Crim Pro Arrest: - Criminal process begins when an act constituting a crime becomes known to the police - Complaint

: 1) Sets forth the facts constituting the offense charged 2) Shows there is probable cause to believe that D committed the offense - Officer must give the neutral and detached magistrate reasonably reliable facts to determine whether there is PC to issue the warrant - Prosecutors are not neutral and detached - Criminal Rule 3: Written statement of the essential facts made under oath before the magistrate - Criminal Rule 4(b)(1):arrest warrant is signed by the magistrate before whom the complaint is made - Unexecuted warrants cannot be held for an unreasonable amount of time - An arrest made in good-faith reliance on an ordinance later declared is valid and evidence seized in a search incident to the arrest should not be suppressed Arrest Without a Warrant: - Police officer can arrest someone without a warrant if they have PC, even if the crime was not committed in the officer's presence unless the crime was a misdemeanor committed outside the officer's presence, which requires a warrant - May make warrantless arrests even if they have time to obtain a warrant - Probable Cause: Exists where the facts and circumstances within the arresting officers' knowledge of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed - Information only need to lead police to believe a crime has been committed: it does not mean that D is guilty -Factual determinations by police only need to be reasonable - Officers must have reasonable grounds for making arrest - Test: Ordinary, prudent, and cautious officer - Hearsay can establish PC - Officers may use a citizen's eyewitness account or a victim's statement for PC - Informants must be credible and reliable - Presumption of reliability for information from fellow officers - If acting reasonably and with good faith, may arrest the wrong person - Wiretapping needs a wiretapping warrant - Traffic Stop: permissible if a reasonable person in the officers position could have stopped the car for a violation - Search Incident to an Arrest: Search upon lawful arrest does not require a search warrant. If the arrest is lawful, the search incident to that arrest is lawful and evidence found during the search is lawfully obtained. - Search must be substantially contemporaneous with the arrest and confined the immediate vicinity of the arrest - Once D is arrested and in custody, a search made at another place without a warrant is not incident to the arrest - Exigent Circumstances: not required for a warrantless arrest and still require PC

a warrant is required for the police to enter a home.Requirement of a Warrant . they must: 1) Knock 2) Announce their identity 3) Announce their purpose 4) If there is no response.Show of Authority: Reasonable person would believe that he was being ordered to restrict his movement and was without freedom to leave .Right to Enter a Dwelling: Absent exigent circumstances. they must wait a reasonable amount of time before it is lawful to make a forced entry . .Look at the totality of the circumstances .Police only need to wait long enough for someone to respond .Search and seizures inside a home without a warrant are presumptively unreasonable -Rarely will exigent circumstances justify warrantless entry into a house for a minor offense .Invalid Warrant: If an arrest is made based on an invalid warrant. the 4th Amendment requires a search warrant to enter the house of a 3rd person in order to enter to arrest a person for whom the police have an arrest warrant .Seizure: Application of physical force to restrain movement or submission to the assertion of authority .If police have a warrant to search a house.Hot pursuit allows entry into a house without a warrant .No immediate threat= no justification for deadly force .3rd Person's House: Absent exigent circumstances or consent.Arrest and the Manner of Arrest: .May be situations where unannounced entries are reasonable . the arrest is lawful as an arrest without a warrant if there was probable cause to arrest .Unlawful arrest does not void subsequent conviction -Evidence Obtained as The Result of an Unlawful Arrest: 1) Wong Sun: Evidence which is fruit of an unlawful arrest is inadmissible at trial if D's constitutional rights have been violated (all kinds of evidence) 2) Determine whether the evidence is tainted by the unlawful arrest 1) Was the evidence the product of a clear act of free will on D's part 2) Was the evidence the product of police exploitation of the illegality 3) Independent Source Test: Was the evidence obtained by a means sufficiently independent of the unlawful arrest (purged of the primary taint) 4) Attenuation Test: D's free will 5) Inevitable Discovery Doctrine: Would police action have inevitably discovered the evidence (ongoing investigation would have lead to discovery) .Would a reasonable person feel free to decline the officer's requests or otherwise terminate the encounter? .An arrest warrant founded on PC implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is there .

