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WHEN THE DEFENDANT HAS MORE RESOURCES THAN THE GOVT. TRYING THE CASE THEN THE SYSTEM IS REVERSED (OJ CASE #1). MONEY THEN MAKES THE JUDICIAL SYSTEM BIASED. CAPITAL PUNISHMENT: INNOCENT PEOPLE ARE BEING KILLED, BUT HOW MANY IS TOO MANY. THE REASONS THE WRONG PEOPLE ARE BEING CONVICTED ARE: -WRONGFUL CONFESSION -MISIDENTIFICATION BORE -PERJURY (POLICEMAN THE AMENDMENTS: 4TH: SEARCH & SEIZURE: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. 5TH: TRIAL & PUNISHMENT: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law . . . 6TH: RIGHT TO SPEEDY TRIAL; CONFRONTATION OF WITNESSES: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. THE RIGHT TO COUNSEL: 1. Legal Regulation of the Criminal Justice Process a. Steps in Process i. Pre-Arrest Investigation ii. Arrest iii. Booking iv. Post-Arrest Investigation v. Decision to Charge vi. Filing the Complaint vii. Magistrate Review of Arrest viii.First Appearance ix. Preliminary Hearing x. Grand Jury Review xi. Filing of the Indictment or Information xii.Arraignment on the Information or Indictment xiii.Pretrial Motions xiv.Guilty Plea Negotiation and Acceptance xv.The Trial xvi.Sentencing xvii.Appeals xviii.Collateral Remedies b. Diversity in Legal Regulation i. 52 lawmaking jurisdictions
3. “Ordered Liberty”, “Fundamental Fairness,” “Total Incorporation” and “Selective Incorporation” (p. 24)
Twining v New Jersey (p. 24) 1908 State ct prosecutor said jury may draw unfavorable inference from def’s failure to testify. 5th amendment: right to silence, cannot be looked upon unfavorably, gov can’t comment on failure to testify or failure to talk when arrested. ct held privi and imm clause does not incorporate bill of rights, and due process also does not require 5th amendment apply to people in state courts, not immutable principle of justice. Powell v Alabama (p. 25) 1932 Duncan v Louisiana (p. 25 and p. 1349) 1968
Right to jury trial for serious criminal offenses Maximum punishment was 2 years in prison; no entitlement to a jury trial; misdemeanor Selective incorporation – right to jury trial; Incorporate that which is “fundamental” HELD: The 14A guarantees a right to a jury trial in all criminal cases which – were they to be tried in a federal court – would come within the 6A’s guarantee. Rationale: years in prison is serious and not petty Deep commitment of the Nation to a right of jury trial in serious criminal cases Provides protection from the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge. J. Black’s concurrence Still believes in wholesale incorporation, but will accept selective incorporation J. Fortas’s concurrence Not incorporating all the rights, but just limiting this to a jury trial J. Harlan’s dissent “What’s the principle here?” Lack of fundamental unfairness, so why go with selective incorporation? It is or it isn’t. However, SI at least limits the “run free, run wild” risks of “natural law” The key compromise that still exists today Alternatives Frankfurter vision of ordered liberty Wholesale incorporation – everything comes in, no matter the relative importance Selective incorporation Use sort of natural law, but it didn’t begin overnight; presume that the BOR reflect natural law; presumptively view the BOR as within the accepted notion of justice; rebuttable presumption
ii. The Unifying role of federal constitutional regulation iii. Natural divergence iv. Describing common patterns v. Models vi. Procedural subsets c. Diversity in Administration i. Significance of discretion ii. Discretion and diversity Sources of Criminal Procedural Law
a. The Problem of Bodily Extractions, another look at the “due process” and “selective incorporation” approaches i. Rochin v California (p. 31) 1952 ii. Police enforced stomach pumping to recover morphine capsules from Rochin. (Shocks the Conscience test)
4. Due Process Right to Technology that Might Establish One’s Innocence? (p. 3 supplement)
District Attorney’s Office v Osborne (p. 3 supp) 2009
1. Compared the extraction of stomach contents to the coerced confessions that offend the communities’ sense of fair play and decency. 2. The government with permission now can gather those kind of those things a. What do I mean about permission? i. Ask the criminal ii. Or get a warrant 1. Probable cause to believe your blood leads to evidence to a crime
a. The limit is the 14th amendment i. Breithaupt v. Abram (1957) Blood test taken from an unconscious driver in a manslaughter case showed alcohol level 1. Blood samples under the care of a physician and procedure has become routine in our everyday life. a. Schmerber v. CA i. Upheld that a police can take a blood sample from an injured person against him objection 2. County of Sacramento v. Lewis: police killed motorcycle passenger during motorcycle pursuit. Used shock of conscious test and found that this action did not shock the conscious 3. Continued application of “free standing” due process ii. Dominant source of constitutional regulation of the pre-trial stages of the process iii. A major source of constitutional regulation of the trial iv. Held unconstitutional under deductive reasoning instead of the consistency of common law v. Look to particular case and resting b. The federal courts “supervisory power” over the administration of federal criminal justice i. McNabb v. U.S. (1943) 1. Quickly brought before a magistrate for prosecution…24hrs. 2. Or you will explain why you didn’t and if you don’t have an explanation and confession you get will be out, and will be excluded. a. US v. Payner (1980) Money Laundering in Bahamas i. Does not authorize a federal court to exclude evidence that did not violate defendant’s Fourth Amendment rights b. US v. Hasting (1983) c. Guantanamo Bay i. How long to hold people under due process ii. Government has lost every case so far iii. (Supplement Case) iv. Habeas Corpus: produce the body and justify detention TH Amendment: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, 5. 6 by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.
a. Betts v. Brady (1942) Page 80 i. The court did not give the defendants lawyers and decided that they will evaluate these cases on a case by case basis b. Gideon v. Wainwright i. In the case, the Supreme Court unanimously ruled that state courts are required under the Sixth Amendment of the Constitution to provide counsel in criminal cases for defendants unable to afford their own attorneys or lawyers. 6.Recoupment Laws: a.Potential for violations of equal protection b.Recoupment (promise to pay counsel costs) may be a condition of probation, if likelihood of ability to repay 7.The Right to Counsel a.Fundamental Right: Comes from the 6th Amendment, and applies to the states via due process clause of 14th in Gideon v. Wainwright. i. Facts: The defendant was charged with the robbery of a poolroom. At trial he was denied his request for appointed counsel, despite his indigence. He was convicted. The Supreme Court held that Gideon had been denied a fair trial. The 6th Amendment, as incorporated in the 14th amendment automatically entitles an indigent defendant to appointed counsel. At least in felony counsel. ii. Unqualified right to hire the counsel of your choice b.Proceedings in Which the Right to Counsel Applies i. Misdemeanors- In Argersinger v. Hamlin the supreme court extended the right to counsel to all indigent misdemeanor defendants faced with a potential jail sentence. ii. Right to counsel attaches only in cases where DEFENDANT faces possible prison 1. Scott. v. Illinois: HOWEVER, the right only reinforced if imprisonment results; EX: if DEFENDANT sentenced to probation, then no atty required, even though prison was potential 2. Nichols v. US: THEN, an uncounseled conviction may be relied upon to enhance sentence under a later conviction, even if result is prison. Overrules Baldasar. iii.Suspended jail sentences or probation: NEW DOCTRINE: indigent DEFENDANT without counsel may not receive suspended jail sentence or probation. Alabama v. Shelton c. Right to counsel when adversary judicial proceedings commence AND case is at a critical stage: i. Initial Appearance: right to counsel applies before magistrate 1. White v. Maryland – initial appearance is a critical stage of the proceedings, and requires the appointment of counsel, if the defendant is compelled to make a decision which may later be formally used against him. a. Even if the defendant is not compelled at the initial appearance to make decisions which may be formally used against him at trial, there is still a possibility that he may in particular circumstances have a right to appointed counsel. ii. Preliminary Hearings: Coleman v. Alabama – denial of right to counsel at the preliminary hearing was a violation of the accused’s 6th amendment’s rights, because the hearing was a critical stage of the prosecution. iii. Arraignment: critical stage requiring counsel, but the denial of counsel is harmless error as long as the defendant is not required to bind himself in anyway.
held that a state must provide a free transcript of the trial proceedings when submission of a transcript is a prerequisite to appeal. he has a right to counsel for this appeal. Griffin-Douglas Principle: The equal protection 1. NOT when prime suspect 4. c.Court Expenses/Processes i. NOT at a line-up (before proceedings begin) 5th amendment right against selfincrimination? 2. DUE PROCESS & EQUAL PROTECTION are implicated when the right to appeal exists but is not meaningful. Douglas: The “Griffin principle” of equal protection was held to require that counsel be appointed to assist indigent defendants in preparing the first appeal from a conviction. No right to appeal when discretionary appeal from plea of guilty. Ake v. even non-felonies 2. Sentencing: a delayed sentencing hearing was a critical stage of criminal proceedings requiring the right of attorney 1. Said that the appeal is rejected or accepted based on likelihood that the original determination of guilt was wrong.iv. (2) when in a capital sentencing proceeding. b/c not critical) 3. NOT at a photo array (even after proceedings begin. Moffitt: The Supreme Court adopted a narrow view of GriffinDouglas in holding that an indigent does not have a right to appointed counsel on his applications for discretionary review by the state supreme court or on his petition for cert. a. the state tries to justify the death penalty by showing that the defendant is likely to remain dangerous. generally. Oklahoma: two instances when the defendant has the right to a psychiatrist’s assistance at state expense: (1) when he makes a preliminary showing that his sanity is likely to be a significant factor in his defense. a discretionary appeal. but a free transcript is necessary to equal access when the do ii. b. as a result of an overly complex appeal process 3. Ross v. by the us supreme court. at least where the first appeal is available as a matter of right in every convicted defendant. a. ii. Griffin: The S. thus state must provide basic tools of adequate defense a. NO right to attorney or assistance with the app ii.C. Free transcript is necessary in all cases. in particular one where the transcript and brief were already filed in court below.EQUALIZING DEFENDANTS a. the right is activated by forces that jeopardize the privilege against self-incrimination) 8. NOT by virtue of simple detention (administrative detention of a prisoner does not activate. Counsel on Appeal: If DEFENDANT has a direct appeal right. States are not required to provide all forms of appellate review. There can be no equal justice where the kind of trial a man gets depends on the money he has. i. 5 . Transcript necessary for appeal: i. Expert Services: Fundamental fairness entitles indigent Defendants to adequate opportunity to present claims fairly.
even though presiding can impose 30 days hard labor c. States may adopt different appellate procedures. Preliminary showing by DEFENDANT that sanity at time of offense is likely to be a significant factor. he should advise the court with a request to withdraw along with a brief referring to anything in the record that might arguably support an appeal i.Knowing. Anders brief must include discussion of why appeal is meritless ii. 4. Probation Revocations – No unqualified right to counsel: i. Conflicting Obligations on Appellate Counsel: a. He did not commit the violation b. Stand-by counsel: NOT a violation of 6th right i. Nature of charges against him. 1. as long as right to appellate counsel is preserved and indigent appeal is resolved in a way that relates to the merits of the appeal 5. major. Case-by-case approach.WAIVING THE RIGHT a. says that proceed pro se right is not absolute and you cannot claim ineffective assistance of counsel if you waived counsel b.b. Voluntary & Intelligent: Iowa v. Mckaskle v. OTHER PROCEEDINGS a. Juveniles: always have right to counsel f. Court of Appeals of California. Martinez v. There aremitigatin circumstances making revocation inappropriate. or. HOWEVER. yes 9. no clear right on appeal (state interest in measuring integrity of convictions) 1. AND. ii. Parenting Termination: No unqualified right – state courts may determine on case-by-case basis d. In capital cases. Collateral Attack: No constitutional right to counsel in post-conviction proceedings e. Simple question of whether probation should be revoked = no lawyer. Right to counsel regarding plea. If counsel finds a case wholly frivolous. Wiggins: Serves interest of orderly proceeding. 2. Military: minor no. ii.Faretta v. ii. b. 6 . Factual inquiry as to whether violated terms = lawyer. Π presents evidence of Π future dangerousness. b/c atty can educate DEFENDANT as to protocol and routine obstacles c. STANDARD: Judge must inform DEFENDANT of: 1. usually no counsel needed unless defendant present a timely and colorable claim that: a. Tovar i. Summary Courts-Martial: No right to appointed counsel. A criminal defendant in a state proceeding has a constitutional right to knowingly & intelligently refuse the aid of an attorney. California: DEFENDANT must be free to decide: DEFENDANT has a right to proceed pro se i. Due process requires access to psychiatric evaluation when: i.
