Criminal Procedure Outline

I.

II.

Exclusionary Rule (judge made doctrine)

a. Prohibits the introduction of evidence obtained in violation of a defendants
Fourth, Fifth, or Sixth Amendment rights
b. Illegally obtained evidence (e.g., coerced statement; items found in an illegal
search) is inadmissible at trial, and all fruit of the poisonous tree (i.e., evidence
obtained from exploitation of the illegally obtained evidence) must be excluded
i. Exceptions to the Fruit of the Poisonous Tree Doctrine:
1. Evidence obtained from a source independent of the original
illegality
2. An intervening act of free will by the defendant that breaks the
causal chain (e.g., defendant is illegally arrested but is released and
later returns to the station to confess); and
3. Inevitable Discovery (i.e., the prosecution can show that the police
would have discovered the evidence regardless of the
unconstitutional act)
c. Limitations on the Exclusionary Rule
i. Rule does not apply to grand juries (grand jury witnesses may be
compelled to testify on illegally seized items), unless evidence was
obtained in violation of the federal wiretapping statute
ii. Rules does not apply in civil proceedings
iii. Rule does not apply in parole revocation proceedings
iv. Rule does not apply when police act in good faith reliance on:
1. Case law (e.g., an opinion that is later overturned);
2. A facially valid statute or ordinance (later declared
unconstitutional);
3. A computer report containing clerical errors not made by the
police; or
4. A defective search warrant, unless:
a. The underlying affidavit was so lacking in probable cause
that it could not reasonably be relied on;
b. The warrant was defective on its face (i.e., it failed to state
with particularity the place to be searched and things to be
seized);
c. A cop or government officer (affiant) lied to or misled the
magistrate; or
d. The magistrate has wholly abandoned his judicial role
v. Use of Excluded Evidence for Impeachment Purposes
1. An otherwise voluntary confession taken in violation of the
Miranda requirements is admissible for impeachment purposes
2. Evidence obtained from an illegal search may be used by the
prosecution to impeach defendants statements at trial (but not
others statements)
Fourth Amendment (provides that people should be free from unreasonable searches
and seizures)

a. Arrests and Other Detentions

i. Seizure
1. When a reasonable person would believe that she is not free to
leave or terminate an encounter with the government
ii. Arrest (seizure within the scope of the 4th Amendment)
1. When the police take a person into custody against his will for
purposes of criminal prosecution or interrogation
2. Must be based on probable cause (i.e., trustworthy facts or
knowledge sufficient for a reasonable person to believe that the
suspect has committed or is committing a crime)
3. A warrant is not required before arresting someone in a public
place, however a warrant is required to effect a non-emergency
arrest of a person in his home
iii. Station House Detentions
1. Police must have full probable cause for arrest in order to bring a
suspect to the station for questioning or fingerprinting
b. Evidentiary Search and Seizure (must be reasonable under the 4th Amendment)
i. Does the defendant have a 4th Amendment right?
1. Was there governmental conduct?
a. Action by the publicly paid police; or
i. Private police are not government, unless deputized
with the power to arrest (e.g., campus police)
b. Citizens acting at their direction
2. Did the defendant have a reasonable expectation of privacy with
respect to the place searched or the item seized?
a. Standing
i. Search or seizure must violate the challengers
expectation of privacy (based on the totality of the
circumstances)
ii. A person has a legitimate expectation of privacy
anytime:
1. He owns, or has a right to possess, the place
searched
2. The place searched was in fact his home,
whether or not he owned it or had a right to
possess it; or
3. He was an overnight guest of the owner of
the place searched
iii. A defendant charged with a possessory offense may
assert a legitimate expectation of privacy in the
items at a suppression hearing without his testimony
being used against him at trial (without claiming
ownership to the items)
iv. Things held out to the public
1. A person does not have a reasonable
expectation of privacy in the sounds of ones

