Criminal Procedure

A:5
B:12
C:11

Constitution 上の根拠を忘れない!! State の場合は 14th AM 経由

Criminal Procedure.......................................................................................................................................1
A:5............................................................................................................................................................................ 1
B:12.......................................................................................................................................................................... 1
C:11.......................................................................................................................................................................... 1

Search, Seizure and Arrest (4th AM)............................................................................................................3

A <Applicability of the Fourth Amendment – Governmental action, Standing, Privacy>................................3
B <Request for Information, Stop & Inquire, Stop & Frisk>..............................................................................3
C<Validity of Search Warrant>............................................................................................................................3
C<Warrantless Search – Exigent Circumstances>...............................................................................................3
C<Warrantless Search – Incident to Lawful Arrest>..........................................................................................4
C<Warrantless Search - Incident to Lawful Arrest - Automobiles>...................................................................4
C<Warrantless Search – Consent>........................................................................................................................4
B<Warrantless Search – Automobile stop>..........................................................................................................4
B<Warrantless Search – Automobile>..................................................................................................................5
B<Warrantless Seizure – Plain View>...................................................................................................................5
C<Warrantless Search – Inventory Search>........................................................................................................5
B<Standing to Challenge Search and Seizure>....................................................................................................5
B< Arrest: Probable Cause [+ Warrant]>............................................................................................................6

Confessions, Privilege against Self-Incrimination, Right to Counsel.........................................................7

B<Coercive Confession – 14th AM Due Process Clause>....................................................................................7
A <Miranda Rights – implied 5th AM, General>.................................................................................................7
A <Miranda Rights – Invoking the Right to Remain Silent and Its Effects>.....................................................7
A <Miranda Rights – Invoking the Right to Counsel and Its Effects>...............................................................7
A <Waiver of Miranda Rights>.............................................................................................................................8
B<Miranda Rights – Subsequent Statement: previous breach  later lawful>................................................8
B<Right to Counsel under the Sixth Amendment>..............................................................................................8
C<Ineffective Assistance of Counsel>....................................................................................................................8
C<[Pre-charge] / [Post-chare & Pre-trial] Lineup>.............................................................................................9
C<Right to Refuse Precharge Lineup>.................................................................................................................9
C<Comments on Defendant’s Silence>.................................................................................................................9

Exclusionary Rule & the Fruit of the Poisonous Tree Doctrine................................................................10

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 A<Exclusionary Rule>..........................................................................................................................................10
A<Fruit of the Poisonous Tree>...........................................................................................................................10

Right to Jury..................................................................................................................................................11
B<Right of Jury Trial>.........................................................................................................................................11

Double Jeopardy............................................................................................................................................12
B<Double Jeopardy - General>...........................................................................................................................12

Burden of Proof.............................................................................................................................................13
A<Presumption>...................................................................................................................................................13

Appeal and Error...........................................................................................................................................14

B<Motion for Judgment of Acquittal>................................................................................................................14
C<Harmless Error Test>......................................................................................................................................14

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Search, Seizure and Arrest (4th AM)

A <Applicability of the Fourth Amendment -– Governmental action, Standing, Privacy>

The issue is whether the search or seizure is governed by the Fourth Amendment.

Search and seizure are governed by tThe Fourth Amendment, which is applicable through the Due
Process Clause of the 14th AM, broadly prohibits unreasonable governmental searches and seizures.
if a government agent either (i) physically intrudes on a protected area to obtain information; or (ii)
violates an individual’s reasonable expectation of privacy in a protected area or item.
As to (ii), an individual must show:
1. an actual or subjective expectation of privacy in the area searched or items seized; and
2. that the privacy expectation was “one that society recognizes as reasonable.”
Otherwise, no standing.

B <Request for Information, Stop & Inquire, Stop & Frisk>

Under the 4th AM of the US Constitution, a person is granted protection from unlawful government
searches and seizures. A seizure occurs when a reasonable person would have believed that he was not
free to leave.
 A police may stop and inquire if the police officer (1) has reasonable articulable suspicion, (2)
that criminal activity is afoot (=ongoing), only for a brief detention for questioning.
 A police officer may only stop and frisk a person if the police officer (1) has reasonable
articulable suspicion, (2) that criminal activity is afoot (=ongoing); AND (3) that the person has a
weapon.
 Under the plain feel doctrine, a police officer may only seize items he or she reasonably
believes is contraband or a weapon during the frisk.