Officers are required to reasonable suspicion based on specific.Inevitable Discovery: Prosecution must demonstrate a reasonable probability that the evidence would have been discovered in the absence of misconduct and the prosecution was actively pursuing a substantial alternate line of investigation at the time of the violation . in the course of investigating this behavior he identifies himself as a policemen and makes reasonable inquiries.Must balance state interest against intrusion upon stopped individuals .Police officer need not personally observe conduct to perform a Terry stop.Search cannot go beyond what is necessary to determine if suspect is armed .-4th Amendment provides the right of people to be secure in their persons. houses.Protects people. objective and articulable facts that the individual is involved in criminal activity. and effects against unreasonable searches and seizures. Ohio: A police officer who observes unusual conduct with leads him to reasonably conclude in light of his experience that criminal activity is happening and the suspects may be armed and dangerous.Applies even if the conduct falls short of a technical arrest (unreasonableness is key) Stop and Frisk .Purpose of the search is to allow pursuit of the investigation without fear of violence .Roadblocks . informants and anonymous tips are OK unless it lacks indicia of reliability . he is entitled for protection to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which may be used to assault him . and where nothing in the initial stages of the encounters serves to dispel his fear for his own or others safety.Terry v.Automobiles may be search for weapons after the drive steps out . not places .Cannot have roadblocks that randomly stop cars Search -Exclusionary Rule: Evidence obtained in violation of the 4th cannot be used in a criminal proceeding against the victim of the illegal search and seizure . but not a defense witness .Good faith on part of the officer is not enough . Does not require PC . .May order the driver and passengers out of the car .Luggage can be detained for dogs if there is reasonable suspicion of drugs .Unlawfully seized evidence may be admissible for impeachment of D.Illegally seized evidence cannot be used to establish PC .Good Faith Exception: Exclusionary rule does not bar the prosecution from using evidence obtained by officers acting in reasonable reliance on a magistrate search warrant that ultimately lacked PC . papers.Sobriety and illegal alien checkpoints are OK .

Search Warrant: Totality of the circumstances. but the magistrate must have a substantial basis for concluding that PC existed. subsequent searches of that item or OK as long chain of custody is present . officers executing a valid warrant to search for contraband have authority to detain the occupants while a proper search is concluded . Rests on mutual use of property by persons having joint access or control. Must follow a standard procedure and have a departmental policy -Hot Pursuit: Exigent circumstances. there can be post-arrest searches of D's possession that were subject to search at the time and place of the arrest.Plain view alone is never enough to justify the warrantless seizure of evidence .Must be voluntarily give and not from coercion or duress (by totality of circumstances) .Some Jx allow officers to search without physically having the warrant on them .Need warrant to search rooms other than where D was .Automobile searches extend to the entire passenger compartment including all containers within it . Can only search a movable container if it is the feeling target -Inventory Searches: Once D is lawfully arrested and in custody.Warrants to search the premises do not allow a search of the persons present on the premises. Any search beyond this area requires a warrant .Can search a person incident to a traffic stop arrest .An employer does not have authority to search a desk assigned for exclusive employee use .Hotel clerks cannot be the basis of consent to search a guests room .Consent of Another: Valid with common authority against absent.The fact that the possessor of seizable material is innocent is immaterial to the issuance of a warrant -4th authorizes the issuance only of search warrants describing the place to be searched .Cannot warrantless search locked box in car .Prosecution does not need to prove D knew he had right to refuse .Federal courts allow for a telephone warrant . non-consenting persons with whom authority is shared.Once an item in an individual's possession has been lawfully seized and searched. Exigent circumstances unnecessary. Reasonable to assume co-habitants might permit common area to searched . Does not need PC or reasonable suspicion -Fleeing Target of a Search: If there is PC believing a vehicle is carrying evidence subject to seizure.Plain View Doctrine: police may seize evidence in plain view without a warrant 1) Officer must have had a right to be there 2) Item must be something seizable . .Discovery of evidence in plain view must be inadvertent -Without a Warrant: During an arrest.Warrantless search based on PC is the same scope as a warranted search with PC -Protective Sweep: A quick and limited search of the premises incident to an arrest done for protection. . the police may search and seize evidence without a warrant.Cannot search personal property not associated with person or movable containers . The 4th does not require the police to delay an investigation if it would gravely endanger lives. there can be a search of D's person and the area in his immediate control.-Consent: Lawful and do not require a warrant or PC . Scope is as broad as permissible necessary to prevent danger of violence or escape.