voice, ones handwriting, paint on the

outside of a car, the smell of ones luggage
(e.g., drug sniffs by narcotics dogs), account
records held by the bank, a cars movement
on public roads and arrival at a private
residence (even if detection of such
movement requires the use of an electronic
beeper placed on the car by the police),
garbage left out for collection; or magazines
offered for sale
a. Exception: One does have a
reasonable expectation of privacy in
luggage against physically invasive
inspections (i.e., squeezing)
2. Open Fields Doctrine
a. Areas outside the curtilage
(dwelling house and outbuildings)
are subject to police entry and search
because these areas are held out to
the public
i. Court will consider the
buildings proximity to the
dwelling, whether it is within
the same enclosure (such as a
fence) that surrounds the
house, whether the building
is used for activities of the
home, and the steps taken by
the resident to protect the
building from the view of
passerby
3. Fly-Overs
a. Police may fly over a field to
observe with the naked eye things
therein (and can take aerial
photographs)
i. Obtaining any information
regarding the interior of the
house through sense
enhancing technology
constitutes a search, at least
where the technology is not
in general public use
4. Vehicle Identification Numbers
a. A police officer may constitutionally
reach into an automobile to move

papers to observe the autos vehicle

identification number
v. Passengers in cars do not have standing to challenge
a search, even if their property is taken out of the
car
vi. A drug dealer on the premises of another briefly for
the sole purpose of conducting business (cutting
drugs) does not have standing to object to a search
of the premises
ii. If so, did the police have a valid warrant?
1. Requirements of a Valid Warrant
a. Be issued by a neutral and detached magistrate
i. Court clerks may issue warrants for violations of
city ordinances (they are neutral from law
enforcement)
b. Be based on probable cause established from facts
submitted to the magistrate by a government agent upon
oath or affirmation;
i. Probable cause can be based on hearsay
ii. Informers
1. If probable cause is based on information
obtained from informer(s), its sufficiency is
determined by the totality of the
circumstances
a. Factors Courts Will Use:
i. Statements in the affidavit
relating to the reliability,
creditability, and basis of
knowledge of the
informant(s) (e.g., informant
has given accurate
information on prior
occasions; informant has
purchased drugs from the
house to be searched)
2. The informer(s) can be anonymous, as long
as the affidavit includes enough information
to allow the magistrate to make a common
sense evaluation of probable cause (i.e., that
it is trustworthy)
iii. A warrant may be obtained to search premises
belonging to non-suspects as long as there is
probable cause to believe that evidence will be
found there
c. Particularly describe the place to be searched and the items
to be seized

2. Execution of a Valid Warrant

a. Only police may execute
b. Must be executed without unreasonable delay
c. Police must knock and announce their purpose unless the
officer has reasonable suspicion, based on facts, that
announcing would be dangerous, futile, or would inhibit the
investigation
d. Police may seize any contraband or fruits or
instrumentalities of crime that they discover, whether or not
specified in the warrant
e. Police can detain occupants of the premises during a proper
search, but a search warrant does not authorize the police to
search persons found on the premises who were not named
in the warrant
3. Going Behind the Face of the Affidavit
a. When a defendant attacks the validity of a search warrant,
he can contest the validity of some of the assertions in the
affidavit upon which the warrant was issued (may go
behind the face of the affidavit)
b. Three Requirements to Invalidate a Search Warrant (based
on an affidavit that appeared sufficient on its face)
i. A false statement was included in the affidavit by
the affiant (i.e., the police officer applying for the
warrant)
ii. The affiant intentionally or recklessly included that
false statement (i.e., the officer either knew it was
false or included it knowing that there was a
substantial risk that it was false); AND
iii. The false statement was material to the finding of
probable cause (i.e., without the false statement, the
remainder of the affidavit could not support a
finding of probable cause)
c. Evidence obtained by police in reasonable reliance on a
facially valid warrant may be used by the prosecution,
despite an ultimate finding that the warrant was not
supported by probable cause (good faith exception)
iii. If they did not have a warrant, did they make a valid warrantless search
and seizure?
1. A warrantless search is constitutional only if it is:
a. A Search Incident to a Lawful Arrest (if arrest is not lawful,
search is not lawful either)
i. Police may, contemporaneous in time and place
with the aarrest, search the person and areas into
which he might reach to obtain weapons or destroy
evidence (his wingspan) (including the entire
passenger compartment of a car, but not the trunk)

