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135 Cards in this Set
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What are the global search and seizure issues?
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1. whether a search/seizure is governed by 4th amendment: meaning was it a govt actor and was there REP?; 2. whether search/seizure conducted WITH a warrant satisfies 4th am reqs; 3. whether search/seizure WITHOUT a warrant satisfies 4th am reqs; AND 4. extent to which evidence obtained through search and seizure that violates 4th am is nonetheless admissible in court
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What are the 2 most important gov't agent categories for the bar?
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1) publicly paid police officer, on or off duty, and 2) private citizens ONLY IF they are acting at direction of police
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Who are other potential govt actors?
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private security guards if deputized with pwr to arrest; public school admins
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So if it's a govt actor, then ask was there a REP in the area searched or the items seized. What are the protected areas?
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1. persons; 2. homes (hotels count, and curtilage); 3. papers; 4. effects (like purses)
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What is the REP test?
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2 prongs: 1. individual must have exhibited actual or subjective expectation of privacy in area searched or items seized, AND 2. privacy expectation must be one that society recognizes as reasonable
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When is a police search presumptively unreasonable regarding search/seizure of a home?
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if use a device that is not in public use, to explore areas of the home that could not have known about w/o phys invasion (thermal imaging device)
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What are unprotected, public items that no one can have a REP in because they all involve knowing exposure to third parties?
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Patty Achieved A Glorious Victory Over Her Opponents: 1. paint scrapings on outside of car; 2. account records by bank; 3. airspace, public; 4. garbage left at curb; 5. voice, exemplars; 6. odors that emanate from CAR or LUGGAGE; 7. handwriting style exemplars; 8. open fields
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How do you get standing to challenge lawfulness of search/seizure?
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must be individual's own privacy rights violated, not those of third party (rights are possessory interest, ownership interest, place of residence). includes searches/seizures of: a) person's premises that he owns; b) premises where person resides; c) overnight guests at someone's house (as to areas overnight guests expected to access). Does NOT include: a) guests in a home just for business purposes. May include: a) property seized, IF had REP in area from which property was seized (not your gf's purse); b) passengers in cars IF have REP in area searched or items seized
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In NY, can passengers in cars challenge possession of weapons?
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yes, if possession is attributed to them
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To determine if a search/seizure satisfies the 4th am reqs, must ask what 3 qs?
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1. is the warrant supported by PC?; 2. if no PC, did police rely on a defective warrant "in good faith" (mbe only); and 3. was warrant properly executed by police?
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Does NY allow the good faith doctrine for defective warrants?
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no
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What is the majority test to determine if there's PC?
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reqs proof of a fair probability, that contraband/evidence of crime will be found in area searched, based on totality of the circs
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In the majority test for PC, is hearsay admissible for est PC?
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yes, if possession is attributed to them
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In the majority of states for PC, can police rely on info from informants?
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yes, even anonymous info. sufficiency of tip rests on corroboration if tipster's info allows magistrate to make "common sense, practical" determination that PC exists
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In NY, what is the test for seeing if there's PC?
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Aguilar-Spinelli test reqs that when applying for search warrant, must est: 1. informant's basis of knowledge, AND 2. his veracity/reliability
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What is the particularity standard?
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search warrant must specify place to be searched, and the items to be seized
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too general: "search entire apartment, including all closed containers, for evidence linked to Elaine's murder" this is fishing expedition
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If police relied on a warrant in good faith, could it still be saved if it was invalid due to lack of PC or particularity?
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yes, on MBE. NOT NY!
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Does an officer's good faith overcome 4th am deficits in PC and Partic always?
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not always. 4 EXCEPTIONS to 'saving' a warrant: 1. affidavit supporting the warrant is so EGREGIOUSLY lacking in PC that no reasonable officer would have relied on it; 2. warrant so facially deficient in partic that officers couldnt reasonably presume it to be valid; 3. affidavit has knowing or reckless falsehoods that are facts necessary to find PC (if negligent falsehoods, not bad and if PC w/o the lies, can search); 4. magistrate who issued warrant is biased in favor of prosecution
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What do you have to look for to see if the police executed a warrant properly?
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1. whether officers complied with terms/limitations of the warrant: can only search those areas and items authorized by language of the warrant (can't search in smaller containers for something big), AND 2. whether officers complied with knock and announce rule: must knock and announce their presence and purpose, b4 forcibly entering the place to be searched, UNLESS reasonably believes it would be futile or dangerous or inhibit investigation
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What are the exceptions for when a warrantless search may be valid?
