Crim Pro

Front 1

What is the exclusionary rule

Back 1

Evidence obtained in violation of D's 4A, 5A, 6A rights and all "fruits of poisonous tree" must be excluded.

That is, illegaly obtained evidence is inadmissible at trial.

Front 2

What are the exceptions to the exclusionary rule?

Back 2

1) limitations on exclusion

2) fruit of the poisonous tree exceptiosn

Front 3

What are the limitations on exclusion?

Back 3

1) doesn't apply to grand juries

2) doesn't apply to civil remedies

3) doesn't apply if violation isn't against federal constitution or statute (e.g. agency rules)

4) doesn't apply to parole revocation proceedings

5) Good faith exclusion -- in obtaining evidence, cops relied in good faith on jduicial opinion or statute/ordinance later declared unconstitutional, or computer report with clerkical errors not made by cops or on a defective search warrant

NOTE - NY DOES NOT RECOGNIZE THE GOOD FAITH EXCEOPTION FOR DEFECTIVE SEARCH WARRANTS!

6) can be used for impeachment purposes

7) can be used if obtained in violation of knock and announce rule

8) can be used if obtained in violation of miranda rule.

Front 4

What is the fruit of the poisonous tree doctrine?

Back 4

exclude all evidence obtained or derived from original police illegality

Front 5

What are the 5 exceptions to the fruit of the poisonous tree doctrine - i.e. when govt CAN break chain b/w unlawful police action and a piece of evidence.

Back 5

1) govt can prove it had an independent source for evidence

2) invevitable discovery - police would have discovered evidence even if cops hadn't acted illegally

3) intervening acts of free will by D - D is illegally arrested, then goes in and voluntarily confesses

4) fruit of poisonous tree does NOT apply to miranda violations (evidence obtained in violation of miranda is admissible

5) violation of knock and announce rule.

NOTE - if illegal evidence is admitted, resulting conviction should be overturned unless gov.t can show beyond a reasonable doubt that error was harmless (i.e. harmless error rule applies)

Front 6

The 4A guarantees that people should be free from unreasonable search and seizure. What does this apply to?

Back 6

1) arrests
2) other detentions
a) stop & frisk
b) car stops
c) detention to obtain warrant
d) occupants on premises
e) station house detention

NY - police pursuit is a seizure.

Front 7

What is a seizure.

Back 7

when a reaosonable person would believe she is not free to leave or terminate an encounter with the government

Front 8

what is an arrest

Back 8

when police take a person into custody against her will for purposes of criminal interrogation?

Front 9

What is the probable cuase requirement for arrests?

Back 9

trustworthy facts or knowledge sufficient for a reasonable person to believe suspect has committed or is commiting a crime is required.

Front 10

What is a 'stop and frisk' investigatory detentions?

Back 10

if cops have a reasonable suspicion of criminal activity or involvement in a completed crime supported by articulable facts (not a hunch), they can detain a person for investigative purposes

If police have a Reasonable Suspicion that D is armed and dangerous, they may frisk detainees for weapons.

Front 11

What is the rule pertaining to automobile stops?

Back 11

1) Cops must have reasonable suspicion that law has been violated to stop a car

2) cops may order occupants out of the car

3) if cops reasonably believe that occupants are armed, they can frisk and search the passenger compartment.

4) If reasonable suspicion exists that D violated law, cop can use that to stop even if really just a PRETEXT for checking about another law.

Front 12

Are there any exceptions to the rule pertaining to automobile stops and requirement of reasonable suspicion?

Back 12

YES. If special law enforcement needs are involved, SC allows cops to set up road blocks and to stop cars w/o individualized suspicion of breaking the law.

BUT, must be done on
a) a neutral, articulable standard (every other car) and
b) designed to serve purpose closely related to problem pertaining to cars (drunk driving, NOT random drug searches).f

Front 13

What are the 4A -Search and Seizure - requirements for a Detention to obtain a warrant?

Back 13

If cops have probable cause to believe that suspect has hidden drugs in house, they may for a reasonable time period, prevent him from going into home unaccompanied to prevent D from destroying drugs while warrant is obtained

Front 14

What are the 4A -Search and Seizure - requirements for occupants of the premises?

Back 14

valid search warrant to search for contraband allows cops to detain occupants of the premises during a proper search.