No 5th Amendment violation for being forced to appear in a lineup .Grand Jury: broad investigative powers to determine whether a crime has been committed and who committed it.5th Amendment may be invoked by a witness who possess a real and substantial fear of prosecution . Ability to claim 4 rights needs a legitimate expectation of privacy in the invaded place.Factors that determine whether there is a reasonable expectation: Right to exclude others.Photograph Identification: Set aside only if the ID procedure was impermissible suggestive and would give rise to irreparable misidentification .Bodily intrusion: State may extract blood from a person suspected of drunk driving without violating the 4th.Per Se exclusionary rule for lineup that violates the 6th Amendment . and counsel present absent intelligent waiver . must be a reasonable method for withdrawal -Lineups: . does need to meet reasonableness standard .Eavesdropping: naked eye eavesdropping is ok. balance the risk of procedure to defendant's life and the intrusion upon their dignity and bodily integrity .Informers: Statements made to informants are not protected by the 4th .There is a 6th Amendment right for counsel to be present at the lineup . but not against compulsion to supply real physical evidence such as fingerprints. gestures.Due Process Clause does not require a hearing outside the presence of the jury on the admissibility of identification evidence that D claims was obtained improperly -Pre-Indictment Lineup: Not critical stage of the prosecution D gets less protection than at post. steps taken to protect privacy interest. often may be a trespass but evidence will be upheld Examination and Identification: 5th Amendment bars against compelling communications or testimony.-Seizure: -Standing: 4th rights are personal rights which may be enforced only by the individual.Undercover Officers: Authorized to enter a dwelling used for illegal business. Undercover agents can record .Overnight guests have expectation of privacy . similar to plain view.Abandoned Property: No expectation of privacy Informers. free access to the area. writing samples. .Blood withdrawal is not compulsion. Eavesdropping. measurements. but not authorized for a general search for incriminating evidence .Must argue Wong Son's independent source test by clear and convincing evidence to overcome a tainted lineup . photographs. or to appear in court . Counsel attaches only at or after judicial proceedings have begun -Post -Indictment Lineup: Critical stage requiring notice.Border Search: mere suspicion is enough .Reliability is the key in determining admissibility of a lineup was it "unnecessarily suggestive and conducive to irreparable mistaken identification" . Wiretapping: .Wiretapping: Lack of physical intrusion does not justify using electronic devices. possessory interest in the seized item -Outer Boundaries: .

