Grand jury: Screening and investigation functions Transactional immunity: Served a subpoena to appear before a grand jury you
cannot be prosecuted for your participation in that crime. Your lawyers are only advisory. Federal grand jury: Use Immunity –We will not use your testimony or anything that flows directly from it against you but if in the course of this investigation we find that you are involved in this crime we can still indict you (but not use your testimony against you) 23 impaneled/16 for quorum Indictment has no evidentiary value. It is a vehicle/answer charges at trial only. Boyd: Grand jury subpoena with no-appearance = admission to prosecutor's charges clause. Hale v. Hinkel: subpoena duces tecum: petitioner challenged the subpoena based on impact on 4th and 5th Amendment claims. 4th unsupported because of immunity grant. 5th violated because subpoena was too broad; needed to show materiality to documents. Can't bring a business to halt through a document request. Nixon: With respect to a trial subpoena: three showings by prosecution: material is relevant to charges/admissible/specificity. For the grand jury to investigate and gather evidence (not probable cause of police) mere suspicion opens investigation or no suspicion and to affirm that no illegality is occurring. The Nixon standard should not apply to the grand jury: courts can quash GJ subpoenas if they are unreasonable or oppressive. (Inconvenience is not the standard.)
Criminal Procedure I. Amendments that apply to the states • • • • II. 14th search and seizure 5th compelled self-incrimination and double jeopardy 6th speedy public trial by impartial jury, right to confront witnesses and right to counsel. 8th cruel and unusual punishment
Amendments that do not apply to the states • • 8th excessive bail 5th right to grand jury indictment.
The Exclusionary Rule: Evidence obtained in violation of a defendant's constitutional rights will not be admissible at trial. It discourages police from violating 4th 5th and 6th rights through deterrence. • Fruits of the poisonous tree doctrine excludes any evidence derived from illegally obtained evidence. Wong Sun v. U.S.: No probable 1
cause to arrest, forced entry, arrest and admission to the location of the evidence. The evidence is a result of the illegal entry: inadmissible. If there had been a significant passage of time and/or intervening acts between the illegal arrest and the admission, the taint of the illegal entry would be purged. • • • • Was the evidence obtained in violation of 4th/5th/6th? If not, the exclusionary rule does not apply. The exclusionary rule does not apply to impeachment evidence, sentencing or parole. Does the person have standing to object to the search i.e., did he have a legitimate expectation of privacy? Good-faith exception to the exclusionary rule: The police reasonably relied on a facially-valid warrant. U.S. v. Leon (restricts the rule) Arizona v. Evans. Derivative evidence exceptions: valid over-riding reasons to admit the evidence i. There is an independent source for it. This exception can preserve evidence police find during an illegal search if they apply for a warrant and then re-discover the evidence. Prosecutor only need show that the police would have applied for and received a warrant even if they had not first entered illegally. ii. It would have been discovered anyway. Bad faith by the police is irrelevant. iii. It is sufficiently removed from the illegal taint so that the taint is purged. Consider proximity in time between illegal police conduct and discovery of the derivative evidence, wrongful police intent, degree of relationship between conduct/discovery. When the evidence is the testimony of an uncoerced witness, courts are likely to consider the taint of the illegal search purged. • If the trial court erroneously admits illegally-obtained evidence, the conviction will be reversed only if the error was prejudicial. Chapman v. California
The exclusionary rule bars admission of an illegally obtained confession only against the one who made the confession. The statements are admissible against others. Brown v. Illinois: Police arrested defendant without cause and only to obtain more evidence, an interrogation took place soon afterwards where Miranda warning was administered and a confession resulted. Even though the confession was obtained after Miranda, the illegal arrest (without cause) renders it a fruit of the poisonous tree. Wrongful intent, no intervening acts, and proximity of illegal arrest to confession. New York v. Harris: Since there was probable cause to arrest, there was no unlawful police conduct despite the lack of an arrest warrant. Oregon v. Elstad: Valid arrest pursuant to a warrant but admission obtained without a Miranda warning. A second admission is obtained after a Miranda warning. It is admissible if knowingly and voluntarily made. The police do not need to inform the suspect that the first confession was invalid. If the first confession had been the product of deliberately coercive or improper tactics, the second might be excluded since the coercion would be seen as inducing the second confession. U.S. v. Crews: An in-court identification arising from an unlawful detention is admissible because the defendant's face is obviously visible to the witness and cannot be considered tainted. Evidence of the out-of-court identification resulting from the illegal detention would be inadmissible, both because it is tainted and witness is available to testify. U.S. v. Bacall: When police discover evidence of an entirely unrelated crime as the independent result of their unlawful conduct, the new evidence is not tainted as long as the police's intent did not extend to the additional evidence. (Kong). U.S. v. Ceccolini: Police leads derived from illegal conduct that lead to witnesses are generally purged of taint. Maryland v. Garrison: The extent to which an ambiguity (warrants must describe with particularity the place to be searched and the persons or things to be seized) will render a warrant invalid because it is overbroad. Officers must not be unreasonable in failing to realize the warrant is overbroad.
