Fillable CRIMINAL PROCEDURE PROFESSOR PAMELA S. KARLAN (City of Oakland)

Fill Online, Printable, Fillable, Blank CRIMINAL PROCEDURE PROFESSOR PAMELA S. KARLAN (City of Oakland) Form

Use Fill to complete blank online CITY OF OAKLAND (CA) pdf forms for free. Once completed you can sign your fillable form or send for signing. All forms are printable and downloadable.

CRIMINAL PROCEDURE PROFESSOR PAMELA S. KARLAN (City of Oakland)

On average this form takes 53 minutes to complete

The CRIMINAL PROCEDURE PROFESSOR PAMELA S. KARLAN (City of Oakland) form is 41 pages long and contains:

  • 0 signatures
  • 0 check-boxes
  • 212 other fields

Country of origin: US
File type: PDF

U.S.A. forms for City of Oakland

BROWSE CITY OF OAKLAND (CA) FORMS

Related forms
Fill has a huge library of thousands of forms all set up to be filled in easily and signed.
Fill in your chosen form
Sign the form using our drawing tool
Send to someone else to fill in and sign.
find another form
 
CRIMINAL PROCEDURE
PROFESSOR PAMELA S. KARLAN
STANFORD LAW SCHOOL
CHAPTER 1: BASIC CONCEPTS, ARRESTS, AND SEIZURES
A. Basic Principles
• Constitutional protections apply only to _______________________________________ actions
Example 1: If parents severely beat a child, they do not violate the Cruel and
Unusual Punishments Clause.
Example 2: A snoopy neighbor enters your house and steals several things—
including your marijuana plants. He brings the plants back to his home and
calls the government to notify them of what he found. This is not a search.
• Two important exceptions:
o Private persons acting as government ____________________________
Example 3: The government calls your neighbor and asks her to break into
your house to look for marijuana plants. This is a search under the Fourth
Amendment.
Example 4: The government asks one inmate to speak with another inmate in
order to get the second inmate to answer some questions. This could constitute
an interrogation within the meaning of the Sixth Amendment.
o Defense counsel (both public and private) are treated as government actors for purposes of
the Sixth Amendment with respect to effective assistance of counsel.
B. Arrests and Seizures of Persons
1. In General
o Police can approach anyone in a public place, and unless the encounter escalates to a
________________________, there is no real constraint on what the police can do and no
protection against what they discover (e.g., “tailing” a suspect, canvassing a neighborhood
and asking questions).
o Seizure—Occurs when an officer, by means of
______________________________________ or show of ________________________
intentionally terminates or restrains the person’s freedom of movement
Physical force—grabbing suspect by the arm, blocking ability to move, shooting a
suspect
Show of authority—showing a badge and saying, “Stop!”
Test: Whether a reasonable person would feel free to ___________________ the officer
2 | © 2021 Themis Bar Review, LLC | MBE Criminal Procedure
• Seizure—Ramming a suspect’s car in an attempt to stop the car
• Not a seizure—Running over a third party while chasing a suspect (because the
officer did not intend to stop the third party)
2. Types of Seizures
a. Stop and Frisk/Terry Stops
An officer stops an individual when the officer has a __________________________
suspicion, based on ______________________________ facts, to believe the suspect is
or is about to be engaged in criminal behavior.
Burden Hierarchy:
• Beyond a reasonable doubt → conviction
• Probable cause (“more likely than not”) → arrest
• Reasonable suspicion → stop
An officer’s reasonable _________________ of law can give rise to reasonable suspicion
During a Terry Stop, an officer can pat-down a detainee for _______________________
but cannot frisk for _____________________________.
• If the pat down reveals objects whose shape makes their identity obvious, the
officer can seize those objects (i.e., it’s obvious that the objects are contraband).
• If probable cause develops during a Terry Stop, the officer can then make an arrest.
Consequences of a stop that is not based on adequate suspicion:
• If the initial stop is unlawful, but the officer develops the basis for a lawful arrest
during the stop, evidence seized during the arrest _______________ be used at trial
• If the arrest is unlawful, evidence seized during the arrest _________________ be
used at trial
Example 5: In Utah v. Strieff, police were outside of a house where they
thought there might be drug activity. Strieff came out of the house and the
officers stopped him based merely on a hunch (which is insufficient to support a
stop). During the stop, the police ran a warrant check, which revealed a
warrant for Strieff’s arrest. During a search incident to arrest, the officer
discovered drugs.
b. Traffic stops
Officers must have _____________________________________________ to stop a car
Once there is lawful stop, officers may pat down an occupant for ___________________
if they have reasonable suspicion that the person has a weapon.
Checkpoints—Officers _________________ need reasonable suspicion to stop drivers if
they pull over everyone.
MBE Criminal Procedure | © 2021 Themis Bar Review, LLC | 3
c. Arrests
There must be ____________________________________________ to believe that the
arrested individual has committed a crime.
Can be with or without an arrest ________________________
Pretext arrest: As long as the police have probable cause to believe an individual
committed a crime, it is irrelevant whether the officer stopped that person for the crime
for which there is probable cause or some other crime.
Example 6: Undercover officers are walking the streets of D.C. looking for
illegal drug activity. They see a man driving a car—he appears nervous and
somewhat suspicious. He then makes a turn without using his turn signal.
Police can pull over this driver because he failed to use his turn signal—even
though they were really concerned about drug activity. They did not have
probable cause to stop him for the drugs, but he could be pulled over because
they had probable cause to believe that he committed some crime.
Note 1: Pretext arrests are fine under the Fourth Amendment. However, there
may be an Equal Protection issue if the officers choose who to stop based on
race or other discriminatory criteria.
d. Warrants
Authorizes an officer to arrest a particular person
An arrest warrant is issued by a ____________________ and detached magistrate based
on a finding of ____________________________________ to believe that the individual
has committed a particular crime.
Warrant must name the person and identify the ________________________
Allows officers to enter an individual’s home to arrest that individual
• Does not authorize officers to enter a third party’s home or business
• Officers must also have a search warrant to search the premises for the individual
(or meet an exception to the warrant requirement)
Absent an arrest warrant, officers can only arrest someone inside a dwelling if:
a) There are ______________________ circumstances (e.g., felony hot pursuit or
danger to others); or
b) There is ________________________ to enter.
e. Warrantless arrests
An officer can arrest an individual without a warrant in a _______________ place, either
for a crime committed in the officer’s ________________________ or based on
probable cause to believe the individual committed a ________________________.
If the crime was not committed in the officer’s presence, the officer can make an arrest
only for a ______________________.
4 | © 2021 Themis Bar Review, LLC | MBE Criminal Procedure
Example 7: You just robbed a bank (a felony) and fled the scene. An officer
arrives and a witness describes you to the officer. The officer walks around the
area and notices you because you perfectly match the suspect’s description.
The officer can arrest you because he has probable cause.
An arrest that is illegal does not prevent prosecution for the crime. But, it may result in
