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Criminal Law Procedures
Const. Adv. Procedures
56
Law
Undergraduate 4
12/05/2007

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Cards

Term
4th Amendment:
Definition
The right of the people to be secure in their persons, houses, papers, and effects, against UNREASONABLE SEARCHES AND SEIZURES, shall not be violated, and NO WARRANTS SHALL ISSUE BUT UPON PROBABLE CAUSE by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.
Term
5th Amendment
Definition
No person shall be held to ANSWER FOR CAPITOL OR INFAMOUS CRIME UNLESS ON A PRESENTMENT OR INDICTMENT 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 offense 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.
Term
6th Amendment:
Definition
In all criminal prosecutions, the accused shall enjoy the RIGHT TO A SPEEDY AD PUBLIC TRIAL, BY AN IMPARTIAL JURY OF THE STATE and the 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 ACUSATION; TO BE CONFRONTED WIT THE WITNESSES AGAINST HIM; to have compulsory process for OBTAINING WITNESSES IN HIS FAVOR, and to have the ASSISTANCE OF COUNCIL FOR HIS DEFENSE
Term
7th Amendment:
Definition
In suits at common law, where the value in controversy shall exceed twenty dollars, THE RIGHT OF TRIAL BY JURY be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
Term
8th Amendment:
Definition
Excessive bail shall not be required, nor excessive fines imposed, NOR CRUEL AND UNUSUAL PUNISHMENT INFLICTED.
Term
Crime:
Definition
Something that is against the general benefit (health, safety, welfare etc.) of the people of a society. While there are some common law crimes, most crimes in the US are established by local, state and federal governments.
Term
Prosecution:
Definition
The government bringing a criminal case against an individual (only the government can bring a criminal action)
Term
Civil Lawsuit:
Definition
a Plaintiff brings a complaint and defendant defends themselves.
Term
Criminal Lawsuit:
Definition
 Police and DA (District Attorney) have the ability to charge someone with a crime. In a criminal lawsuit there are two parties, the Prosecutor (representing the commonwealth) and a defendant. In order for an individual to be convicted of violating a specific statute (or common law), the court must find that he or she engaged in ALL of the elements involved in the statute/law. The defendant is entitled to a UNANIMOUS JURY.
Term
Common Law:
Definition
udge created law; rules that are established by judges based on certain precedents.
Term
Hearsay:
Definition

 A statement made out of court that is used to prove the substance of a statement inside of the court. It is fundamentally unreliable and is not subject to cross examination.


Term
Exceptions to Hearsay:
Definition
 1) A dying declaration 2) excited utterance
Term
Admissibility:
Definition
 With respect to evidence; evidence that can be used in court
Term
Burden of Proof:
Definition

In a criminal case, the state (prosecutor) has the burden of proving “BEYOND A REASONABLE DOUBT” that a defendant committed a crime. A reasonable doubt is an honest and reasonable uncertainty about the guilt of the defendant.

In a civil case, the plaintiff has the burden of proving “by preponderance of the evidence” that a defendant is liable for some act (the plaintiff must prove only that a fact is more likely true than not true). This is a lesser burden of proof.

Term
Indictment:
Definition
When a grand jury determines that a defendant should face criminal charges, it returns an indictment.
Term
Arraignment:
Definition
 A formal reading of a criminal complaint, in the presence of the defendant, to inform him/her of the charges against him/her. In response to arraignment, the accused is expected to enter a plea.
Term
Plea Bargain-
Definition
An agreement between your criminal defense lawyer and a prosecutor. It usually includes a plea of guilty in exchange for a beneficial sentence.
Term
Expungement:
Definition
If you are found not guilty, or if all charges are dismissed, then you may be eligible for an expungement. An expungement erases all record of your arrest and of the charges that were filed against you.
Term
Due Process
Definition

The principle that the government must respect all of a person’s legal rights instead of just some or most of those legal rights when the government deprives someone of life, liberty or property. The Right to Due Process can be found in the 5th and 14th Amendments to the Constitution.