James v. Illinois: An illegally obtained confession may be used to impeach the defendant's testimony but not to impeach the testimony of his own witnesses. (Inhibits testimony due to threat of perjury charge).
SEARCH AND SEIZURE I. Was there a Fourth Amendment search? a. Who did the searching? b. Did the defendant have an actual and reasonable expectation of privacy? (Standing) Warrant? a. Legally obtained and valid? b. If no, did if fit an exception? Was the search valid with or without a warrant, and did it exceed its permissible scope? Is the proper person challenging the search? A search occurs when the police intrude on a defendant's expectation of privacy and that expectation is actual and reasonable. Does not require physical trespass. • • Oliver v. U.S.: Police observation of areas outside of the curtiledge does not constitute a 4th Amendment search. U.S. v. Dunn: Curtiledge factors o Proximity to residence o In an area enclosed around the residence o Uses of the area o Whether the resident has taken steps to prevent observation.
II. III. IV. V. VI.
Wiretaps are searches because they violate a reasonable expectation of privacy. A warrant is required for a wiretap. Katz v. U.S. (protection of phone booth conversations). • No warrant is necessary if one of the parties has consented or the speaker doesn't attempt to keep the conversation private. Plain view doctrine –police discovery of evidence with their own senses is not protected by the Fourth Amendment. • Is the entry and access to the evidence lawful? Does not authorize unlawful entry and seizure e.g., pot plant seen through a window. • Are the items contraband, on their face? They must have probable cause to suspect an item will be useful as evidence – cannot snatch up everything they see • No prior reason to believe items would be encountered. 4
b. Sight –Is the evidence in plain view? Flashlights, binoculars, aerial observations from public, navigable air space permitted. c. Sound –Sound amplification to listen to otherwise inaudible conversation form an adjacent room is a search. d. Smell: Drug-smelling dogs sniffing luggage does not constitute a search. • Oliver v. U.S. : One can have no reasonable expectation of privacy in a remote field. A police intrusion will not be a search even though it’s a physical trespass. If pot were growing within the curtiledge, it would be protected. • California v. Ciarolo: The fact that one intends to keep his property private does not preclude an officer's observation from a vantage point where he has a right to be and which renders the activity clearly visible. • U.S. v. Knotts: Beepers placed on cars are not 4th A. violations because a driver cannot reasonably expect to escape surveillance when he drives (the act itself is an advertisement). • U.S. v. Karo: A beeper installed in a package will violate the 4th A.. when the person carrying it enters a building where he has a reasonable expectation of privacy. • U.S. v. Miller: A person can have no reasonable expectation of privacy if he transfers property or information to a third person. • Walter v. U.S.: The fact that an item has left the defendant's control doesn't always mean that it loses privacy expectations. One has a reasonable expectation that the government will not read domestic mail. An intervening private party search does not negate it. Customs agents can open international mail without a warrant based on reasonable suspicion that it contains contraband. • California v. Greenwood: No reasonable expectation of privacy in curbside trash (or any abandoned property), but if the trash is on the property where only the trash collector is expected to retrieve it, the police need a warrant to search it. • Smith v. Maryland: Pen registers are not considered searches. The caller is giving the telephone company the number he is dialing. • U.S. v White: When a person places his trust in another, no matter how misplaced, and makes voluntary disclosures, he loses his expectation of privacy. • Maine v. Moulton: Statements recorded by wire wearers after the defendant has been charged is a 6th A. violation right to counsel at a critical stage.