the exclusion of ____________________________ discovered during the arrest.
C. Searches Incident to Arrest
• A lawful arrest permits the arresting officers to make a contemporaneous search of the person
arrested and the immediate _________________________________________________ to:
o Protect officers from weapons or other dangers; and
o To prevent the ______________________________________ or concealment of evidence
• Any evidence discovered during a search incident to a lawful arrest can be used against the
person arrested.
• Arrest on the street: Can search the suspect and his ________________________
• Arrest at home: Can search the suspect and his immediate arrest area
• Arrest in a car: May search __________________________________ compartment of a vehicle
as long as the person/suspect still has ________________________ to the vehicle at the time
o Officers cannot arrest a suspect, put him in the back of the squad car, and then go back and
conduct a search of the car
Editor's Note 1: Note that if it were reasonable to believe that the vehicle
contains evidence of the offense of the arrest, such a search would be proper,
even though the suspect would no longer pose a threat to the officers.
• Inventory search—When the police arrest a driver and impound his car, it may be searched for
inventory purposes.
• Special rule for cellphones—officers may seize a cellphone during an arrest and check the phone
for dangers, but police need a ____________________ to search the phone’s digital information
CHAPTER 2: SEARCHES
Exam Tip 1: “Searches” is a topic that is often tested.
A. What is a “Search”?
• Occurs when __________________________________ conduct violates a reasonable
_____________________________________ of privacy
1. Government Conduct
Example 8: It is not a search if your mother or private employer goes through
your things.
MBE Criminal Procedure | © 2021 Themis Bar Review, LLC | 5
o Can occur with ____________________________ intrusion upon private property
Example 9: The police bring a drug-sniffing dog onto your porch, or place a
GPS device on your car
o A search can occur without a ______________________________ intrusion
Example 10: The defendant was growing marijuana in his basement and used
grow lamps. A government agent set up a thermal imaging device on the public
street and found that the basement was unusually warm. The agent used this
information to obtain a search warrant. The use of the thermal imaging device
was a search in violation of the defendant’s reasonable expectation of privacy.
Using some types of technology constitutes a search.
2. Reasonable Expectation of Privacy
o Places where we do have an expectation of privacy against the government:
Homes
________________________
Offices
____________________
Backyard of your home (curtilage)
o Places where we do not have an expectation of privacy against the government:
Public streets
_____________________________________________ (even if they’re private property)
Garbage cans left out in the street
________________________ property
Exam Tip 2: Be aware of who holds the reasonable expectation of privacy and
who is claiming the search. The government’s actions are valid unless it is the
defendant who has the reasonable expectation of privacy.
o You have a reasonable expectation of privacy in your car, though it is more limited.
Example 11: Quentin goes into the dressing room of a men’s store and hides a
valuable leather belt in his underwear. Wendy, a store security guard
monitoring a hidden camera in the dressing room, sees Quentin. As Quentin is
leaving the store, Wendy grabs him, thrusts her hands into his pants, and grabs
the belt. Wendy calls the police and Quentin is subsequently charged with
larceny. He argues that the belt should be excluded from evidence because the
search violated his constitutional rights. What result?
___________________________________________
_________________________________________________________________
_________________________________________________________
6 | © 2021 Themis Bar Review, LLC | MBE Criminal Procedure
B. The Warrant Requirement
• Generally, the government needs a _______________________________________________ to
conduct a search if there is a reasonable expectation of privacy.
• Three requirements:
1) A search warrant must be issued by a ____________________________ magistrate
2) Must be based on probable cause to believe that the items sought are
_______________________, instrumentalities, or ________________________ of crime
Example 12: There has been a bank robbery. The loot that was stolen from the
bank is the fruit of the crime; the gun used to commit the robbery is an
instrumentality of the crime; the bloody shirt the robber wore is evidence of the
crime.
3) Must describe the __________________________ and ______________________ to be
searched with particularity
• If a warrant does not meet the above requirements, the warrant is _______________________,
and the items seized pursuant to the warrant will be ____________________________ from the
prosecution’s case-in-chief.
• Wiretapping constitutes a search.
o Must have probable cause and a warrant
o Must specifically identify whose conversations are to be intercepted
o Must include an end date for the warrant
o Must perform minimization
C. Exceptions to the Warrant Requirement
• There are seven major exceptions; think of them as seven ________________________ from
the warrant requirement:
o Exigent circumstances
o Search incident to arrest
o Consent
o Automobiles
o Plain view
o Evidence obtained from administrative searches
o Stop and frisk
1. Exigent Circumstances
o Officers are entitled to secure premises (i.e., prevent people from moving things) while they
obtain a warrant, but sometimes this is not sufficient.
o If officers are in “hot pursuit” or there is an _______________________________________,
they may conduct a search without getting a warrant first.
MBE Criminal Procedure | © 2021 Themis Bar Review, LLC | 7
Example 13: A woman runs out of a building and tells an officer that there is a
man inside with a bomb who is threatening to blow everyone up. The officer
may enter the building and search without first obtaining a warrant.
Example 14: If officers believe that a suspect dropped a weapon in a place
where a small child might pick it up, officers may look for the weapon without
first obtaining a warrant.
o This exception does not apply when police create the exigency.
o Absent exigent circumstances, police need a warrant for a DUI blood draw.
2. Search Incident to Lawful Arrest
o If the arrest was lawful, a search warrant is unnecessary.
o Scope—limited to the immediate area around the individual
o Automobile—arrestee must be within reach of the passenger compartment to search it
o DNA—samples may be collected as part of search incident to arrest
o Cellphones—_____________________ search digital contents
3. Consent
o A defendant can consent to a search.
o Consent does not require the officer to ______________________ the subject of his right to
refuse. (e.g., “Mind if I look in that ….?”)
o Consent can involve outright deception.
o Third Parties:
Example 15: You give your bags to a friend and say, “Please hold my knapsack
while I run into the library for a second.” A police officer approaches your friend
and asks to look in the knapsack. If your friend agrees, the officer need not
obtain your consent to search the knapsack because the friend had apparent
control over the property.
Officers cannot search over the objection of a present occupant.
Officers can search if the suspect is not present and the other occupant consents.
4. Automobiles
o Recall that police are allowed to conduct a warrantless search of an automobile incident to
arrest if the arrestee is within reach of the passenger compartment (and to conduct an
inventory search of an impounded vehicle).
o If police have probable cause to believe an automobile contains ______________________,