Term
Exclusionary Rule:
Definition
Evidence that is obtained by government actors (a.k.a The Police) and the method through which the evidence was obtained is excluded from trial if the means by which they obtained that evidence is found to be illegal or unconstitutional.
Term
Writ of Habeas Corpus:
Definition
 The right of a person to challenge the lawfulness of his or her own conviction; a criminal matter. A civil proceeding used to review the legality of a prisoners confinement in criminal cases. Habeas corpus actions are commonly used as a means of reviewing state or federal criminal convictions.
Term
Bill of Attainder:
Definition
 A law passed that establishes through legislation that a person is guilty of a crime, and punishing them, without the benefit of a trial. The US Constitution forbids both federal and state governments to enact bills of attainder.
Term
Expo facto Law:
Definition
 A law that retrospectively changes the legality of something. That is, you cannot be tried for a crime that was not considered a crime during the time one committed it.
Term
Injunction:
Definition

 An equitable remedy in the form of a court order. An order from the judge for one party to do or not to do something; a form of compensation that is not monetary (it is recognition that monetary compensation is not always satesfactory).

EX: restraining order, an order for a party to NOT freeze their assets

Term
Motion:
Definition
 Asking a court to do something
Term
Assault:
Definition
Can just be the THREAT of putting someone in danger of receiving bodily harm.
Term
Suspended Sentence:
Definition
 A sentence that a person doesn’t have to serve given a certain amount of time of “good behavior”
Term
Parole:
Definition
After you spend a certain period of time in jail, and you get out early on “good behavior” you must continue this “good behavior”
Term
Entrapment:
Definition
a legal defense by which a defendant may argue that he or she should not be held criminally liable for actions which broke the law, because he/she was induced (or entrapped) by the police to commit those acts. Entrapment is tricky though, because you are essentially admitting that the defendant committed the crime in question.
Term
CWOF:
Definition
Continuation Without a Finding. Admission by the defendant that sufficient facts exist that evidence can be found to find the person guilty. Defendant is under probation. A CWOF can either lead to a sentence or a dismissal.
Term
Discovery:
Definition
the pre-trial process by which the parties to a criminal proceeding exchange information and examine, inspect and copy evidence in the possession of their adversary.
Term
Disclosure:
Definition


Origins: The Supreme Court has interpreted that the Due Process Clause of the 5th and 14th Amendments REQUIRE THE PROSECUTION to disclose certain types of evidence to the defense.

Term
Exculpatory Evidence:
Definition
Evidence indicating that the defendant did NOT commit the crime (DNA is an example of something that can be exculpatory evidence). Evidence that is favorable to the defense in a criminal trial.
Term
Material Evidence:
Definition
Evidence that has an affect on the jury’s decision. The greater the probability that an item of evidence could or did influence the jury’s decision, the more MATERIAL the evidence is.
Term
Plea Colloquy:
Definition
 A conversation between a judge and a criminal defendant who has entered a guilty plea and has been sworn under oath (usually when a defendant is changing their plea from not-guilty to guilty). In this conversation the judge must advise the defendant of the following things: 1) The nature of the charge, 2) the potential penalties which might result from the plea 3) the defendants rights to NOT plead guilty, and to request a jury trial.
Term
No Lo Contendre:
Definition
Latin for “I will not contest” the charges, which is a plea made by a defendant to a criminal charge, allowing the judge to then find him/her guilty. Often called a “plea of no contest”.
Term
Curative Instruction:
Definition
 An instruction given to a jury by the judge in a case to negate the prejudicial effect of an erroneous instruction or tainted evidence. It is the preferred remedy for correcting error when the court members have heard inadmissible evidence, as long as the instruction is adequate to avoid prejudice to the accused. Defense attorney will usually ask for a curative instruction.
Term
Inadmissible Evidence:
Definition
evidence that is excluded from court. 1) Evidence that is obtained unconstitutionally/illegally (exclusionary rule), Hearsay (statement made outside of court that is being used to prove the substance of the statement made within court to be true), It is a public policy that allows for a spousal testimony to be excluded from court, a spouse has the privilage NOT to testify against a spouse (this rule means to protect the sanctity of marriage) and Evidence that is not probative of the issue will be left out of court.
Term
Searches that don’t need a warrant:
Definition
 1) consent 2) plain view 3) emergency circumstance
Term
Subpoena-
Definition
an official order to appear in court (or at a deposition) at a specific time.
Term
Deposition:
Definition
 the taking of testimony of a witness under oath outside of court, usually transcribed in writing by a court reporter, or sometimes recorded in a video.
Term
Affidavit:
Definition
 a written and sworn statement witnessed by a notary public or another official possessing the authority to administer oaths. Affidavits may be admitted into evidence.
Term
Perjury:
Definition
 In order for a person to be found guilty of perjury the government must prove that the person testified under oath before, at least one particular statement was false and the person knew at the time that the testimony was false.
Term
Pre-Trial Conference:
Definition
 Informal meeting between judge and lawyers in a lawsuit to narrow issues, agree on what will be presented at trial and make final efforts to settle the case without a trial.
Term
Preliminary Hearing:
Definition
Hearing at which a judge determines whether sufficient evidence exists to charge a person with a crime
Term
Mitigating Evidence:
Definition
 Evidence that might convince a jury to vote against the imposition of a specific punishment, most commonly the death penalty. During the sentencing phase of a capitol murder trial, the defense is able to put on all relevant evidence that could mitigate a sentence of death. If all relevant mitigating factors are not considered in a death penalty case, the punishment can be considered “cruel and unusual”, which is prohibited by the 8th Amendment. EX of Mitigating Evidence/factors: character of defendant, circumstances surrounding the offense, history of the defendant, mental health of the defendant, etc.
Term
Personal Recognizance:
Definition
Release of a defendant without bail upon promise to return to court as required.
Term
Collateral Estoppel:
Definition