ii. Police may make a protective sweep of the area if

they believe accomplices may be present
iii. Search Incident to Incarceration
1. At the police station, police may make an
inventory search of the arrestees belongings
and an impounded car
b. Automobile Exception
i. If police have probable cause to believe that a
vehicle contains fruits, instrumentalities, or
evidence of a crime, they may search the whole
vehicle (including the trunk) and any container that
might reasonably contain the item for which they
had probable cause to search
1. Probable cause can arise after the car is
stopped, but it must arise before the car is
searched
2. Police may tow the vehicle to the station and
search it later
ii. If police have probable cause to believe that an
automobile itself is contraband, they may seize it
from a public place without a warrant
c. In Plain View
i. Police may make a warrantless search when they:
1. Are legitimately on the premises;
2. Discover evidence, fruits or
instrumentalities of crime, or contraband;
3. See (hear or smell) such evidence in plain
view; and
4. Have probable cause to believe (i.e., it must
be immediately apparent) that the item is
evidence, contraband, or a fruit or
instrumentality of crime
d. Consent
i. Voluntary and intelligent consent
1. Knowledge of the right to withhold consent
is not a prerequisite to establishing voluntary
and intelligent consent (police dont have to
inform you of your right to withhold
consent)
ii. Scope of the search may be limited by the scope of
the consent, but scope generally extends to all areas
to which a reasonable person under the
circumstances would believe it extends
iii. Authority to Consent
1. Any person with an apparent equal right to
use or occupy the property may consent to a

search, and any evidence found may be used

against the other owners or occupants
e. Stop and Frisk
i. A police officer may stop a person without probable
cause if she has an articulable and reasonable
suspicion of criminal activity
ii. A police officer may conduct a protective frisk if the
officer reasonably believes that the person may be
armed and presently dangerous
1. Scope of Frisk
a. Limited to a pat down of outer
clothing, unless the officer has
specific information that a weapon is
hidden in a particular area of the
suspects clothing
b. An officer may also search the
passenger compartment of an
automobile of a detained occupant
where there is a reasonable belief
that the occupant is dangerous
2. Admissibility of Evidence
a. During a pat down, an officer may
reach into the suspects clothing and
seize any item that the officer
reasonably believes, based on its
plain feel, is a weapon or
contraband, and such items are
admissible as evidence
3. Ordering a Driver Out of a Car
a. Once a vehicle has been properly
stopped for a traffic violation, the
police may order the driver out of the
vehicle, even without suspicion of
criminal activity
b. If the police then reasonably believe
that the driver may be armed and
dangerous, they may conduct a frisk
f. Evanescent Evidence
i. Police may seize without a warrant evidence likely
to disappear before a warrant can be obtained (e.g.,
scrapping under defendants fingernails, blood
sample to check for alcohol)
g. Hot Pursuit
i. Police in hot pursuit of a fleeing felon may make a
warrantless search and seizure and may even pursue
the suspect into any private dwelling

III.