C<Validity of Search Warrant>

The issue is whether the search warrant is validly issued.

To be valid, a search warrant must be: (i) issued by a neutral and detached magistrate, (ii) on a showing
of probable cause, and (iii) specifying with particularity the place to be searched and the items to be
seized. In the case an informant is involved, as to (ii), police needs to corroborate enough of the tipster’s
information to allow the magistrate to make a common sense practical determination.

Even if the warrant has a defect, an officer’s good faith overcomes constitutional deficits in probable

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 cause and particularity unless: (i) the affidavit is so egregiously lacking in probable cause, (ii) the warrant
is so facially deficient in particularity, (iii) the affidavit relied upon by the magistrate contains knowing or
reckless falsehoods that are necessary to the probable cause finding, or (iv) the magistrate is biased in
favor of the prosecution.

C<Warrantless Search – Exigent Circumstances>

The issue is whether the evidence found during a warrantless search/seizure in exigent circumstances is
admissible.

Under the Fourth Amendment of the United States Constitution, the general rule is that a search and
seizure requires a warrant. However, the police officer may search and seize without a warrant in the
following exigent circumstances: :
(i) the evidence would disappear in the time it would take to get a warrant; ;
(ii) it is during hot pursuit of fleeing felon and the evidence is in plain view; OR or
(iii) there is objectively reasonable basis for believing that a person inside is in need of emergency aid to
address or prevent injury.

C<Warrantless Search – Incident to Lawful Arrest>

The issue is whether the evidence found during a warrantless search incident to an arrest is admissible.

Under the Fourth Amendment of the United States Constitution, the general rule is that a search requires
a warrant. However, a police officer can make warrantless search incident to lawful arrest.
contemporaneously with the arrest, police can search The areas of the search must be within the
arrestee's wingspan including the body, clothing, and any containers within the arrestee's immediate
control.

C<Warrantless Search - Incident to Lawful Arrest - Automobiles>

The issue is whether the evidence found during a warrantless search incident to an arrest is admissible.
1. 上の論点
2. If arrested in an automobile, the “wingspan” includes the passenger’s compartment.
Under the Fourth Amendment of the United States Constitution, the general rule is that a search
requires a warrant. However, evidence found during warrantless search incidental to lawful arrest is
admissible if either (i) that the arrestee is unsecured and still may gain access to the interior of the
vehicle or (ii) that In addition, a police officer can make a warrantless search of an automobile if he
the officer has a reasonable belief that evidence of the offense of arrest might be found in the

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 vehicle.
The officer may search the interior cabin, including closed containers, but not the trunk.

C<Warrantless Search – Consent>

The issue is whether the evidence found during a warrantless search with another person’s consent is
admissible.

Under the Fourth Amendment of the United States Constitution, the general rule is that a search requires
a warrant. However, evidence found during a warrantless search with consent is admissible if the consent
was (i) given freely, voluntarily, and intelligently; and (ii) made by a person with actual or apparent
authority. If a police officer obtains consent to search someone who lacks “actual” authority to grant it
(apparent authority), the consent is still valid under the Fourth Amendment, if that police officer
reasonably believed that the consenting person had actual authority.

B<Warrantless Search – Automobile stop>

At issues is whether police can lawfully stop automobiles with hidden motive to investigate beyond the
traffic crime.

To stop or pull over a vehicle, Reasonable suspicion that a law has been violated is required.
 Pretextual stops: ulterior (hidden) motive for a stop is OK if police have reasonable suspicion of ANY
legal violation.

* Sometimes what begins as a routine traffic stop results in a search of all or part of the vehicle. For the
search to be lawful, an officer does not need probable cause to search the vehicle at the time the car is
pulled over, provided he acquires it before initiating the search.

B<Warrantless Search – Automobile>

The issue is whether a warrantless search in a car during is admissible.

Under the Fourth Amendment of the Constitution, the general rule is that a search requires a warrant.

However, a warrantless search in an automobile is admissible, if the officer has probable cause to believe
that there is contraband or evidence of crime in the automobile.

The officer can search the entire automobile and open any space and container (including trunk) that

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 may reasonably contain the item for which the officer has the probable cause. .

For the search to be admissible, an officer does not need probable cause at the time the car is pulled
over, provided that he acquires it before initiating the search.

B<Warrantless Search Seizure – Plain View>

The issue is whether the evidence in plain view found during a warrantless search is admissible.

Under the Fourth Amendment of the Constitution, the general rule is that a search requires a warrant.