 The situation in which a judgement in one case prevents (estops) a party to that suit from trying to litigate the issue in another legal action. In effect, once decided, the parties are permanently bound by that ruling.

Term
Miranda Rights/Warning:
Definition

 that confessions are inadmissible in a criminal prosecution if the police do not advise the suspect in custody of certain rights before questioning. The rights include:

a. The right to remain silent and to refuse to answer any questions;

b. The right to know that anything the suspect says can and will be used against the suspect in a court of law;

c. The right to consult with an attorney and to have an attorney present during questioning;

d. The right to have counsel appointed at public expense, prior to any questioning if the suspect cannot afford counsel.

--If a defendant makes a statement after he/she has been read their miranda rights, the statement is assumed to be voluntary and thus admissible in court.

Term
Attachment of 5th Amendment rights:
Definition
These rights attatch during ALL custodial interrogations (does the defendant feel free to leave? Does the defendant feel compelled to answer the police's questions-these are things to consider when determining whether a person was in a custodial situation, and therefore may assert their 5th amendment rights to remain silent and have a lawyer)
Term
Attachment of 6th Amendment Rights:
Definition
The 6th Amendment rights (to a lawyer and a trial) attaches by initiation of adversarial proceedings, after the formal charges have been read: a.k.a ARRAINGMENT. Article 12 of Massachusetts Declaration of Rights: also pronounces the right to a lawyer, which attaches at the initiation of adversarial proceeding
Term
Extradition Hearing:
Definition

The surrender by one state to another of an individual accused or convicted of an offense outside its own territory, and within the territorial jurisdiction of the other.

Term
Nolle Prosequi:
Definition

relates to a prosecutors decision to terminate a case (and drop the charges). This is part of the prosecutors prosecutorial discretion.

Term
Inculpatory Evidence:
Definition

 Evidence that is incriminating

Term
A Proffer Letter:
Definition

written agreements between federal prosecutors and individuals under criminal investigation which permit these individuals to tell the government about their knowledge of crimes, with the supposed assurance that their words will not be used against them in any later proceedings. Why are proffers so risky, since your words are not supposed to be used against you at a subsequent trial? To begin with, unlike immunity or plea agreements, proffer agreements do not prevent the government from making derivative use of your statements. In other words, although the government cannot use your actual proffer session statements against you in its case-in-chief, it can use the information that you provide to follow up leads and conduct further investigations. If those leads and further investigations capture new evidence, such evidence can be used to indict and convict you

Term
Bruton Motion:
Definition
When two or more defendants are jointly charged and one makes an extrajudicial statement which inculpates a codefendant, this codefendant may move for severance (that they be tried separately) on that basis. If the statement cannot be redacted to remove prejudice to the codefendant, either the prosecution must agree not to use the statement or the severance should be granted. Argued in Teixeira case.
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