1. Being 15 minutes the suspect is not in hot

pursuit
h. Other Emergencies
i. Contaminated food or drugs, children in trouble,
and burning fires may justify warrantless searches
and seizures
iv. Wiretapping and Eavesdropping
1. Wiretapping constitutes a search under the 4th Amendment and a
valid warrant authorizing a wiretap may be issued if:
a. There is showing of probable cause;
b. The suspected persons involved in the conversations to be
overheard are named;
c. The warrant describes with particularity the conversations
that can be overheard;
d. The wiretap is limited to a short period of time;
e. The wiretap is terminated when the desired information has
been obtained; and
f. Return is made to the court, showing what conversations
have been intercepted
2. Exceptions:
a. A speaker assumes the risk that the person to whom he is
talking is an informer wired for sound or taping the
conversations (speaker has no 4th Amendment claim if he
makes no attempt to keep the conversation private)
(unreliable ear)
b. Pen registers (devices that record only phone numbers that
are dialed from a phone) are not controlled by the 4th
Amendment, but by statute judicial approval is required
before a pen register may be used
Confessions
a. Fifth Amendment Privilege Against Compelled Self-Incrimination
i. Miranda Warnings
1. For an admission or confession to be admissible under the 5th
Amendment, a person in custody must, prior to interrogation, be
informed that:
a. He has the right to remain silent;
b. Anything he says can be used against him in court;
c. He has the right to the presence of an attorney; and
d. If he cannot afford an attorney, one will be appointed for
him
2. Custody
a. A person is in custody if, at the time of interrogation, that
person is not free to leave (e.g., is in jail, police car, a
hospital bed, or at home). Routine traffic stops and
probation interviews are not custodial.
3. Interrogation

IV.

V.

a. Includes any words or conduct by the police that they

should know would likely elicit a response from the
defendant.
i. Miranda warnings are not required before a
spontaneous statement (blurt outs) made by the
defendant or before routine booking questions
4. Waiver of Miranda
a. Must be knowing, voluntary, and intelligent (there can be
no waiver by silence or a mere shrug of shoulders)
ii. Fifth Amendment Right to Counsel
1. Once a defendant unambiguously asserts his right to terminate
interrogation and requests an attorney, all questioning must cease
until counsel has been provided (and questioning may only occur
in the presence of the attorney), unless the defendant then waives
his right to counsel (e.g., by re-initiating questioning)
a. The request for an attorney must be specific (i.e., indicate
that the defendant desires assistance in dealing with the
process of interrogation).
2. All other times a defendant invokes a right to an attorney invokes
that defendants Sixth Amendment right to counsel (offense
specific attorney only has to be present if defendant is being
asked questions about that attorneys case)
Pre-Trial Identification
a. Sixth Amendment Right to Counsel
i. A suspect has a right to the presence of an attorney at any post-charge
lineup or showup (but an accused does not have a right to counsel at photo
identifications or when police take physical evidence, such as handwriting
samples or fingerprints, from him)
b. Denial of Due Process
i. A defendant can attack an identification as denying due process if the
identification is unnecessarily suggestive and there is a substantial
likelihood of misidentification (e.g., defendant is the only white person in
the lineup)
ii. Remedy
1. In-court identifications will be excluded (rarely granted)
a. However, the prosecution can defeat this exclusion if he
can show an independent source for the in-court
identification (i.e., the witness had ample time to view the
defendant during the commission of the crime)
Pre-Trial Procedures
a. Preliminary Hearing to Determine Probable Cause to Detain
i. A defendants liberty can be restricted only on a finding of probable cause.
If probable cause has already been determined (e.g., the arrest was based
on a warrant or grand jury indictment), no preliminary hearing to
determine probable cause is required.

VI.