Not a shield from perjury .Check for intervening events that break connection b/t the two .Illegal Arrest/Seizure: -If D is arrested without PC.Prior Inconsistent Statements: May be used to impeach credibility regardless of Miranda warnings unless coerced of involuntary. but in violation of Miranda can form the basis for PC for arrest .Does not apply to cross examination that inquires into prior inconsistent statements . unless prosecution shows no causal connection b/t seizure and confession .Standard for prosecution to prove waiver of right to counsel is preponderance of the evidence .Suspect Unaware of Talking to Police: not required .Good Faith Exception: Voluntary statements obtained by police in good faith. police cannot interrogate D -D's needs to knowledgeable of his rights and his waiver must be intelligent .Applies whenever a person in custody is subjected to either express questioning or its functional equivalent .Events occurring outside D's presence and unknown to him to not affect capacity to comprehend and knowingly relinquish a constitutional right . can't use D's confession if Miranda warning was given.Grand Jury: Miranda unnecessary to testify before grand jury.Miranda applies to any custodial interrogation regardless of offense . they're a due process violation .Custody depends on the objective and circumstances of the investigation .Have the police performed the functional equivalent of interrogation? .Police only held accountable for words or actions they should have known were reasonably likely to elicit and incriminating response .Miranda: prior to questioning the accused must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honored .Use of pre-arrest silence for impeachment does not violate Due Process .Police cannot deliberately elicit incriminating statements .Admission by Silence: 1) After arrest and after Miranda: cannot use evidence of silence 2) After arrest and before Miranda: may be able to use silence 3) Before arrest and before Miranda: may use evidence of silence -Waiver: Questioning of D who has requested counsel may not be resumed unless: 1) D initiates further conversation with police 2) D in fact unambiguously waives right to counsel .Does not apply to a Terry stop or traffic unless the stop is prolonged and person is treated as if in custody . 5th can be claimed .Miranda does not require express/in writing waiver during interrogation .Public Safety Exception: public safety needs may outweigh need for Miranda warning .Questioning: -Absent a clear waiver of 6th Amendment right to counsel.Evidence of D's Silence: D's silence following arrest after receiving Miranda may not be used for impeachment.D must demonstrate that the police/informant took some action beyond merely listening that was designed deliberately to elicit incriminating remarks -Custodial Interrogation: Questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action .

Leaves both parties in the same position as if the 5th had been claimed Preliminary Examination: . Bail bondsman pays (10-15%).Similar to an indictment but filed by the prosecutor and no grand jury .Preliminary examination is a critical stage with a 6th amendment right to counsel .Excessive bail: bail higher than what is needed to assure D appears at trial. .Not a preliminary hearing . Can still be prosecuted.Prosecutor's Information: a formal charge against the D . Just because D cannot pay. not entitled to free counsel unless judge imposes imprisonment for a crime (Argersinger) .Not a finding of PC by a neutral and detached magistrate .If D is detained there must be a prompt judicial determination of PC by magistrate as per the 4th amendment. bondsman pays full amount.Weekends are not an emergency or extraordinary circumstance .D can appeal denial of bail or excessive bail if neither are successful= writ of habeas corpus . no person may be imprisoned for any offense unless represented by counsel Bail: .Absent a knowing/intelligent waiver.Initial Appearance: acknowledgement by court that D is in custody and afforded all his rights .No Bail . .No constitutional right to bail.Types of Pre Trial Release: all types may be appealed as being excessive .Release on recognizance: Judge or jail personnel determines that D may be released pending trial on assumption he will return .Immunity grant does not have to be grant against prosecution 3) Use and Derivative Use Immunity: Same scope as 5th.Prerequisite to detention awaiting trial .48 hours counts as promptness (Gerstein) .Bail: Set at the initial appearance or preliminary hearing. .if D is indigent..In some jurisdiction if there is a PC finding. but not adversary hearing is required (Gerstein) . there may not be a preliminary hearing .If no PC determination within 48 hours.Informs D why is in there . must not be excessive . If D flees.8th Amendment prohibition against excessive/no bail applies to states . the burden of proving unreasonable delay shifts to the government to show an emergency or extraordinary circumstance .Immunity from Prosecution: 1) Direct Use Immunity: Not sufficient because it is not coextensive with the 5th Amendment right against self incrimination 2) Transactional Immunity: Accords full immunity from prosecution for the offense to which the compelled testimony related. Broader protection than the 5th.Not usually a preliminary hearing to determine if there was PC . but the prosecution has an affirmative duty to prove that the evidence was derived from a legitimate source wholly independent of the compelled testimony. does not mean bail is excessive .