obtaining a dismissal. conviction subject to reversal if incompetence negates effectiveness ii. Flores-Ortega: Counsel’s failure to file an appeal as of right when defendant had requested one would constitute per se ineffective assistance of counsel. DEFENDANT must decide: plead guilty. right to effective ONLY if right to appeal.3. or forgo an appeal ii.Strickland v. No right to compel counsel to raise every nonfrivolous issue iii. no right on discretionary iii.Required Level of Competency: i. Judge does NOT need to foresee and warn of ALL future consequences (such as three-strikes on first offense) b. Nixon v. COUNSEL has ultimate authority in deciding: barring prosecution form using unconstitutionally barred evidence.CHOOSING COUNSEL a. waive right to jury trial. AND.Retained: Courts cannot disqualify chosen counsel without a good reason i. 10. testify on his own behalf. Appellate counsel may decide which nonfrivolous issues to raise. it could signal to the client that they wanted the judicial proceeding to be over.DECISION-MAKING a. thus. “sufficient present ability to consult with a lawyer with a reasonable degree of rational understanding” ii. 7 .Counsel’s Decisions: “Superior ability of trained counsel” in assessing “strategy”: i. Range of punishments if pleads guilty. No requirement of different/higher standard of competency than that for trial standing ii. NO 6th right to “meaningful relationship” b. striking an improper jury instruction. ii. On appeal. ii. “has a rational as well as functional understanding of the proceedings against him” e. etc. v. Counsel not required to file notice of appeal unless specifically directed to b. Collateral attack: if defendant wants to attack the fact that he waived counsel he must prove that he was unaware of one of the above things. 12. thus. wearing civilian rather than jail clothes. Constitutional right to effective assistance of counsel.Defendant’s Decisions: “Fundamental rights”: i.Appointed: Indigent DEFENDANT has NO right to choose his counsel i.EFFECTIVE ASSISTANCE a. Denial in violation of 6th is a structural error (thus. as a strategic decision iv. Roe v. “Strategic decisions rest within counsel’s professional judgment and include the methods to utilize for a vigorous and effective advocacy” iii. d. Florida: Strategy pursued without DEFENDANT approval is never per se ineffective. Deficient performance of counsel such that it did not qualify as counsel. The deficient performance prejudiced the defense. even though counsel conceded DEFENDANT’s guilt to the jury. this was part of a trial strategy aimed at sentencing mitigation. Courts must apply one standard for both retained and appointed counsel b. waive right to be present at trial.Can forfeit counsel if defendant assaults counsel or assures judge he will retain counsel and doesn’t in a reasonable amount of time. automatic reversal) ii.6th Amendment: i. a. Since there was a guilty plea entered here. The right does NOT cover the use of otherwise forfeitable funds to hire atty 11. Washington Two-Part Test: i.
Court said that was a startling failure of professional responsibility. to require counsel to advise the trial court of the perjury. however. 2. inexperience and insufficient time did not meet standard. must investigate mitigating factors. Failure to examine prior conviction file (where mitigating evidence would have been found) was deficient. iii.” 3. and must have prejudiced Defendant so much as to have deprived of right to fair trial 1.” iv. “Strategic” Decisions: 1. and thus deserves heightened attention iii. Timely Exclusion: DEFENDANT should be able to use federal habeas to repair failure to timely request exclusion. and that counsel would probably be allowed to impeach that testimony. Illegally seized evidence is often highly reliable and probative. a federal court may reverse this only if the decision was "objectively unreasonable. Davis: Remarks about racial prejudice in closing argument were objectively unreasonable. Family told counsel that they didn’t know why defendant would have committed the crime (they thought he was innocent). Suppression: Failure to file timely motion re evidence obtained in violation of 4th amendment. Nix v. iii. Re-Stated: Performance must be deficient. Failure to take standard investigative step (in capital case) was per se deficient 3. State v. decision to use would be strategic. Whiteside: counsel told defendant that perjurying himself would lead counsel to withdraw. where no showing of actual prejudice 8 . Maybe not the best lawyer for a black guy? i. 1. ii. (Kimmelman) 1. Perjury: Refuse to cooperate with perjury = NOT ineffective 1. the result of the proceeding would have been different." the federal judiciary must respect the state court's reasonable conclusion that the lawyer was sufficient. Yaraborough v. ii. Evidence of youth." While Gentry's lawyer "was no Aristotle. The Test.1. In capital case. Beard 1. Kimmelman v. STANDARD: “reasonably competent attorney” 2. Did the lawyer’s behavior fall below the expected behavior of the average lawyer in the jurisdiction? iii. To a white jury “I do not like black people but urge you to not let race become a factor. Morrison: Did not ask for pre-trial discovery iii. State court determination as to performance may only be reversed if “objectively unreasonable.Prejudice: i.Deficient Performance: i. Venue: This seems to be raised as a habeas issue in many cases c." The right to effective assistance of counsel "is denied when a defense attorney's performance falls below an objective standard of reasonableness. Duty to Investigate: Rompilla v. Defining Prejudice: there is a reasonable probability that but for counsel’s unprofessional errors. d. Gentry: presented a federal habeas corpus challenge to alleged ineffective assistance of counsel due to closing argument 2. If a state court rejects an ineffective-assistance claim.
. 2. v. Scope of the inquiry:should not be perfunctory but should include probing and specific questions. it has duty to inquire iv. 2. One of the lawyers prepares both men’s appellate briefs. sleeping through trial 3. Adverse impact on counsel’s performance.CONFLICT OF INTEREST: action taken on behalf of the defendant would work against an obligation the attorney owes to another person or the attorney’s self interest. Trial court prevented counsel from utilizing certain adversarial procedures. and. iii. . . Examples: 1. or. Exceptions: Strickland analysis not the best choice if: 1. 1. Defense counsel has previously represented or is currently representing in another matter the victim of the alleged offense ii. Public defender with too-heavy caseload and insufficient resources to match could not provide effective assistance 2. the court should inquire into a conflict of interest. 2. tow lawyers from the same firm. Least experienced attys should not be assigned to capital cases e. no duty to initiate inquiry iii. Not per se violation. Post-Conviction Review: STANDARD (Mickens v. Kemp: Even if law partners are considered one atty. iv. If the possibility of conflict is reasonably apparent to the court. . i. Burger v. Presence of actual conflict. . Failure to investigate the risk of conflict upon counsel’s statement of conflict denies effective assistance and violates the 6th amendment. Arkansas): 1. Sua Sponte: Unless court “knows or reasonably should know that a particular conflict exists”. Joint representation of codefendants who will be tried separately. 2. 3. Institutional Defects – bypass deficiency and prejudice: 1. Each defendant confesses but admits majority of culpability to the other defendant. . provide mitigating evidence or make closing argument iv. failure at sentencing to call witnesses. the result of the proceeding would have been different. but only argues lesser culpability in one brief.1. Two defendants. Examples: i. If the defendant’s have been jointly charged or their trials have been joined together. Court presumes prejudice only if the defendant demonstrates that counsel actively represented conflicting interests and that an actually 9 . Counsel also requested separate counsel for defendants. Reasonable probability that but for counsel’s unprofessional error’s. iii. Taylor): 1. shared representation is not a per se violation. Attorney that allocates resources to clients passing polygraph = ineffective 3. Counsel burdened by an actual conflict of interest. . 2. . Trial Court’s Obligation: Upon Motion of DEFENDANT (Holloway v. HOWEVER: a sufficiently atrocious performance by counsel may warrant presumption of prejudice .
1.S. ARREST. Certain flagrant conflicts. Suppression is NOT a remedy for simple illegality – a violation of IRS regs g.On statutes and regulations . and wait until the person answers the door. Exclusionary rule did NOT require suppression of evidence obtained in a badly executed “knock-and-announce” ii. “objectively reasonable reliance on statutes” = admissible ii. in violation of the Constitution. v. All evidence obtained by searches and seizures. in favor of iv. i. b. announce that they are the police. . (US v. Principles To Be Protected: i. As long as the person writing the affidavit wrote it in good faith.Civil & Quasi-Criminal: 10 . no constitutional interest is served by suppression d. ii. the decision is that of the magistrate and the exclusionary rule serves no useful function. raise presumption of adverse impact (U. Leon) i. such as atty engaging in client’s criminal acts. the court may prohibit the same lawyer from representing two or more defendants. if reasonably relied upon. may still be admissible because the officer should not be held to not believe a judge who says a warrant is good. .conflict of interest adversely affected his lawyer’s performance.Pre-Trial & Post-Conviction: i. The officers enforcing the warrant must be able to rely on the decision of the magistrate. th right allows DEFENDANT to waive right to conflict-free counsel. If police arrested or seized property on invalid search warrant. Failure to name the items to be seized with particularity. Michigan: even if the defendant can show that certain evidence would not have been acquired by the police but for their failure to wait for the door ti be answered. ii. 1. . Exclusionary rule does NOT apply during a parole revocation hearing h. HOWEVER: where the warrant is so obviously invalid that a reasonable officer should have known it was invalid. i. Hudson v. Fulton). . is (per 4th/15th) inadmissible in state court and federal court (Mapp v. c. Waiver: 6 choice of counsel Wheat v. f. HOWEVER: evidence obtained by police in reasonable reliance on a search warrant issued by a neutral magistrate will still be admitted. without violating the 6th amendment rights of the defendant who loses access to his first choice. Grand jury witness may not refuse questions based on unlawfully-obtained evidence ii. but the problem becomes what is it worth? e. US 1. Ohio). ii. So long as there is a reasonable possibility of a conflict. Purpose of exclusionary rule must be considered – since the purposes of the “knock-andannounce” rule do not connect to the evidence seizures that result. Knock and Announce Rule – when the police enter a private dwelling to execute a search warrant they must knock and announce. the evidence will still be admissible against him. They must knock first. i. SEARCH & SEIZURE: 1.Reasonable Reliance: On the warrant itself . Exclusionary Rule a. When attorney has engaged in the defendant’s crimes. then defendant files and §1983.
1. HOWEVER: something about nexus of property being tied to the crime iii. Aerial or long-distance photography are not intrusive. US). Individual on a pay phone has similar expectation of privacy as user on phone number 2. his/her conversation is protected from "unreasonable search and seizure" by the Fourth Amendment.PROTECTED INTERESTS a. not places. Prison cell = no expectation of privacy (Hudson v. Distance surveillance of a greenhouse OK ii. thus. Non-police gov’t employees: mistake by a court employee is not the evil that exclusion protects against – thus. especially if based on alleged criminal activity ii. STANDARD: Reasonable expectation of privacy. was NOT a search (Caldwell v. which is quasi-criminal. Looking at a VIN or other thing inside car is not a search. is admissible here??? 2. a device not available to the public is a 4th search. Palmer) iii. Chattels: 1. Observation through an air shaft into restroom stall NOT okay 2. Open fields are still probably fair game 3. are not covered by 4th. Private Areas of Public Places: 1. Foreign officials: deported alien felons who re-enter U. evidence from country of origin. Hearing something nearby is NOT a search 2. from unreasonable intrusion i. 3. 11 . So long as an individual can justifiably expect that his conversation would remain private.People & Places: i. that by feeling his luggage. Restrictions/Exceptions: 1. Vehicles: i. after car was already seized. Thermal imaging of a residence – while the police may use ordinary. HOWEVER. Bags & Briefcases: Manipulation of luggage was 4th violation. iv. non-intrusive sense enhancement. Lewis) ii.i. Class) 2. reliance on warrant (mistakenly allowed to stand) was reasonable here iii.Katz v. United States: established that the 4th protects people.Third Party Conduct: i. Public Places: 1. Exclusionary rule DOES apply during a forfeiture hearing. the police searched it on the bus and that kind of inspection is more intrusive then a purely visual inspection. AND: warrants may be executed against innocent 3rd parties b. reaching in to clear obstacle to officer’s view = a search (New York v. Exclusionary rule does NOT apply during civil deportation hearings i. Private persons: police may view and inspect what a private party has already unlawfully searched/seized ii. though illegally obtained by authorities there. Exclusionary rule does NOT apply during civil case brought by another sovereign iii. ii. b/c they do not reveal anything that could not otherwise be seen.S. Paint sample taken from a car. and requires a warrant (Kyllo v.