they can search those parts of the vehicle that might contain contraband, even without an
arrest.
8 | © 2021 Themis Bar Review, LLC | MBE Criminal Procedure
Example 16: If police have probable cause to believe that there are drugs in a
car, they may search the parts of the car (and containers in the car) that might
contain the drugs. (Might be the whole car)
Example 17: If police have probable cause to believe that there are
submachine guns in a car, they may search the trunk and passenger
compartment. They cannot search inside a wallet or lipstick container or in
other areas where they could not reasonably expect to find the contraband.
5. Plain View
o If police are ________________________ present, they can seize any item in “plain view”
(or “plain smell”), even if that item was not named in the warrant.
Example 18: If police are legally present in a house to search a computer for
evidence of child pornography and they see marijuana on the table, they can
seize the marijuana.
6. Evidence Obtained From Administrative Searches
o Police do not need search warrants to conduct administrative searches.
o Two kinds:
1) Administrative warrants (e.g., fire or health inspections of a building)
2) Warrantless administrative searches—used to ensure compliance with various
administrative regulations; examples:
• Airplane boarding areas
• International borders
• Highly regulated industries (liquor stores, gun shops, etc.)
• Searches of students in public schools
• Special needs searches; e.g., drug testing of railroad employees after an accident
• Roadblocks for drunk driving or seeking information
7. Stop and Frisk
o Terry stops merely require reasonable suspicion; can conduct a limited search for weapons
(i.e., a frisk)
CHAPTER 3: INTERROGATIONS
A. The Fifth Amendment
• Provides, among other things, that no person shall be ________________________ in any
criminal case to be a witness against himself.
MBE Criminal Procedure | © 2021 Themis Bar Review, LLC | 9
1. Scope of the Privilege
o Applies to ________________________________________, not corporations or unions
Example 19: A corporation’s records custodian cannot claim the privilege on
behalf of the corporation.
o Applies to ____________________________________ evidence, not physical evidence
Example 20: Fifth Amendment protection does not apply to blood tests or
handwriting exemplars
o Applies to testimony that would be a link in the chain leading to prosecution or conviction
As long as there is reason to believe the testimony might lead to future criminal
prosecution, an individual is entitled to invoke the Fifth Amendment.
Example 21: Laura is a witness in a bank robbery case. When asked if she saw
the suspect rob the bank, Laura can refuse to answer the question if by
answering, she would somehow incriminate herself. Suppose Laura was a law
enforcement officer and was supposed to be watching another suspect at the
time of the robbery. By admitting that she was at the bank, she might
incriminate herself with regard to theft of government services.
o If someone is given __________________________ from prosecution for their statements,
they cannot continue to refuse to answer.
2. Statements Made by an Individual
o Must be made by the individual to the _____________________________________
Example 22: Jana comes home and tells her parents that she just robbed a
bank. The government can force her parents to testify about what Jana said to
them. She would have no Fifth Amendment protection.
Example 23: Remember that other privileges or protections may apply via
evidence law. Suppose that after robbing the bank, Jana had an appointment
with her doctor and told him about the bank robbery because she was feeling
anxious and wanted some tranquilizers. Those statements are protected by the
doctor-patient privilege.
o Key starting point for the privilege against self-incrimination: Miranda v. Arizona
Statements made as a result of ______________________________________________
are inadmissible unless they are accompanied by procedural safeguards (i.e., the
Miranda warnings)
“Custodial”: The person being questioned has been arrested or is not otherwise
__________________________________________ (e.g., in the back of a police cruiser).
• If not in custody, no warning is required. Any statement (or silence) can be used.
10 | © 2021 Themis Bar Review, LLC | MBE Criminal Procedure
• Someone who is already imprisoned is not necessarily treated as “in custody” for
purposes of custodial interrogation. The prisoner is not “in custody” if he is free to
be taken back to his cell.
“Interrogation”: Involves either the official asking questions or engaging in other words
or ________________________ that police know or should know will elicit a response
• Does not include __________________________________ statements
• Does not include ________________________ booking questions
3. Miranda Warnings
o Before conducting custodial interrogations, the police must inform the suspect:
You have the right to remain ________________________;
Any statement you make may be used against you in court;
You have the right to consult an attorney and to have the attorney _________________
during questioning; and
You have the right to have an attorney appointed if you cannot afford one.
o Interrogators must ask whether the defendant ____________________________ the rights
I.e., Defendant understands English, can hear, and actually heard what was said
o No magic words: As long as the substance of the Miranda warnings is communicated, it will
be sufficient
o The police must cease questioning if either of the following occurs:
1) Invoking the right to remain silent
• If a defendant says she does not want to talk, the interrogation must ____________.
• The right must be affirmatively invoked; it is not enough to just remain silent.
• After a _____________________________ period of time, police can go back to the
suspect, give warnings again, and seek to talk to the person again.
2) Invoking the right to counsel
• Right must be affirmatively invoked: “I want a lawyer.”
• If the right to counsel is invoked, all questioning must stop until either:
i) The lawyer is present; or
ii) The defendant affirmatively ____________________ contact with police. Police
cannot generally go back to the defendant.
• It is not enough to say, “I think I should talk to somebody,” or “I want to talk to my…
(Parents, doctor, etc.)”
• Police do not have to tell the defendant that a lawyer is trying to reach them.
MBE Criminal Procedure | © 2021 Themis Bar Review, LLC | 11
4. The Public Safety Exception
o When public safety is at risk, the police do not have to give Miranda warnings before
questioning.
Example 24: If there is a ticking time bomb in a grocery store, the police need
not give Miranda warnings before questioning people. Or if police are called to
a school and told that a man planted a bomb inside, they can arrest the man
because they have probable cause and can question him about the bomb’s
whereabouts before giving Miranda warnings.
5. Interrogation Tactics
o The confession must be ________________________________
o Statements obtained by ________________________, even after Miranda warnings, are
inadmissible.
Example 25: “We will prosecute you,” is not a threat. “We will beat you up,”
and “We will go and arrest your children,” are threats.
o Confessions can be the product of ________________________
Example 26: It is permissible to tell a suspect (who was caught on video
wearing a mask) that police have the capability to peel off the stocking mask
through photo-technology.
Example 27: Police can also use the colander and copy machine “lie detector.”
B. Consequences of Fifth Amendment Violations
• Two categories:
o Statements obtained involuntarily
o Statements obtained in violation of Miranda
1. Involuntarily Obtained Statements
o An involuntarily obtained statement is _________________ admissible against a defendant.