Wiretap requirements: a. Probable cause to believe specific criminal activity has taken or is taking place and that a specific individual has committed it. b. Reason to believe that an interception will furnish evidence c. Normal investigative procedures have been tried and have failed or are likely to be dangerous. d. Probable cause to link the place of interception to the offense or individual under suspicion. The totality of the circumstances test determines the validity of an informant's information in finding probable cause. Illinois v. Gates. a. Evidence in other cases and his reliability. b. Status as a member of a reliable group. c. Clarity of detail, especially if he has personal knowledge of the site. d. Whether it includes a declaration against informant's own penal interests (I bought drugs from him). e. The information cannot be stale. Description of the item to be seized: a. Careful scrutiny: First Amendment articles b. Less careful scrutiny: Noncontraband items, e.g., stolen goods, the mere possession of which is a crime. c. Least careful: Contraband: Police are unlikely to mistake them for innocent items. The premises do not have to belong to the suspect in order for a search to be conducted. If probable cause exists, even as to the crime of another, a search is permissible (even if a subpoena will suffice) There is no probable cause to search others at the premises unless they too are arrested (incidental), there is p-cause to believe they are concealing the named items, or there is reason to fear they are armed (pat-down). Mere presence alone does not subject one to search. Ybarra v. Illinois. • Franks v. Delaware: In order to overturn a warrant based on a facially valid police affidavit, there must be a misstatement, inaccuracy or lie given intentionally or recklessly that is material.
XIV. Ten exceptions to the search warrant requirement: 1. Incident to lawful, custodial arrest. 2. Consent of person controlling the premises. 3. Plain view. 4. Automobile exception (need probable cause that vehicle contains evidence of crime and exigent circumstances making a warrant unfeasible e.g., the inherent mobility of the car).
5. 6. 7. 8.
Hot pursuit. Threatened destruction of evidence. Stop and frisk. Protective sweep of the premises incident to an arrest (valid only on reasonable belief that there may be someone on premises posing a danger). 9. Inventory search 10. Regulatory, administrative searches in the form of emergency inspections or of highly regulated industries. XIV. When the police execute a valid search without an accompanying search warrant, they may search only the area within the suspect's immediate control. Chimel v. California rule. This means the entire passenger compartment of the car but not the trunk. N.Y. v. Belton. Belongings of passengers may be searched even if PC exists only as to the driver, but the passengers themselves may not be searched. XV. Anything seized in a search incident to an unlawful arrest will be suppressed and inadmissible at trial. The arrest must be lawful! A search is not incidental to arrest if it is remote in time or place from the arrest. U.S. v. Chadwick. Pretextual arrests for the purposes of conducting an incidental search vary in admissibility by jurisdiction.
XVI. The apparent authority doctrine –the police may enter private premises without a warrant in reliance on a 3rd party's consent if they reasonably believe that party has joint authority over the premises. XVII. Consent to search cannot be coerced, e.g. by false claim of a warrant that leads one to believe he cannot refuse it. If the police have no warrant, but threaten to get one, consent is valid only if the police have the actual PC to get one. XVIII. Older autonomous children can consent to a search, except for any room occupied exclusively by his parents. If a wife refuses, leaves and then the husband consents, the courts are split. Her initial refusal negates his subsequent refusal, otherwise the police could solicit consent from various people. Or he retains his own right to consent and she assumes the risk by living on the property. XIX. A hotel clerk has no right to consent to a warrantless search of a guest's room. The guest expects total control and privacy. This applies to landlords also. XX. If an employee is in a position of substantial authority, he can consent to a warrantless search of the business. VP v. Janitor. College administrators
do not have the authority to consent to a warrantless search of a student's room, even if the college has retained the right to inspection. XXI. Apparent Authority doctrine –police may enter private premises without a warrant if they are acting in reliance on consent of a 3rd party who they reasonably, even if mistakenly, believe has common authority over the premises. Mistaken reliance does not make the entry unconstitutional. Unreasonable reliance does. Illinois v. Rodriguez. XXII. Automobile exception: Police may conduct a warrantless search of a vehicle so long as they have probable cause to believe it contains evidence of a crime. This includes the entire care, including closed containers. U.S. v. Ross. • California v. Acevedo: Police may conduct warrantless search of a container in a car when the PC relates to the contents of the container just as readily as they may search the entire car when the PC relates to the car. Note: Acevedo gives the police incentive to wait until the owner puts the container in the car and not to get a warrant that would be required if they tried to seize it anywhere else but the car. Chambers v. Maroney: When the police have cause to stop and search a car, they can seize it and search it later at the station. This is based on "exigent circumstances," i.e., there was no time to get a warrant before the arrest.