There must be an affirmative showing that D's plea was intelligent and voluntary .Accused has no right to testify. and understandably consent to the imposition of a prison sentence while maintaining his innocence . but if based on lack of Jx or a failure to charge. but may be allowed to .Terms of Pretrial Release: Can be changed by the court at any time. the court must address the D personally in open court and inform D of and determine if D understands the following: 1) The nature of the charge to which the plea is offered 2) Mandatory minimum and maximum possible penalties 3) That D has the right to counsel 4) That D has the right to plead not guilty 5) That D has the right to be tried by a jury 6) That D has the right confront and cross-examine adverse witnesses 7) That D has the right against self incrimination 8) If a plea of guilty or nolo contendere is accepted there will be no trial 9) If D testifies his statements may be used against him for perjury .. nolo contendere .Court needs to ensure there is a factual basis for the plea . trial judge can revoke bail once trial begins.Pursuant to Rule 11(e).Three types of please: Not guilty.Accused is entitled to a grand jury made up of a cross-section of the community .Grand Jury: Indictment may be found only upon concurrence of 12 or more jurors.An individual accused of a crime may voluntarily.Release can occur at Different Times: 1) D released during pretrial: not a requirement that D be free during trial.Miranda warnings need not be given. knowingly.Victim of a crime is not part of the criminal suit and prosecutor's owe them no duty .Capital offenses under federal law must be based on indictment (state cases need not be) . deliberating in secrecy and may act independently of the prosecutor .Rights of Accused at Grand Jury Proceeding: . Pleas and Plea Bargaining .Discriminatory Prosecution: 1) Others similarly situated are not prosecuted 2) Selection of D was purposeful 3) Selection was made in bad faith . the person appearing in court provides personal Jx .Has 5th Amendment right against self-incrimination. the objection may be made at any time during the proceeding . courts have little ability to interfere .Before accepting a plea of guilty or nolo contendere.Once a charge is filed. guilty. though the judge can let D be free during trial 2) D released pending appeal: D is not required to be free pending an appeal . but no 6th right to counsel .Indictment gives subject matter Jx.Prosecutor has wide discretion as to prosecution.Objections to the Grand Jury: Must be made before trial. prosecutor's lose some discretion to drop charges . Prosecutor can petition court to revoke bail or change D's terms and conditions Decision to Prosecute: .Prosecutor can choose to vigorously prosecute a high profile person to set an example Indictment: . the court can reject a plea agreement between D and the prosecutor .

statement of facts to sustain indictment does not prohibit granting a bill of particulars .D has a right to know names and address of those persons who directly took part in the illegal act and whether they were government agents .A guilty plea waives trial and doesn't contest any evidence the government offers against D . such defendants may be charged in one or more counts together or separately and all the defendants need not be charged in each count .Bill of Particulars: Given to D because an indictment or information may not give sufficient detail to the D in preparation for his defense ..Withdrawal of a guilty plea by unrepresented D should be freely allowed before sentencing .When granted.FRCP 7: The indictment and the Information .D must know enough to be able to produce whatever evidence he may have in answer and that the charge must become clear enough at the trial to make the judgment available to him on a future plea of former jeopardy .Helps prevent against double jeopardy .The court will permit an accused to substitute a plea of not guilty and have a trial if for any reason the granting of the privilege seems fair and just Proceedings Before Trial .The extent of the particulars granted lies in the discretion of the trial court .Two part standard to determine incompetence of counsel regarding pleas: 1) D shows representation fell below standard of competence 2) D shows that attorney's performance was prejudicial (D would not have plead guilty) .Cannot be based on a finding that offenses were of the same or similar character .A variance is only grounds for dismissal when D was prejudiced . the government is limited only to particulars specified .A non-testifying co-D's confession inculpating D is inadmissible at trial against D when there has been joinder of D's .Co-D's confession can be admitted if it is redacted to eliminate not only the D's name but any reference to D's existence .Joinder of Offenses and Defendants 1) 8(a) Joinder of Offenses: Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged are of the same or similar character or are based on the same act or transaction or on two or more acts or transaction connected or constituting parts of a common scheme or plan 2) 8(b) Joinder of Defendants: Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction constituting an offense or offenses. Defenses and Objections .FRCP 12: Pleading and motions before trial.Forecloses collateral attacks on convictions following guilty plea unless the attack is based on a constitutional claim that would bar prosecution completely .