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8 exceptions; ESCAPIST: 1. exigent circs; 2. search incident to arrest; 3. consent; 4. automobile; 5. plain view; 6. inventory; 7. special needs; 8. terry 'stop and frisk'
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Describe warrantless search exception exigent circs
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3 types: 1. evanescent evidence: evidence that would dissipate/disappear in time it would take to get warrant; 2. hot pursuit of fleeing felon: can enter suspect's home or 3rd party home into which he fled, and any evidence in plain view while searching is admissible; 3. emergency aid exception: can enter home if objectively reasonable basis for believing person is in need of emergency aid to address or prevent injury
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What are the reqs for a search incident to arrest exception to warrant req?
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1) arrest must be lawful; 2) justifications: a) officer safety AND b) need to preserve evidence; 3) timing (big issue): search must be contemporaneous in time and place w/ arrest; 4) geographic scope: wingspan--includes body, clothing, and any containers w/in arrestee's immediate control WITHOUT REGARD TO OFFENSE FOR WHICH ARREST WAS MADE (bright line rule)
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What is the NY distinction on search incident to arrest?
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to search containers w/in wingspan, police must suspect the arrestee is armed; once an occupant of a car has been removed from the car, police may NOT remove closed containers or bags from the car to look for weapons or other evidence as incident to arrest (can only search car if warrant or other exception, like auto)
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What is the permissible scope of an automobile during a search incident to arrest?
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permissible scope: interior cabin, closed containers, NOT trunk; location of suspect (important)--once an officer has "secured" an arrestee (by handcuffing and placing in squad car) officer can search arrestee's vehicle ONLY if reason to believe the vehicle may contain evidence, relating to the crim for which arrest was made
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What can police search in a car during a search incident to a custodial arrest in NY? What location must the arrestee be in?
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once an occupant is out of the car, police cant search closed containers or bags inside the vehicle to look for weapons or evidence of crime
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Describe the defense of consent to searches
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consent must be voluntary, AND intelligent. police officers dont need to tell someone they can refuse consent. scope=search extends to areas which a reasonable officer would believe permission to search was granted (objective reasonableness standard)
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What is "apparent authority" in context of consent?
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if officer obtains consent from someone without actual authority, can still be valid provided officer reasonably believed that the consenting party had actual authority (gf and keys to apt ex.)
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What happens to consent to search when adults share a residence?
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any or all of them may consent to search of common areas, BUT if co-tenants disagree about consent to search common areas, the objecting party prevails as to areas over which co-tenants share dominion and control
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What is the standard needed for police to conduct an automobile search (not a consent search of a car or search incident to arrest of a car!)
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officers need PC, to believe that contraband, or evidence of a crime, will be found in vehicle; the entire vehicle including trunk, any packages, luggage, or other containers, that may reasonably contain items for which PC to search
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remember that there are diff types of warrantless search exceptions that have automobiles involved. this is a separate exception from consent search or SIA
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Does an officer need PC to search a car at the time they pull the car over for a routine traffic stop?
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No, but must acquire PC before initiating a search of the car (can be thru running license plate and discovering warrant or link to drug trafficking)
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What are the reqs for seizing something in plain view?
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1. lawful access to the place from which item can be seen; 2. lawful access to item itself; and 3. criminality of item must be immediately apparent
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the search itself must be in proper scope: meaning that you couldnt search a particular area for a "fleeing felon" like in a backpack, because the felon couldnt fit in there!
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For NY, what is the exception to the plain view doctrine?
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for obscene materials, requires prior judicial authorization: a judicial determination is necessary to determine if it's obscene! this means a determination of what is obscene cannot be made by the police officer (unless exigent circumstances) otherwise a seizure violates the 4th am
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Where do inventory searches most commonly occur?
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1) when arestees are booked into jail; 2) when vehicles are impounded
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What reqs are there to ensure that inventory searches are constitutional?
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3 things: 1. the regs governing them are reasonable in scope; 2. the search itself complies w/the regs; and 3. search conducted in good faith (motivated solely by need to safeguard owner's possessions and officer safety)
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officer's subjective intent matters for this! rare!
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What is the special needs exception for a warrantless search to be valid?
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usually of law enforcement, govt employers and school officials when their needs go beyond the general interest in law enforcement.