XXIII. Hot pursuit exception: Police in hot pursuit of a suspect may enter a resident to search for the suspect without a warrant. They may search anywhere they can reasonably expect to find the suspect or weapons if necessary for self-protection and seize items in plain view. The offense cannot be so minor as to fall outside the exigent circumstances justification. XXIV. Preservation of evidence: police may move to preserve evidence when: a. There is probable cause for arrest and the suspect is reasonably believed to be in the process of destroying or about to destroy evidence. b. Police believe a crime has been committed and have PC to believe the evidence can be found and that an immediate search is necessary to prevent the loss/destruction of the evidence. XXV. Stop and Frisk
o A stop takes places when an officer stops a person without probable cause to arrest but on a reasonable suspicion that he is involved in criminal activity. A reasonable person would believe he was not free to leave. o He can make a protective search for weapons on reasonable grounds that the person is armed and dangerous. o A stop and frisk is a search and seizure under the 4th, no probable cause to arrest is needed –reasonable suspicion suffices, but a valid frisk also requires a reasonable belief that the suspect is armed and dangerous. (Two prong requirement) o A stop can be no longer than the circumstances justifying the search require. No more intrusive than necessary to verify/dispel suspicion. Trips to the station require PC. Just driving by a suspect who then runs is not a stop –no attempt to intrude or capture. A mere display of police force is not a seizure (chasing a suspect) –it requires restraint or a command that the suspect obeys. o A chase by itself does not constitute seizure. If a suspect is merely chased, and not seized, the issue of reasonable cause for a stop does not arise. There are two bases on which police can seize a person: physically or by an assertion of authority that the suspect obeys. If a person keeps running, there is no seizure. Without a seizure, there is no 4th Amendment problem. o Reasonable grounds for a stop and frisk can be based on an informant's tip, even if the tip would not have been enough to support a valid warrant. Totality of the circumstances test. An officer's suspicions need not be based on his own observations. o If the police have probable cause to believe that a traffic reg. or any other law has been broken, they may stop the suspect even if their purpose is to find evidence of another crime. Even if probable cause exists only with respect to the driver, police may search all containers that may contain the contraband they are looking for. o Courts generally do not accept police profiles (as reasons to stop) without further inquiry; the guidelines must include factors suggesting guilt, meaning that they cannot reflect traits common to any number of innocent travelers. See U.S. v. Sokolow, 490 U.S. 1 o The scope of a stop and frisk can extend to the passenger compartment of the suspect's car, even if the suspect is no longer in the car. (Michigan v. Long) The Long case extended the Terry doctrine to the passenger compartment. o The police cannot take a suspect to the station for fingerprinting as part of a stop and frisk without probable cause to arrest/warrant. (They can probably fingerprint in the field if they reasonably believe the prints will verify or dispel the suspect's connection with the crime.) o In a stop and frisk, the police must be no more intrusive than necessary. (Important). XXVI. Border Searches
A passenger gives implied consent to a search simply by placing his luggage on an x-ray conveyor belt; he can't avoid a further search by not electing to travel. Customs agents are permitted to open international mail without a warrant on a reasonable belief that the package or the envelope contains contraband. Once they've discovered contraband, agents can reseal it, deliver it to the addressee, and then prosecute the addressee. National self-protection justifies warrantless searches of vehicles/baggage at the border, plus limited personal searches, without suspicion of criminal activity. Personal search, e.g. strip search: Intrusiveness of the search needs strong reason to believe a particular person was concealing smuggled items. (Versus probable cause inside the border). Border patrol agents can stop vehicles to question occupants only with reasonable suspicion to believe the vehicle contains illegal aliens. (particularized and objective basis for suspecting the presence of illegals –Mexican appearance alone not enough.) (Bullshit!) To stop cars at random, police need a reasonable suspicion of illegal activity in the cars they stop. Sobriety checkpoints do not violate the 4th A. despite lack of individualized suspicion. Test weighs the state's interest in preventing drunk driving v. degree of intrusion on individual motorists.
