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36 Cards in this Set

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Const. Restraints on Crim: 4th Amend.
Prohibition against unreasonable searches and seizures

Exclusionary rule
Const. Restraints on Crim: 5th Amend.
Privilege against compulsory self-incrimination;

Prohibition against double jeopardy.
Const. Restraints on Crim: 6th Amend.
Speedy trial;
Public trial
Trial by jury
Confront witnesses
Compulsory process for obtaining witnesses
Assistance of counsel in felony cases and in misdemeanor cases in which imprisonment is imposed
Const. Restraints on Crim: 8th Amend.
Prohibits Cruel and Unusual Punishment
Constitutional Rights not Binding on the States
● Right to grand jury indictment for capital and infamous crimes.
● 8th amend. prohibition against excessive bail?
Exclusionary Rule: Scope
prohibits introduction of evidence obtained in violation of D’s 4th, 5th, and 6th amend. rights. Makes illegally obtained evidence inadmissible at trial, and all “fruit of the poisonous tree” (i.e. evidence obtained from exploitation of the illegally obtained evidence) must also be excluded.
Exclusionary Rule: Three ways govt. can break the poisonous tree chain
1) Independent Source: evidence obtained from source independent of original illegality.
2) Inevitable Discovery: prosecution shows that police would have discovered it anyway.
3) Intervening Acts of Free Will by D (e.g. D is illegally arrested but later comes to station to confess).
Exclusionary Rule: Limitations
1. Inapplicable to: Grand Juries; Civil Proceedings; Internal Agency Rules; Parole Revocation Proceedings.

2. Good Faith Reliance on: Law; Defective Search Warrant; Clerical Error

3. Use of Excluded Evidence for Impeachment Purposes; Some illegally gotten evidence may still be used to impeach D’s credibility if he takes the stand at trial. e.g. voluntary confession taken in violation of Miranda warnings is admissible for impeachment purposes, and evidence obtained from illegal search may be used by prosecution to impeach D’s (but not others’) statements.

4. Miranda violations: Evidence obtained this way may be admissible
Exclusionary Rule: Harmless error test
If illegal evidence is admitted, resulting conviction should be overturned on appeal unless govt. can show beyond reasonable doubt that the error was harmless.
4th Amend: Law of Arrest: Types
● Seizure: reasonable person would believe she is not free to leave or terminate the encounter w/ the govt.

● Arrest: Police take person into custody, against her will, for purposes of criminal prosecution or interrogation. This is seizure w/in meaning of 4th amend.
4th Amend: Law of Arrest: Arrest Requirements
-Probable Cause
-Usually not warrant
4th Amend: Law of Arrest: Arrest Locations
Public Place: Arrest warrants generally not required

Own home: non-emergency arrest in own home requires arrest warrant

Station house detention: police need probable cause to arrest you to compel you to come to police station, either for interrogation or fingerprinting.
4th Amend. Law of Arrest: Arrest Requirements in NY
-Request for information: anything but whim or caprice suffices

-Common law right to inquire: need founded suspicion, detention must be brief, and if indiv. gives explanations, police must release.

Stop and Frisk: requires reasonable suspicion

Car stops: Generally, police may not stop car unless they have reasonable suspicion to believe that law has been violated. But cars may be searched when special law enforcement needs
4th Amend. Law of Arrest: Car Stops in NY
Car stops: Generally, polie may not stop car unless they have reasonable suspicion to believe that law has been violated. But cars may be searched when special law enforcement needs are involved. Then police can set up roadblocks to stop cars w/o individualized suspicion. But must stop cars based on neutral, articulable standard (e.g. every car) and serve purposes closely related to the problem (e.g. test for drunk drivers—which is ok b/c of pervasiveness of drunk driving problem).

Roadblock to check for illegal drugs is not ok b/c that is routine criminal problem.

Full arrest: requires probable cause

Note: gunpoint stop always needs reasonable suspicion
Search and Seizure: General Approach to Questions
-Did the person have 4th amend. rights? (e.g. was there govt. conduct and reasonable expectation of privacy?)

Did police have search warrant? (valid? good faith exception?)