Example 28: Police may never put a gun to a suspect’s head and say, “Confess
or die.” Any incriminating statement made by the suspect is inadmissible.
o Whether to overturn a conviction depends on the harmless error standard.
o Evidence obtained as the result of an involuntary statement (e.g., “Tell us where the body is
buried” while a suspect is at gunpoint) is fruit of the poisonous tree and is
______________________________________ inadmissible.
2. Statements in Violation of Miranda
o Inadmissible in the prosecution’s case in chief, but can be admitted in order to
________________________ the defendant to challenge his credibility.
12 | © 2021 Themis Bar Review, LLC | MBE Criminal Procedure
o Evidence obtained as a result of a voluntary statement taken in violation of Miranda is
__________________________________
CHAPTER 4: THE SIXTH AMENDMENT RIGHT TO COUNSEL; IDENTIFICATION PROCEDURES
A. The Sixth Amendment
In addition to the Fifth Amendment right to counsel for custodial interrogations, the Sixth Amendment
explicitly provides a criminal defendant with “the ______________________________ of counsel for his
defense.”
1. Sixth Amendment Right to Counsel vs. Fifth Amendment Miranda Right
o How is it invoked?
Sixth Amendment right automatically attaches once there has been an indictment,
information, or other formal charges
• Exists unless a defendant knowingly and intelligently _________________ the right
Fifth Amendment right (protected by Miranda) must be __________________________
invoked by the defendant
Example 29: You are arrested and brought to the police station. Unless you
ask for a lawyer after getting Mirandized, you will not get one. But if you are
charged in court, you get an attorney unless you affirmatively waive the right to
counsel.
o To what charges does the right apply?
Sixth Amendment right to counsel is offense-specific; a defendant has a Sixth
Amendment right to counsel only with regard to the offenses for which he has actually
been ________________________ (and any lesser-included offenses)
With respect to unrelated charges, the defendant can be questioned, either expressly or
through undercover government agents.
Example 30: You are charged with burglary, so you have a Sixth Amendment
right to counsel regarding that burglary and a lesser-included offense, such as
larceny. But police can still question you about an unrelated robbery for which
you have not been charged.
o Sixth Amendment applies whether you are in ________________________ or not
Fifth Amendment Miranda right applies to custodial interrogation for any charge, but
not to non-custodial interrogation
MBE Criminal Procedure | © 2021 Themis Bar Review, LLC | 13
2. When Does the Sixth Amendment Right to Counsel Apply?
o Applies to all ________________________ prosecutions and to any misdemeanor
prosecutions in which jail time or suspended jail sentence is imposed.
Example 31: If you are charged with a misdemeanor and are not sentenced to
any jail time, you do not have a Sixth Amendment right to counsel.
o Applies to all ________________________ stages of the prosecution
Examples of critical stages:
• Evidentiary hearings
• Post-indictment lineups
• Post-indictment interrogations
• All parts of the trial process, including guilty pleas, and sentencing
Note 2: There is also a right to counsel in appeals as of right, but this right is
provided by the Equal Protection Clause, not the Sixth Amendment.
Examples of non-critical stages are:
• Investigative lineups (pre-indictment)
• Witnesses looking at photo arrays
• Discretionary appeals and post-conviction (habeas) proceedings
B. Identification Procedures
1. Types of Procedures
o There are two kinds of identification procedures: _______________________________ and
________________________
Photo arrays: Neither the defendant nor his lawyer has the right to be ______________,
but police must turn over the array to the defendant.
Pre-indictment lineups: Defendant has no right to counsel.
Post-indictment lineups: Defendant has a right to have ___________________ present.
• If violated, evidence that the witness identified the defendant at the lineup must be
excluded.
2. Admissibility
o Lineup evidence at trial
If the defendant moves to suppress evidence that a witness picked the defendant out of
a lineup, the court will consider whether the lineup was __________________________
__________________________________
If it was, the court can exclude the testimony.
14 | © 2021 Themis Bar Review, LLC | MBE Criminal Procedure
o In-court identification
The prosecution must establish by ___________________________________________
evidence that the witness would have identified the defendant even without the
suggestive lineup.
Example 32: Ingrid is charged with art theft. The prosecution alleges that she
stole a small but valuable sculpture from an art gallery by putting it into a large
shopping bag. The police ask Oscar, who works at the gallery, to view a photo
array of five potential perpetrators. Ingrid is the only blonde-haired woman in
the array and she appears quite a bit younger than the others. Oscar identifies
Ingrid. The police then place Ingrid in a lineup. Preeta, another gallery
employee, views the lineup. The Assistant D.A. asks Preeta, “Do you see the
person who walked out of the gallery with a large shopping bag?” Preeta says
no, but adds that she “saw the third person from the left” – Ingrid – “reach into
a lady’s pocket and steal her wallet.” The A.D.A. knows that another patron at
the gallery, Sarah, had filed a complaint with the police that her pocket had
been picked on the day of the alleged sculpture heist. So the A.D.A. obtains a
search warrant for Ingrid’s house, and the police find Sarah’s wallet. Ingrid is
now charged with larceny against Sarah as well as art theft. Which of the
following statements about the use of evidence are true?
A) Is the wallet admissible at Ingrid’s trial for larceny even though Ingrid’s
lawyer was not present at the lineup? _________________________________
_________________________________________________________________
B) Is Oscar’s identification inadmissible at Ingrid’s trial because Ingrid’s lawyer
was not present? __________________________________________________
_________________________________________________________________
CHAPTER 5: THE EXCLUSIONARY RULE AND ITS EXCEPTIONS
Exam Tip 3: This is one of the most important Criminal Procedure topics on the
MBE.
• Rule: Illegally obtained evidence, either ____________________ evidence obtained by an illegal
search or a statement obtained through an illegal ___________________________________, is
inadmissible at the criminal trial of the person whose rights were violated.
• The Exclusionary Rule applies at ______________, not to pretrial proceedings (e.g., grand jury
proceedings).
A. Standing
• The violation must have been of the ________________________ rights, and not someone
else’s rights.
MBE Criminal Procedure | © 2021 Themis Bar Review, LLC | 15
Example 33: Police enter Ellen’s house without a warrant and while there, they
find a photograph of Robert holding a sawed-off shotgun. Robert would have
no standing to object to introduction of the photograph at his trial for
possessing an illegal weapon, because it was Ellen’s Fourth Amendment rights
that were violated.
Example 34: Lucy is arrested but police do not give her Miranda warnings. If
she makes a statement that she robbed a bank with you, you cannot suppress
her statements at your trial (because it was a violation of Lucy's rights, not your
rights).
• One slight qualification: If the driver of a car is arrested without probable cause, passengers are
deemed to have been seized as well, so they _______ challenge the constitutionality of the stop.
B. The Exclusionary Rule
1. Definition
o Evidence obtained in violation of the _________________, __________________, or
________________ Amendments cannot be introduced at trial to prove a defendant’s guilt.
o ____________________ of the Poisonous Tree: The exclusionary rule also applies to