However. PROBABLE CAUSE a.v. no privacy infringement. there is probable cause to arrest its occupants. Maryland i. finding contraband in an automobile. police must state sufficient facts of which they have actual knowledge or information from a reliable source b. Records may be seized even though the holder is an innocent third party 1. based on their own state constitutions. PATRIOT re-auth created a judicial review and more procedural protection before the seizure may take place. Knotts). 2. 1. in some circumstances (???). Canine Sniff: of luggage in a public space was NOT a search (US v. 213 (1983). PATRIOT of 2001 permitted such seizures on the word of an agent. NOTE: if documents cannot be taken without examining the contents of unseizable documents. he was never required to say anything.S. which held that search of petitioner's offices for business records. officers should seize the lot and wait for proper procedure to be determined 2. Massachusetts. 3. ii.Documents/Records: Andresen v. but will not prevent a lawful search for his records 1. Colorado court held (2002) that an innocent.S. The magistrate must be informed of some of the underlying circumstances relied on by the person providing the information. vii. 462 U. This information provided to a magistrate will allow the magistrate to make an independent evaluation of the probable cause that a crime has been or will be committed. Tennessee. however.” Although the records seized contained statements that petitioner voluntarily had committed to writing. Sniff search of vehicle during traffic stop was NOT a search (Illinois v. Place) 1. The Supreme Court abandoned the Aguilar-Spinelli test in Illinois v. Gates. If installed with consent of owner. Caballes) vi.judicial guideline set down by the U. Police can use any device that can give them information that they can get without the device. monitoring the beeper will be an unreasonable search. Supreme Court for evaluating the validity of a search warrant based on information provided by a confidential informant or an anonymous tip. The two “prongs” of the test are that. Computers: Person who transmits e-mail enjoys reasonable expectation of privacy – thus. must have reasonable grounds to believe that a crime has been committed by the person to be arrested 1.Probable cause to arrest: i." However. b/c it reveals information that could not have been revealed through visual surveillance. in favor of a rule that evaluates the reliability of the information under the "totality of the circumstances. and Washington have retained the Aguilar-Spinelli test. regardless of their proximity from the contraband 12 . warrant required (or help from recipient) c. third-party bookstore must get hearing before forced to turn over all purchasing records. New York. Business records – 5th may be employed to prevent accused from cooperating and turning evidence over. when law enforcement seeks a search warrant and a magistrate signs a warrant: The magistrate must be informed of the reasons to support the conclusion that such an informant is reliable and credible. and subsequent introduction into evidence did not offend the Fifth Amendment's proscription that “[n]o person … shall be compelled in any criminal case to be a witness against himself. Devices: Police may use electronic tracking device if placed in goods sold during a sting operation (US v. their seizure.
which arose from a federal child pornography prosecution. Particularity of description must be incorporated in the warrant.Probable cause to search: i. and describe with particularity things and place to be searched. not in supporting affidavit. If one can reasonably tell from outside a structure that it contains multiple residences. but not exclusive or mandatory. deference to magistrates (support the magistrate’s determination that there was a fair probability that contraband or evidence of crime would be found in Defendant’s motor home) ii. was properly issued and executed because it described the place to be searched and the objects to be seized. Warranted Searches: i. and basis of knowledge are all highly relevant. Probable cause is also required for warrantless i. US. 1. Steele v.ARREST WARRANT: clerk may issue. ii. warrant must describe the particular one to be searched (standard: “objectively reasonable”) State v. Particulars: Sufficiency of the description: officer with a search warrant can. Blackburn ii. search is subject to challenge if a false statement was necessary to the probable cause determination. so that issuer can evaluate probable cause i. but did not state this on its face.SEARCH WARRANTS a. Timing: Must be executed promptly (usually 10 days at most) 13 . an informer’s veracity. Groh v. Anticipatory searches are constitutional and do not need to describe that condition on their face. with reasonable effort. must have reasonable grounds to believe that the items sought are connected with criminal activity and that they items will be found in the place to be searched 1. Upton).2. Execution: 1. Grubb: i. factors in evaluating the totality of the circumstances (Massachusetts v. information/orders received through official channels can NOT create probable cause. Authority: Cannot be issued by investigator or prosecutor – must be issued by a “neutral and detached magistrate” 1. Ramirez iv. but DEFENDANT must prove untrue 2. 5 table contents) 4. reliability. b/c judicial review occurs quickly upon arrest b. Warrantless Searches: i. and the search was conducted after the delivery was made. i. Pringle: (p.SEARCH WARRANT: must be prepared by trained lawyer. Maryland v. anticipatory searches are okay (warrant authorized for later search after triggering event) US v. In this particular decision. ascertain and identify the place intended. Magistrate cannot be paid by the warrant or offered other incentives ii. the totality of the circumstances should be considered to determine whether there is a fair probability that contraband will be found in a particular place i. iii. where the issuing authority lacked probable cause originally c. the Court ruled that a warrant that was predicated on the undercover delivery of a videotape to the defendant's home.
Other Concerns: i. Pugh i. Generally.Post-Arrest Searches: 14 . there is no further justification for dispensing with a magistrate’s neutral judgment. PLAIN VIEW: While executing. City of Lago Vista ii. they are entitled to use deadly force if they reasonable believe that lesser force will not suffice. the reasonable suspicion test is NOT affected by unavoidable destruction of property as part of entry ii. Police may then break in IF occupant’s failure to let them in fairly suggests refusal (consider: time to get to door. i. should be executed during the day. Okay to detain and restrain persons on premises for officer safety Michigan v. the police are not requires to call of the chase even if this would reduce the danger. but must be constitutionally done v. In all questions of force. so warrant must call for containers – NOT SURE. Misdemeanor: arrest if officer observes the commission of the crime. Summers 4. unless specified in warrant ii. Safety: If warrant does not permit searches of persons found on premises.S. However. then treat these as warrantless i. PRETEXTUAL STOP: not a problem. Garner i. ii.Magisterial Review: Must occur within 48 hours (except in genuine emergency) Gerstein v. Watson i. Entry: In order to justify entry without “knock and announce”. esp. Night search only requires showing that property to be seized is likely to be on premises at that time iii. Where the police do have reason to believe that the suspect is dangerous to themselves or others. State v. And at least where the suspect is fleeing by driving recklessly. Absence of occupant is not a factor. anything in plain sight is fair game. v. Scott v. This is true even when the police have sufficient advance notice so that procurement of a warrant would not jeopardize the arrest. Tennessee v. when breaking traffic law b. Atwater v. Anything that is viewable in the area where the police have a right to be.i. US v. Once a suspect is in custody.Arrest Standard: Arrest warrants are seldom used and are generally held to not be constitutionally required. nature of establishment) 3. Detention while waiting for warrant is okay ii. Evers.WARRANTLESS ARREST & SEARCH a. COMPUTERS: may be treated as a container. futile or inhibit investigation. ask whether an officers’ actions are objectively reasonable without regard to intent or motivation. Harris c. Gervato 2. d. Felony: arrest if probable cause iii. however. police must have reasonable suspicion that to do so would be dangerous.Deadly Force: ONLY if probable cause to believe that the suspect posses a significant threat of death or injury to the officers or others. iii. as it is an intrusion that does not facilitate the search iv. Connor 1. The search ends when warranted items are found 5. Presence of media during search unconstitutional. U. Delivery of warrant to property holder is generally a creature of state law. Graham v.
Officer Safety: i. No need preserve and discover evidence when there is no likelihood that speeding will continue. Lee iv. Is constitutional. but no arrest made. California i. even if arrest is for an offense which bears no jail time possibility. Search “incident to a lawful arrest” . Winston v. Chimel 1. on the other. Lee iii. A police officer pulled over and arresting Robinson for operating an automobile without a valid permit. Then chose to search the car. Once an accused has been lawfully arrested and is in custody. b/c interest in preserving evidence. 1. Cupp v. the effects in his possession at the place of detention that were subject to search at the time and place of arrest may lawfully be searched and seized without a warrant even after a substantial time lapse between the arrest and later administrative processing. Edwards ii. The officer then frisked Robinson and discovered a crumpled cigarette package containing fourteen vials of heroin in his pocket. and the taking of the property for use as evidence. Suspect voluntarily came to police station to answer questions about wife’s strangulation and had what appeared to be blood under his finger nails. Delay in full search okay. they were prohibited from rummaging through the entire house without a search warrant. Winston v. No threat to officer safety following a traffic citation 2.i. Murphy e. The Court reasoned that searches "incident to arrest" are limited to the area within the immediate control of the suspect. The Court emphasized the importance of warrants and probable cause as necessary bulwarks against government abuse.PREMISES SEARCH i. The concerns for searching after an arrest do not apply. where the officer found drugs. While police could reasonably search and seize evidence on or around the arrestee's person. thorizes arrest in home or public does NOT authorize entry into third party’s home 2. Chimel v. where no custodial arrest. outweighed intrusion. Robinson 2. US v. on the one hand. Officer could has done a custodial arrest but chose to issue a citation. 1. alcohol diminishes in blood quickly. where probable cause to arrest exists. Always permissible to search an individual during arrest. BLOOD TEST: permitted. okay to search D’s entire person and seized property (protect from theft and discover dangers) i. US v. where there are no exigent circumstances. Full search of vehicle was NOT okay. in which the individual’s interests in privacy and security are weighed against society’s interests in conducting the procedure. a search is incident to arrest only if it is substantially contemporaneous with the arrest and is confined to the immediate vicinity of the arrest ii. Protective Sweep: MUST be contemporaneous to arrest 15 . v. as police were waiting for substitute clothing ii. Should be conducted on a case by case basis. it is unconstitutional to search a home without warrant during arrest iii. SURGERY: to retrieve evidence swallowed was NOT reasonable search. Limited search of person (fingernail scrapings) okay.search in an arrestee's home beyond arrestee's person and the area within his immediate control is unreasonable. When returning to police facility.
was conducting a new. Hicks ii. No probable cause needed to inspect packages/containers coming into country. Giacalone v. and inspect drawer with clothes for any dangers. CARNEY 1. to prevent suspect from destroying evidence (for a “reasonable” amount of time). iv. Buie ii. Presence: Officer waited 19 hours in apartment to secure for warrant = OKAY iv. outside the bounds of the arrest. i. Instead. did specify that an arrest warrant (as opposed to a search warrant) would have sufficed for entry into the suspect's residence if there had been reason to believe that the suspect was within the home. Florida v. Gravity of the arrest offense matters – arresting in home for the sole purpose of securing BAC results was unjustified. White v. Secure Evidence: i. and ONLY as long as necessary to dispel reasonable suspicion of danger. that threshold may not be reasonably crossed without a warrant. which police may search without a warrant and with probable cause. Okay to detain suspect outside residence. Probable Cause: i. May extend only to cursory inspection of where person may be found. without probable cause. Auto itself may be seized upon probable cause that it is itself contraband. Naked Suspect: Okay to allow suspect to get dressed. less expectation of privacy ii. VEHICLES & CONTAINERS f. New York 4. Lucas iii. especially (forfeiture). The decision established that motor mobile homes may not receive the heightened protection from warrantless police searches to which stationary homes are entitled. auto may be subject to search without warrant solely on basis of probable cause to believe that vehicle contains something subject to seizure iii. then search again vi. while there on unrelated matter. okay to re-close and deliver. includes motor homes CALIFORNIA v. Limits: Officer who moved stereo equipment. motor mobile homes are more akin to automobiles. Even if Chimel. inherent mobility of autos creates exigent circumstance. Maryland v. Payton v. then. while waiting on warrant to search within. Outside: Arrest in front of house did not authorize cops to take suspect back inside and then search house. if contraband.i. 16 . The court. Arizona v. The Court struck down a New York statute providing for such warrantless entries because the Fourth Amendment draws a firm line at the entrance to the house. warrantless entry into a private home in order to make a felony arrest. holding that the warrantless search of a house can be justified as incident to a lawful arrest only if confined to the area within the arrestee's reach. i. unreasonable search. Waiting inside house with defendants for iii. Absent exigent circumstances. however. Vale v. to get serial numbers. Louisiana 3. even though suspect is outside car. Contemporaneous to Arrest: Okay to search passenger compartment whenever arresting.