Maryland v. Buie During a protective sweep, the searching officer needs a reasonable belief that the area to be swept harbors an individual posing a danger to the officer and others. Bell v. Wolfish Rights of prisoners to be free from unreasonable search/seizures at jail/police station balance need for the search(security) v. the invasion of the prisoner's personal rights. There must be some link between the security need and the search –one cannot be a pretext for the other. (Police department regulation requiring body cavity searches for all arrested felons probably not valid, but strip searches are with reasonable suspicion to believe that particular person is harboring contraband up his ass). Alderman v. U.S. Evidence obtained through an illegal search of one person CAN be admitted against someone else, e.g., co-conspirator. Police install illegal wiretap and overhear a conversation between two that implicates the third. The third person would lack standing to challenge the search because it
wasn't his own constitutional right that was violated. State laws can confer standing in this area. Arrest and Probable Cause 1. Lawful arrest: Warrant supported by probable cause or police can act just with probable cause by itself. Types of evidence (can be hearsay) for probable cause: • • • • • • Suspect acts suspiciously Suspect's voluntary admissions Criminal record of suspect Presence in a high crime area Physical evidence Mnemonic: HIGH CARP (HIGH crime, Conduct, Admissions, Record, Physical evidence)
Note: Presence in high crime area or criminal record alone not sufficient. 2. Elements that determine the reliability of an informant in supporting probable cause: • • • • • Prior use/reliability Statements made against own penal interests Status as member in a reliable group Clarity of detail Corroboration
3. A police officer needs an arrest warrant when the suspect is at home and there are no exigent (no time to get a warrant) circumstances, UNLESS THE SUSPECT CONSENTS TO ENTRY. (Rule: Police may not make warrantless arrests in private homes: Highly intrusive. Payton v. N.Y.) • Hot pursuit • Warrantless arrest: A felony has been committed and P/O has reasonable grounds that the arrestee has committed it. Arrestee entitled to prompt probable cause post arrest hearing, usually within 48 hours. 4. Except in rare cases of shocking and violent police conduct, even an unconstitutional arrest does not serve as a defense or an impediment to trial. 5. Arrest warrants valid as long as probable cause exists, unless new evidence of innocence is uncovered. (Versus search warrant: valid as long items of search still believed to be in the same location.)
6. Maryland v. Garrison: Police obtain search warrant 4th floor apartment –when they arrive there are two apartments. They search wrong apartment and find drugs. Even though warrant is overbroad, police were acting on information they honestly and reasonably believed, even though it turned out to be erroneous. ANALYZING INTERROGATIONS AND CONFESSIONS a. Was there an interrogation: Did police question suspect or use words/actions reasonably likely to elicit an incriminating response from the suspect. If yes, go to #2. b. Had the suspect been formally charged with the crime for which questioned? If yes, the issue is 6th right to counsel during critical stages of the proceeding. If no, go to 3.
c. No interrogation if police agent is undercover (unless suspect has already been formally charged, then he is entitled to 6th right to counsel.) d. Was it a custodial interrogation? (Did it reasonably appear to suspect that he was free to leave?) If not, no Miranda warnings/confession admissible. If yes, Miranda and right to counsel. e. Mirandized prior to questioning? Did the suspect (voluntarily, knowingly and intelligently) waive those rights? Were the questions routine booking questions (not interrogation)? f. Was the suspect coerced into confessing? g. What is the admission being used for? Illegally obtained confessions are valid for impeachment purposes, but not in the prosecutors casein-chief. 1. A confession is only admissible when Miranda warnings are administered and those rights are waived. Exceptions: • The confession may be introduced to impeach a defendant's testimony, if he takes the stand, but that confession must still be voluntary. Failure to Mirandize plus coercion will render it inadmissible for impeachment; failure to Mirandize without coercion renders it admissible for impeachment.
