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56 Cards in this Set
- Front
- Back
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CONFESSIONS
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A confession must be voluntary or violates due process/5thA: determined by TOC.
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6th Am RIGHT TO COUNSEL
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The 6th Am right attaches when formal criminal proceedings are initiated. Attaches if D brought before court, advised of accusations against him, & liberty subject to restraint, even if no formal criminal charges yet filed.
Applies at all critical stages of the proceedings. It is offense specific. The right may be waived. Even after 6th A right to counsel invoked, it may be waived & Miranda warnings are generally sufficient. |
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MIRANDA
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Rule: Suspect must be advised of certain prophylactic warnings.
Does not apply to interrogation by informants, but only police. Not applicable to grand jury. Public safety exception. Warning need not be verbatim. Need not re-advise after break. Custody: objective test from S’s point of view. Interrogation: objective test from officer’s point of view. Booking questions exception. |
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Invocation of MIRANDA Rights
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Invocation of right to counsel must be clear & unambiguous.
1. Right to remain silent: police must scrupulously honor invocation. (Mosley factors) 2. Right to counsel: all questioning (about any crime) must cease until attorney present, unless suspect initiates further contact with police. Shatzer: "break in custody" ends Edwards protections. |
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Miranda WAIVER
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Waiver must be knowing, voluntary & intelligent; not presumed from silence.
But: period of silence plus other conduct may equal waiver, even tho D did not explicitly waive. |
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MIRANDA: Remedy of Violation
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Not admissible in case in chief, but may be used to impeach D.
Effect of Miranda violation on subsequent statement or physical evidence. |
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Other 5th Amendment Privilege Against Self-Incrimination Issues
I. Fifth Amendment Prohibits government from compelling self-incriminating evidence. |
A. Natural persons only may assert privilege (not corporations, etc.)
B. Applies to testimony & statements. C. How invoke. D. Applies only to testimonial evidence. |
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Search Incident to Arrest (SITA)
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If arrest lawful, may search D & area w/i his/her immediate control, i.e. area into which D may reach to retrieve a weapon or contraband (D's "wingspan"). Chimel
Purpose: to provide officer safety & preserve evidence that might be destroyed/concealed. Needs no p.c. or reas. susp. (beyond p.c. to arrest). Any arrest (misdemeanor included) sufficient, but not cite release for traffic violation (less danger to officer & no evidence to be destroyed). |
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PLAIN VIEW (PV)
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When an officer observes something which he/she has p.c. to believe is evidence of a crime/contraband, from a location where he/she has a legal right to be, it is not a search.
Example: officer can seize items not listed in search warrant if p.c. to believe they are contraband and seen from area where officer legitimately is. Officer may not manipulate item to determine if there is p.c. to believe it is evidence of a crime or contraband (can move stereo equipment to see serial nos. so can run to find out if stolen). Hicks Discovery need not be inadvertent (i.e., items originally listed in S.W. but not approved by judge seen when warrant served, may be seized so long as in plain view and p.c. to believe contraband/evidence of crime). |
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6th AM: Lineup Issues
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6th A: only at critical stages. Live lineup (corporeal) is; photo is not. Only applies after 6th A right to counsel attaches.
If 6th A violation at lineup, suppress in-court i.d.? Unless P can prove by C&C evidence that i.d. based on observations other than at lineup (like at crime scene). Wade/Gilbert. |
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14th AM: Lineup Issues
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A due process violation if lineup, live or photo, is impermissibly suggestive & conducive to irreparable mistaken identification.
But, not inadmissible if certain indicia of reliability: opportunity of W to view criminal at time of crime, W's degree of attention, accuracy of prior description of criminal, level of certainty exhibited at confrontation, & time between crime & confrontation. |
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Stop & Frisk: Overview
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4th Amendment protects against "unreasonable searches and seizures." A search without a warrant is per se unreasonable and thus unconstitutional; burden is on the prosecution to show that a warrantless search was reasonable and thus constitutional.
An arrest is clearly a "seizure" of the person, arrests (with or without a warrant) must be based on probable cause. When the police detain or stop a person without probable cause to arrest, this is also a "seizure" for 4th Am purposes, and any attendant search of the person, their clothing, etc., is obviously a "search" for 4th Am purposes. There are two separate inquiries: the reasonableness of the detention/stop, and the reasonableness of the pat search/frisk. |
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Stop & Frisk: Basic RULE
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Police officer may "detain" or stop a person if the officer has a "reasonable suspicion" that person is engaged in, or is about to be engaged in, criminal activity. Upon detaining the person, the officer may conduct a limited pat-search of the person for weapons, if the officer has "reasonable suspicion" the person may be armed and thus a threat to the officer or innocent bystanders. This is also called a "Terry" stop, or "stop and frisk."