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What are the categories most common that are allowed special needs exceptions?
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1. random drug testing; 2. govt employees' desks and files; 3. student's "effects" in public schools; 4. border searches
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Describe the random drug testing special needs exception
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random drug testing (most important): allowed in a) railroad employees following impact accident, b) customs agents resp for drug interdiction, and c) public school kids who participate in ANY extracurricular activities. BUT, suspicionless tests not allowed if primary purpose is gather crim evidence for general use by law enforcement
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Describe the govt employee desk and files special needs exception
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warrantless searches permitted to investigate work-related misconduct
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Describe the student's 'effects' in public schools special needs exception
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permissible to investigate violations of school rules, like smoking on school grounds
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Describe border searches special needs exception
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neither citizens nor non-citizens have any 4th amendment rights at the border, w/respect to routine searches of persons/effects
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What is a terry stop?
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brief detention or seizure for purpose of investigating suspicious conduct. can take place anywhere, even in car
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When are you 'seized' during a terry stop, for 4th am purposes?
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based on totality of circs, reasonable person would not feel free to leave OR decline an officer's request to answer qs. must consider 3 things collectively: 1. whether officer brandishes weapon, 2. officer's tone/demeanor, and 3. whether person told he had right to refuse consent
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During a police pursuit, what is the fed standard for when a person is 'seized' for purposes of terry stop?
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only if he submits to the officer's authority by stopping or the officer phys restrains him (tackle)
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During a police pursuit, what is the NY standard for when a person is 'seized' for purposes of terry stop?
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police pursuit itself is a seizure
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Who is considered 'seized' during a terry traffic stop?
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driver and passengers, so either can challenge legality of the seizure.
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Are dog sniffs during a traffic terry stop considered a seizure?
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no, they are permissible provided the 'sniff' does not prolong the stop unreasonably. if the dog smells something from the car and alerts, could give the officer PC to search the vehicle
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dont forget that smelling odors emanating from car or luggage is not considered a 'search'. to avoid prolong stops, usually cops bring dogs with them so no waiting pd
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What is a terry frisk?
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pat down (flat palms) of body/outer clothing for WEAPONS that is justified by officer's belief that suspect is ARMED and DANGEROUS
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it's all about officer safety!
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What can you seize during a terry frisk?
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weapons can always be seized; if find contraband WITHOUT MANIPULATING the object, can be seized too
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think of bag of cocaine, you would have no idea what it is just by patting it down (sugar or drugs) so couldnt seize it, would have to manipulate it to even tell anything about it; BUT dont forget that in a SIA you can seize!
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What does NY allow you to seize during a terry frisk?
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can seize an item ONLY if it feels like a weapon
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What can an officer search during a car frisk?
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if officer believes suspect is dangerous, can search passenger cabin, limited to where weapon could be
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What are protective sweeps?
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if making in-home arrest, police may sweep the residence to look for crim confederates of arestee whose presence may threaten officer safety
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Can officers sweep areas near where they believe the suspect is housed?
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yes, can search area immediately adjoining the place of arrest, provided there is RAS that the house harbors person who poses danger; must have additional facts sufficient to allow a reasonably prudent officer to conclude individual who threatens safety is in area swept
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What evidentiary standard applies to terry stops?
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RAS, which is less than PC. requires specific articulable facts that inform officer's belief that crim activity is present/afoot. subjective intent of officer is irrelevant, only concerned with objective reasonableness
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What evidentiary standard applies to terry frisks?
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RAS that a suspect is armed and dangerous (justified by concern for safety ONLY, not general search for crim evidence
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What is the exclusionary rule?
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phys or testimonial evidence obtained in violation of fed statutory or constit provision is INADMISSIBLE in court against the individual whose rights were violated
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What are limits on the exclusionary rule?
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1. case-in-chief vs. cross: unconstitutionally obtained evidence excluded from prosecutor's case in chief ONLY; can use to impeach d's testimony on cross. 2. knock and announce violations: failure to comply doesnt req suppression of evidence subseq discovered. 3. police misconduct: to trigger exclusionary rule, police misconduct must be deliberate, reckless, or grossly negligent (tort negligence not enough, like bookkeeping error). 4. officer's reasonable mistakes: doesnt apply to evidence erroneously obtained when executing search warrant, if reasonable mistake
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What is fruit of the poisonous tree?