The officer has a reasonable concern to dispense with them because of public safety.
2. Coerced confessions violate the 5th Amendment: No one shall be required to be a witness against himself and the 6th right to counsel. (Adversarial stage of the proceeding). 3. Miranda warnings are required whenever the suspect is in custody or deprived of his freedom in any significant way. 4. Grand jury witnesses under subpoena: No Miranda/appointed counsel rights. Grand jury subpoenae are not unreasonable seizures. 5. 6th: Right to counsel attaches at critical stages of the proceeding 6. 5th : Right against self-incrimination: when one has been charged=arraignment. 7. If one is booked but the police have intention to interrogate, there is no right to counsel at that stage of the proceeding. Custodial interrogation always requires Miranda/waiver or right to counsel. 8. If a suspect is already in jail and is interrogated on other charges, Miranda warnings are still required. Suspect is not free to leave. 9. Police cannot outright fabricate tangible evidence (false DNA reports) in order to elicit a confession; they can however make misleading verbal claims about inculpatory evidence. 10. If a suspect remains silent in the face of questioning, at trial the prosecutor cannot introduce that silence against him, e.g. gives an alibi at trial that he did not disclose to the police because he remained silent. (Due process violation). 11. The "remain silent" rule is applicable only after Miranda warnings are given. Prearrest silence is admissible against the defendant. Silence never constitutes a Miranda waiver. 12. No matter how much objective evidence exists that an accused already knows his Miranda rights, they are still required. (E.g., booked 150 times already). Always a question whether he really knows/understands his rights. 13. The right to have counsel is counsel present during the interview –preinterrogation consultation insufficient.
14. If right to counsel is invoked at any stage of the questioning, it must stop immediately. The police can not ask about other unrelated crimes either. Police can only re-interrogate without counsel if the suspect re-initiates it. 15. Representation after arraignment is offense specific; police can ask suspect about other crimes without that attorney present (Miranda still required). 16. Confessions used for impeachment purposes must be voluntary. 17. Multiple Interrogations: • 1st: No Miranda: Confession 2nd: Miranda;waived;confession: Admissible if waiver is valid. • 1st : Miranda: Asks for a lawyer: 2nd: No Miranda: Not necessary without counsel present if suspect re-initiates the interview. (He asks for a lawyer but then talks to the cops before his lawyer gets there. Suspect must initiate the conversation). • 1st: Miranda: won't talk: 2nd: Miranda; questioned about different crime: confesses: valid. Even if the 2nd interrogation lacked Miranda warning, if no significant time period had elapsed, the confession would still be admissible. 18. The right to have counsel present during interrogation (5th) and the right to have counsel appointed (6th) differ: the latter attaches when formal proceedings commence, i.e., appearance before a magistrate. If a lawyer has been retained for you during questioning and you don't know it and you waive your Miranda rights and confess, that confession is admissible. PRETRIAL IDENTIFICATION PROCEDURES 1. If a suspect has been subjected to a lineup, showup, or any other identification procedure, there are two basic issues to watch out for: • Suspect's 6th Amendment right to counsel • Due process rights, including right to counsel, under the 5th and 14th. 2. Lineup: Pretrial identification: the usual suspects 3. Showup: The victim is shown the suspect only in order to identify. Less reliable than a lineup because of its suggestiveness, but used under exigent circumstances, e.g., victim has serious injuries, or circumstances show that a showup will be reliable. • After a suspect is charged with a crime, the right to counsel present is absolute when a live pretrial identification procedure takes place. Supreme Court: Right to lineup/showup counsel attaches if suspect has already been arraigned; lower courts: issuance of an arrest warrant for lineup/showup. • If a pre-trial ID violates due process (denied counsel/suggestive) the remedy is inadmissibility. • A suspect cannot demand a lineup. 14
No right to counsel during photo IDs (suspect not present). 1. 2. 3. 4. 5. 6. 7. Pre-arrest investigation Arrest Booking Post-arrest investigation Decision to charge Complaint filed with magistrate Initial appearance before magistrate –counsel attaches (bail usually set/ 8th outlaws excessive bail: must be reasonably calculated to assure suspect will show for trial) 8. Preliminary hearing: Does probable cause exist to bind over suspect for trial? If no, the mag. can dismiss the charges and prosecutor must then get indictment. Lack of counsel can be harmless error. 9. Indictment or information 10. Arraignment: charges read and plea entered. 11. Pretrial motions: challenge initiation of prosecution/attack legal sufficiency of indictment/request for discovery of prosecutor's evidence/request to suppress evidence
