
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Term
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Definition
| the 6th amendment right to confront witnesses applies in federal and state proceedings |
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Term
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Definition
| established the principle of judicial review |
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Term
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Definition
| the process followed by the police and the courts in the apprehension and punishment of criminals from the filing of a complaint by member of the public or the arrest of a suspect by the police up to the time the defendant is punished, if convicted |
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Term
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Definition
| a charge made before a proper law enforcement or judicial officer alleging the commission of a criminal offence. Can be made by officer |
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Term
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Definition
| he or she is informed of the charges and asked to plead |
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Term
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Definition
| - it’s a type of preliminary hearing that where in serious cases the defendant is informed of the charges, the right to counsel and the right to remain silent |
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Term
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Definition
| a complaint has been filed and presented to a judge who has read it and found probable cause to justify the issuance of an arrest warrant |
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Term
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Definition
| usually happens when a crime is committed in the presence of a police officer or in some jurisdictions by virtue of a citizen’s arrest for certain offenses. (95%) |
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Term
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Definition
| punishment is prison for more than a year |
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Term
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Definition
| punishment in prison for less than a year |
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Term
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Definition
| - is an order issued by a court or law enforcement officer requiring the person to whom the citation is issued to appear in court a specified date to answer certain charges |
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Term
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Definition
| - is a writ directed to the sheriff or other proper officer, requiring that officer to notify the person named that he or she must appear in court on a day named and answer the complaint stated in the summons |
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Term
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Definition
| consists of making an entry in the police blotter or arrest book indicating the suspect’s name, the time of arrest, and the offense involved |
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Term
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Definition
| defined as the security required by the court and given by the accused to ensure that the accused appears before the proper court at a scheduled time and place to answer charges brought against him |
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Term
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Definition
| meaning without monetary bail. This usually happens when the accused has strong ties in the community and seems likely to appear for trail |
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Term
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Definition
| - bail can be used as a form of preventive detention to prevent the release of an accused who might otherwise be dangerous to society or who m the judge might not want to release |
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Term
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Definition
| defined as a “process issued by the court itself, or from the bench for the attachment or arrest of a person either in case of contempt or where an indictment has been found to bring in a witness who fails to obey subpeoena |
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Term
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Definition
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Term
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Definition
| meaning “to tell the truth” process of the prospective jurors are questioned to determine whether there are grounds for challenge. In federal Court the trial judge usually asks the questions |
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Term
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Definition
| is a group of prospective jurors assembled according to procedures established by state law |
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Term
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Definition
| elect a foreperson, are not subject to legal inquiry |
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Term
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Definition
| judge instructs the jury on all general principles of law relevant to the charge and the issues raise by the evidence, must be proved beyond a reasonable doubt |
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Term
| Sequestered/Sequestration |
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Definition
| keeps the jury together and prohibits them from going home |
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Term
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Definition
| a dismissal of a juror for causes specified by law |
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Term
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Definition
| is a dismissal of a juror for reasons that do not need to be stated |
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Term
| Prosecutorial charging discretion |
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Definition
| has a lot of power due to its decision to prosecute or not |
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Term
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Definition
| makes a decision whether to charge a suspect with an offense, is not a right guaranteed under the constitution in all criminal prosecutions. Only guaranteed in felony federal cases and in nineteen states |
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Term
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Definition
| Bill of Indictment- defined a written accusation of a crime, is submitted to the grand jury by the prosecutor. |
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Term
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Definition
| is a written accusation of a crime filed by the grand jury and signed by the grand jury foreperson |
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Term
| True bill vs. No true bill |
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Definition
| written decision of grand jury on whether the have concluded whether the defendant has probably committed the crime and should be indicted |
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Term
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Definition
| is a criminal charge filed by the prosecutor without the intervention of a jury |
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Term
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Definition
| when jury decides case contrary to the weight of the evidence presented during the trial. |
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Term
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Definition
| trial jury of 6 to 12 members |
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Term
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Definition
| prosecution must show that the evidence erroneously admitted did not contribute to the conviction |
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Term
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Definition
| failure to reach a unanimous vote either way (except Oregon and Louisiana) |
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Term
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Definition
| trial dismissed due to errors such as inflammatory evidence and prejudicial remarks |
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Term
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Definition