Front 15

What are the 4A -Search and Seizure - requirements for a station house detention

Back 15

cops need probable cause for arrest to bring suspect to police station for finger printing or interrogating/questioning

Front 16

What is the Sliding Scale of Police authority for other detentions?

Back 16

1) Minimal Intrusion/Request for information -- police can APPROACH AND REQUEST information except on "whim and caprice". Individuals right not to respond and even to run away does not give cops probable cause to arrest

2) common law right to inquire - cops have "founded suspicion that criminal activity is afoot" they can ASK QUESTIONS, DETENTION MUST BE SHORT OF SEIZURE. if individual gives explanations, cops must release.

3) forcible stop and detention and frisk - police have REASONABLE SUSPICION that individual has commited or is committing a crime. under the limited PLAIN FEEL doctrine, if cops reasonably believe they are in danger, they can FRISK in order to see if suspect is ARMED.

They may make a warrantless seizure of anything REASONABLY BELIEVED TO BE A WEAPON that is found during such frisk

4) police pursuit - impedes individual's freedom of movement, and so must be based on REASONABLE SUSPICION tha ta crime has been, is being, or is about to be, comitted.

5)arrest -- police have PROBABLE CAUSE to believe that individual has commited a crime.

Front 17

When Does D even have a 4A right ot be free from search and seizure?

Back 17

When there has been
1) government conduct, AND
2) D has a reasonable expectation of privacy

Front 18

What constitutes gov.t conduct for purposes of 4A search and seizure?

Back 18

1) cops on or off duty
2) private individuals acting under direction of cops

Front 19

How do you determine if someone has a reasonable expectation of privacy for the purposes of the 4A?

Back 19

Look to the totality of the circumstances

1) Is there standing?
a) automatic if i) D owns/posseses place searched, ii) place searched is his home, and iii) he was overnight guest of owner of home.
a) sometimes standing exists if i) you were legitimately present when search took place, and ii) you owned property seized.

2) A reasonable expectation of privacy does not exist in things held out to be public
a) sound of your voice, handwriting, car print, bank records
b) monitoring the location of your car on a public street/driveway
c) areas outside the home/realted buildings, e.g. barn, garbage left for collection
4) anything that can be seen across open fields
5) anything that can be seen from public place, including plane and helicopters
6) odors from luggage

Front 20

What Must happen for a search warrant to be valid?

Back 20

1) issued by a neutral and detached magistrate
2) on a showing of probable cause
a) submit to magistrate affidavit setting forth circumstances
b) hearsay can be used
c) but intentional false statements cannot be used, or search warrant will be deemed invalid
2) warrant must be PRECISE on its face, including place to be searched and things to be seized
a) can be found to search the property of non-suspects if it is likely that evidence will be found there

Front 21

What happens if a cop reasonably relies on a facially valid search warrant later found to be not supported by probable cause?

Back 21

Good faith exception applies to admit evidence

Front 22

What is the NY Rule on Informers and Search Warrants?

Back 22

NY applies a more stringent standard than required by u.s. constitution.

Search warrant application must demonstrate
1. veracity or reliability of the source of information, and
2. basis of informant's knowledge

If the informer has not revealed the basis for his knowledge, probable cause verification can arise only where the observation confirms sufficient details suggestive of or directly related to criminal activity informed about.

Front 23

What are the six exceptions to the Search Warrant Requirement? That is where a valid warrantless search and seizure wil be found.

Back 23

1) search incident to a lawful arrest, where search is contemporaneous in time and place and limited in geographic scope to wingspan (in car, this is everything but the trunk)

2) car exception - if cops have probable cause to believe that vehicle contains fruits, instrumentalities, evidence of crime; includes the trunk of a car

3) plain view - if legitimately on premises and discover evidence in plain view and have probable cause to believe its evidence

4) consent - must be voluntary and intelligent (no need for person to know they have right to withhold consent, though)

5) stop and frisk - can stop and frisk if articulable and reasonable suspicion of criminal activity (less than probable cause) -- pat down of outer clothing with seizure of anything reasonably believed on plain feel to be weapon or contraband

6) hot pursuit of fleeing felon, or evanescent (likely to disappear) evidence

Front 24

What is the NY rule pertaining to searches incident to a lawful arrest

Back 24

NY affords arrestee broader protection than is required by constitution.

Officer MUST SUSPECT that arrested person may be ARMED to search containers in the "wingspan."