2: Notice for insanity defense .FRCP 12. must show actual prejudice . is a non-capital case. Failure to assert the right will make it difficult for D to prove denial.Balancing Test to Determine if D has been deprived of the right. failure to assert is not a waiver 4) Prejudice to D .If no D and counsel when judge communicates with jury can be grounds for reversal . trial.. admissibility is determined at trial . then consider other factors 2) Reason for delay 3) D's assertion of right: Entitled to strong evidentiary weight in determining whether the right has been deprived.Must be raised prior to trial. remove from courtroom .Once D is arrested the right to speedy trial comes into play (D must be accused) . unless unknown by D he could. or removed due to disruptive conduct .Discovery: . punishment is only fine or < year and D consent's to absence.Speedy Trial: -6th Amendment applicable to states through the 14th .Length of the delay is not enough. sentencing .Hearing on voluntariness can be held in front of jury (must be held) Trial -Presence of D: 6th=Right to be at every stage of trial .Rule 43 does not permit D to be tried in absentia due to fleeing . cite for contempt.D's only protection to a delay in bringing charges is the Statute of Limitations .Only remedy for denial of the right is dismissal of charged .Right can be reclaimed with good behavior . time of plea.Continued presence is not required if initially present then voluntarily absent after trial commenced.Does not violate 5th .Gives both sides equal access to witnesses .Motion to Suppress: .Dismissal requires: 1) Showing that the delay was intentionally brought about for the purpose of gaining a tactical advantage over the accused 2) That the delay caused actual. substantial prejudice to his defense .Required at arraignment.Not required if D is an organization.1: P can demand D give notice if offering up defense by alibi and P will produce info to be used to rebut the defense (reciprocal to D) .FRCP 17: court may direct materials to be produced at a time and place for D .18 USC 3432: Indictment and list of jurors and witnesses . consider: 1) Length of delay: must be a prejudicial delay first.D's privilege to confront witnesses may be lost by consent or misconduct .Judge may: bind and gag D.FRCP 16: covers disclosure of evidence by both P and D .Objections to illegal confessions made before trial by motion . when proceeding is only a conference or hearing of questions of law or a sentence correction .FRCP 12.

Serious Crimes: A right when imprisonment >6 months .D can force judge to give jury instruction not to weight D's silence . though) .If 12 then decision must be 9/12 .Multiple petty offenses do not create right to jury trial .Only given a right if he can demonstrate maximum authorized penalty for the petty offenses will be >6 months .Evidence must be viewed in light most favorable to P .Petty offenses: No right because imprisonment <6 months .Jenck's Act: disclosures of statements of P witnesses b/c D is entitled to inspect statements in order to impeach them .Court must determine counsel failed to meet strong presumption of competent representation -Pro Se: 1) Right to represent self 2) Knowingly and intelligently relinquish right to counsel 3) Cannot be forced to accept state-appointed PD (state can appoint standby counsel to help with the trial) -Motion of Judgment of Acquittal: judge determines whether a reasonable mind might fairly conclude guilt beyond a reasonable doubt .Defense Counsel: Right to effective counsel (reasonable competent attorney) .Jury Panel: No right to 12.No right to non-jury trial (may waive jury trial.Burden then shifts to government to explain .If D needs confidential informants to be disclosed.P does not need to tell D all aspects of LEO investigation .Suppression of favorable evidence violated DPC Brady: .-Trial by Jury .Prima Facie case for Discrimination: 1) Preemptory challenges used to exclude D's group 2) Presumption: Jury selection permits those who are of a mind to discriminate to do so 3) Facts and circumstances raise inference that challenges were used to exclude based on race .Confrontation: 6th gives D right to confront/examine witnesses .P needs to correct testimony he knows to be false -Witnesses: D's failure to testify .Out-of-court statements admissible as long as declarant can be crossed .Ineffective must show: 1) Counsel's performance was deficient (fell below standard) 2) Must show deficient performance prejudiced defense . must be at least 6 .If 6 then decision must be unanimous .Verdict sustained by substantial evidence = do not set aside . they must be (not tipsters) .Discovery: Prosecutor's duty to disclose .Omission must be significant enough to deny D a fair trial .Purposeful denial of race or gender in jury selection violated DPC .5th forbids comment by P on D's silence .