However, under the plain view doctrine, the police may seize the evidence without a warrant ifevidence
in plain view found during a warrantless search is admissible if:
1. the officer had lawful access to the place from which the item can be plainly seen;
2. the officer had lawful access to the item itself; and
3. the criminality of the item is immediately apparent.

C<Warrantless Search – Inventory Search>

The issue is whether the evidence found during a warrantless inventory search is admissible.

Under the Fourth Amendment of the United States Constitution, the general rule is that a search requires
a warrant. However, evidence found during a warrantless inventory search is admissible if: (i) the
regulations governing inventory search are reasonable; (ii) the search itself complies with those
regulations; and (iii) the search is conducted in good faith.

B<Warrantless Search – Stop and Frisk>

The issue is whether the evidence found during a “stop and frisk” is admissible.

Under the Fourth Amendment of the Constitution, the general rule is that search and seizure require a
warrant.

However, a police officer may make a warrantless brief detention of a suspect (Terry Stop), if the officer
has reasonable suspicion that a criminal activity is present. It requires a warrant as seizure, if a
reasonable person would not feel free to leave or to decline an officer’s request to answer question,
based on a totality of the circumstances.

A police officer may make a warrantless pat down of a suspect (Terry Frisk), if the officer has reasonable
suspicion that the suspect is armed and dangerous. A police officer may seize only a weapon or

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 contraband. For a seizure of contraband to be admissible, the officer must recognizes it as contraband
without physical manipulation.

B<Standing to Challenge Search and Seizure>

The issue is whether the defendant can challenge the government agent’s conduct.

An individual must have standing to challenge a search or seizure. To have the standing, the challenger
must have a reasonable expectation of privacy regarding the item seized or place searched, not those
of a third party.

B<Warrantless Arrest: Probable Cause [+ Warrant]>

* Arrest = Seizure of the person

The issue is whether a police officer may arrest a suspect without a warrant.

Under the Fourth Amendment of the Constitution, the police officer MUST have probable cause.
Probable cause arises when the circumstances give a police officer (1) reasonable suspicion to believe (2)
that a crime has occurred.the general rule is that an arrest requires a warrant.

However, police officers may make a warrantless arrest in public space, if (i) they have probable cause to
believe that the arrestee has committed a felony, or (ii) the arrestee has committed a misdemeanor in
their presence.

However, absent an emergency, police officers need a warrant to arrest a suspect in his home.

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Confessions, Privilege against Self-Incrimination, Right to Counsel

B<Coercive Confession – 14th AM Due Process Clause>

 Under the 14th AM Due Process Clause, if a confession is the product of police coercion that
overbears the suspect’s free will, then the confession is inadmissible.
 In determining whether a confession overcame a person’s free will, courts consider:
(1) the characteristics of the interrogation (length of the interrogation and police tactics used); AND
(2) the characteristics of the individual (age and experience)

A <Miranda Rights – implied 5th AM, General>

The issue is when Miranda warnings are required.

Miranda rights are implied rights grounded in the Self-Incrimination Clause of the Fifth Amendment.
Four core Miranda warnings are:
1. the right to remain silent
2. anything you say can and will be used against you in courta court of law
3. the right to an attorney
4. if you cannot afford one, an attorney will be appointed for you

Under the Fifth Amendment, Miranda warnings are necessary when a police officer conducts
Miranda Rights attaches when there is a custodial interrogation.
1. A suspect is in custody when (i) a reasonable person would have felt that she was not at liberty
to end the questioning and leave; and (ii) [特に警察署以外での質問時にあてはめ有用]the
environment presents the same inherently coercive pressures as the station-house questioning
at issue in Miranda.
2. An interrogation is any conduct that the police knew or should have known was likely to elicit an
incriminating response.

● Miranda right only protects statements or acts that are communicative or testimonial in nature.
* testimonial = must relate to a factual assertion or disclose information.
● Miranda does not apply to incriminating statements made spontaneously, since they are not the
product of interrogation (“blurted out”).

A <Miranda Rights – Invoking the Right to Remain Silent and Its Effects>

The issue is whether the defendant validly invoked his Miranda rights (right to remain silent) and its
effects.

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 A suspect must unambiguously invoke his right to remain silent. Once the suspect invokes the right to
remain silent, police officers must scrupulously honor the invocation. This means, at the very least, that
the police cannot badger a suspect into talking; in addition, police detectives must wait a significant
period of time before reinitiating questioning and must first obtain a valid Miranda waiver.