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derivative evidence: both physical and testimonial, can be obtained by exploiting PRIOR unconstitutional conduct; inadmissible in prosecution's case in chief
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how can you admit tainted fruit?
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prosecutors must show a break in the causal chain/link b/t the original illegality and the crim evidence later discovered. 3 ways to achieve the break: 1. independent source: source for discovery and seizure of evidence that is distinct from original illegality; 2. inevitable discovery: evidence would necessarily have been discovered thru lawful means; 3. attenuation: passage of time and intervening events 'purge the taint' and restore free will
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What are the main reqs for wiretapping warrant?
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Screen Telephone Calls Carefully: 1) Suspected persons (warrant must name them); 2) Crime (must be PC that specif crime committed); 3) Conversations (must describe w/particularity the convos that can be overheard; and 4) Time (must be for strictly limited time)
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What is the rule on eavesdropping?
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"unreliable ear doctrine" and assumption of the risk: person has no 4th am claim b/c assumed the risk that other party wont keep convo confidential
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When does an arrest occur?
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police taking someone into custody, against will, for prosecution OR interrog; it's de facto arrest when compel someone to come to police station for questioning OR fingerprinting
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What standard of proof is needed for an arrest?
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PC
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What offenses does the 4th am permit a custodial arrest?
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all offenses, even just punishable by monetary fine
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contrast this to state law, where some states wont allow this. could violate state law, but not constitution!
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Do you need a warrant to arrest someone?
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Generally yes, you need a warrant to arrest someone in their home, or in the home of a third party (and you then also need a search warrant). BUT: do NOT need an arrest warrant to arrest someone in PUBLIC
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What is the common enterprise theory?
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in traffic stop, if evidence of crime suggesting common unlawful enterprise b/t driver and passengers, officer may arrest any or all of them based on reasonable inference of shared dominion and control over contraband
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What are the 3 fed constitutional challenges that can be brought to exclude a confession?
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14th amendment due process; 6th amendment right to counsel; 5th amendment Miranda doctrine
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Besides the fed constitution, how can NYers challenge a confession?
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NY's "indelible" right to counsel, derives from state constitution's 6th am; provides greater protection than 6th am of fed: attaches when (i) the defendant is in custody, (ii) the police are engaging in activity overwhelming to the lay person, and (iii) the defendant requests
counsel. )attaches not just at formal charging, but whenever significant judicial activity (arrest/search warrants) or activity overwhelming to ordinary person b4 filing of accusatory instrument such that a d may benefit from presence of counsel); if d in custody and police aware of counsel, can't question a d about the charges against him or any other matter w/o his attorney present; waiver can only happen in presence of attorney |
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How is a confession excluded under 14th am due process?
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standard=involuntariness, meaning product of police coercion that overbears suspect's will
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don't get confused b/t this and someone with mental illness or spiritual compulsion! has to be product of police coercion only!
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What is the right to counsel under 6th am?
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express guarantee, attaches when d is FORMALLY CHARGED, NOT upon arrest! and applies at all critical stages of prosecution (arraignment, pc hearings, police interrog and sentencing); it is "offense specific" so only applies to charges filed against you, no protection for uncounseled interrog for other uncharged crim activity
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When do incriminating statements obtained from the d about charged offenses violate the 6th am?
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if statements deliberately elicited AND the d did not knowingly, intelligently, and voluntarily waive his right to have his attorney present
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Describe 5th am rights
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Miranda rights are implied, grounded in self-incrim clause of 5th am; 4 core warnings: 1. right to remain silent, 2. anything say can and will be used against you in court of law, 3. right to an attorney, 4. if cant afford, one appointed
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6th am must be CHARGED with something
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When are Miranda warnings necessary?
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2 reqs: custodial interrogation; 1. custody--atmosphere, objectively, characterized by police domination and coercion, such that freedom of action limited in "significant way"; 2. interrogation--conduct police knew or should have known was likely to elicit an incriminating response; does NOT apply to spontaneous statements. EXCEPTION: public safety: if custodial interrog due to immediate concern for public safety, Miranda unnecessary and any incrim statements are admissible
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compare this to 6th am: 6th standard is delib eliciting info (more subjective intent of officer) and must be formally charged; 5th is knew or should have known, and don't need to be charged with anything formally
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Incriminating statements obtained thru custodial interrogation are admissible IF:
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officer, b4 initiating questioning, 1) "reasonably conveys" to the suspect his/her core Miranda rights, AND 2) after obtains valid waiver of rights to silence and counsel
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How do you obtain a valid Miranda waiver?