Sentencing: must satisfy requirements of DPC.Motion for a new trial is a condition for appeal and must list all errors or waive them . There is no bar to the imposition of a new sentence more severe than that originally imposed on the basis of events subsequent to the first trial .If sentence is imposed but execution is suspended and D is given probation a subsequent probation revocation hearing is not considered sentencing because sentence was imposed (no 6th counsel right) .Presentence Investigation Reports: no limit on the background info a judge may consider . jury must choose lesser charge .There can be imposition of a more severe sentence on retrial if sentencing is entrusted to the jury so long as the jury is not informed of the prior sentence .Allocution: D must be allowed to speak before sentence is imposed .If there is reasonable doubt on D's level of guilt.D may motion for a new trial .Will not be granted unless: the evidence 1) is in fact newly discovered since trial 2) could not have been discovered earlier 3) is not merely cumulative or impeaching 4) is material to the issues 5) is such that reliance will produce acquittal Sentence and Judgment .State may not charge D with a felony after charging with a misdemeanor and appealing . counsel is required..Inadequate instructions are P's burden of proof beyond a reasonable doubt (are never a harmless error) 2) Less included offenses: only necessarily included if the elements of the lesser offense are a subset of the elements of the charged offense (cannot be encompassed by greater charge) .Sentence Following Retrial: D whose conviction is set aside and retried and convicted must be given credit for the portion of sentence already served.Closing Argument: D has a right to make a closing argument .Probation Revocation: if D was given probation a subsequent revocation hearing is considered a sentencing hearing because sentence was never imposed (6th counsel attaches) .Failure to object an instruction = no ability raise issue on appeal (unless plain error) 1) Reasonable Doubt: DPC requires conviction on proof beyond a reasonable doubt on every fact necessary to constitute the crime .Reasonable juror is standard to determine whether to include lesser charge 3) Allen Charge: Jury can be instructed to consider other's opinions .Instructions: Court may instruct the jury before or after arguments are completed .Reasons for imposing a harsher sentence must appear in the record .Inconsistent Verdicts: different counts of a single indictment may have different verdicts New Trial . D must be present .

joinder of greater and lesser crimes is permissible -Necessary Facts Exception: when an element of the greater offense has not occurred at the time of prosecution for the lesser offense.Right to Counsel only on first appeal and only for major issues .Protects from: 1) 2nd prosecution for same offense after acquittal .Implied Acquittal: If D is convicted of a lesser included offense and sentenced.Did error influence the jury or verdict .Errors that seriously affect the trial Double Jeopardy .D can be tried a 2nd time for an offense when his prior conviction for that same offense has been set aside by his appeal -Collateral Estoppel: when an issue of ultimate fact has been determined by a valid final judgment.does not prohibit prosecution for a continuing criminal enterprise .Plain Error: if affecting substantial right may be noticed even if not brought to court's attention . it is implied that the jury acquitted D of the greater offense -requires that D be given credit for any time served when the original conviction is set aside and he is convicted and sentenced again .Bench trial: attaches when first witness is sworn .Harmless Error: any error which does not affect substantial rights is disregarded .Court must declare error harmless beyond a reasonable doubt .applies if there has been a judgment of acquittal after the jury has been discharged for failing to reach a verdict 2) 2nd prosecution for the same offense after conviction 3) multiple punishments for the same offense -Lesser Included Offenses: D cannot be prosecuted for an offense after having been tried and convicted of a lesser included offense . that issue cannot again be litigated in the future .Appeal -No constitutional right to appeal . court must examine the record of a prior proceeding taking into account the totality of circumstances and conclude whether a jury could have grounded the verdict on an issue other than the one D seeks to foreclose from consideration.Where previous judgment of acquittal was based on a general verdict.Pre-trial: does not attach . . D can be prosecuted for the greater offense after his prosecution for the lesser offense .Jury trial: jeopardy attaches when jury is impaneled and sworn .