| is an accused’s response in court to the indictment or information that is read in court |
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Term
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Definition
| defendant pleas guilty in exchange for a lower charge a lower sentence or other considerations |
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Term
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Definition
1) Nolo contendere plea “no contest”
2) Not guilty
3) Guilty |
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Term
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Definition
| defendant claim innocence yet pleads guilty for other reasons |
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Term
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Definition
| filed by prosecutor, which seeks a dismissal of the charges, such a motion is almost always granted by the court |
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Term
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Definition
| - it’s a type of preliminary hearing that where in serious cases the defendant is informed of the charges, the right to counsel and the right to remain silent |
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Term
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Definition
| usually the first chance for the defense to know what evidence the prosecution has and the strength of the case against the accused. Neither side has to present all evidence |
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Term
| Preliminary hearing: 3 purposes |
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Definition
| 1) determination of probable cause 2) discovery-either side can discover the other side’s evidence 3) binding over- in some states means bound over to grand jury hearing in other states bound over to trial |
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Term
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Definition
| pronouncement of guilt or innocence |
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Term
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Definition
| (arrest) issued by and on behalf of the state, which authorizes the arrest and detention of an individual |
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Term
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Definition
| motion usually filed by defendant in order to change venue on grounds that the trial would be affected by prejudicial jury pool and or publicity |
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Term
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Definition
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Term
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Definition
| acquaints the jury with the nature of the charge against the accused and describes the evidence that will be offered, theory of crime |
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Term
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Definition
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Term
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Definition
| summarizes the evidence and presents theory of crime |
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Term
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Definition
| usually emphasizes the heavy burden of proof upon the prosecution |
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Term
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Definition
| evidence to destroy the credibility of witnesses or any evidence relied on by the defense and vise versa |
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Term
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Definition
Exculpatory evidence is the evidence favorable to the defendant in a criminal trial, which clears or tends to clear the defendant of guilt. It is the opposite of inculpatory evidence, which tends to prove guilt.
Prima facie case- motion for acquittal, prosecution has failed to prove its case made after prosecution presents its case |
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Term
| Defense motions prior to the verdict (what are they and when are they made) |
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Definition
Motion for acquittal – prima facie case- the close of the prosecutors case
Motion for directed verdict of acquittal – made at the close of the presentation of evidence in a jury trial, on the grounds that the prosecution did not provide sufficient evidence, Judge makes call
Motion for a mistrial- is made prior to jury deliberations, because of introduction of inflammatory evidence and prejudicial remarks by the judge or the prosecution |
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Term
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Definition
| formal pronouncement of judgment and imposing the punishment to be inflicted |
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Term
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Definition
| lower court decision is upheld |
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Term
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Definition
| lower court decision is overthrown |
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Term
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Definition
| lower court is reversed but given the opp to hear further arguments and give another decision |
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Term
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Definition
| less than unanimous jury (10-2) is constitutional |
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| 5-person jury is not constitutional—why? |
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| a 9 to 3 jury verdict is constitutional |
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| unlike 12 member juries, verdicts of 6 member juries must be unanimous |
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| the record must affirmatively show that a defendant’s plea was voluntary and the defendant understood the consequences |
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| a guilty plea is not involuntary simply because defendant entered it in hopes of avoiding the death penalty |
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| County of Riverside v. McLaughlin |
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| detention of a suspect for 48 hours with out a probable cause hearing is presumptively reasonable. After that the burden shifts to the state to prove reasonableness. If the delay is less than 48 hours the burden lies with the defendant to prove unreasonableness. |
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| a guilty plea is not invalid just because the defendant continues to proclaim innocence as long as there is some basis in the record for the plea. |
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| once the trial court accepts a guilty plea the defendant has the right to have it enforced. The judge must either enforce the plea or allow the defendant to withdraw it. |
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| allows federal judges to deny pretrial release of defendant when no set of release conditions will reasonably ensure the safety of the community from that individual. |
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| jurors cannot be removed because they oppose capital punishment. A juror may only be excluded for cause if is it unmistakably clear that he or she will automatically vote against the death penalty if sought by the prosecutor or if the juror could not be impartial in determining the defendant’s guilt. |
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| a defendant has a 6th Amendment right to counsel in serious offenses |
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| a defendant has a 6th Amendment right to counsel in misdemeanor offenses for which he faces jail time. |
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| state is not required to appoint counsel if a defendant charged with a misdemeanor or felony is not, in fact, sentenced to prison |
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| the right to counsel means the right to effective assistance of counsel |
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| double jeopardy applies if two offenses have the same elements or that one is a lesser included offense of the other |
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| ineffective assistance of counsel |
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one that must be asserted by the defendant within a specified time period prior to trial in order for it to be available to the defendant during trial.
Alibi, Insanity, Public Authority are all affirmative defenses. |
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