The following is a checklist that may be useful in finding
issues in a record. The checklist does not include all possible issues
that may be raised, and should serve only as a general reference tool
to double check your review of the record.
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A. PRE-TRIAL GENERALLY
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1.
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Properly charged by information or complaint
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9.
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Valid counsel waiver
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2.
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Offense (elements) properly charged (and specific offense)
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10.
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Fitness for trial properly determined
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3.
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Charge properly amended
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11.
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Continuance problem
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4.
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Venue Proper
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12
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Discovery problem
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5.
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Double jeopardy-collateral estoppel
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13
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Joinder-Severance problem
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6.
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Delay in commencing prosecution
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14.
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Speedy trial problem
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7.
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Substitution of judge
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15.
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Jury selection problem
(a) Generally
(b) Exclusion on race or sex
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8.
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Change of place of trial
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16.
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Valid jury waiver
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B. SUPPRESSION PROBLEMS
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1.
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Search and Seizure
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(a)
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Standing problem
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(b)
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Warrant
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(1)
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Probable cause, facts furnished to judge, hearsay-reliability delay in obtaining
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(2)
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Particularly described place/person to be searched and items to be seized
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(3)
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Issued by neutral judge and comply with procedures
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(4)
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Improper execution of-time of, manner of entry, scope of search
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(c)
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Warrantless
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(1)
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Warrantless entry
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(2)
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Incident to arrest-probable cause for arrest, search prior to arrest, scope of search
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(3)
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Consent to search-valid consent authority of 3d party to consent, scope of search
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(4)
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Plain view-police saw from place they were lawfully viewing
advertent, immediately apparent that item was evidence of crime
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(5)
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Motor vehicles-improper stop, scope of search, probably cause
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(6)
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Inventory search-right to seize, need to open, scope too broad, crime related purpose
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(7)
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Stop and frisk-sufficient grounds
for stop, was it an arrest, scope of search too broad
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(8)
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Emergency search-time to obtain warrant, scope of search
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(9)
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Search by private party-acting as police agent
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(10)
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Administrative search
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(d)
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Eavesdropping
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(e)
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Fruit of poisoned tree problem
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(f)
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Proper suppression hearing, findings of fact, conclusions of law
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2.
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Confessions-Admissions
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(a)
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Miranda violation-in custody, interrogation, proper warnings, effective waiver
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(b)
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Interrogation after a request for counsel or to remain silent
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(c)
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Involuntary
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(d)
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Use of defendant's silence
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(e)
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Impeachment with inadmissible statements
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(f)
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Statements after illegal arrest
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(g)
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Plea negotiation statements
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(h)
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Use of co-defendant statements
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(I)
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Statements during mental exam
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(j)
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Proper suppression hearing
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3.
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Identification
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(a)
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Suggestive
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(b)
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Independent basis for
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(c)
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Right to counsel at
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(d)
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Photographic
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(e)
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Proper suppression hearing
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C. TRIAL
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1.
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Generally
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(a)
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Public trial
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(b)
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Defendant present (trial in absentia)
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(c)
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Physical restraints
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(d)
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Defendant in jail clothes
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(e)
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Interpreter problems
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(f)
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Joinder/severance
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2.
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Counsel
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(a)
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Right
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(b)
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Waiver of
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(c)
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Counsel fees
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(d)
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Ineffective assistance
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(e)
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Conflict of interest
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(f)
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Right to argue, object, make offer of proof
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3.
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Prosecutor
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(a)
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Misstating law or evidence
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(b)
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Make insinuations
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(c)
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Continuing with argument/question after objection sustained
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(d)
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Using false evidence
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(e)
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Comments on:
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(1)
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Defendant not testifying
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(2)
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Defendant's failure to call witnesses
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(3)
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Facts not in evidence (opinion)
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(4)
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Rulings of judge/exclusion of evidence
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(5)
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Race
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(6)
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Defense counsel
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(7)
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Victim's family/injuries
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(8)
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Misc. matters
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(9)
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Defendant
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4.