Furthermore, once an occupant has been removed from teh car, cops may not remove closed containers or bags to look for weapons or other evidence.

Front 25

What is the rule revolving warrants and wiretapping and/or eavesdropping

Back 25

Requires a warrant, generally.

EXCEPT - "unreliable ear" - everyone assumes risk that person to whom he is speaking is an informer wired for sound or taping the conversation.

Person also has no 4A claim if he makes no attempt to keep conversation private.

Front 26

What rights exist involving a D's confession?

Back 26

1) 14A - statemetn must be voluntary

2) 6A right to counsel

3) 5A privilege against self incrimination

Front 27

What is the rule regarding the voluntariness of a D's Confession under the 14A?

Back 27

Determined by totality of the circumstances (if compulstion than its involuntary).

Apply the harmless error test if involuntary evidence is admitted into evidence; only overturn conviction if there isn't overwhelming evidence of guilt.

Front 28

NY - What factors are relevant to determining if confession is voluntary under 14A?

Back 28

length of interrogation and custody are key factors

Front 29

What is the rule regarding the voluntariness of a D's Confession under the 6A?

Back 29

Right to counsel. Guarantees right to counsel in all CRIMINAL PROCEEDINGS which include all critical stages of prosecution, after judicial proceedings have begun (i.e. after formal charges have been filed).

NOTE - D who has been arrested, but not charged, has a 5A, not 6A right to counsel.

6A RIGHT TO COUNSEL IS OFFENSE-SPECIFIC. if D's rights have attached, he may still be questioned on unrelated, uncharged offense w/o violating 6A (though, may still violate 5A rights).

Front 30

NY - What is the rule pertaining to D's 6A right to counsel?

Back 30

NY affords greater protection to D than does Constittuion. Provides an "indelible right" to cousnsel.

Right attaches
1) when D is in custody and police are engaging in activity overwhelming to a laypwerson, and D requests counsel
2) at arraignment
3) upon filing of an accusatory instrument
4) when there has been any significant judicial activity.

Waiver may be obtained from a criminal D who is known to be represented by an attorney, only in the presence of the attorney.

Front 31

What is the rule regarding the voluntariness of a D's Confession under the 5A?

Back 31

D has a 5A privilege against self incrimination, in the form of Miranda Warnings.

Front 32

What has to happen for a confession to be admissible in light of 5A/Miranda warnings

Back 32

1) must be in custody, and
2) must be informed prior to interrogation of Miranda rights

Front 33

For the purposes of Miranda, what is "in custody"?

Back 33

if you are not free to leave at any time during interrogation.

this is an objective standard - can be in jail, cop car, hospital bed, in home.

Probation interivews and routine traffic stops are not custody.

Front 34

What is interrogation for the purposes of miranda?

Back 34

Interrogation is words/conduct cops should know would likely elicit a response from D.

BUT -not spontaneous statements

and NOT routine booking questions

Front 35

What must a person do to waive Miranda warnings?

Back 35

Must be a knowing, voluntary, and intelligent waiver.

Silence or shrugging shoulders is not enough.

Front 36

How can a D use Miranda warnings to terminate an interrogation?

Back 36

By either invoking
1) right ot remain silent - but cops can later question on an unrelated crime, or

2) right to counsel - all questioning must cease unless D re-initiates questoining.

Counsel must be present from then on for all questioning (unless D initiates) -- NOT OFFENSE SPECIFIC.

Request for lawyer must be unambiguous and specific

Front 37

what are the effects of a miranda violation?

Back 37

generally, evidence obtained in violation of Miranda is inadmissible at trial under exclusionary rule, EXCEPT

1) use of confession for impeachment at D's trial (but not as evidence of guilt)

2) warning given after questioning and then D re-confesses; later confession will be admissible if original unwarned questioning seemed unplanned and failure to give miranda was inadvertant. But, inadmissible if 'question first, warn later' approach is intentional.

3) non-testimonial fruits of an unwarned confession (if miranda-less confession leads to non-testimonial evidence) -- unclear law on this.

Front 38

What issues are raised with pre-trial identifications

Back 38

1) is the 6a right to counsel denied

2) is there a dpc violation

Front 39

What is the 6a right to counsel at a pre-trial lineup?

Back 39

it is very limited and does not cover procedures where D is not personally confronted by witness (e.g. photo IDS) and does not cover post-charge lineups and show-ups.