evidence obtained as a result of the initial violation.
Example 35: Police illegally search your house and find a safe deposit box key.
They take the key to the bank, look inside the deposit box, and find some
incriminating items. Those items are considered fruit of the poisonous tree,
because but for the first illegal search, they would not have found the items in
the safe deposit box.
2. 5½ Exceptions
o Knock and announce: Officers executing an arrest warrant at a residence are required to
knock and announce they are police.
If they fail to do so, and discover evidence, that evidence does not have to be
________________________.
o Inevitable discovery: If the evidence would have been discovered anyway through
________________________ means, it will be admissible.
Example 36: Officer Thomas was searching Ulysses’ house without a warrant.
Officer Young, who had probable cause, was in the process of acquiring a search
warrant.
o Independent source: Relevant evidence discovered on the basis of an independent source
will be admissible.
o Attenuation in the causal chain: Intervening events and the passage of time can remove the
taint of the unconstitutional conduct.
16 | © 2021 Themis Bar Review, LLC | MBE Criminal Procedure
Example 37: An officer unlawfully discovered some betting slips in a flower
shop. He told a second officer what he had seen. This second officer then spoke
with a former employee of the flower shop who admitted that a bookmaking
operation was run out of the shop. Here, there were enough steps in the chain
of causation that the evidence gained from talking to that former employee
need not be suppressed.
Example 38: In Utah v. Strieff, police were watching a house with a suspected
drug operation. They decided to stop and question the next person who left the
house. The police stopped and questioned Mr. Strieff without adequate
suspicion to do so. During the course of questioning, the officers discovered an
outstanding arrest warrant for an unrelated event. The officer arrested Mr.
Strieff and conducted a search incident to the arrest. During the search, the
officer found drugs. The Court held that there was attenuation between the
initial illegal stop and the discovery of the drugs. The arrest was lawful and that
was sufficient to remove the taint and admit the evidence.
o Good faith
Biggest of the exceptions to the exclusionary rule
It applies to officers who rely on either:
a) An ______________________________ that was later declared unconstitutional; or
b) A warrant that, while facially valid, is later found to be defective.
If officers are acting in good faith reliance, they are entitled to use the evidence that was
obtained.
Officers can rely on a warrant unless:
• The warrant was obtained by ________________________
• The warrant was obtained in reliance on an unacceptably bare-bones affidavit
(defective on its face)
• The magistrate wholly abandoned his ______________________________
o (Half) Exception—Isolated ____________________________ by law enforcement personnel
does not necessarily trigger the exclusionary rule.
To trigger the exclusionary rule, police conduct must be sufficiently deliberate so that
exclusion could meaningfully ________________________ it.
Example 39: In Herring v. United States, Herring went to a police station to
pick up his truck, which had been impounded. At the station, an officer who
was familiar with Herring asked the clerk to see if there was an arrest warrant
for him. There was not. The officer then asked her to call the next county and
ask whether there was a warrant there for Herring. The clerk said there was.
The officers pulled Herring over after he left the police station without probable
MBE Criminal Procedure | © 2021 Themis Bar Review, LLC | 17
cause, arrested him, and conducted a search incident to arrest. They found
some incriminating evidence. In the meantime, the clerk discovered that there
was no longer a valid warrant for Herring's arrest.
Mr. Herring moved to suppress the evidence on the grounds that he was
arrested without probable cause and without a warrant. The Supreme Court
held that the good faith exception should apply—even though the police may
have been negligent.
3. Key Points
o Remember that suppression is an issue only after you conclude that there has been an
underlying ____________________________________________________ in the first place.
Fourth Amendment: Was there a search? Was there a seizure? If yes, was there
probable cause?
Fifth Amendment: Was there a Fifth Amendment interrogation violation? Was the
defendant in custody? Was there an interrogation? Was the defendant given
warnings? Did he invoke his rights?
Sixth Amendment: Did the Sixth Amendment right to counsel attach? Was this a critical
stage?
o If there was a violation, ask whether the exclusionary rule applies to that kind of violation.
o Then ask whether one of the ________________________ to the exclusionary rule makes
the evidence admissible anyway.
o If the question involves whether a conviction should be overturned (rather than whether
the evidence should be suppressed), apply the harmless error rule:
Ask, if this piece of evidence had not been admitted, would it make a difference to the
outcome?
CHAPTER 6: PRETRIAL PROCEDURES
A. The Initiation of Charges
• Under the Fifth Amendment’s Presentment Clause, all federal felony charges must be initiated
by _____________________________ by a grand jury unless the defendant waives indictment.
o An indictment requires ___________________________________ to believe the defendant
committed the crimes charged.
• The Fifth Amendment Presentment Clause has not been incorporated to the states, so states
can choose whether to proceed by grand jury indictment or by ___________________________
o If proceeding by information, there must be a preliminary hearing before a neutral judge to
determine whether there is ___________________________________________.
18 | © 2021 Themis Bar Review, LLC | MBE Criminal Procedure
B. Proceedings before the Grand Jury
• Grand juries can consider evidence that has been obtained ________________________ and
________________________ evidence in deciding whether there is probable cause to indict.
• Defendants do not have the right to testify before the grand jury or to call witnesses.
• Witnesses do not have the right to ________________________ within the grand jury room,
although they can leave the grand jury room to consult with their lawyers.
• Grand jury proceedings are held in ________________________
• The grand jury does not have to be _______________________________
C. Competence to Stand Trial
• Test: Whether the defendant comprehends the ________________________ of the proceedings
against him and can ________________________ his lawyer in defending the case
• If a defendant is competent to stand trial, he is also competent to plead ___________________
and ___________________ the right to trial.
D. Guilty Pleas
• The majority of defendants do not go to trial; the charges are either dismissed or the defendant
pleads guilty
• When a defendant pleads guilty, he ________________________ various trial rights, such as the
right to put the prosecution to its proof, to confront and produce witnesses, to trial by jury, to
challenge the introduction of evidence, to appeal if there is a conviction.
• For a guilty plea to be valid, the defendant must ________________________ and
_________________________ waive these rights. This is accomplished through plea allocution,
where the judge:
o Informs the defendant of his rights and ensures the defendant understands those rights;
o Informs the defendant of the possible sentences;
o Informs the defendant of immigration consequences (the judge is not required to inform the
defendant of all collateral consequences, such as difficulty getting student loans);
o Makes sure there is a factual basis for the plea;