-If no warrant, or it is invalid, does it fit into one of six exceptions? (see CMR for flow chart)
Search and Seizure: Standing for Reasonable Expectation of Privacy
-Own premises searched (always standing)
-You live on the premises (always standing)
-You are an overnight guest (always standing)
-You are legitimately present when search takes place (sometimes standing)
-Your own property was searched (sometimes standing)

For bar purposes: overnight guests do have standing; passengers in cars do not; individuals briefly on premises for biz purpose of selling drugs do not.
Search and Seizure: Items whose Public nature precludes privacy expectation
Sound of your voice;
Style of your handwriting;
Paint on outside of car;
Account records in bank
Location of car on street
Anything seen from open fields
Anything seen from air
Odors from luggage
Garbage
Search and Seizure: Testing the validity of the search warrant
1. Probable cause: Difficult question is: what counts as this? In NY, affadavit must:
a. Set forth sufficient underlying facts and circumstances for magistrate to get sense of info.
b. Establish reliability and credibility for informer. e.g. prior use of informer.
2. Preciseness on its face (Must state w/ particularity the place to be searched and things to be seized.)
3. Neutral and detached issuing officer (e.g. Can’t be state att’y general)
Search and Seizure: Proper execution of warrant
o Without unreasonable delay
o After announcement (unless officers or evidence would be endangered)
o Person or place searched or seized w/in scope of the warrant
Search and Seizure: New York Six Exceptions to Warrant Requirement
1. Search incident to LAWFUL arrest (search must be contemporaneous in time & place; geographically w/in person and wingspan

2. Automobile exception
o Note: 2/3 of searches have to do w/ car, but this does not mean they are in the auto exception.
o If people have probable cause to believe that a vehicle contains fruits, instrumentalities, or evidence of a crime, they may search the whole vehicle and any container that might reasonably contain the item for which they had probable cause to search.

3. Plain view. This means that the police are legitimately on the premises; they discover evidence, fruits, or instrumentalities of a crime, or contraband; they see the evidence in plain view, and they have probable cause to believe that the item is evidence, contraband, etc.

4. Consent: must be voluntary and intelligent (saying they have a warrant is not).

5. Stop and Frisk (only reasonable suspicion of criminal activity necessary)

6. Hot Pursuit and Evanescent Evidence, e.g. checking under fingernails.
Search and Seizure: Wiretapping and Evesdropping
-Requires warrant

-Exception: “unreliable ear”: everyone has to risk that person to whom they are talking is wired (police cars count)
Confessions: Constitutional Considerations
o 14th amend: voluntariness is requirement of DP clause. “Totality of circumstances” will determine if there was compulsion.
o 6th amend: guarantees right to assistance of counsel in all criminal proceedings, which includes all critical stages of prosecution after judicial proceedings have begun (e.g. after formal charges have been filed). Unless D has waived this, police can’t deliberately elicit incriminating statement from D outside presence of counsel once he has been charged.
Ø Note: No 6th amend. violation ever before formal proceedings have begun. D who is arrested but not yet charged does not have 6th amend. right to counsel but does have 5th amend. right to counsel under Miranda.
o 5th amend. privilege against compelled self-incrimination: see Miranda discussion below.
Confessions: Miranda Rights
What it is: constitutional prerequisite to custodial interrogation. Includes:
o Right to remain silent
o Right to attorney
o Right to terminate interrogation at any time.
● What to look for
1. Custody: person must be in custody, meaning, at time of interrogation is not free to leave. E.g. hospital bed, but not routine traffic stops.
2. Interrogation: asking questions. This is conduct where police knew they might get damaging statement.
● Waiver: Waivers must be knowing, voluntary, and intelligent
o not silence or a shrug
● 5th amend. right to counsel: Once D asserts right to att’y in interrogation, any re-initiation of interrogation violates 5th amend.
o This is not offense specific.
Pretrial Identification
Substantive Bases for Attack
● 6th amend. right to counsel. Suspect has right to presence of attorney at any post-charge lineup or showup; NO right at photo identifications or when police take physical evidence (e.g. handwriting exemplars or fingerprints)
THEREFORE pretrial right does not cover procedures where D is not personally confronted by witness against him.

● Due process standard: D can attack identification as denying DP if identification is unnecessarily suggestive and there is substantial likelihood of misidentification.