Acevedo ii. Houghton 1. that criminal activity is afoot and that person with whom he is dealing may be armed and dangerous b. "Once an officer determines there is probable cause to make an arrest.” California v. Routine Searches: as part of routine impound procedure. it is reasonable to allow officers to ensure their safety and to preserve evidence by searching the entire passenger compartment. if there is no inventory policy." In place of that uncertain distinction. even if there is none for the vehicle as a whole.1. Standard for the Stop: i. Anonymous tip with vague description and no independent confirmation did not have “indicia of reliability” iii. US 6. Florida v. Examples: i. then search of containers probably reaches beyond (search of locked container. was unreasonable). Bertine ii. further searching is reasonable 1. the Court adopted a single rule: "The police may search an automobile and the containers within it where they have probable cause to believe contraband or evidence is contained. Inventory: i. Ohio a. Wyoming v. ii. it is reasonable to allow officers to ensure their safety and to preserve evidence by searching the entire passenger compartment. ALSO: if a lawful stop already. Profiling is not per se violative – totality of circumstances gave rise to reasonable suspicion of criminal activity iv. police can search a container. Basis: officer may conduct a Terry stop only when the officer observes unusual conduct that leads him to reasonable suspicion. in light of his experience as a police officer. based on probable cause that attaches to the container. and police have “articulable suspicion” that suspect may gain control of weapon. THE "TERRY STOP" Terry v. Wells 7." Thornton v. As Part of Vehicle Search: If probable cause to search vehicle. the "automobile exception" to the Fourth Amendment's general search-warrant requirement is broad enough to cover a situation where the police only have probable cause to believe there is evidence in a specific movable container within the car. always okay to inventory i. Independent Probable Cause: i. The Court noted that the warrant requirement previously had depended on a "curious line between the search of an automobile that coincidentally turns up a container and the search of a container that coincidentally turns up in an automobile. 1. Conversations with addicts do not indicate criminal behavior ii. "Once an officer determines there is probable cause to make an arrest. when no policy. Assessment based on totality of circumstances + yields a particularized suspicion that this individual is engaged in wrongdoing. containers therein are subject to be part of that search. Containers: a. Police bulletin or other third party official information is an acceptable basis for a Terry Stop 17 . in a vehicle." Colorado v.
there was no justification for the Florida court's per se rule that a seizure had occurred simply because the encounter had taken place on a bus. But Bostick "would not have felt free to leave the bus even if the police had not been present. or. not by police action – thus. In the absence of such a show of authority. Hodari 18 . freedom of movement was restricted by his being a passenger. and therefore was not seized until he was tackled. Because the Florida courts had not engaged in the correct legal analysis. just as to constitute an arrest -the quintessential "seizure of the person" under Fourth Amendment jurisprudence -. removal of detainee without his consent from public area in airport to police room in airport converted stop to seizure ii. submission to an officer's "show of authority" to restrain the subject's liberty. and if it were to depart without him he would be separated from his luggage. No physical force was applied in this case. No police obligation to inform of right not to cooperate. Bostick's movements were 'confined' in a sense. assuming that Pertoso's pursuit constituted a "show of authority" enjoining Hodari to halt. it says nothing about whether or not the police conduct at issue was coercive. 2. consensual i. i.v. since Hodari was untouched by Pertoso before he dropped the drugs. Match to suspects vague description does not warrant advanced detention for fingerprinting and subsequent interrogation is questionable iii. Flight from an encounter with police does not establish that the encounter was non-consensual. Moreover. but it may be a relevant factor vi. Mere presence in a “high crime area” does not create a reasonable suspicion. General Limitation: investigatory stop must be temporary and no longer than necessary to effectuate its purpose i. Florida v.there must be either the application of physical force. the Supreme Court sent the case back so that they could do so in the first instance. Freedom to Leave: i. no per se rule to inform suspect iii. Bostick ii. it was not through any display of authority or show of force on the police's part that Bostick felt he was not free to leave the scene of the encounter with the police. however slight. but this was the natural result of his decision to take the bus. California v. in view of all circumstances. the cocaine abandoned while he was running was not the fruit of a seizure. Thus. Hodari did not comply with that injunction. Bostick claimed he was not "free to leave" because the bus was scheduled to depart soon. the 4th cannot require suspect to answer questions. Mendenhall Test: A person is seized only if." Thus. To constitute a seizure of the person. Scope & Extent 1. a reasonable person would have believed that he was not free to leave. where that is absent. but state law can create an ID requirement 3.
4. Place iii. i. Based on the Individual: i. Temporary seizure of unattached personal effects is okay. Illinois v. Border Searches: NO WARRANT NEEDED for incoming packages and containers (“the border search exception”). Testing. Okay to drug test employees who interdict illegal drugs or otherwise carry firearms ii. 1. the 4th and 14th Amendments require that it demonstrate 19 . if uniform and slight. no privacy intrusion). Secret blood-testing of pregnant mothers suspected of drug use – supposedly to coerce into treatment. Okay to search purse. US v. CONSENT: When the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent. Almeida-Sanchez v. because the dog ONLY alerts on illegal substances (thus. Use of drug detection dog is NOT a search. THERE IS NO PLAIN FEEL RULE: the Terry stop is for officer safety only – finding a bag of drugs does not function as probable cause for the next. but an extended detention and/or search requires individualized suspicion beyond the Terry rationale. ii. Municipal Court ii. Safety Searches: WARRANT REQUIRED to search for administrative violations (except in emergency). and justifies lower standards 1. California vi. General canine checkpoints for illegal drugs – violation of 4th. Camara v. A simple checkpoint may be okay. BALANCING TEST: examine totality of circumstances and determine reasonableness by balancing degree to which intrudes upon individual’s privacy and degree to which necessary for legitimate government interests. Samson v. Okay to require drug testing for almost any extracurricular activity. but not inside. Parollees/Probationers: System presents “special needs” beyond ordinary law enforcement concerns. but still general law enforcement purpose of arrest/prosecute v. iv. Vehicle Checkpoints: Roving patrol may make random stops at int’l border. after individualized. upheld for random athletic testing and random extracurr. Ramsey iii. particularized allegation by teacher. US v. Students: Balance between student’s expectation of privacy and school’s need to function. Employees of Critical Industries: i. Caballes ii. Finding Contraband: i. but ONLY IF the gov’t’l interest outweigh’s the minimal intrusion (90-minute luggage detention was unreasonable). Based on the Search Objective i. because purpose was to detect ordinary criminal acts ii. Special Law Enforcement Need: Only a valid basis if “sufficiently different and divorced from” general law enforcement objects i. US iv. but NOT FOR GENERAL POPULATION. ADMINISTRATIVE & REGULATORY 1. Okay to blood/breath/urine test employees after train accident or certain rule violations v.
Voluntariness is determined by totality of circumstances. Bustamonte 1. 1. 2. Even threat of parole violation. the constitutional validity of a police determination of consent to enter is not judged by whether the police were correct in their assessment. ii. Parent can consent to search of live-in minor child’s quarters. Prior illegal police action (fruit of poisonous). NOT a factor: i. ii. but rather whether police had reasonable belief that party had authority to consent (assertions + knowledge + key = reasonable) i. iii. Concurrent denials of guilt (which implies that consent may have been involuntary. Mental or emotional state of suspect (and degree to which influenced by injury. iii. 5th warning (is not required. X-girlfriend who doesn’t live there anymore. US v. US v. Right to counsel asserted (consent request should be directed through counsel). Reasonableness. Implied or actual threat of incarceration. Spouse can reasonably consent to any shared marital property. b/c suspect knew would be found out). iv. ii. Illinois v. Deception (undercover agents okay). US v." not consent. Elrod shows where defendant is in emergency room with dislocated hip. Knight. Higgins v. and not the result of duress or coercion. Duran ii. ii. Rodriguez ii. statement that he will seek does not invalidate). including: ii. and sometimes live-in adult child 20 . based on the facts available at the moment. intox. b/c request for search is unlikely to elicit incrim statements). Schneckloth v. 1. the Constitution only prohibits "unreasonable" searches and seizures. express or implied. HOWEVER: other spouse can block consent if present. The Nature of Consent (Factors): i. STANDARD: objective reasonableness (not perception or intent of suspect or officer). it was reasonable to conclude that the consenting party had authority over the premises. is the touchstone of Fourth Amendment jurisprudence. Test is not whether actual authority exists. but doesn’t mention that and continually calls the apartment her apartment. Claim by officer that he already has a search warrant (however.that the consent was in fact voluntarily given. Third-Party Consent: i. Sources of Authority: i. he can’t give proper consent. Consent is invalidated by: i. circumstance). Therefore. US v. but by whether. iii.
etc. the gov’t is not required to have reasonable suspicion of the wrongdoing. v. ii. iv. may prosecute. US: i. Outrageousness: Unless the conduct reaches “demonstrable level of outrageousness”. but became illegal. Georgia v. Jacobson v. Limitations: i. Landlord may consent to common areas. 2. ii. to what extent DEFENDANT must prove.The govt. but NOT to tenant’s privately controlled premises. 1. b. Reasonableness of employee’s expectation of privacy. Suspect has exclusive control of specific area within the mutual larger area ENTRAPMENT: 1. Middle Men: when government agents have persuaded a middle man to induce a particular target selected by the agents to commit a crime. arrested and tried to shoe predisposition by saying that he ordered it when it was legal. the focus is on predisposition or intent of DEFENDANT to commit the crime. if left to his own devices. Antagonism – where motive of wife’s consent is clearly one of spite she has no right to waive her husband’s protection against unreasonable searches and seizures. the courts have generally extended the entrapment defense to the ultimate targets 3. implant in an innocent person’s mind the disposition to commit a criminal act. Employer may consent except as limited by employee’s privacy expectation. may not originate a criminal design. To be entitled to the entrapment defense the defendant must show that the govt. Courts disagree on whether to be tried by court or jury.THE BASIC TEST a.iii. Man read child pornographic magazine that was once legal. 1. likely never would have run afoul of the law. and then induce the commission of the crime so that the govt. and then induce commission of the crime in order to prosecute. 5th Circuit: the gov’t failed to prove that the preacher was likely to engage in money laundering absent the govt’s conduct. whether entrapment defense is mutually exclusive with denial of act. i. The gov’t may not originate a criminal design. 1. iii. State v. Conflicting theories: i. agents simply provide an opportunity for Defendant to commit a crime. Randolph iii. Gonzalez-Valle ii. 1st Circuit: when the govt’s quest for conviction leads to the apprehension of an otherwise law-abiding citizen who. INTERROGATION & CONFESSION: 21 . Employee may consent to business within the scope of authority iii.’s conduct induced the defendant to commit the crime. Govt.1973: Entrapment occurs when law enforcement officers instigate a criminal act by persons otherwise innocent in order to lure them to its commission and to punish them. Police have knowledge of expressed denial of consent. the courts should intervene. give an innocent person the disposition to commit a criminal act. Suspect is present and denies consent iv. Legal conduct and law changes: Prior lawful acts may NOT be used to prove predisposition.