o Determines that the plea did not result from ________________________, coercion,
threats, or promises
• If a defendant challenges his plea agreement and succeeds in reopening the case, the
prosecution can reinstate charges that it had dropped.
• The defendant is entitled to ________________________ assistance from counsel in the plea
bargaining process.
E. Bail
• The Eighth Amendment forbids the setting of __________________________ bail, but does not
state outright that bail must be offered pending trial.
MBE Criminal Procedure | © 2021 Themis Bar Review, LLC | 19
• General rule: Bail is available unless the defendant poses either a flight risk or a
________________________ to the community.
• There is a presumption ________________________________ bail.
• Courts can impose pretrial release conditions on defendants, such as house arrest, avoidance of
particular people, or reporting requirements.
CHAPTER 7: THE TRIAL PROCESS
A. The Jury
1. Sixth Amendment Right to a Jury Trial
A defendant has a right to jury trial for all ________________________ offenses, for which the
authorized punishment is more than ______________ months.
Note 1: The Sixth Amendment right to counsel attaches in misdemeanor cases
only if a sentence of incarceration is actually imposed.
2. Jury Size
o Federal: A jury in a federal criminal case must have _________________ members and must
decide the case ________________________
o States: Can use juries of ____________ or more in criminal cases.
Editorial Note 1: State and Federal juries now must be unanimous to convict,
regardless of the number of jurors.
3. Jury Selection
o Begins with a venire or jury pool
Must represent a fair ___________________________________ of the community from
which no distinctive group is excluded
o The petit or petty jury is selected through the process of voir dire.
Two ways to remove potential jurors: challenges ________________________ and
peremptory challenges.
• The actual jury that is seated must be impartial, but it does not have to reflect a fair
cross-section of the community.
For-cause challenges—Used to ensure an ________________________ jury
• Jurors can be removed for cause when they reveal something that will prevent them
from being impartial and deliberating ________________________
o E.g., if a juror knows one of the parties or the victim; if a juror was a friend of
one of the witnesses; or worked for the defendant’s company
• There is ________________________ to the number of challenges for cause.
20 | © 2021 Themis Bar Review, LLC | MBE Criminal Procedure
Peremptory challenges—Can generally be made for any reason, including hunches
• Exception: Neither side can challenge jurors on the basis of _______________ or
______________ (Batson doctrine)
• Each side is statutorily limited in the number of peremptory challenges.
B. Speedy and Public Trial Rights
1. Speedy Trial Rights
o Defendants can be injured by the passage of time between an alleged crime and their trial
o Statutes of limitations give defendants repose.
Statutes of limitations normally begin to run when the crime __________________.
For continuing offenses, the statute of limitations does not begin to run until the end of
the offense (e.g., a conspiracy starts on the day of agreement but continues until the
conspiracy’s purpose has been achieved or abandoned).
Example 40: In January 2003, Prof. Karlan entered into a conspiracy to
distribute drugs. The conspiracy continued until 2007. The statute of
limitations begins to run from 2007, not 2003.
o Two constitutional provisions that protect against delay:
The _______________________________________ protects against pre-accusation
delay. It’s relatively toothless, as long as the limitations period has not run.
The ________________________ Clause of the Sixth Amendment protects defendants
against delay that occurs between the time of arrest or indictment (whichever comes
first) and the time of trial.
o A court faced with a Speedy Trial Clause claim looks at four factors:
1) Length of the delay;
2) ________________________ for the delay;
3) Whether the defendant __________________________________________ to a speedy
trial; and
4) ____________________________________________ to the defendant
2. Public Trial Rights
o The Sixth Amendment and First Amendment, taken together, protect the rights of the
defendant (Sixth) and the public (First) to attend public trials.
o Courts have some discretion to close particular proceedings if there is a substantial
likelihood of ________________________.
MBE Criminal Procedure | © 2021 Themis Bar Review, LLC | 21
3. The Confrontation Clause
o The Sixth Amendment guarantees a defendant the right to ________________________ the
witnesses against him, as well as the right to compulsory process to produce his own
witnesses.
a. Crawford Doctrine
If a statement is ________________________________ (i.e., made under circumstances
which would lead a reasonable person to believe that the statement would be used at a
later trial), then the Sixth Amendment bars admission of the statement if:
• The declarant is __________________________________; and
• The defendant had no prior ____________________________ to cross-examine the
witness.
Example 41: In Melendez-Diaz v. Massachusetts, the prosecution tried to
admit a forensic report into evidence without calling the forensic analyst who
prepared the report as a witness. The Court determined that the defendant was
entitled to cross-examine the analyst and so the report was inadmissible
without that opportunity.
For non-testimonial statements, look to the rules of evidence.
b. Bruton Doctrine
A defendant’s own statements are always ________________________ against him.
This is true even if the defendant does not testify at trial.
If there are co-defendants, a non-testifying co-defendant’s statements are
__________________________________ against the other defendant.
Example 42: Pam and her brother Peter are on trial for robbing a bank. During
the investigation, Pam said, “It’s true, I drove the getaway car. But Peter talked
me into the whole thing and Peter is the one who held the gun to the teller’s
head.” Pam’s statement is admissible against her, but the statement also
incriminates Peter. They go to trial together. If Pam takes the stand, Peter may
of course cross-examine her about the statement, and there’s no Confrontation
Clause problem. But if Pam doesn’t testify, the statement could still be used
against Pam; the statement becomes inadmissible against Peter because he
cannot cross-examine Pam. (Courts have been required to redact or alter the
confession so that it no longer refers to the non-testifying co-defendant.)
c. Defendant’s right to present witnesses
The defendant has the right to testify on his own behalf. He also has the right to
compulsory process to obtain witnesses in his defense.
22 | © 2021 Themis Bar Review, LLC | MBE Criminal Procedure
4. Burden of Proof
o The prosecution must prove every element of the crime _____________________________
___________________________________________
o Distinguish elements of the crime from affirmative defenses
The government can place the burden of proof with regard to affirmative defenses on
_________________________________
o Affirmative defenses can include insanity, self-defense, entrapment, or mistake.
CHAPTER 8: RESPONSIBILITIES OF JUDGES, PROSECUTORS, AND DEFENSE COUNSEL
A. Judges
• The Due Process Clause requires that judges possess neither actual nor
________________________ bias.
• Actual bias consists of interests that would impair the judge’s ____________________________
Example 43: A judge was paid for issuing search warrants, but not when he
failed to issue a search warrant. The Supreme Court held that this was actual
bias toward issuing warrants.
Example 44: A judge had been a district attorney in the jurisdiction when the
death penalty was imposed and had approved the death sentence. Later when