Front 40

NY - What is NY rule pertaining to 6A and Investigatory lineups?

Back 40

No right to counsel exists at an investigaotry lineup held prior to formal prosecutorial action EXCEPT when
1) police are aware that D is represented by counsel on another charge, and
2) D explicitly requests his attorney

If so, cops then must notify counsel and provide an opportunity for ocunsel to appear before they proceed with the lineup.

If defense counsel contacts police to inform them of his intent to appear at lineup, counsel must be given reasonable opportunity to be heard.

Front 41

What is D's DPC rights as pertaining to a pre-trial lineup?

Back 41

D can attack identification as violation of DPC if identification is unnecessarily suggestive and there is a substantial likelihood of misidentification (one white guy in line-up)

Front 42

What about a 5A right and pre-trial identifications?

Back 42

DOESN'T EXIST. can't refuse to participate in a line-up.

Front 43

What if lineup has been a violation of DPC or 6A? what is the remedy?

Back 43

Exclude identification (rarely granted).

Determination fo admissibility is at a suppression hearing in absence of a jury.

Even if excluded, witness can make in-court ID despite existence of un-C pretrial ID if in-court ID had independent source (e.g. witness viewed D for 20 minutes during crime).

Front 44

NY - What is the procedure for grand juries?

Back 44

Grand juries consist of 6-23 people.

12 people are needed to indict.

Citizen may waive indictment for a crime, but only if
1) he is being held for grand jury action
2) crime is punishable other than by death or life imprisonment and
3) DA consents

***GJ Indictment must be based on evidence admissible at trial ****

Front 45

NY - What is the procedure for grand juries? Is there a right to counsel?

Back 45

Witness with immunity may consult a lawyer, but not in the grand jury room.

A witness who has waived immunity may be accompanied into grand jury room by counsel, but counsel may not take part in the proceeding

NOTE - any witness in GJ testifying automatically has transactional immunity, or has waived immunity; if he has waived immunity and asks to testify before GJ, he must be allowed.

Front 46

NY - What are the rules regarding immunity?

Back 46

Any witness in a proceeding, other than a GJ proceeding, may refuse to give evidence requested of him on the ground that it may incriminate him, and may not be compelled to give such evidence unless granted immunity.

In NY, a witness may be given transactional immunity (i.e. witenes cannot be tried for any crime disclosed).

However, a witness testifying under immunity in NY is guaranteed only "use" immunity in other jurisdiction (i.e. witness might be treid for crime to which answered question relates, but none of the evidence disclosed, or leads obtained from testimony may be used in subsequent prosecution).

Note - prosecutor is not required to give immunity to D/witnesses

Front 47

NY - Rules about Prosecutor's Duty to Disclose. What does a D have a right to obtain from the prosecutor?

Back 47

1) his and his co-Ds statements to law enforcement, including GJ testimony,

2( tapes of bugged conversatoins

3) photos/drawings by police

4) reports of mental/physical/scientific tests

5) property obtained by D

6) date/time/place of charged offense

7) specific instances of D's conduct intended to be used against D to impeach D's credibility

8) everything else required by state, fed, local law.

Front 48

NY - Rules about Prosecutor's Duty to Disclose. What must prosecutor provide to the D after the jury is sworn in/prior to case?

Back 48

1) any prior written or recorded statements of witnesses to be called and criminal records

**NOTE D must also give P prior statements of D's witnesses and reports to be used at trial.

Front 49

NY - Rules about D's Duty to Disclose. When must D notify prosecutor of intent to raise an insanity defense

Back 49

within 30 days from a not guilty plea.

Front 50

NY - Rules about Prosecutor's Duty to Disclose. When Can P ask D for alibi?

Back 50

within 20 days after arraignment, P can serve D with demand for alibi defense, and D must provide it within 8 days.

Front 51

NY - Pre-Trial Procedures

Back 51

1) preliminary hearing to determine probable cause to detain

2) pre-trial detention

3) grand juries

4) speedy trial

5) prosecutorial duty to dislcose exculpatory evidence and D's duty to notify of defenses

6) competency to stand trial

7) pretrial publicity (too much may be prejudicial to D and require change of venue or retrial)

Front 52

NY - What rights does one have in the GJ?

Back 52

1) no right of access by the D (that is there is a right to secrecy, D has no right to notice, confrontation, evidence).

