Arrest
First Appearance before a judicial officer is required within how many hours of arrest?
24 hrs.
When can a Motion to Suppress be filed?
Anytime before trial.
What is Double Jeopardy?
No person shall be "subject for the same offense to be twice put in jeopardy of life or limb" .
Jeopardy attaches when the jury in impaneled first witness sworn in (bench trial).
When does Right to Counsel attach?
When a D is formally charged. Attaches to all critical stages of proceedings thereafter.
*Note: This right does NOT attach to pretrial lineups but DOES attach to post-trial lineups (bc D has bee formally charged).
Offense specific.
What is the burden of proof in a criminal trial?
Prosecution must prove every element of a crime beyond a reasonable doubt. D may be required to prove an affirmative defense (ex. insanity).
As guaranteed by 6th Amendment, the right to speedy trial requires State to bring defendant to trial within specified time period.
Misdemeanors - 90 days
Felonies - 175 days
This right is waivable.
Define FL's Stop & Frisk law.
LEO can temporarily detain a suspect if there is reasonable suspicion the person committed, is committing or is about to commit a crime.
RS a person is armed and dangerous? May frisk for dangerous weapons.
If there is no probable cause, the person must be released.
How does a person invoke Miranda rights?
Person must make clear, unambiguous statement asserting desire to remain silent. Mere silence is not enough. Can be waived.
If after invocation, suspect voluntarily starts speaking again, subsequent interrogation is OK if new Miranda warning given.
Suspect can invoke 5th Amend. right to counsel (I want to speak to my attorney) and it stops all questioning as long as specific and unambiguous.
What is required for the jury pool?
The jury pool must represent a cross section of the community.
What factors are considered for pretrial release?
1. Nature/circumstances of crime
2. Weight of Evidence Against D
3. Family/Community ties
4. Past criminal history and FTAs
How many days does the State have to formally file charges after a defendant is taken into custody?
30 days.
If the State does not file charges within 30 days of a defendant being taken into custody, the court must order the defendant released on the 33rd day. (Note - this applies only to defendants that are incarcerated.)
If the defendant is NOT incarcerated, the defense attorney may make a motion to nolle pros the charge and the judge may grant it.
What are exceptions to the warrant requirement?
1. Probable cause of felony occurring in a public place OR misdemeanor committed in officer's presence
2. Consent
3. Search incident to arrest
4. Auto exception (PC that auto contains evidence of crime)
5. Protective sweeps
6. Plain View
Can Miranda rights be waived?
Yes.
What types of evidence can be suppressed under 6th Amendment rights?
Testimonial and physical (blood, urine, etc.)
If 6th Amendment rights are violated, BOTH testimonial and physical evidence can be suppressed.
How many jurors are required for a trial?
Criminal - 6
Capital (Death Penalty) - 12
Unanimous decision required.
What is the difference between a misdemeanor and felony?
Misdemeanors are crimes punishable by up to 364 days in county jail. (less serious)
Felonies are crimes punishable by more than 1 year in a state or federal prison. (more serious)
What are the requirements for a lawful warrant?
1. impartial magistrate with jurisdiction
2. specificity - who, what, where, when
3. probable cause must be found
What constitutes "custody"?
Substantial seizure or arrest.
Would a reasonable person believe they were free to leave?
What is the Exclusionary Rule?
Rule prevents evidence that was unlawfully seized (and statements). Fruit of the Poisonous Tree Doctrine. Excludes all evidence derived from the taint.
What are the factors considered in determining ineffective assistance of counsel?
1. fell below objective standard of reasonableness
2. prejudiced
3. probability of a different outcome
What is the standard of proof required to make an arrest?
Probable Cause: a reasonable suspicion that a crime has or is being committed
This standard is the basis for all lawful searches, seizures & arrests.
When must a motion to suppress be made?
Before trial
Define Miranda rights.
Right to remain silent and right to counsel. This right attaches whenever there is a custodial interrogation.
Any incriminating statement obtained as a result of custodial interrogation may not be used against suspect at subsequent criminal trial unless LEO informed suspect of his Miranda rights.
What is the Brady rule?
Prosecution has affirmative duty to disclose material evidence found favorable to D that negates guilt or lessons fault/punishment. Grounds for reversal if evidence is favorable and caused prejudice.
What is required to prove incompetence?
1. No present ability to reasonably consult with counsel in prep & understand
2. No rational factual understanding
Competence is reviewed every 6 months.
Commitment requires 2-3 experts.