A <Miranda Rights – Invoking the Right to Counsel and Its Effects>

The issue is whether the defendant validly invoked his Miranda rights (right to counsel) and its effects.

A suspect must sufficiently clearly invoke his right to counsel. Once the suspect invoke the right to
counsel, police officers must cease all interrogation.

Interrogation may be re-initiated if (1) the suspect is re-informed of his Miranda rights; (2) validly waives
the rights; AND (3) either (i) counsel is present, (ii) the suspect initiates the communication, or (iii) 14
days have passed after he is released from custody., or (iii) he is re-informed of his Miranda rights, validly
waives the rights, and counsel is present.

Unlike the Sixth Amendment, the Fifth Amendment right to counsel is not offense-specific; therefore,
interrogation following a request for counsel under Miranda is prohibited as to all topics, outside the
presence of the suspect’s attorney.

A <Waiver of Miranda Rights>

The issue is whether the defendant validly waived his Miranda rights.

For a confession to be admissible under the Fifth Amendment’s privilege against self-incrimination, a
person must be informed of his Miranda rights prior to custodial interrogation and validly waive such
rights.

Such a waiver must be made knowingly, intelligently, and voluntarily.

 A Miranda waiver is "knowing and intelligent" if the suspect understands the nature of the rights
and the consequences of abandoning them.
 A Miranda waiver is "voluntary" if it is not the product of police coercion.
* coercion か否かの factor は、Due Process の検討と同じ

B<Miranda Rights – Subsequent Statement: previous breach  later lawful>

The issue is whether a subsequent statement is inadmissible when the previous statement is inadmissible

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 due to a Miranda violation.

1. Exclusionary Rule
2. Fruit of the Poisonous Tree doctrine: The general rule is that evidence obtained by exploiting prior
unconstitutional conduct is inadmissible (“Fruit of the Poisonous Tree”).
3. However, a subsequent statement made after Miranda waiver is admissible even if the previous
statement is inadmissible due to Miranda violation, unless the violation derives from inherently
coercive police tactics offensive to Due Process.

B<Right to Counsel under the Sixth Amendment>

The issue is whether the police action violates the right to counsel under the Sixth Amendment.

A defendant has right to counsel under the Sixth Amendment of the Constitution once he is formally
charged. A defendant can invoke the right in all critical stages of the prosecution. This right is offense
specific.

Incriminating statements obtained from the defendant about charged offenses violate the Sixth
Amendment, if (i) those statements are deliberately elicited by police officers and (ii) the defendant did
not knowingly, intelligently, and voluntarily waive the right.

C<Ineffective Assistance of Counsel>

The issue is whether a defendant can appeal from a guilty sentence based on ineffective assistance of
counsel

The Sixth Amendment right to counsel includes the right to effective counsel. This right extends to the
first appeal. Effective assistance of counsel is generally presumed. An ineffective assistance claimant
must show
1. deficient performance by counsel; and
2. But for the deficiency, the result of the proceeding would have been different.
To satisfy the “deficiency” requirement, counsel’s performance needs to fall below an objective
standard of reasonableness, meaning that he made errors so seriously that he was not functioning as
counsel.

C<[Pre-charge] / [Post-chare & Pre-trial] Lineup>

The issue is whether the pre-charge lineup violates constitutional rights.

 First, the Miranda (5th) does not apply to a lineup, because lineup is not a custodial interrogation.
5th AM does not apply b/c NOT testimonial, regardless of pre-/post-trial . (これは pre-charge でも

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 post-chare pre-trial でも変わらない)

 Second, Sixth Amendment right to counsel does not apply to a pre-charge lineup because the
suspect is not formally charged yet.
* post-charge の場合もあり、そのときは Sixth AM も適用される点に注意  however, the attorney cannot
dictate how the line-up proceeds, and is instead merely observe any deficiencies or due process violations to
be addressed at trial.

 Lastly, a precharge lineup does not violate Due Process unless it is unnecessarily suggestive
resulting in a substantial likelihood of misidentification.
 In making this determination, courts must weigh the reliability of a suggestive identification
against its corrupting effect.

C<Right to Refuse Precharge Lineup>

Generally, under the 5th Amendment of the U.S. Constitution, a defendant has a right against self-
incrimination. This applies to testimony and conduct that can be construed as testimonial in nature.
However, courts have held that pre-trial identifications (i.e. lineups), blood tests, finger prints, and voice
identification are NOT testimonial in nature and fall outside 5th Amendment protection. Since there is no
5th Amendment protection for lineups, a suspect in custody after an arrest may not refuse participation
in a lineup.