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2 reqs: 1. waiver must be knowing and intelligent--so suspect must understand a) nature of rights, AND b) conseqs of abandoning them; 2. waiver must be voluntary--not product of police coercion
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What is NY's parent-child rule?
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if police use deception or concealment to keep parent away from child while interrog, child's waiver may be deemed invalid
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How does a person waive her Miranda rights?
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can be implied by conduct indicating desire to speak to police; if he has received and understood rights, waives if makes uncoerced statement to the police
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What is the burden of proof in proving a valid waiver of Miranda rights?
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prosecution bears burden, by preponderance of evidence
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suspects are not entitled to a flow of info to calibrate their self-interest
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How do suspects invoke their right to silence?
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must be unambiguous; once invoked, police must scrupulously honor invocation by not badgering into talking, must wait signif pd of time b4 reinitiating, AND must first obtain valid Miranda waiver b4 reinitiating
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How do suspects invoke their right to counsel?
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once a suspect asks for counsel, all interrog must cease UNLESS initiated by suspect; request for counsel must be sufficiently clear that reasonable officer in same situation would understand it to be request; unlike 6th am, right is NOT offense-specific so interrog on all topics after invocation prohibited if outside presence of counsel; request for counsel expires 14 days post release from custody, so can only obtain waiver of Miranda right to counsel after this pd if it's knowing, intelligent, and voluntary
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What happens to incriminating statements obtained in violation of MIranda rights?
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inadmissible in prosecution's case in chief, BUT can impeach to d's testimony (NOT third party witnesses) on cross
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What happens if incriminating physical evidence is obtained from incriminating statements resulting from failure to Mirandize someone?
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NO suppression of PHYSICAL evidence, provided underlying statements are voluntary
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If a statement is inadmissible due to Miranda violation, what happens to subsequent statements made after obtaining a Miranda waiver?
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they ARE admissible as long as initial, non-Mirandized statement was not thru inherent coercive police tactics, offensive to due process (basically get second bite at apple if re-mirandize)
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What if a guilty verdict rested on evidence that should have been excluded due to Miranda violations?
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guilty verdict stands if givt can prove BEYOND REASONABLE DOUBT that error was harmless, b/c the d would have been convicted w/o the tainted evidence (both physical and testimonial)
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What are the types of pre-trial ids?
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1) line-ups (id from group); 2) show-ups (1 on 1 confrontation); 3) photo arrays
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Is there a right to counsel during pre-trial ids?
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5th am=no, no Miranda req; 6th am=yes, but only at line-ups and show-ups that take place after formal charging, NOT photo arrays
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BIG ON BAR!
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In NY, what are your rights during pre-trial ids?
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have right to attny at line-up B4 formal charges IF you are aware you have counsel AND you request counsel to be present
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When does a pretrial id violate due process?
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violates 14th am when so unnecessarily suggestive that creates substantial likelihood of irreparable misidentification; courts weigh reliability of suggestive id, against its corrupting effect
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What is the remedy for constitutional violations in pretrial ids?
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exclusion of witness's in-court id, UNLESS: prosecution can prove that id based on observations of suspect other than the unlawful pre-trial id procedure, by pointing to some factors: a) witness's opportunity to view d at crime scene, b) certainty of witness's id, and c) specificity of description
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What are grand juries?
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they issue indictments, are secret, and are not required as part of the charging process in most states (NY DOES req it!)
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In grand juries in NY, what must occur?
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grand juries are req as part of charging process, and indictment must establish all elements of the offense AND provide reasonable cause to believe that the accused committed the offense
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Discuss pretrial detention
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govt needs PC to bind a d over for trial AND detain him in jail b4 trial; detention hearings: hearings to determine PC are unnecessary to justify pretrial detention IF: a) the grand jury issued an indictment, or b) magistrate issued arrest warrant; First appearance: soon after arrest, magistrate must 1. advise d of his rights, 2. set bail, AND 3. appoint counsel if necessary; decisions re bail are immediately appealable
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What is the Brady Rule?
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prosecutor must disclose to crim d all -MATERIAL, -EXCULPATORY, -EVIDENCE (think about each one of these in isolation). BUT: a D is not denied due process when the prosecutor fails to disclose during plea negotiations that he has received info about a principal witness (if a witness has died, this isnt evidence, and even if it was, it isn't exculp evidence!). Also the prosecutor's duty is directly proportional to the specificity of the D's request
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What rights do d's have re judges?