Perkins iv. pre-Miranda silence and demeanor. Pennsylvania v. but NOT in response to interrogation. “Routine booking questions” are permitted. any statement made by a suspect as the result of a custodial interrogation is compelled. Reasonable danger of incrimination: Statutes requiring suspects to identify themselves during police investigations did not violate either the Fourth or Fifth Amendments. The Court held that the Miranda safeguards came into play "whenever a person in custody is subjected to either express questioning or its functional equivalent." noting that the term "interrogation" under Miranda included "any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the subject. before reading him his Miranda rights. Miranda warnings cannot be repealed by Congress because it is a Constitutional decision.1. Custody: Exists if. Dickerson v. Muniz v. Spontaneous statements: made by a suspect in custody. No need to Mirandize an on-the-street interview or voluntary walk-in precinct confession. it did not violate the 5th Amendment rights of the defendant because these questions are part of police booking routine. Under the rubric of Terry v.In general. Quarles b. and thus violates the Fifth Amendment right against self-incrimination. Velarde-Gomez vi. regardless whether the Miranda warnings were actually given. Public Safety Exception: may question without recitation if reasonably prompted to do so by concern for public safety (“the gun is over there” = admissible). a reasonable person in the suspect’s position would conclude that his freedom of action is curtailed to the degree associated with an arrest. The court reasoned that 5th Amendment and Miranda apply only to evidence of testimonial or communicative nature and not to "real or physical evidence. unless the government proves the police provided adequate procedural safeguards (effective to secure the privilege against self-incrimination).Custodial Interrogation: c. etc. comment on the defendant's exercise of his right to remain silent is unconstitutional. unless they are designed to trip up / show mental state (date of 6th birthday). 1. the minimal intrusion on a suspect's privacy and the legitimate need of law enforcement officers to quickly dispel suspicion that an individual is engaged in 22 . US ii. 1. evidence of silence: The prosecution may not use the fact that the defendant stood mute or claimed his privilege in the face of accusation. Physical or demeanor evidence v. Determining whether a suspect is actually in custody has always been based on objective criterion like whether he had been brought to the police station by police or had come of his own accord. i. Illinois v. 759 i. Manner in which routine are answered is not in itself testimonial. words or actions that the police should reasonably expect to elicit an incriminating response from the suspect.MIRANDA a. Agent/officer disguised as fellow prisoner is NOT interrogating suspect. Miranda v. US v. This case involves comments on post-arrest. i. at the time of the interrogation. Ohio. Since the police officer's request for the location of the gun was prompted by an immediate interest in assuring that it did not injure an innocent bystander or fall into the hands of a potential accomplice to Quarles. After one is in custody." Rhode Island v. height. Alvarado ii. New York v. are still admissible (police conversation in front seat about “tragedy” was NOT interrogation) iii. d. his failure to read the Miranda warning did not violate the Constitution. Innis ii." The court ruled that when the officer asked the defendant for his name. Interrogation: Express questioning. Arizona No. over which the court has the ultimate authority. Yarborough v.
ii. 2. The right to silence includes prohibition on comment by gov’t on silence. one will be appointed. Adequate Warning: Of right to remain silent. and that if cannot afford lawyer. Fare v. including suspect’s age and intelligence. The court is tolerant of a number of ways to waive. etc. No reason to think that asking for identification would trigger incrimination. Voluntary: no coercion (based on the totality of circumstances. suspect can waive without understanding inculpatory nature of statements. unbeknownst to him. Respondent's right to cut off questioning was scrupulously honored. Suspect may waive/void the right to counsel if she re-initiates communication with police. 1. following a new Mirandizement and a significant passage of time. if you are an american citizen and you go to france then you get mirandized coming back into the country ii. Voluntary and Intelligent Waiver: 1. until counsel is present. i. Minnick v. Moran v. they may ask about another crime. the police having immediately ceased the robbery interrogation after respondent's refusal to answer and having commenced questioning about the murder only after a significant time lapse and after a fresh set of warnings had been given respondent. Once Asserted: i. not signing then talking. 1. silence combined with acts that demonstrate waiver may be sufficient. clearly requests an attorney Davis v. somebody else has retained on for him. Sixth Judicial Court e. however. i. The Rights. On the basis of the record. it is clear that respondent voluntarily and knowingly waived his Fifth Amendment rights and consented to continued interrogation. Hiibel v. Procedural Safeguards: i. Burbine f. Mosley 2. Waiver cannot be inferred from the simple fact of a post-Mirandizement incriminating statement. If a suspect has not yet requested a lawyer but. iii. ii. and hence their admission in the Juvenile Court proceeding was correct. Mississippi i. of right to consult with lawyer and have one present during interrogation. the failure to inform the suspect that a lawyer is trying to see him does not erase the waiver of his Miranda rights. that anything said can and will be used against. this protection continues as long as suspect is in custody. 23 . Police may not interrogate a suspect who has clearly and unequivocally asserted her right to counsel about ANY crime. and conduct of police). Right to Counsel: 1. 3. Michael C.criminal activity justified asking a suspect to identify himself. Michigan v. including signing then talking. Knowing. and that the statements and sketches obtained from him were voluntary. However. Knowing and intelligent: suspect is aware of the nature of the rights and consequences of abandoning them. “Intelligent” does not mean “wise”. Right to Silence: Police may not interrogate a suspect who has asserted her right to silence about this crime. Whether the incriminating statements and sketches were admissible on the basis of waiver was a question to be resolved on the totality of the circumstances surrounding the interrogation. US 2.
1985: ∆ need not be made aware that a previous confession (made before Miranda warnings were given) is inadmissible. (2) explicit use of previous statement. 2004: police followed protocol that called for interrogation without Miranda warnings followed by warnings and repeat of confession i. may ask for a drink of water or to use the telephone without retreating from his prior request for counsel. Burbine iii. Analyzed as to whether or not the confession was knowingly and voluntarily made. US 2004—sup38: physical evidence derivative of a Mirandaviolating confession is admissible i. Missouri v. (3) failure to advise suspect that previous statement could not be used against her g. Oregon v. 3. and that the admission of additional fruits of a nonMirandized but VOLUNTARY confession – in that case physical evidence – therefore cannot violate Miranda. b/c threat of physical harm. Elstad. this situation can be distinguished from Elstad on the following grounds: 1. Police do not have a rule about how they treat attorney so long as it has no relevance at all to the degree of compulsion experienced by the defendant during the interrogation. i. Seibert. 24 . he cannot be actively questioned by the state or its agents (including informants). then Mirandizing. Also. then re-eliciting confession: this is NOT okay. He may not. i. however. Thus. Police practice of eliciting confession. passive informants may be okay. this is NOT the 6th A right to counsel. Miranda exists only to prevent against testifying against himself. US v. No casual link between first and second confession. making second confession admissible. held: second confession is inadmissible ii. Patane. 2. Oregon v. 5. ii. 4. after police gave defective warning.i. Moran v. held: gun is admissible at trial 1. suspect told them where to find gun ii. Pre-Miranda volunteered physical evidence IS admissible. after invoking his right to have counsel present during an interrogation. Fruit of the poisonous tree: 1. 2. (1) deliberate failure to warn . once DEFENDANT has RETAINED to counsel. ii. a suspect detained during an investigation may. ask more generalized and open-ended questions. Bradshaw 3. which IS offense-specific. so as to give DEFENDANT “reasonable belief that she can decide not to speak with police”. Paid informant offering to protect suspect from other inmates in exchange for truth = COERCION. False promise not to prosecute (from cops to suspect) is not per se violation. Problems with Voluntariness: i. Under any circumstances. i. UNLESS there is a sufficient break after first confession but before Mirandize.
1985—793: codefendant agreed to cooperate with police in ongoing investigation of witness tampering after he and ∆ were indicted. held: incriminatory statements are inadmissible in trial of the charges pending ii.e. nor does it matter that ∆ initiated meeting with informant: knowing exploitation by the State of an opportunity to confront the accused without counsel being present is as much a breach of the State’s obligation not to circumvent the right to assistance of counsel as is the intentional creation of such an opportunity iii. inculpatory statements re.. Moulton. i. 1977: the attachment of 6A rights is determined by the occurrence of a certain prior event (i.. Texas v. inculpatory statements made to officers before waiver was signed are inadmissible i. engaged in conversations with ∆ while he was incarcerated after indictment that led to a confession i. held: incriminatory statements made in the course of these conversations are inadmissible 4. 2001—799: Blockburger test is used to determine whether the offense regarding which ∆ is question is the same as that for which he was indicted 1. NOTE: inculpatory statements re. whether Elstad applies in 6A context) 2. the informant was not just a passive listener but an active participant in conversations with ∆ ii. although government agents instructed informant not to question ∆ about his crime. Brewer v. test: whether each offense requires proof of a fact that the other does not 25 . everything changes. 1986—791: 6A right to counsel is not violated where government informant was placed close to ∆ and overheard ∆ make incriminatory statements. Cobb. 2004—787: ∆ arrested in his home after having been indicted (6A attaches at indictment). crime 1 would also be admissible at trial 2 if relevant 3. Kuhlman v. Williams. 1980—789: paid informant.e. US v. crime 2 (witness tampering) would be admissible in trial of that crime b/c ∆ had not yet been charged. police told him to discuss eliminating witnesses (which ∆ rejected). it does not depend on whether lawyer would be useful to help suspect prevent incriminating herself ii. NOTE: remanded to determine whether second statement (made after wavier) was admissible (i. Fellers v. Wilson. Maine v. the institution of proceedings against ∆—indictment or arraignment). a fellow inmate. DEFENDANT cannot be interrogated unless advised. they should have known that their investigative tactic would lead to incriminatory information from charged ∆ in absence of counsel ii. Proceedings: Once legal proceedings begin. once 6A rights attach. even though officers told informant to limit conversation to witness tampering. but did nothing to elicit these statements iii. met with ∆ (at ∆’s urging). Henry. consciously waives 6 amendment rights. the government may not deliberately elicited inculpatory statements in the absence of a valid waiver of the right to counsel 1. deliberate elicitation: i. US.h. conversation then turned to the theft for which they were indicted and related burglaries i.
iii. At the start of adversary judicial criminal proceedings Post-Indictment. if ∆ is given and understands Miranda warning. knowing. 1988—794: Miranda warnings sufficiently inform defend of his rights to counsel. waiver is knowing and intelligent i. thus. Waiver 1. 682 (1972) (the right to counsel does not apply to pre-indictment eyewitness identification). 388 U. and prosecution was not initiated on the murder offense at the time of the interrogation. also. the identification by picture of the defendant prior to the lineup. results of the out-of-court identification are inadmissible.S. Kirby v. and intelligent (VKI) i. unless it proves by clear and convincing evidence that the in-court identification does not constitute fruit-of-the-poisonous-tree evidence. ii. Live: Right to counsel in live ID process attaches when formal proceedings begin. and the accused has not waived counsel. the prosecution is furthermore precluded from obtaining an in-court identification of the accused by the same witness. vi. Since the two offenses required different elements of proof. regardless of whether the murder charge was closely related factually to the burglary offense. a. the lapse of time between the crime and the lineup identification. This rule is known as the Wade-Kirby doctrine. 406 U. v. If counsel is not present at the post-indictment lineup. 1. they were separate offenses. 1. Wade. Burbine) and 6A has already attached. b. waiver will not be valid ii. waiver is not shown simply be establishing that ∆ elect to speak after receiving warnings 2. knowing and intelligent i. held: The United States Supreme Court held that. The Court held that defendant's Sixth 26 . An accused has a Sixth Amendment right to have counsel present at any corporeal identification procedure conducted after the commencement of an adversary judicial criminal proceeding against him. Patterson v. waiver must be voluntary. the existence of any discrepancy between any pre-lineup description and the defendant's actual appearance. as in Miranda. United States v. exception: if ∆ is not told that lawyer is trying to contact her during questioning (as in Moran v. Moore v.2. it does violate 6A iii. Respondent thus had no right to the presence of his previously appointed counsel during the interrogation concerning the murder charge. and determining that the pretrial exhibition of a suspect to a witness for identification purposes is a critical stage of the prosecution). In such cases. 218 (1967) (recognizing that a person is entitled to the assistance of counsel at all critical stages of a criminal proceeding. the right to counsel was offense specific. and the confession resulting from that interrogation was admissible. Illinois: Defendant was convicted for rape after his victim identified him at a preliminary hearing in which defendant was not represented by counsel. iv. Among the factors that may be considered are: i. failure to identify the defendant on a prior occasion. Live: No right to counsel before formal proceedings begin. Illinois. Illinois.S. IDENTIFICATION: RIGHT TO COUNSEL Pre-Indictment. the prior opportunity of the witness to observe the alleged criminal act. whereas a conversation between an undercover officer and ∆ would not give rise to Miranda violation. iv. any identification prior to lineup of another person.