the case was being appealed, the judge had become a justice on the court
deciding the appeal. It violated Due Process for the justice to sit on the case
because it might hinder his impartiality.
B. Prosecutors
1. Four Prosecutorial Duties
a. Brady doctrine—Prosecutors must turn over all material
_____________________________ evidence to the defense; includes two types of
evidence:
1) Evidence that tends to show that the defendant is ____________________________ of
the crimes charged
Example 45: Two witnesses to a bank robbery described the suspect as a
white, middle-aged, Jewish woman wearing a double strand of pearls, a red
shirt, and a black suit. However, several other witnesses described the robber
as a six-foot-five Samoan male wearing flip-flops and a sarong. The prosecutor
is obligated to turn over all of this information to the defense, as it suggests
that the suspect described by the first two witnesses may not have committed
the crime.
MBE Criminal Procedure | © 2021 Themis Bar Review, LLC | 23
2) Evidence that would enable the defense to ________________________ the credibility
of prosecution witnesses
Example 46: The prosecutor must disclose if one of the government’s
witnesses is testifying because the prosecutor promised to drop charges against
the witness.
Example 47: If one of the witnesses in the bank robbery example above first
described the robber as a tall Samoan male but later said it was a short white
woman, this must be disclosed to the defense. This allows defense counsel to
impeach that witness by questioning his credibility.
______________________ evidence—disclosure could change the outcome of the case
Brady material includes inconclusive lab reports, witness descriptions that do not match
the defendant, cooperation agreements with witnesses, etc.
• Includes evidence within the control of the government (including the police)
If the defendant pleads guilty after negotiations, the prosecution is not required to
share the Brady information
• Many states and some D.A.s offices have an open file policy allowing the defense to
see the information.
b. A prosecutor may not knowingly present ________________________ testimony.
c. A prosecutor may not contact (or direct others to contact) a defendant outside the presence
of his ________________________ (i.e., cannot violate the defendant’s Sixth Amendment
right to counsel).
d. A prosecutor may not comment on a defendant’s _____________________ to testify at trial
or make unfair remarks about the defendant to the jury (i.e., cannot violate the defendant’s
Fifth Amendment right to remain silent).
A prosecutor _________________ comment on a defendant’s silence before his
Miranda rights attached.
2. Prosecutorial Misconduct
o Prosecutorial misconduct that has a reasonable possibility of affecting the verdict may
require a ________________________ or reversal of a conviction.
C. Defense Counsel
• The Supreme Court has held that the Sixth Amendment not only guarantees defendants the
right to the assistance of counsel, it also guarantees them _______________________________
assistance of counsel at all critical stages of prosecution.
24 | © 2021 Themis Bar Review, LLC | MBE Criminal Procedure
1. Conflicts of Interest
o Joint representation can lead to a conflict of interest.
Example 48: Co-defendants represented at the same trial by the same lawyer
can create a conflict of interest. For instance, one defendant may want to plead
guilty while the other wants to proceed to trial.
o If there is an actual conflict, the judge must ___________ the defendants that joint
representation is a risk and give them the opportunity to get separate counsel.
If they choose not to get separate counsel, the judge must get an affirmative waiver in
which the defendants acknowledge that there is a conflict and that they would prefer to
go forward with joint representation.
o If a conflict of interest actually affects counsel’s behavior, there is a
________________________________ of prejudice. The defendant is not required to show
actual innocence in order to obtain a new trial.
Example 49: Harry and Sally are represented by the same lawyer at trial.
Because he represents them both, the lawyer decides not to cross-examine a
particular witness because the testimony could be damaging to Sally. Harry
need not show that the cross-examination by itself would have changed the
outcome. He only needs to show an actual effect on the lawyer’s behavior.
2. Effective Assistance
o The Strickland test—assesses whether a defendant was denied effective assistance:
Performance: Did defense counsel’s performance fall below the wide range of
________________________________ conduct that lawyers might engage in?
Example 50: The defendant shot the victim in the buttocks and was charged
with assault with intent to kill and attempted murder. The defendant’s lawyer
told him that he would be acquitted if he went to trial because the elements of
the crime of attempted murder means you have to intend the victim’s death; by
shooting someone in the buttocks you can’t be intending to kill them. Here, the
lawyer got the law totally wrong. Shooting at someone is enough to show
intent to kill.
Example 51: Sleeping Lawyer: The decision of a junior lawyer not to wake a
senior lawyer was found to be a tactical decision designed to get sympathy for
the defendant.
Prejudice: There is a _______________________________ probability that, had counsel
performed effectively, the result would have been different.
Example 52: In this jurisdiction, suppression motions must be brought no later
than thirty days before trial. The defendant’s lawyer fails to bring the motion in
MBE Criminal Procedure | © 2021 Themis Bar Review, LLC | 25
time, filing it three days before trial. The judge denies the motion. There is
clearly a failure of performance. But if the evidence had been seized legally, the
lawyer’s failure to file a timely motion would not have resulted in a different
outcome. This would not be ineffective assistance because the defendant was
not prejudiced.
• Cases that go to trial: Defendant must show that there was a reasonable probability
that he would not have been __________________________ if the lawyer had done
a proper job
• Guilty pleas: Defendant must show that he would not have pleaded guilty if his
lawyer had not given him bad advice or performed ineffectively
o If a defendant is denied effective assistance of counsel, his conviction must be reversed
because the defendant has already shown that he was prejudiced
3. Choice of Counsel
o Defendants who can afford retained counsel are entitled to the counsel of their choice as
long as the lawyer is:
Properly ________________________ in the jurisdiction (including pro hac vice rules);
Available for ________________________; and
No conflict or other reason to disqualify the lawyer.
o A defendant who is denied the retained counsel of his choice is entitled to have his
conviction ________________________.
o Indigent defendants: ___________________________________ to appointment of the
lawyer of their choice.
As long as they receive _________________________ assistance, they have received all
the Constitution guarantees them.
4. Proceeding Pro Se
o Defendants are entitled to ________________________ the right to counsel and to
represent themselves as long as they do it knowingly and voluntarily.
o The competence standard for waiving counsel: are they competent enough to understand
what they are doing.
o A defendant who proceeds pro se does not have a constitutional right to a “back-up”
lawyer.
26 | © 2021 Themis Bar Review, LLC | MBE Criminal Procedure
CHAPTER 9: SENTENCING AND POST-TRIAL PROCEDURES
• There are three primary constitutional provisions that regulate sentencing:
o The Cruel and Unusual Punishments Clause of the Eighth Amendment
o The Double Jeopardy Clause of the Fifth Amendment
o The Apprendi line of cases under the Sixth Amendment
A. The Cruel and Unusual Punishment Clause