2) no right to counsel or miranda

3) no right to have evidence excdluded

4) D must appear if called, but can refuse to answer specific Q's b/c of incrimination,

5) no right to challenge subpoena

6)BUT court cannot exclude minorities or reversal w/o regard to harmlessness of error

Front 53

NY - what are the rules pertaining to a speedy trial

Back 53

totality of the circumstances - remedy is dismissal with prejudice. Only attaches when D has been arrested or charged (though D need not know of charge!)

Front 54

What must Prosecutor disclose?

Back 54

exculpatory evidence -- failure to do so violates the DPC.

REersal if D can show
1)evidence is favorable to him b/c it impeaches/exculpatory, AND
2) prejudice

Front 55

What happens if D is incompetent at time of trial?

Back 55

Bar to trial. If
1) D lacks rational or factual understanding of the charges/proceedings, and

2) lacks sufficient present ability to consult with his lawyer with reasonable degree of understanding.

But note that D can be confined to a mental hospital for longer term than prison sentence!

Front 56

What rights does D have pertaining to TRIAL?

Back 56

1) Right to jury trial
2) # and unanimity of jurors
3) cross-section requirement
4) right to impartial jury
5) right to counsel, ineffective assistance

Front 57

When does one have a right to a jury trial?

Back 57

If maximum authorized sentence is greater than 6 months (but not if less).

If criminal contempt orders combined exceed 6 months.

NOT in juvenile delinquency proceedings

Front 58

What about the jurors?

Back 58

1) Minimum of 6, but then must be unanimous, can be non-unanimous if 10-2, 9-3

NY - For felonies - 12 jurors, with up to 4 alternates; crimes less than felonies, 6 jurors

2) Jury pool must represent a cross-section of the community (pool, not panel). Can't exclude jurors B/c of race/sex -- D must show numerically significant underrepresentation of right to prove violation. BUT no right to proportionatl representation

3) right to impartial jury - can Q D on death penalty views - anyone who would automatically give death penalty must be excluded.

Front 59

What about violation of D's right to counsel AT TRIAL (including erroneously disqualifying D's privately retained counsel)?

Back 59

Requires reversal. For nontrial denials, harmless error test applies

Front 60

What is ineffective assistance rule?

Back 60

P must show
1) deficient performance by counsel AND
2) but for deficient counsel, result of proceeding would have been different.

D must point to specific deficiencies (not inexperience, lack of time, severity of charges, complexity of case, etc).

KEY - deny relief unless D is not guilty.

"NY is slightly more liberal than USSC in overturning convictions for IAC."

Front 61

What about using Guilty Pleas? and Waiving right to trial? What is required?

Back 61

1) Judge must determine that GP is VOLUNTARY AND INTELLIGENT. by addressing D in court ON THE RECORD.

D must know charges, penalty, rights not to plead (not every element of charge, just nature and that elements of offense have been explained by D/C).

2) Remedy for failure to meet the standard is withdrawal of guilty plea and new plea.

Front 62

Can guilty pleas be set aside? if so, when?

Back 62

Voluntary and Intelligent guilty pleas are immune from collateral attack. BUT can be set aside if
1) mistake in plea colloquy
2) court lacked jurisdiction
3) IAC
4) failure of prosecutor to keep agreed upon plea bargain.

Front 63

Who is the plea bargain enforced against?

Back 63

Prosecutor and Defendant.

Not judge. Judge need not accept a negotiated guilty plea.

Front 64

Is a guilty plea involuntary if it is in response to a prosecutors threat of charging a greater crime?

Back 64

NO.

Front 65

Can a guilty plea be used as conviction in other proceedings when relevant?

Back 65

YES. But doesn't admit legality of incriminating evidence NOR waives 4A claims in subsequent damage-civil damage action.

Front 66

How does the 8A apply to death penalty cases?

Back 66

can't execute people insane at time of execution, or mentally retarded people or people under 18 at time of crime, or for status crimes (drunkennes)

Front 67

How can a death penalty statute be imposed?

Back 67

only if in statutory scheme that gives judge/jury reasonable discretion, full information, etc

Statute cannot be vague and must let sentencing body consider mitigating evidence

No automatic imposition of death penalty

only jury can determine aggravating factors, and judge imposition of death penalty (not judge)

no death penalty for rape or felony murder (unless participation in felony murder was major and acted with reckless indifference)

Front 68

What is the 5A rule fo Double Jeopardy?