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right to unbiased judge, meaning: 1. no financial stake in outcome, AND 2. no actual malice toward d
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What are the d's rights re juries?
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Crim ds have right to jury trial when max sentence exceeds 6 months; fed, must be at least 6 jurors (NY reqs 12, but if d waives, can be 11); unanimity only if 6 jurors, not 12 (NY, always unanimity req!); cross-sectional req: pool from which jury drawn must be cross-section of community/approp diverse; PEREMPTORY CHALLENGES: both sides can exclude witnesses w/o stating reasons, but must NOT be due to race or gender, otherwise can claim an equal protection violation of the 14th am, strict scrutiny applies where it must be necessary to achieve a compelling state interest--d must raise facts or circumstances that raise an inference that the exclusion was based on race--then burden shifts to prosecutor to provide a race-neutral explanation for the strike, and then judge determines (judge must inquire into this) whether explanation was a genuine reason for exercising the peremptory challenge--if there was a violation, the conviction may be reversed; d has 14th am right to due process via fair trial, and if jury is not impartial, violates due process strict scrutiny
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What is the d's right to confront entail?
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right to confront adverse witness via 6th am, but doesnt apply if against public policy (child witness)
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What is the right to effective assistance of counsel test?
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2 prong: 1) counsel's performance deficient, AND 2) but for deficiency, outcome of trial diff (prejudice req); unless colorable argument that d is not guilty, always deny relief under this claim!
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this standard is very high, almost impossible to show ineffective counsel
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What is necessary to show that a guilty plea is valid?
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judge must est that: 1. plea is voluntary, AND 2. intelligent; judge must do plea-taking colloquy open court on record: a) nature of charges (req elements of charged offense), and b) consequences of the plea (waiver of right to plead not guilty and trial)
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When can a d withdraw a guilty plea after sentencing?
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only if: 1) the plea is involuntary due to defect in colloquy, 2) jurisdictional defect, 3) d's claim of ineffective assistance of counsel prevails, or 4) prosecutor fails to fulfill his end of bargain (more common)
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What does the 8th am prohibit?
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cruel and unusual punishment, disallows grossly disproportionate penalties
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What is 8th am relevance to death penalty?
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statute would violate 8th am if created an automatic category for imposition of death penalty
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What does jury consider when deciding to impose death penalty?
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must be allowed to consider all potentially mitigating evidence
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8th am prohibits death penalty for which groups?
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1. mentally retarded; 2. presently insane (if recover, can be put to death); 3. under age 18 at time of relevance offense
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When does double jeopardy attach?
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5th am: 1) at a jury trial when jury is sworn; 2) at bench trial when first witness sworn; 3) when court accepts d's guilty plea unconditionally
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Does double jeopardy apply in civil cases?
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no (think SEC ex)
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What is the 'same offense' req in double jeopardy federally?
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fed rule: 2 offenses NOT same offense for purposes of double jeopardy clause if each contains an element the other does not (think vehicular manslaughter ex vs. hit-and-run ex)
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What is the 'same offense' req in double jeopardy in NY?
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uses 'transaction test', req d be charged w/ all offenses arising from any single transaction UNLESS: 1) have subst diff elements, 2) each offense contains an element not in other AND they vindicate diff harms, 3) one is for crim possession and other use, OR 4) each offense involved harm to diff v
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Discuss double jeopardy re greater included or lesser included offenses
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Prosecution for a greater offense precludes later prosecution for lesser included offense, AND vice-versa!
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Does double jeopardy bar retrial for the same offense by the same sovereign only?
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YES. state and municipality are the same sovereign, but state and fed govt arent, and neither is state and other state (so can be prosecuted for same thing in diff sovereigns)
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What are the exceptions to the double jeopardy rule that permit retrial?
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1. hung jury; 2. mistrial for manifest necessity (like defect in indictment found later during trial); 3. a successful appeal, UNLESS reversal on appeal was based on insufficiency of evidence presented by prosec; 4. breach of plea agreement by d
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Who can take the 5th am privilege against compelled testimony?
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anyone
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When can 5th am privilege be asserted?
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any proceeding where individual testifies under oath
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Where can the 5th am privilege NOT be asserted in NY?