Since lineup does not involve compulsion to give “testimonial” evidence, a suspects 5th amend. right against compelled self-incrimination does not apply.

Remedy: Exclusion of the in-court identification—this is rarely granted.
Pretrial Proc.: Preliminary Hearing to Determine Probable Cause to Detain
not needed if arrest was pursuant to warrant or grand jury indictment.
Pretrial Proc.: Pretiral Detention; Bail
Most state constitutions create right to be released on bail unless charge is capital one. Usually it can be set no higher than necessary to assure D’s appearance at trial.
● If state provides for bail (and most do) arbitrary denials of bail will violate due process—detainees must be given opportunity to prove eligibility.
Grand Jury: Constitutional considerations
5th amend. right to indictment by grand jury has not been incorporated into 14th amend, but some state constitutions require it. Most states east of Mississippi require grand jury as regular part of charging process. Western states generally charge by filing an information, which is written accusation of the crime prepared and presented by the prosecutor.
Grand Jury: Process
● Proceedings
o Conducted in secret. D has no right to notice that grand jury is considering indictment against him, to be present and confront witnesses, or to introduce evidence before it.
o No right to counsel or Miranda warnings.
Ø But, witness who has been granted immunity may consult w/ counsel but not in grand jury room. Witness who has waived immunity may be accompanied by counsel into grand jury room.
o No right to have evidence excluded based on illegal obtainment.
● Composition: 16-23 people, 12 of whom must agree to indict.
● Level of Evidence: Must be legally sufficient evidence—evidence that can be admitted at trial.
● Transactional Immunity: people who testify before grand jury get this as to transaction about which they testify (but not if they waive).
Pros's Duty to Disclose Exculpatory Info:
o His own or co-D statement to police (includes grand jury testimony)
o Tapes or bugged info to be used @ trial
o Relevant photos and drawings made by police
o Reports of physical, mental, or scientific tests
o Any other property obtained from D
o Approx. date, time, place of offense charged
o Anything constitutionally required to be disclosed to D by prosecutor prior to trial
o All specific instances of D’s conduct that prosecutor intends to use at trial to impeach D’s credibility
Duty to Disclose
1) Persons to be called as witnesses: B/t swearing of jury and prosecutor’s opening statement, must disclose any written or recorded statements of persons to be called as witnesses.
2) Notice of alibi: W/in 20 days after arraignment, prosecutor can serve D w/ demand for alibi, and D has 8 days to reply.
NY Required Disclosures by D::
1) Insanity Defense: D must give notice of intent to plead w/in 30 days of arrest.
2) D’s witness list if he will use alibi: D must provide this and make available any prior written statements by defense witnesses.
Failure to comply w/ Duty to Disclose
reversal only if reasonable possibility that nondisclosure had material adverse effect on the outcome of the trial.
BASIC RIGHT TO FAIR TRIAL
● This is DP right—right to unbiased judge (but “actual malice” against D must be shown), and DP also violated if trial conducted in manner making it unlikely that jury gave evidence reasonable consideration.
RIGHT TO TRIAL BY JURY
● When the right attaches: Only if maximum authorized sentence exceeds 6 months
● Number of jurors: Minimum is 6, and if 6, then must be unanimous verdict (no right to unanimous 12 person verdict)
● Cross-sectional requirement: D has right to pool reflecting fair cross section of community, not your own jury reflecting this.
● Peremptory challenges: No right to use these to exclude based on race or gender.
GUILTY PLEAS AND PLEA BARGAINING: Requirements
Note: this is waiver of jury trial right

● Requirements—judge must tell D:
-Nature of the charge;
-Maximum authorized sentence & any mandatory minimum;
-That D has right to plead not guilty and demand trial.
-All of this must be on record
-If any defect in the process, D can withdraw and plead again
GUILTY PLEAS AND PLEA BARGAINING: Bases for withdrawing guilty plea after sentence
-Plea was involuntary, i.e. some mistake in the ceremony
-Lack of jurisdiction
-Ineffective assistance of counsel
-Failure of prosecutor to keep agreed upon plea bargain.

NOTE: Sup Ct is unwilling to disturb these after sentence as general rule; adopted “contract theory” of plea bargains