1. Length of Prison Sentences
o The Supreme Court has given the government free rein to authorize virtually any length
sentence for virtually ________________________
Example 53: “Three-strike” laws—Life sentences without parole for recidivists
are constitutional, even if the offense that results in the life sentence is a minor
crime.
o Exception: LWOP for crimes committed while a juvenile are __________________________.
Editorial Note 2: A sentence of LWOP for non-homicide crimes committed
while a defendant was a juvenile is unconstitutional. However, a sentence
of LWOP for a homicide committed while a defendant was a juvenile may
be constitutional, provided that the sentence is not mandatory.
Exam Tip 4: This is very unlikely to be tested because the details involved are
too case-specific.
2. Capital Punishment
o The death penalty can be imposed in cases only when the victim ______________________.
It is constitutionally disproportionate to apply the death penalty in non-homicide cases.
o The death penalty cannot be imposed on:
Defendants who were under the age of _____________ when they committed the crime
Defendants who suffer from cognitive impairment
Defendants who are ________________________ at the time of execution
o The state must provide a variety of special safeguards before executing a defendant,
including a bifurcated trial process, the opportunity to present mitigating evidence, and a
process that sufficiently narrows the class of death-sentence eligible offenses.
Exam Tip 5: The states’ death penalty procedures are sufficiently distinct from
one another that it seems unlikely that the MBE will test on those procedures
themselves.
3. Other Types of Sentences or Punishments
o The Eighth Amendment also prohibits the imposition of cruel or unusual/degrading
punishments.
MBE Criminal Procedure | © 2021 Themis Bar Review, LLC | 27
o Courts have extended this protection to conditions of confinement (e.g., overcrowding).
o You must have been convicted of a ________________ for the Eighth Amendment to apply.
Example 54: Torturing a suspect to get the suspect to confess violates the
Fourth and Fifth Amendments, but it does not violate the Cruel and Unusual
Punishment Clause.
B. The Double Jeopardy Clause
• Provides three separate protections:
o Protection against prosecution for the same offense after ________________________
o Protection against prosecution for the same offense after ____________________________
o Protection against __________________ prosecutions or punishments for the same offense
1. Defining the “Same Offense”
Example 55: You are prosecuted for and acquitted of a homicide. If the
government finds more or new evidence, you cannot be prosecuted again.
Example 56: You are prosecuted and convicted of larceny and sentenced to
three years in jail. The prosecutor cannot prosecute you again in an attempt to
get a longer sentence.
o The Blockburger test: Ask whether each statutory provision requires proof of an element
that the other does not.
Example 57: Offense #1 = A + B and Offense #2 = A + C (These are separate
offenses and you can be prosecuted and punished for both.)
Larceny = (taking the property of another) + (intent to permanently deprive)
Conspiracy to commit larceny = (agreement to take property)
Example 58: Offense #1 = A + B and Offense #2 = A + B + C
These are not separate offenses; Offense #1 is a ________________________
offense.
Larceny = (taking the property of another) + (intent to permanently deprive)
Robbery = (taking the property of another) + (intent to permanently deprive) +
(use or threat of force)
If you are prosecuted for and convicted of larceny, you cannot be indicted and
prosecuted for robbery in the same episode.
o Two warnings about the same offense test:
Offenses with different __________________ are separate offenses for double jeopardy
purposes.
28 | © 2021 Themis Bar Review, LLC | MBE Criminal Procedure
Example 59: Killing two victims with one shot can be prosecuted as two
separate crimes.
Separate Sovereigns Rule: If two different sovereigns have jurisdiction over the crime
committed (e.g., a state and the U.S. or two different states), they can each try the
defendant separately. The Double Jeopardy Clause does not bar a defendant from
being tried, convicted, and punished in both jurisdictions.
Charged v. punished: A defendant can be charged and tried for an offense and a lesser-
included offense at the same trial, but the defendant can only be __________________
for one offense.
2. The Attachment and End of Jeopardy
o Jeopardy attaches when the ___________________ is sworn in or, in a bench trial, when the
_________________________________________ is sworn in.
Before the trial begins, the prosecutor can add, drop, or change the charges against a
defendant without Double Jeopardy problems.
o Acquittal: If the defendant is acquitted, it is the ___________ of the case and the defendant
cannot be ________________________ by the same jurisdiction for the same offense.
The prosecution cannot ________________________ from an acquittal.
o Conviction: If the defendant is convicted and he either does not appeal or his conviction is
affirmed, that is the end of jeopardy and he cannot be retried by the same jurisdiction for
the same offense.
If the jury convicts the defendant, and he appeals and gets the conviction reversed, he
can be retried unless the reversal was based on a finding of _______________________
evidence.
o Mistrial—Two kinds of mistrials:
Manifest necessity: Defendant _______________ be retried
Example 60: The jury is deadlocked or defense counsel engages in misconduct
No manifest necessity: Defendant ________________ be retried by that jurisdiction
C. The Apprendi Doctrine (Sixth Amendment)
• The Sixth Amendment right to a jury trial prohibits judges from ___________________________
criminal sentences beyond the statutory maximums based on facts other than those decided by
the jury beyond a reasonable doubt.
Example 61: Normally the sentence for a particular crime was five years, but a
judge was entitled to raise the sentence to more than that if the judge
determined that it was a hate crime. The Supreme Court has held that it
violates the Sixth Amendment because all of the facts that are necessary to
MBE Criminal Procedure | © 2021 Themis Bar Review, LLC | 29
authorize a particular sentence must be found by a jury, and the jury must find
those beyond a reasonable doubt.
• Many statutes give the judge wide discretion to sentence the defendant.
Example 62: A statute states that a defendant convicted of robbery can be
sentenced between 5 and 10 years’ imprisonment. The judge has discretion
within this range.
Example 63: A statute states that the maximum sentence for robbery is 8
years, but if the victim was unusually vulnerable, the sentence can be doubled.
A jury would have to find beyond a reasonable doubt that the victim was
unusually vulnerable in order to enhance the sentence.
• Exception: Sentence enhancement based on prior ________________________ convictions
need not be found by a jury.
BEST OF LUCK!
[END OF HANDOUT]
30 | © 2021 Themis Bar Review, LLC | MBE Criminal Procedure
Download
Save PDF to desktop
Email
Email completed PDF
Send for Signing
Email for others to sign
Print
Print document
Choose a Field
Click on a field and
select the person that should complete it
Want to add a signature?
You can add a signature field
and assign it to someone else
to sign
Choose a Field
Click on a field and
select the person that should complete it

CRIMINAL PROCEDURE PROFESSOR PAMELA S. KARLAN (City of Oakland)

This document is locked as it has been sent for signing.

You have successfully completed this document.

Other parties need to complete fields in the document. You will recieve an email notification when the document has been completed by all parties.

This document has been signed by all parties.

Completed 12 June 2022

Message

View Audit Log
Print With Audit Log
Duplicate Document