Eyewitnesses should be told that the suspect might not be in the lineup. occurred before or after formal charges were initiated. 1. level of certainty. the witness' degree of attention. and whether or not counsel was present.the accuracy of the witness' prior description of the perpetrator. Stovall v.S. Distinguished from in-person line-ups are “mug shots. to an eyewitness for possible identification of the perpetrator. Ash. Such a display. automatic standing: movant testifies that he owned the property searched in order to create standing – ownership creates automatic standing. f. 114 (1977). c. although it occurs after indictment. based on the totality of the circumstances. 432 U. A Defendant has standing ONLY to object to evidence obtained via an unconstitutional intrusion on her reasonable expectation of privacy. 300 (1973).Balancing Test: opportunity of the witness to view the criminal at the time of the crime. This rule applies regardless of whether the identification was corporeal or non-corporeal. the length of time between the crime and the confrontation.Person conducting line-up should not be aware of suspect. Even if an identification procedure is unnecessarily suggestive. is not a critical stage of the prosecution. Evidence of a pretrial identification of the accused must be excluded from trial if. Brathwaite. United States v. 388 U. testimony by the defendant to allege possession cannot be used against him at trial. EXCLUSIONARY RULES: STANDING TO SUPPRESS 1. and the time between the crime and the confrontation.S. Denno. movant must have a REOP in the place searched iii. Rakas v. The relevant factors in determining reliability include: a. Manson v. eg.” The Sixth Amendment does not apply where the police present photographs. 1. 293 (1967). a. Alderman: government installs illegal wiretap on A’s phone in order to gather evidence against B—B is target ii. the opportunity of the witness to view the perpetrator at the time of the crime. Illinois. the degree of attention paid by the witness.A clear statement of witness confidence in the ID should be taken e. judicial integrity (Payner—523): “the supervisory power does not authorize a federal court to suppress otherwise admissible evidence on the ground that it was seized unlawfully from a third party not before the court” 1. the identification procedure must also have been unreliable in order to exclude the evidence. and (2) conducive to mistaken identification. including a photograph of the accused. 27 . 1. d.Amendment rights were violated by a corporeal identification conducted after the initiation of adversary judicial criminal proceedings and in the absence of counsel. b.Suspect should not stand out in any way. the procedure used to obtain the identification was (1) unnecessarily suggestive. SUGGESTIVE PROCEDURE Due Process: Due process is denied if an ID is unnecessarily suggestive and conducive to irreparable mistaken ID.S. Photographic: No right to counsel (because not an adversarial confrontation). h. US 1978—516: movant must have a REOP in the place searched i. a. 98. b. target theory: any ∆ against whom search was “directed” 1. 413 U. accuracy of the prior description. g. Reliable IDs: 1.
thus. warrant that did not rely on the illegal entry) a. US. Brendlin v. possession of the seized items must be evaluated like other 4A claim – relevant only if REOP with respect to item and search. (b) the illegality was one of which ∆ had standing to complain Independent Source: ◊ The government can show that it had a legal independent source for the evidence.A “brief invited stay” is insufficient – visitors who do not stay overnight receive no protection. purpose of illegal search cannot be to determine whether obtaining a warrant was worthwhile) b. “but for” test. 28 .. 1. initial misconduct must be more than simply one among several causes b. thus.. vii. (a) it was come upon by exploitation of prior illegality. viii. being “legitimately on the premises” is insufficient. US 1998—188) 2. Business premises – corporate or individual defendant in possession of the business premises searched has standing. length of stay ii. general principle: police should not be put in a worse position that they have been in it no police error or misconduct had occurred (Nix v. important factors in determining whether there is a REOP in host’s home i. Wong Sun. government must prove by a preponderance of the evidence that the evidence would have been discovered through independent legal means (Nix). two individuals arrested in third party’s home while there for several hours to cut cocaine did not have REOP. 1. 4. b.iv. California: possessory interest in the items seized was automatically enough to permit a challenge constitutionality. Murray v. but later obtained pursuant to independently obtained search warrant (i. if officers decision to seek a warrant was prompted by evidence discovered during an illegal entry.e. evidence observed in pain view during illegal entry. 1984—550) a. Ownership of some items kept in the intruded space is insufficient. vi. NOTE: exploitation connotes a higher degree of relatedness than simply saying cause. Victim witness is untainted by initial photo ID from bad arrest. v. 2. and that an officer or an employee of the business enterprise has standing if there was a demonstrated nexus between the area searched and the work space of the defendant. FRUIT OF THE POISONOUS TREE 1.e. however. business 3. then the search pursuant to a warrant would not have been a genuine independent source 3. however. and i. Carter. 1963—543: evidence is not admissible against ∆ where: a. Inevitable Discovery: The government would have discovered the evidence without the illegal intrusion. purpose of visit: social v. Williams.The police must show that evidence would have discovered the evidence inevitably and in the same condition – NOT that it “could have” or “might have”. arrest in the home without an arrest warrant was lawful (Minnesota v. b/c victim was known to police before arrest. 1988—544: officers must have planned to obtain warrant before conducting illegal search (i.
lengthy causal chain. this would allow police to arrest anyone without PC and get an admissible confession simply by giving Miranda warning before conducting interrogation 7. intervening circumstances iii. purpose and flagrancy of initial misconduct iii. 3. the police obtained a statement from the defendant in his bedroom immediately after his unlawful arrest. For example. long time period.Where gov’t has cause to arrest. Attenuation: Some additional factor sufficiently attenuates the link between the illegal intrusion and the evidence in question. New York. depends on: i. The Court suppressed this evidence. the effect of Miranda warnings 1. consent to new search or seizure 1. passage of time: how much time separates primary illegality 1.Magistrate relied on information supplied by officer who lied or exhibited reckless disregard for the truth.Post-arrest silence or requests for counsel may NOT be offered to prove sanity. 1971—718: Miranda-violating confession can be used for impeachment (as long as it is not otherwise involuntary) 2.CAREFUL: must distinguish illegal intrusion from illegally conducted intrusion. the more likely it is that a court will conclude that the evidence is tainted.Pre-arrest silence is admissible either way. Kentucky. Post-arrest silence and illegally obtained confessions may be used to impeach Defendant.S. proximity of illegal conduct and consent ii. if the police can search. ii. giving of Miranda warning alone does not break the causal chain (Brown—535) i. “which derive[d] so immediately from the unlawful entry. Statute: Same as judicial.5.Evidence will not be excluded when police rely in good faith on a validly issued search warrant later declared defective UNLESS: 5. 29 . Miranda warning iv. Search warrant: 4. Good Faith Reliance: Judicial opinion: Evidence will not be excluded when police rely in good faith on judicial opinion that their actions are constitutional.” b. a statement outside the scope of the illegality is admissible (ex: illegal in-home arrest. 1980—540: suspects were improperly detained while officers obtained a search warrant for the house. held: admissions made after evidence was discovered were admissible—45 minute detention was in congenial atmosphere and statements were spontaneous 2.The shorter the time lapse between the Fourth Amendment violation and the acquisition of the challenged evidence. if he takes the stand. Rawlings v. Harris v. even if the opposite is later determined. but does so in an illegal manner. breaking the causal chain i. a. 6. intervening Fourth Amendment event: eg. in Wong Sun [371 U. but fail to announce themselves properly.Examples: intervening act of free will by DEFENDANT. the evidence will probable still come in. but statement made subsequently while outside home). a. Impeachment: 1. 471].
Magistrate wholly abandoned her judicial role. c. (2) Reason for delay – Evidence that the prosecutor deliberately attempted to delay trial is weighed heavily in the analysis. 1. trial begins. iii.g. failure to timely prosecute is NOT assertable. (1) Length of delay – Delay must be of sufficient length to potentially prejudice the accused. then the indictment must be dismissed and/or the conviction overturned. [Exception: statutory speedy trial violations may permit reprosecution.S. when complaint filed or defendant arrested).Basics: i.. Barker v. fading memory of witnesses. and the degree of prejudice to the defendant which the delay has caused. A reversal or dismissal of a criminal case on speedy trial grounds means that no further prosecution for the alleged offense can take place. certain procedural circumstances. Non-Prosecution: Generally. the accused shall enjoy the right to a speedy and public trial a. weighed by court): 30 . Attaches: When Defendant has been formally charged (generally. A charge must be dismissed if a court finds that the defendant's right to speedy trial has been violated. guilty plea. CONFRONTATION OF WITNESSES: In all criminal prosecutions. etc.C. Federal Speedy Trial Act. Out-of-state incarceration: State has duty to seek extradition or transport. v. see. The prosecution may not excessively delay the trial for its own advantage. Remedy: Dismissal. 3. 6TH: RIGHT TO SPEEDY TRIAL. § 3161. If the delay is willfully caused by the defendant. 8. 7. Wingo: was a case in which the United States Supreme Court held that determinations of whether or not the Sixth Amendment right to a speedy trial for defendants in criminal cases has been denied. e.] 1. he is deemed to have waived the right to a speedy trial. (4) Prejudice to defendant – e. The other factors to be considered are the time and manner in which the defendant has asserted his right. 4. SPEEDY TRIAL: 1. such as a missing witness or illness of a party. loss of evidence.. charges are dismissed and accused is released. person or thing to be searched/seized. ii. 434 (1973). Tolls: Any voluntary continuance by defendant. who repeated demanded trial.S. 412 U.g.The warrant failed to state with particularity the place. unless there is a justifiable reason for the delay. and such dismissal bars all future prosecutions of the offense. One factor recognized by the Court was the length of delay. Smith v. Hooey: the state has a duty under the 6th A to make a good faith effort to obtain the presence for trial of petitioner. 1. some statutes set specific time limits for initiation of trial. i. 18 U. United States. Strunk v. iv. b. (3) Defendant's assertion or non-assertion of right – The defendant need not assert the right prior to trial but failure to do so may receive considerable weight in the court's analysis of the speedy trial question. EXCEPTION: if defendant can show actual AND substantial prejudice.Warrant was based on affidavit so lacking in probable cause that reliance upon the warrant was unreasonable. must be made on a case-by-case basis.6. prolonged incarceration. but a trial may be delayed to secure the presence of an absent witness.The Test: Four-Factor (none dispositive. Another factor recognized by the Court was the reason for the delay. If it is found that a defendant's right to a speedy trial was violated. 2. but the Supreme Court has never explicitly ruled that some particular time limit must apply.