The primary issue is right to counsel under the 6th. His 5th counsel right attaches during custodial interrogations. Lineup: pick out suspect from group: can't be suggestive Showup: identification of suspect alone If charges have been filed, there is an absolute right to counsel during any live pre-trial IDs. TWO TYPES OF IMMUNITY Transactional: from any crime related to the transaction to which he testifies Use: only against use in a subsequent prosecution and of evidence directly derived from testimony, but if prosecution can show independent source of the evidence, the witness may be prosecuted. Narrower than transactional. When a witness is granted immunity, he cannot invoke the right against selfincrimination. Immunized testimony cannot be used for impeachment. Can be tried for perjury. If the statute of limitations has run, the 5th does not apply because there is no possibility of prosecution. The 5th covers testimonial evidence only, not physical. Only a defendant
may invoke the privilege. Witnesses must take the stand and then invoke on a question by question basis. A witness's disclosure of incriminating evidence waives the entire privilege. No right to jury trial during sentencing phase. Federal habeas corpus proceedings enable federal courts to review the constitutionality of convictions in state courts. There must be a violation of a federal right. Full and fair opportunities to litigate 4th Amendment issues will not be heard in a federal habeas corpus proceeding. DOUBLE JEOPARDY No 2nd prosecutions for same offense after acquittal or conviction and no multiple punishments for same offense. Jeopardy attaches when the jury is impaneled, or when the first witness is sworn in a bench-trial. (Guilty plea: when the court accepts the plea). A judgment by one sovereign is not binding on another sovereign and they may punish for the same offense e.g., state v. federal government, two different states, etc… When a mistrial occurs, the defendant may be retried if it ends because of manifest necessity (hung jury, dead juror) or because of some act of the defendant. Overturned convictions on appeal may not be retried when: • The reversal was based in insufficient evidence (but not the weight) or • if the original conviction included acquittal for a higher offense. Juvenile court proceedings are criminal for purposes of double jeopardy. Cannot be retried on lesser included offenses. The prosecution can appeal any dismissal as long as it did not constitute an acquittal on the merits. Watch out for collateral estoppel issues. Requirements of a valid guilty plea: • voluntary, intelligent and with the advice of counsel, unless waived. • Defendant must understand the consequences and the nature of the charges and the constitutional rights he waives by pleading guilty • Judge inquires into facts to see if there is a reasonable basis for the plea. On what grounds can a defendant attack the validity of his guilty plea after sentencing: • It was involuntary • The court had no jurisdiction to accept it • Double jeopardy • Ineffective assistance of counsel 16
Prosecutor failed to live up to a plea bargain Remedy: Withdrawal, if defendant can show fair/just reason for overturning the plea. Not entitle to dismissal of charges, just the entry of a new plea.
When a guilty plea is entered, the judge must inform the defendant: • Nature of the charges • Right to not plead guilty • Trial is waived • Penalty faced Once a court has accepted a plea bargain, the prosecutor is bound to it (but the judge is not, unless he participated in the negotiations and agreed to abide). A statute that automatically punishes defendants who plead not guilty more severely than those who plead guilty is invalid. TRIAL RIGHTS OF CRIMINAL DEFENDANTS • Effective assistance of counsel o Professional deficiency AND risk of prejudice o Risk of prejudice (conflict of interest) because a conflict of interest is also professional deficiency Public, speedy and fair trial Trial by jury (for offense with imprisonment of more than six months) Confront adverse witnesses To not incriminate oneself To not appear in prison garb
• • • • •
Corpus delicti rule: There must evidence of a crime other than the evidence in the defendant's confession. Wong Sun When a defendant becomes a witness in his own defense, he has no constitutional right to consult with his lawyer while testifying. It is the length of the recess that matters. JURY SELECTION: Challenge for cause: Inability of juror to render impartial verdict Peremptory challenge: Each side may dismiss given number of prospective jurors for no cause.