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Judge
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(a)
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Comments/insinuations
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(b)
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Opinion on evidence/defenses
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(c)
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Questioning witnesses
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(d)
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Hostility toward defense counsel
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(e)
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Substitution of
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(f)
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Private investigation by
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5.
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Witnesses
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(a)
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Obtaining and calling
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(b)
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Experts for indigents
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(c)
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Discovery of
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(d)
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Competency of
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(e)
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Cross-examination of
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(1)
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Impeachment
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(2)
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Bias
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(3)
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Immoral conduct
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(4)
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Drug use
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(5)
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Prior convictions
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(6)
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Pending charges
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(7)
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Insinuations
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6.
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Evidence
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(a)
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Right to present
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(b)
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Relevant/material
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(c)
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Objections/offers of proof
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(d)
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Limited purpose
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(e)
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Curative admissibility
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(f)
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Character/reputation
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(g)
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Courtroom demonstrations
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(h)
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Escape/flight/tampering
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(i)
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Hearsay
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(1)
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Admissions
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(2)
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Co-conspirator statements;
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(3)
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Consistent statements
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(4)
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Corroborative complaints
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(5)
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Dying declarations
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(6)
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Prior identification statements
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(7)
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Inconsistent statements
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(8)
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Penal interest, against
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(9)
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Physician, statements to
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(10)
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Testimony from prior proceedings
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(11)
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Spontaneous declarations
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(12)
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State of mind
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(13)
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'Completeness' doctrine
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(14)
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Hearsay statements of child
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(15)
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Business records
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(16)
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Past recollection recorded
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(j)
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Judicial notice
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(k)
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Opinion
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(1)
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Non-expert
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(2)
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Expert
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(l)
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Other crimes
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(1)
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Substance evidence
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(2)
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Impeachment
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(m)
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Photographs
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(n)
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Physical evidence-foundation, chain of custody
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(o)
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Privileged communications
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(p)
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Scientific evidenc
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(q)
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Writings
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(1)
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Best evidence rule
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(2)
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Business records
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(3)
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Refreshing recollection
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(4)
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Past recollection recorded
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7.
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Jury
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(a)
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Right to-Waiver of
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(b)
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Selection of
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(c)
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Impartial
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(d)
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Communications with
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(e)
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Questions from
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(f)
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Sequestration
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(g)
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Instructions to
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(h)
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Polling of
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(i)
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Impeachment of verdicts
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8.
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Sufficiency of evidence
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(a)
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Every element of offense problem
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(b)
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Proof conform to charge (variance)
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(c)
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Affirmative defense rebutted
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(d)
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Conviction based on
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(1)
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Circumstantial evidence
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(2)
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Presumptions
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(3)
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Conflicting, confusing testimony
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(4)
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Doubtful identification
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(5)
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Accomplice testimony
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(e)
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Inconsistent verdicts
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(f)
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Multiple verdicts on same acts
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(g)
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General verdicts
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D. SENTENCING
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1.
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Validity of statute/effective date
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2.
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Presentence report
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3.
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Hearing generally
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4.
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Sentencing Factors
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(a)
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Aggravating factors
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(b)
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Mitigating factors
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5.
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Reasons for imposing sentence
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6.
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Probation, parole, conditional discharge, supervision
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(a)
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Denial of
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(b)
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Conditions of
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(c)
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Revocation of
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(d)
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Resentencing
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7.
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Restitution, fines, court costs
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8.
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Drug abuse treatment
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9.
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Consecutive sentences
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10.
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Repeater, other enhancer
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11.
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Disparity in sentences
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12.
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Excessive sentences
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13.
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Sentence credit
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14.
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Modification by trial judge
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15.
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Resentencing
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16.
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Unauthorized sentence
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17.
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Delay in executing sentence
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E. GUILTY PLEAS
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1.
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Voluntary
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2.
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Proper admonishments
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3.
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Factual basis
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4.
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Counsel waiver
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5.
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Unfulfilled promises
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6.
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Motions to vacate pleas
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7.
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Plea bargaining questions
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Office of The State Public Defender