Back 68

Can't be retried for same offense once jeopardy has been attached.

Front 69

DJ - When does DJ attach?

Back 69

1) jury trial - after empaneling and swearing in of the jury

2) bench trial - when the first witness is sworn

3) commencement of juvenile proceedings bars a subsequent criminal trial for same offense.


NOTE - DJ generally does not apply in civil proceedings, except JUV, CAN be criminally prosecuted for something, than civilly.

Front 70

DJ - What are the exceptions to the DJ rule permitting retrial?

Back 70

1) hung jury
2) manifest necessity to discontinue trial or termination occurs at behest of D on grounds not constituting an acquittal
3) after D successfully appealed conviction, so long as not reversed on insufficient evidence, but D cannot be charged with greater offense on retrial

4) after breached plea by D - you can reinstate original charges.

Front 71

DJ - what is the "same offense" for purposes of DJ?

Back 71

1) not same offense if each crime requires proof of an additional element that the other does not, even though same underlying facts.

NOTE NY - ALL CRIMES ARISING FROM SINGLE TRANSACTION MUST BE TRIED TOGETHER.

2) DJ attaches for greater offenses and lesser included offenses, EXCEPT IF
a) victim dies, can sue for murder after battery suit
b) unlawful conduct used to prove later offense had not been discovered, despite due dilligence OR
3) had not occurred at time of first prosecution.

Front 72

Does DJ apply to separate sovereigns?

Back 72

NO! different states may sue, state/fed, municipalities, etc.

Front 73

Do you have a right to counsel on appeal?

Back 73

No federal right to appeal. But, if a right to appeal is granted (discretionary) it must be given equally to rich and poor.

No counsel is required for discretionary appeal to Highest Court.

Front 74

Do you have a right to counsel on collateral attack?

Back 74

After exhaust all appeals, D can attack conviction collateral "habeas corpus"

D has no right to counsel for habeas.

D must still be in cusotdy for habeas.

D has burden of proof to show that by a preponderance of the evidence, detention is unalwful.

State can appeal a grant of habeas.

Front 75

Do you have a right to counsel at parole/probation revocation proceedings?

Back 75

yes.

Front 76

5A right against self-incrimination. Who has the right?

Back 76

1) only natural persons can assert (not corps or partnerships)

2) anyone can assert - D, witnesses, civil/criminal/admin/congressional hearings

3) personal - can only be asserted if answer will incriminate self.

Front 77

5A right against self-incrimination. When can right be asserted?

Back 77

Whenever answer will furnish a link in the chain of evidenced to prosecute.

Or, in civil proceedings, to prevent waiver in later criminal cases

Front 78

5A right against self-incrimination. How is the right asserted?

Back 78

Criminal D has right not to take stand at trial, all other witnesses must listen to qustions, be sworn in and specifically invoke privilege in place of answering questions.

Front 79

5A right against self-incrimination. What is the scope of the right?

Back 79

Testimonial, communicative evidence.

NOT real or physical evidence (blood, urine, hairsample, lineup).

So, must comply with subpoenas to produce incriminating documents.

Front 80

5A right against self-incrimination. When is the right violated?

Back 80

When D's compelled statemetns are used against him IN A CRIMINAL CASE.

Front 81

5A right against self-incrimination. What eliminates the privilege?

Back 81

1) grant of immunity from prosecution can compel witness to testify
a) use and derivative use immunity is sufficient - testimony and evidence located b/c of testimony will NOT be used against D unless independent source proved
b) immunized testiomony cannot be used for impeachment purposes, but can for perjury
c) can't be used by a different sovereign
D) IN NY, WITNESS RECEIVES BROADER TRANSACTIONAL IMMUNITY.

2) No possibility of incrimination (SOL expired)

3) Waiver of privilege - subjects you to answering questions on issue on cross-examination.

NOTE - extends only to offenses on which question relates and does not protect against perjury during immunized testimony.

Front 82

5A right against self-incrimination. Can a prosecutor comment on D's failure to testify at trial?

Back 82

NO! Nor can prosecutor comment on D's choice to stay silent post-Miranda warnings.

No other penalties allowed for 5A invocations

BUT D or Judge can instruct jury not to make negative inferences from silence.

Harmless error test applies.