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grand jury proceeding
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When must the privilege be asserted, and what happens if you dont?
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must be asserted at FIRST opportunity, or FOREVER waived
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can even be at a town council meeting, as long as sworn testimony; once answer under oath, must answer again!
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What does the 5th am privilege protect?
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testimonial incrimination, doesnt apply to state's use of bodies (like forcible extraction of blood/urine to do drug/alcohol test)
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How does the 5th am limit a prosecutor's conduct?
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can't comment negatively on either: 1. d's decision not to testify, or 2. invocation of his right to counsel or silence
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How can the 5th am privilege be eliminated?
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prosecutors can grant "use and derivative use" immunity, barring govt from using your testimony or anything derived to convict you
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How can the 5th am privilege be eliminated in NY?
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"transactional" immunity, broader than "use and derivative" b/c it shields witnesses from prosecution for any transaction they testified about in immunized testimony
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Can an individual be convicted based on evidence obtained prior to grant of immunity?
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yes
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What happens to 5th am privilege if d takes the stand?
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it's waived as to anything properly within scope of cross examination
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What happens to 5th am privilege if the SOL has run on underlying crime?
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privilege is unavailable b/c witness's testimony could not expose him to crim prosecution anymore]
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How can a search warrant be valid?
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must show that it was 1) issued by a neutral and detached magistrate, 2) on a showing of probable cause, and 3) based on an affidavit establishing the veracity and reliablity of the person supplying the info
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for the exclusionary rule, good faith req in ny?
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no, doesnt recognize good faith exception to defective search warrants
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is police pursuit a seizure?
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yes
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what is the sliding scale of police authority?
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minimal intrusion/request for info: police may approach and request info except on a 'whim or caprice'; if individual doesnt respond or runs away, does NOT give police PC to arrest
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for use of informers, what standard does ny apply?
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stricter than constitution; aguilar-spinelli test where search warrant application must demonstrate: veracity or reliability of the source of info, and basis of informant's knowledge
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search incident to constitutional arrest: geo scope
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arrestee gets more protection, officer must suspect that arrestee is armed to search containers in wingspan; once arrestee removed from car, police may not move closed containers or bags to look for weapons/evidence; can only search car w/warrant
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for the 14th am issue on voluntariness of confession, what are factors to consider?
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length of interrogation and custody
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for the 6th am right to counsel, what is NY's approach?
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ny affords greater protection: indelible right to counsel, attaches when d is in custody, police engaging in activity overwhelming to layperson, and d requests counsel; at arraignment, upon filing of accusatory instrument, or when significant judicial activity
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when does the d not have a right to counsel under 6th am?
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during investigatory line-ups prior to formal prosecutorial action, EXCEPT when: police are aware that d represented by counsel on diff charge, and d explicitly requests counsel
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can a d ever waive 6th am right to counsel?
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yes, if d is released and later arrested on unrelated charges, waiver can be made w/o presence of counsel from prior charges
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for 5th am protection against compelled self-incrim, what happens if the d make a spontaneous statement?
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if made w/o inducement, provocation, or encouragement it can be admitted, even if made w/o counsel. statement must be 'forced' upon the officer (if statement not blurted out, can still be admitted for impeachment)
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for the pretrial procedure of indictment, when can a grand jury indict?
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1) evidence establishes all the elements of the crime; 2) evidence is legally sufficient to establish that the accused committed the offense; evid est reasonable cause to believe the accused committed the crime
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if the d plead not guilty and plans to present an insanity defense/alibi, what needs to happen?
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d must notify prosecutor w/in 30 days from a not guilty plea, if raising insanity defense; w/in 20 days after arraignment, the prosecutor may serve the d w/ demand for the alibi defense, and d must reply w/in 8 days
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For double jeopardy, what does NY follow?
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transaction test: d has to be charged w/ all offenses arising from any single transaction, EXCEPT when: 1) the offenses have substantially similar element; 2) each contains an element not in the other and is designed to prevent diff harms; 3) one is crim possession, other is crim use (other than sale); 4) each involves death/injury/loss etc to diff vs; 5) one consists of violation of another jurisdiction's statute, which was terminated by court order in the other jurisdiction for lack of evidence as to an element not in the other ny crime; 5) one offense is NY RICO and other was fed RICO
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Is it proper to set up a sobriety road block?
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yes, as long as every automobile is stopped and the driver checked for signs of intoxication; can also check driver licenses and registrations
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