ii. If probable cause has not already been determined and there are
significant constraints on an arrestees liberty (i.e., jail or bail, but not
release on recognizance), a preliminary hearing must be held within a
reasonable time (48 hours)
b. Pre-Trial Detention Bail
i. Most states create a right to be released on bail, unless the charge is a
capital one, and bail can be set no higher than is necessary to assure the
defendants appearance at trial.
ii. Refusal to grant bail or the setting of excessive bail may be appealed
immediately; however, arrestees can be held without bail if they pose a
danger or would fail to appear at trial
c. Grand Juries
i. States are not required to use grand jury indictments (in California, the
prosecutor files an information)
ii. A grand jury may base its indictment on evidence that would be
inadmissible at trial, and an indicted defendant may not have the
indictment quashed on ground that it is based on illegally obtained
evidence
iii. The defendant has no right to have counsel present during his grand jury
testimony
iv. Defendant has no right to appear and no right to call witnesses, but a
defendant must appear if called.
Trial
a. Right to a Fair Trial
i. Right to an Unbiased Judge
1. Due process is violated if the judge is shown to have actual malice
against the defendant or to have had a financial interest in having
the trial result in a guilty verdict
a. It is not actual malice for a judge to tell a defendant that if
he sees him again, he will give him the maximum sentence
b. Right to Trial by Jury
i. A defendant charged with a serious offense has a constitutional right to a
jury trial (i.e., if imprisonment for more than six months is authorized)
ii. Criminal Contempt Proceedings
1. In criminal contempt proceedings, cumulative penalties totaling
more than six months cannot be imposed without affording
defendant the right to a jury trial
a. If a judge summarily imposes punishment for contempt
during trial, penalties may aggregate more than six months
without a jury trial
iii. Number and Unanimity of Jurors
1. There is no constitutional right to a jury of 12, but there must be at
least 6 jurors to satisfy the right to a jury trial.
2. Convictions will be upheld if they are less than unanimous (10 to
2; 9 to 3), but something like an 8 to 4 vote for conviction would
probably not be upheld

VII.

VIII.

a. Six person juries must be unanimous

iv. Right to Venire Selected from Representative Cross-Section of
Community
1. Jury pool must be selected from a representative cross-section of
the community. However, a defendant does not have the right to
proportional representation of all groups on his particular jury
v. Equal Protection Clause forbids the use of peremptory challenges to
exclude potential jurors solely on account of their race or gender
c. Ineffective Assistance of Counsel (effective assistance of counsel is presumed)
i. Defendant must prove:
1. Deficient performance by counsel;
a. The defendant must point out specific deficiencies and
cannot base the claim on inexperience, lack of time to
prepare, the gravity of the charges, the complexity of
defenses, or accessibility of witnesses to counsel; AND
2. But for the deficiency, the result of the proceeding would have
been different (e.g., defendant would not have been convicted or
his sentence would have been shorter)
ii. Circumstances not constituting ineffective assistance: trial tactics, failure
to argue frivolous issues, rejection of defendants request for continuance,
and the failure to raise a constitutional defense that is later invalidated.
Guilty Please and Plea Bargains
a. A guilty plea is a waiver of the Sixth Amendment right to a jury trial. The judge
must advise defendant personally:
i. Of the nature of the charge to which the plea is offered;
ii. Of the maximum possible penalty and of any mandatory minimum (but
failure to explain a special parole term is not fatal);
iii. That defendant has a right not to plead guilty; and
iv. That by pleading guilty defendant waives his right to a trial
b. A record must be made of the taking of all guilty pleas. The record must indicate
that the plea was voluntary and intelligent.
c. Remedy for a Failure to Meet These Standards
i. Withdrawal of the plea and pleading anew
d. Four Ways a Plea Can Be Set Aside:
i. Plea was involuntary (failure to meet the standards for taking a plea)
ii. Lack of jurisdiction
iii. Ineffective assistance of counsel
iv. Failure of the prosecutor to keep an agreed upon plea bargain
Constitutional Rights in Relation to Sentencing and Punishment
a. Resentencing After Successful Appeal and Reconviction
i. If a greater punishment is imposed on a defendant who has been
reconvicted after a successful appeal than was imposed at the first trial, the
judge must set forth in the record the reasons for the harsher sentence (to
ensure that the defendant is not vindictively penalized for exercising his
right to appeal)

1. Exception: A judge need not give reasons if the greater sentence

was imposed upon a de novo trial or in a state that uses jury
sentencing, unless the second jury was told of the first jurys
sentence
IX.

X.