C<Comments on Defendant’s Silence>

The issue is whether a prosecutor may comment on a defendant’s silence after being arrested and
Miranda warnings.

A prosecutor may not comment on a defendant’s silence after being arrested and Miranda warnings,
because it violates the defendant’s right to remain silent under the Fifth Amendment. Neither may the
prosecutor comment on a defendant’s failure to testify at trial. When a prosecutor impermissibly
comments on a defendant’s silence, the harmless error test applies.

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Exclusionary Rule & the Fruit of the Poisonous Tree Doctrine

AB<Exclusionary Rule>
The issue is whether the prosecutor may use the evidence gathered in the unconstitutional search and
seizure against the defendant in court.

Under the Exclusionary ruleFourth Amendment of the United States Constitution, the general rule is that
evidence obtained in violation of a D’s constitutional right by unconstitutional search and seizure is
inadmissible and will be excluded from the prosecutor’s case-in-chief., but

Limitation on the rule as applied to Miranda violations:

 #1 Failure to give Miranda warnings DOES NOT require suppression of the physical evidence found
because of the statements, as long as the statement are voluntary
 #2 Subsequent statements made after Miranda warnings are admissible, UNLESS inherently coercive

AB<Fruit of the Poisonous Tree>

The issue is whether evidence obtained by unlawful search and seizure is admissible.

Under the fruit of the poisonous tree doctrine, Fourth Amendment of the Constitution, the general rule is
that evidence obtained by exploiting prior unconstitutional conduct is inadmissible (“Fruit of the
Poisonous Tree”).

Prosecutors must show a break in the “causal link” between the original illegality and the criminal
evidence that is later discovered.
 FOPT DOES NOT apply if However, the evidence is admissible if:
1. there is a source for the discovery and the seizure of the evidence that is distinct from the original
illegality (Independent Source);
2. the evidence necessarily had been obtained by the police lawfully (Inevitable Discovery); or
3. the passage of time and intervening events “purge the taint” of the original illegality and restore
the defendant’s free will (Attenuation).

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Right to Jury

B<Right of Jury Trial>

 6th AM + 14th AM
 Right to jury trial for offenses where imprisonment may be greater than six months.
 Minimum 6
 In the case of 6 juries, must be unanimous.

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Double Jeopardy

B<Double Jeopardy (5th AM) - General>

The issue is whether double jeopardy prevents the prosecutor from recharging the defendant for the
crime.

Under the Fifth Amendment of the Constitution, a person may not be retried for the same offense once
double jeopardy has attached.

Double jeopardy attaches when (i) the jury is sworn in case of jury trial, (ii) the first witness is sworn in
case of bench trial; or (iii) the court accepts the defendant’s guilty plea unconditionally.

Two offenses are not the “same offense” if each contains an element the other does not.

However, double jeopardy does not attach, if (i) the first trial ended in a hung jury, (ii) there was
manifest necessity to end the first trial, (iii) the defendant appealed successfully, unless the reversal on
appeal was based on the insufficiency of the evidence presented by the prosecution at trial, or (iv) the
defendant breached a plea bargain agreement.

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Burden of Proof

AB<Presumption>
The issue is whether the jury instruction violates the Due Process Clause.

The prosecution must prove every element of a crime beyond a reasonable doubt.

A jury instruction that creates a rebuttable presumption violates Due Process Clause, if it shifts the
burden of proof to the defendant.

A jury instruction that creates an irrebuttable presumption is a per se violation of the Due Process
Clause.

However, a state may impose that affirmative defense be proved by the defendant.

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Appeal and Error

B<Motion for Judgment of Acquittal>

The issue is whether the court should grant the motion for a judgment of acquittal.

After the prosecution closes its case in chief or after the close of all the evidence, the defendant may
move for a judgment of acquittal. If the evidence is insufficient to sustain a conviction for an offense,
the court must enter judgment of acquittal.

C<Harmless Error Test>

The issue is whether the court is required to vacate the guilty verdict, if testimonial evidence that should
have been excluded as violative of Miranda was improperly admitted at the trial and the defendant was
convicted.

The guilty verdict will stand if the government can prove, beyond a reasonable doubt, that the error was
harmless because the defendant would have been convicted without the tainted evidence.

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