co-defendants do not have to be treated alike when plea bargaining 9. he may be reprosecuted for the original charge 8. In Baker v.Judge may exercise sentencing discretion. especially since defendants were released on their own recognizance.it is utterly unreasonable for counsel to recommend a guilty plea to a D without first cautioning him that he should not plead guilty unless he believed himself guilty 14. do not have to disclose impeachment information relating to any informants or other witnesses 10.where parties can’t agree on a plea agreement. defendant didn’t object until 11th continuance and only objected then because he noticed that the prosecution might be able to convict him. but perhaps most important.if D’s mistaken belief as to plea bargain is based upon representations by his own counsel. Prejudice to defendant – again.there is no due process violation when a prosecutor asks for an enhanced sentence when a defendant refuses to take a guilty plea 3. the court may grant relief based on expectations. they can meet with the judge who serves as a moderator.’s appeals dismissals of indictments. 1. Lovasco: The Court held that a pre-indictment delay was wholly irrelevant for amend. 1. but may not refuse to dismiss count of indictment when prosecutor declines to prosecute that count COUNSEL’S RESPONSIBILITY 11. Reason for delay – reasonable diligence by state.i. iv. Judge may indicate what charge or sentence concessions would be acceptable.prosecutors. but important to this analysis. US v. or find that D did not have the effective assistance of counsel 12. Parties can then decide outside the presence of the court whether to reject or accept the plea agreement tendered by the court 5. VI purposes because the constitutional right to a speedy trial attached only after defendant was accused by indictment or information. 1.any statements he made could be used to impeach contradictory testimony he might give if the case went to trial 4. Wingo. generally one year is sufficient to presumptively trigger.D has the right to decide whether or not to plead guilty – this right goes beyond trial strategy ENTERING A PLEA 15. iii. Actual and substantial prejudice i. ii.constitutional and supervisory concerns hold the government to a greater degree of responsibility than D for impressions or ambiguities in the plea agreement 7.if a person violates a plea agreement after having pleaded guilty and having begun his sentence. or was actually restrained by arrest and detention to answer for a criminal charge.plea may be withdrawn if the prosecution fails to fulfill all its promises 6. not dispositive. Length of delay – considered a trigger for four-part analysis. after consultation with a lawyer.the plea could not be voluntary in a constitutional sense – there must be some basis for inferring that the nature of the charge was explained sufficiently for D to know what he was admitting 31 . as to the plea to be entered 13. XIV had a limited role to play in protecting against oppressive delay. Defendant’s timely assertion – not necessarily a waiver.the lawyer shall abide by the client’s decision. Loud Hawk: time clock wasn’t running during govt. The Court also held that amend. The Court held that the death of two potential witnesses during the delay was not sufficient prejudice because defendant had not shown how their testimony would have aided the defense. 1. How were you hurt by the long trial? PLEA BARGAINING: GENERALLY 2. before entering into a binding plea agreement with D.
g.An individual accused of a crime may voluntarily. knowing. Brady material) (Ruiz. 10thCir 1996—1057) ∗ “the appropriate dividing line between acceptable and unconstitutional plea wiring does not depend upon the physical condition or personal circumstances of the defendant.D may not challenge his plea when it was based on competent advice 21. GUILTY PLEAS AND BARGAINING: REQUIREMENTS FOR A VALID PLEA • test: guilty plea must be voluntary. 1993—1064) • rule 11 ◊ (a)(2) allows conditional pleas of guilty ◊ (d) standards for withdrawal (1) any reason before the court accepts the plea (2) after plea. but judge must be aware of the deal so that they can make an adequate inquiry into the voluntariness of the plea (i. ∆’s plea is linked to his wife’s and she is in poor health and he doesn’t want her to go through a trial) ◊ knowledge (there are both constitutional and statutory requirements—eg. it depends upon the conduct of the government (or a third party) (Pollard. whether ∆ was coerced by co-defendants) (US v. 1960 —1064) standard for competency to plead guilty is the same to stand trial (Moran. Caro.. rule 11) ∆ need not know of possible or mandatory deportation ∆ need not know collateral consequences (e. 2002—1057) ∆ have a general idea of the penalty that can be imposed ∗ must know if there is a mandatory minimum sentence ∗ need not know with precision all potential punishments under the Federal Sentencing Guidelines ◊ intelligence: competency to plead guilty ∆ must be able to consult with his lawyer with a reasonable degree of rational understanding and must have a rational as well as factual understanding of the proceedings against him (Dusky.the standard is whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to D 18. possibility of future prosecution as a repeated offender) ∆ need not be furnished evidence that could be used to impeach testimony of government witnesses (ie.g.e. and.Test set by court for determining the constitutional validity of a state court guilty plea where D has been given misleading information: whether D was aware of actual sentencing possibilities... and intelligent ◊ coercion global settlement (AKA: wired plea or package deal) ∗ not per se impermissible.16. whether accurate information would have made any difference in his decision to enter a plea 17. or. 32 . and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime EFFECT OF GUILTY PLEA 20.Counseled pleas do not waive antecedent constitutional violations Other Outline IX. court may not draw an adverse inference from a defendant's silence in determining facts relating to the circumstances and details of the crime 19.guilty plea does not waive the self-incrimination privilege at sentencing. but before sentence if ∗ (A) court rejects plea. knowingly. rather. DCCir 1992—1056) › plea is not coerced if the factual circumstances create the pressure (e. if not.
instead. it’s up to the judge whether lawyers can ask questions—75% didn’t allow lawyers to ask any questions at all. racial prejudice)? ◊ process is very different btw. lawyers are allowed to put questions to the venire in federal system. lawyers must submit questions to the judge ◊ in federal court. large enough to promote deliberation without outside interference. sufficient for jury to be composed of a crosssection of the community ◊ jury of less than 6 people is unconstitutional under the 6A (Ballew v. ∗ plea of guilty that was later withdrawn ∗ plea of nolo contendre ∗ statement made under rule 11 re.∗ (B) ∆ can show a fair and just reason for requesting the withdrawal ◊ (f) admissibility or inadmissibility of plea. TRIAL BY JURY A. either of the foregoing pleas ∗ statements made to prosecutor during plea negotiations that do not lead to a plea or when plea is withdrawn NOTE: government typically requires that ∆ waive these rights • breach of a plea agreement ◊ Santobello. REQUISITE FEATURES OF THE JURY • size ◊ 6 person jury is constitutionally permissible (Williams v. ∆ and state. and related statements Fed R Evi. JURY SELECTION AND COMPOSITION • composition of the jury: fair cross-section of the community ◊ statute requiring exempting women from requirement of jury service and requiring that they opt in to be included in the jury pool (Taylor—1191) “women are sufficiently numerous and distinct from men and that if they systematically eliminated from jury panels the Sixth Amendment’s fair-cross-section requirement cannot be satisfied” • voir dire: what questions must a judge put to the panel of prospective jurors upon the request of the ∆ (esp’ly re. Oregon—1184) the jurors who voted to convict had to have found guilt BRD fewer fact-finders does not necessarily make the outcome less reliable dissent ∗ lack of unanimity potentially decreases quality of deliberations: minority concerns might not receive adequate attention • waiver ◊ Ullah. judge may decide to ask a question on one of the following three grounds 33 . plea discussion. 9thCir: ∆ cannot waive federal unanimity requirement this is the case even though ∆ and prosecution can agree to a bench trial B. Georgia—1181) • unanimity ◊ unanimity is not a necessary element of proof BRD (Apodaca v. Florida—1178) reliability is not impaired : provides sufficient interposition btw. 410: except as otherwise provided. states and federal system in most states. 1971—1087: prosecutor 1 promised not to make a sentencing recommendation. prosecutor 2 (who didn’t know of this promise) made a sentencing recommendation held: state court may either (a) allow ∆ to withdraw plea or (b) hold a new sentencing proceeding before a different judge Trial by Jury XI.
1980—1205) ∗ “reitualistic adherence” to requirement that prospective juror make it unmistakably clear that he would automatically vote against the death penalty” is not required (Wainright. 1991—1223) 34 . 1991—1200) excusals for cause ◊ improper exclusion of jurors improper to exclude members of the jury panel for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction (Witherspoon. 1981—1200) under supervisory power. 1986—1200) ◊ exposure to pretrial publicity important question is this: having heard what you’ve heard about the case. 1986—1216) ◊ other situations in which the rule applies defense counsel’s use of peremptory challenges (Georgia v.• constitutionally mandated mandated by supervisory power judge’s discretion ◊ racial prejudice judge constitutionally required to ask questions about racial prejudice if racial issues are inextricably bound up with the conduct of the trial (Ristaino. race required by DPC). 1992—1224) civil litigation (Edmonson v. PEREMPTORY CHALLENGES • equal protection clause forbids a prosecutor from challenging jurors solely on the basis of their race (Batson. do you think that you can sit as an impartial juror ∗ by and large. judges accept prospective jurors answer no constitutional violation where judge asked all jury panel whether they had been exposed to pretrial publicity and jurors who did not respond were considered to have asserted that they could remain fair (Mu’Min. court refuses to require the question in all federal cases (Rosales-Lopez. federal judges must inquiry re. 1987—1207: appears to establish per se rule requiring reversal in capital case where judge erroneously dismisses a juror for cause (under Witherspoon-Witt) ◊ improper inclusion no reversal where court improperly failed to remove juror for cause when juror was removed by ∆ using preemptory challenge (Ross. 1973—1197 (questions re. 1976—1198) ∗ AS: court is really retreating from Ham. felt hat this should fall under supervisory powers rather than be classified as a constitutional case ∗ although it is usually best to ask about racial prejudice. 1968—1204) ∗ prospective jurors must be asked whether their beliefs would invariably compel them to vote against capital punishment ∗ juror may not be challenged for cause on his views about capital punishment unless those views would prevent or substantially impair the performance of duties as a juror in accordance with instructions and oath (Adams. racial prejudice when requested by a ∆ accused of a violent crime and where ∆ and victim are members of different racial or ethnic groups capital cases ∗ capital defendant accused of an interracial crime is entitled to have prospective jurors informed of the race of the victim and questioned on the issue of racial bias (Turner. McCollum. 1988—1208) C. 1985—1207) remedy for erroneous exclusion ∗ Gray. Leesville Concrete.
1995— 1229) if prosecutor offers a neutral reason.B.Once jeopardy attaches.Attaches when a jury is sworn. ∗ that these facts and other relevant circumstances (e. 1991—1226) ◊ white ∆ has standing to challenge prosecutor’s use of peremptory challenges to exclude black jurors (Powers v.• exclusion of women (J.g. 23. v. when first witness is sworn or at the beginning of introduction of evidence.E. New York. THE TRIAL JUDGE AND THE RIGHT TO JURY TRIAL • jury nullification—the jury’s power to ignore the law in favor of acquittal DOUBLE JEOPARDY: 22. Alabama. Ohio. or in a bench trial. pattern of strikes) raise an inference that the prosecutor prosecutor must articulate a neutral reason for her challenges ∗ neutral reason › prosecutor excluded Spanish speaking jurors because he wanted to make sure that jurors accepted translated version of the testimony as the testimony. 1991—1222) ◊ proving discrimination—must prove discriminatory intent discrimination can be proved on the basis of actions in ∆’s case alone (Batson overrules Swain) ∆ establish a prima facie case by: ∗ establishing that she is a member of a cognizable racial group. 1987— 1240) intimidation of one juror by another unfair inferences drawn from the evidence assumption that because ∆ did not testify he must be guilty vote for conviction because extended deliberation would cut into juror’s vacation ◊ allegations requiring inquiry item not in evidence brought into jury room E. US. and. Elam. 1994—1226) exclusion of Hispanics (Hernandez v. PRESERVING THE INTEGRITY OF DELIBERATIONS • FRE Rule 606(b) permits proof that “extraneous prejudicial information” was brought to jury’s attention and that “outside influence was brought to bear upon any juror” ◊ allegations immune from inquiry under Rule 606(b) members of the jury were using alcohol and illegal drugs during the trial (Tanner v. New York. based on prospective jurors’ demeanor during voir dire. a defendant generally cannot be tried for the same offense. ∗ that the prosecutor has exercised peremptory challenges to remove from the venire member’s of ∆’s race.. ∆ must show that the reason offer is pretextual rationale for keeping peremptory challenges ◊ eliminates extremes of partiality ◊ increases acceptance of the result (b/c litigants helped pick the jury) ◊ corrects judicial errors in failing to exclude for cause ◊ meets the three elements of third party standing D. 35 . claimed that. he was concerned that they would not rely on translator (Hernandez v. 1991—1226) › prosecutor’s explanation need not be either persuasive or plausible (Purkett v.