Death Penalty
a. Any death penalty statute that does not give the defendant the chance to present
mitigating facts and circumstances is unconstitutional
i. The state may not limit the mitigating factors allowed and all relevant
mitigating evidence must be admissible or the statute is unconstitutional
b. There can be no automatic category for imposition of the death penalty (e.g., a
statute that says killing a cop will result in death)
Double Jeopardy (5th Amendment)
a. A person may not be retried for the same offense once jeopardy has attached.
b. Jeopardy Attaches:
i. In a jury trial at the empanelling and swearing of the jury
ii. In a bench trial when the first witness is sworn
iii. Commencement of a juvenile proceeding bars a subsequent criminal trial
for the same offense
c. Jeopardy does not attach in civil proceedings other than juvenile proceedings
d. Four Exceptions to Double Jeopardy Rules (a Defendant can be retried when):
i. Jury unable to agree on a verdict (hung jury; not a unanimous jury in CA)
ii. Mistrials for manifest necessity (e.g., one juror is in the hospital)
iii. Retrial after successful appeal of a conviction, unless the ground for
reversal was insufficient evidence to support a guilty verdict
iv. If defendant breaches an agreed upon plea bargain
e. When two crimes do not constitute the same offense
i. Two crimes do not constitute the same offense if each crime requires
proof of an additional element that the other crime does not require (even
though some of the same facts may be necessary to prove both crimes)
ii. The following do not constitute the same offense (Blockburger)
1. Manslaughter with an automobile and hit-and-run
2. Reckless driving and drunk driving
3. Reckless driving and failure to yield the right of way
4. Uttering a forged check and obtaining money by false pretenses by
using the forged check
f. Lesser Included Offenses
i. Attachment of jeopardy for a greater offense (e.g., robbery) bars retrial for
lesser included offenses (e.g., assault)
ii. Attachment of jeopardy for a lesser-included offense bars retrial for
greater offenses, except that retrial for murder is permitted if the victim
dies after attachment of jeopardy for battery.
iii. A state may continue to prosecute a charged offense despite the
defendants guilty plea to a lesser included or allied offense stemming
from the same incident
g. Separate Sovereigns

XI.

i. The constitutional prohibition against double jeopardy does not apply to

trials by separate sovereigns.
1. Thus, a person may be tried for the same conduct by both the state
and federal governments or by two states (but not by a state and its
municipalities)
th
5 Amendment Privilege Against Compelled Testimony
a. Who May Assert
i. Any defendant, witness, or party (not a corporation or partnership) can
assert the privilege against compelled self-incrimination if the answer to
the question might tend to incriminate him (privilege is personal)
b. When Privilege May Be Asserted
i. A person may refuse to answer a question whenever his response might
furnish a link in the chain of evidence needed to prosecute him (defendant
in a criminal case doesnt have to take the stand)
ii. Must be claimed in civil proceedings to prevent the privilege from being
waived for a later criminal prosecution (must assert the privilege the first
time the question is asked or it has been waived for all subsequent
proceedings)
c. Scope of Protection
i. The privilege only protects testimonial or communicative evidence, not
real or physical evidence
1. Example: A defendant has no self-incrimination basis to object to a
lineup or other identification procedure even if he is asked to say
certain words (your money or your life) because the words are
only used for identification purposes
ii. The privilege only protects compelled testimonial evidence (e.g., liedetector tests, custodial interrogation) (not things given up voluntarily by
the defendant)
d. Prohibition Against Burdens on Assertion of the Privilege
i. Prosecutor may not comment on a defendants silence after being arrested
and receiving Miranda warnings or on a defendants failure to take the
stand
1. Exception: A prosecutor can comment on a defendants failure to
take the stand when the comment is in response to defense
counsels assertion that defendant was not allowed to explain his
side of the story
e. Limits on the Privilege (Can be Compelled to Testify When):
i. Grant of Immunity (If witness/defendant is granted immunity from
prosecution)
1. Use and Derivative Use Immunity
a. Guarantees the witness testimony and evidence located by
means of the testimony will not be used against the witness
i. However, witness may still be prosecuted if the
prosecutor shows that the evidence to be used
against the witness was derived from a source
independent of the immunized testimony

ii. There is no possibility of incrimination (e.g., statute of limitations has run)

iii. Waiver (defendant waives the privilege as to all legitimate subjects of
cross-examination by taking the witness stand)