Generally. 25. (2) the state action left the matter demonstrably unvindicated. 31.Separate prosecutions by two different states do not violate double jeopardy.in capital cases. Sovereignty: 35. a mistrial does NOT bar re-prosecution.Single. to have (from Breyer’s dissenting opinion): a. 36.In particular. 37.Equally. so no jeopardy. conviction is reinstated – thus.HOWEVER. D can present mitigating evidence on his own behalf.Dismissal on grounds unrelated to factual guilt/innocence is NOT an acquittal.24.S.Determination NOT to impose death penalty functions as a sentencing acquittal. Reversal on Appeal: 33.Inverted guidelines – astronomically high sentences with long lists of mitigating factors U. UNLESS the underlying trial is re-done.a state legislature can still choose. specifically parole and probation revocation hearings 44.Due process provides an alternative basis for a right to counsel at certain post-sentencing proceedings. re-trial of acquitted defendant is barred because of the high likelihood of convicting an innocent.Two offenses can be the same only if based on the same transaction or occurrence. 32. Mistrial: 26.Jury’s choice of a lesser included offense is an implied acquittal of the charged offense.BUT: state and municipal do not function the same way – one probably precludes the other if same offense.Reversal of dismissal on pre-trial motion permits re-trial. weakened by Kirby? Indictment. UNLESS: (1) the matter involves a substantial federal interest.Generally. SENTENCING: 39. 36 .A single act that violates two separate statutes can constitute two separate offenses ONLY if each statute requires proof of additional facts that the other does not. [IS THIS “AND” or “OR”???] (3) gov’t believes that conduct constitutes federal offense and is reasonably convictable. 38. v Wade (p. Acquittal: 29. 34. U. then counsel appointed. a stage of a criminal proceeding where substantial rights of a criminal accused may be affected 43. then post-trial ruling dismisses or acquits. 30. jeopardy may apply. mistrial on Defendant’s motion implies his voluntary termination of trial. 745) 1967 Counsel attaches at post-indictment lineup.D does not have the ability to cross examine those who provided sentencing information 41. 27.Indeterminate sentences with parole chosen by judges without broad statutory sentence ranges c. no problem with separate state and federal prosecutions. defense counsel not present at the lineup. because their power to prosecute is derived from different sources.If defendant is convicted. mandatory sentences for each crime b. then lineup. 28.6th amendment right to counsel extends to sentencing. but in non-capital cases a statute may or may not provide D with this opportunity 42. Department of Justice guidelines preclude prosecutions that mirror a prior state action.Constitution forbids a judge from sentencing a defendant to death without disclosing those portions of the presentence report that form the basis for the sentence 40. in which case sentencing on a new conviction begins fresh.S. after Blakely and Booker. no jeopardy problem. not protected by the 6th amendment right to counsel.Guidelines systems with aggravating facts proven to juries d. then appeal reverses ruling.HOWEVER: if defendant can show that prosecution deliberately provoked mistrial.
in any event. as presented to them. and -The lapse of time between the alleged act and the lineup identification. a critical stage of the proceeding. it is unlikely that the witness’s recollection will change. Rationale for not admitting the out of court ID: The attorney was not present and therefore could not conduct a cross-examination. the otherwise broad and general language of the opinion led people to nevertheless interpret Wade as applying to all pre-trial lineups. The lineup is most often used. Note: A declaration of certainty has no empirical evidence to back it up. Attorney’s presence can ensure that the lineup is not procedurally unnecessarily suggestive. even if in error. -Right to an attorney when the case is being decided. -Failure to identify the defendant on a prior occasion. -Attorney will insist on certain things.ISSUE: Should an in-court identification be excluded because the accused was in a post-indictment/pretrial lineup without notice to and in the absence of the accused’s appointed counsel? RULE 1: Defense counsel’s presence should be required to conduct the post-indictment lineup. Note: While the court uses “post-indictment” in its analysis. or whether. -Lineup is usually based on certain subtleties. -The existence of any discrepancy between any pre-lineup description and the defendant’s actual description. Inherent lineup suggestiveness mandates defense counsel to be present in order to attack suggestiveness on cross examination (right of confrontation). the introduction of the evidence was harmless error. therefore right of counsel attached at the lineup. Independent source doctrine – clear and convincing evidence Concerns: Person may not have a clear and distinct memory and may instead alter their recollection. Kirby v Illinois (p. Does the in court ID have an independent source? Inevitable discovery – did the lineup …. identification. as in the present case. -Police will fear the attorney and do the ID right. Rationale: Lineup after ID was a crucial stage of trial. Various factors must be considered: -The prior opportunity to observe the alleged criminal act. Once the witness has seen the person. ****The error is probably irreparable. 755) 1972 37 . to crystallize the witness’ identification of the defendant for future reference. whether pre. -The lineup is the very core of the case. absent an intelligent waiver. then the second identification must be derived from means sufficiently distinguishable to attenuate the taint. RULE 2: If the initial identification was tainted.or post-indictment. HELD: Vacate the conviction to determine whether the in-court identifications had an independent source. -Any identification prior to lineup of another person. and that is at the ID. -The presence of the attorney will make for a less suggestive procedure. -The identification by picture of the defendant prior to the lineup. Imprinted mental image replaces the fleeting memory from the scene of the crime. -Post-arraignment lineup w/o counsel is to be viewed as inherently suggestive.
and held that the shotgun was properly admitted into evidence as a weapon in Moore's possession when he was arrested. and it introduced into evidence a shotgun that was not used as the murder weapon. a 1968 US Supreme Court case that ruled against providing prosecution unlimited challenge of jurors who might have objections to the death penalty. Illinois. Not many post-arraignment lineups any more. Out of court ID suppressed if it was so unnecessarily suggestive as to be conducive to an irreparable mistaken identification. 757) 1977 A. Illinois. 14th Amendment B. He claimed that he was denied a fair trial and due process because the State failed to disclose several items of evidence helpful to the defense. same goes for counsel at a lineup. Notes: Other protections: DP clauses of 5A and 14A forbid a lineup that is unnecessarily suggestive and conducive to irreparable mistaken ID. Court refused to extend the principle of Wade to a pre-arraignment situation. Once the right to counsel has attached. HELD: Decline to adopt a per se exclusionary rule upon testimony concerning the ID that took place long before the commencement of any prosecution whatsoever. The Supreme Court of Illinois rejected petitioner's claim that evidence had been suppressed and false evidence has been left uncorrected. Legal Questions Presented: 1. 8th Amendment. once removed. can’t do a lineup w/o the defendant. police may say to heck with it and we’ll do a photo spread which doesn’t require counsel to be present) would be too great. Moore also attacked the imposition of the death penalty for noncompliance with the standards of Witherspoon v. if the client is present when he will be ID’d. who? Find them? -Time lapse would then necessitate an arrest (would need PC) and would result in stale memories. Can prosecution release venires for voicing opposition to the death penalty? II. CASE SUMMARY: A. RULE: A person’s 6A and 14A right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him. The court found him suitable for commission of 38 . -Could then no longer do a quick street-corner showup to nab an assault suspect. Why? -The impingement upon law enforcement (logistics of getting counsel present. then counsel s/b present. it failed to correct false testimony. Is the prosecution required to disclose all evidence obtained? 2.Counsel attaches at post-indictment lineup Showup (one-person lineup) before indictment/counsel. Issues Discussed: Criminal Justice (procedure). Background: Petitioner Moore was convicted of murder and sentenced to death for the shotgun slaying of a bartender in Lansing. Kirby is sort of a cousin to Massiah. Moore v Illinois (p. Was the admission into evidence of a shotgun that was not the weapon a violation of due process? 3. therefore. -Lineup would be even harder to administer. etc.
is such that we cannot say that the presentation of the shotgun was so irrelevant or so inflammatory that Moore was denied a fair trial. challenged the identification because counsel was not present at what was arguably a critical stage of the prosecution. THE SUPREME COURT'S DECISION: "We know of no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case… [W]e are unable to conclude that the shotgun's introduction deprived Moore of the due process of law guaranteed him by the Fourteenth Amendment. Inasmuch as the Court today has ruled that the imposition of the death penalty under statutes such as those of Illinois is violative of the Eighth and Fourteenth Amendments. Furman v. Neither of these situations exist at a photographic display. A number of informants were asked to identify a number of suspects in connection with a bank robbery. The Court of Appeals reversed. supra. The 16-gauge shotgun.the crime charged. Dissent. and that he suffered the wounds one would expect from a shotgun fired at close range. found in the car. Issue. Ash (the “respondent”). or a zealous prosecutor. The Sixth Amendment of the Constitution guarantees the assistance of counsel during stages of the proceeding at which a defendant is faced with either the intricacies of the law. Synopsis of Rule of Law. Justice Potter Stewart (”J. An accused does not have the right to counsel at a post indictment photographic lineup Facts. may not now be imposed. it is unnecessary for us to consider the claim of noncompliance with the Witherspoon standards [Witherspoon v. Illinois (1986)]… The sentence of death. Stewart”) concurs to emphasize the point that any issues involved could be resolved through traditional methods such as cross examination. Georgia. The Supreme Court of the United States (”Supreme Court”) granted certiorari to resolve the circuit split as to the issue of whether an accused has the right to counsel at a post indictment photographic lineup. The Sixth Amendment of the Constitution does not grant an accused the right to counsel during a post indictment photographic identification procedure because the accused himself is not entitled to be present. with all the details as to the shotgun wounds." US v Ash (p. insofar as it imposes the death sentence. The respondent. Concurrence. The historical test to be applied to 39 . Petitioner then sought review in the US Supreme Court. Discussion. The testimony as to the murder itself. The high court granted certiorari. is reversed. however. The Supreme Court held that the right to counsel at a display at which the defendant himself was not entitled to be present was not embodied in the Sixth Amendment of the United States Constitution (”Constitution”). The dissent writes to emphasize that the photographic lineup is indeed a critical stage of the proceedings. The case is not federally reversible on this ground. was in the constructive possession of both Moore and Barbee when they were arrested after the shooting incident on October 31. 758) 1973 Brief Fact Summary. Whether the Sixth Amendment of the Constitution grants an accused the right to have counsel present at a post indictment photographic identification procedure? Held. The judgment. and the case is remanded for further proceedings. rendering it impossible that the accused will be confused or overpowered by the proceedings. IV. There is substantial other evidence in the record that a shotgun was used to kill Zitek.
However. under the totality of the circumstances. Consideration given to pressing circumstances. as opposed to a Per se rule of exclusion (MA follows this rule) (considered and rejected by the Court). showup with a single photo. 1. Still. Notes: Takes a reliability view (MA does not follow this rule). what matters is the extent of the suggestiveness. Serves to limit the societal costs imposed by a sanction that excludes relevant evidence from consideration and evaluation by the trier of fact: deterrence and its effect on the administration of justice. RULE: DUE PROCESS LINEUP FACTORS: 2. then it does not come in. ISSUE: Whether. MA argues that this is needed to truly effect deterrence. the ID was reliable even though the confrontation procedure was suggestive. in handcuffs. Notes: Recognizes that every lineup/showup is suggestive. prior knowledge or an extended viewing opportunity may truly provide a reliable ID in spite of a suggestive showup! The per se rule dilutes reliability. presented to dying lady by police officers. HELD: Not unnecessarily suggestive. 40 . 3. 5. and Was it unnecessarily so? If both. despite the suggestive aspect. 763) 1977 Reliability analysis for identifications Undercover drug purchase. the opportunity of the witness to view the criminal at the time of the crime the witnesses degree of attention the accuracy of the prior description of the criminal the level of certainty demonstrated at the confrontation the time between the crime and the identification Rationale: Permits the admission of the ID if. RULE: A claimed DP ID violation depends on the totality of the circumstances. Was it suggestive. 4. Stovall v Denno (p. 762) 1967 “Totality of the circumstances” creates an emergency showup exception Only black male in room.the Sixth Amendment issues indicates that the right has only been expanded when new facts have demanded it for the protection of the defendant. lazy police work. it possesses certain features of reliability. as suggestive as humanly possible! ------(14th amendment fundamentally unfair lineups) RULE: the lineup must not be unnecessarily suggestive that it presents so substantial a likelihood of irreparable misidentification that it denies due process of law – uses a totality of the circumstances approach Manson v Brathwaite (p.
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