POLICY: The central reasoning behind Terry was an attempt to balance the need for effective and safe law enforcement against the admitted intrusion into a person's freedom of movement and privacy (particularly in their bodies, clothing, etc.) that results from detention and pat-search. Hence, the focus on whether the police action in any situation was "reasonable" under the circumstances. If it was unreasonable, the 4th Am was violated, if it was reasonable, no 4th Am violation. |
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Stop & Frisk: Reasonable Person Test
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Reasonable person test: some detentions are obvious; sometimes they are not so clear cut. Test is whether, under all the circumstances surrounding the incident, a "reasonable person" would have believed s/he was not free to leave.
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Stop & Frisk: "Reasonable Suspicion"
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"Reasonable suspicion": Reasonable suspicion is something less demanding than probable cause.
1. To justify detention: Officer cannot stop a person based solely on a "hunch" or "inchoate suspicion." Officer must point to "specific, articulable facts," which, along with "reasonable inferences from those facts," justify the intrusion on the person's freedom of movement. Officer's training and experience can support reasonableness of inferences officer draws from their observations, might not be readily apparent to lay person. 2. To justify pat-search: Upon lawful seizure (stop, detention) of person, officer may conduct limited pat-search (frisk) of the person if the officer "reasonably suspects" the person is armed. Again, officer must point to "specific articulable facts" and "reasonable inferences drawn from those facts" to show officer reasonably suspected person was armed; officer's training and experience can support reasonableness of inference. |
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Stop & Frisk: Limitations
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1. Identification alone insufficient: Officer may not detain and search person on the street for mere failure to provide identification (unless officer has probable cause to arrest).
2. Investigating past criminal activity: Terry stop based on less than probable cause permitted where person detained is suspected of involvement in a past crime constituting a felony or threat to public safety. 3. Limited search for weapons only. Under Terry, officer is allowed to pat down outside of person's clothing, if pat search reveals object that reasonably feels like a weapon, officer may retrieve the item from pocket, inside clothing, etc. Distinguish: pat down search yielding soft, flexible item (bag of heroin) did not justify removal of item from S's pocket, search held unconstitutional under 4th Am. 4. Suspicion based on hearsay sufficient: Hearsay tip from unnamed informant may justify a weapons search by police prior to arrest. |
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Fruit of the Poisonous Tree (FOTPT)
Overview |
Evidence of all materials seized in violation of the 4th Am is inadmissible in a criminal trial. This is called the "exclusionary rule." It is a procedural rule of federal constitutional law that is designed to deter unlawful police conduct. The exclusionary rule was made applicable to the states (i.e., state/local police violations of 4th Am will result in evidence being excluded at state criminal trail).
4th Am generally protects only against governmental conduct, not against searches by private persons. Accordingly, exclusionary rule does not prevent admission of evidence seized as a result of an illegal search conducted by a private citizen. Government agents include only publicly paid police and citizens acting at their direction, does not include private security guards (unless deputized by police). |
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FOTPT: Basic RULE
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Basic Rule: In addition to excluding all evidence which has been illegally obtained, any additional evidence acquired either directly or indirectly from the illegal arrest, search, or seizure must also be excluded as tainted "fruit of the poisonous tree." (Wong Sun v. US.)
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FOTPT: Purging the Taint
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Purging the taint: Otherwise inadmissible "fruits" of an unlawful search/seizure may yet be admitted as evidence, provided the taint is dissipated or purged by any of the following:
1. Independent evidence: the evidence was also obtained from a source independent of the original illegality. 2. Inevitable discovery: the evidence would have been discovered regardless of the original illegality. 3. An intervening act of free will by the D. |
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Consent to Search (S.W. Exception)
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Must be free & voluntary (not result of duress/coercion, express or implied); determined by T.O.C. Right to refuse but one factor.
Needn't give Miranda warnings nor advise of right not to consent. May be given after arrest. Third party may consent if possesses common actual authority over premises or apparent authority (if police reasonably believe at time has such authority). Scope: defined by object; what reasonable 3rd party would believe based upon exchange between S & officer. |
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Protective Sweeps
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When officer legally enters residence to arrest, he may, w/o p.c. or reas. susp., look in areas immediately adjoining place of arrest frm. which an attack could immediately be launched (including closets).
Beyond that area: officer needs reas. susp. that area harbors individual posing danger to those on scene. Note: may apply to entries other than to arrest (to execute S.W., after consent to enter, etc.). |
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"Going behind the Face" of a Search Warrant
Challenging a facially valid SW PROCEDURE |
Franks v. Delaware sets out procedure.
D must make strong preliminary showing that false statement, material to p.c., included in affidavit and made intentionally or with reckless disregard for truth. Then D gets Franks hearing; has to show the same by preponderance of evidence. If so, strike false portion of affidavit & re-evaluate p.c. w/o. |
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"Going behind the Face" of a Search Warrant
Challenging a facially valid SW GF EXCEPTION |
Evidence May Be Admissible Even If Insufficient Probable Cause
Leon: good faith exception to exclusionary rule. If officer acts in reasonable reliance upon SW issued by neutral & detached magistrate, evidence not excluded even if later determined insufficient p.c.. Does not apply if p.c. so lacking that no reasonable officer would rely upon it, or if magistrate misled by false information, intentionally made or w/reckless disregard for truth. Doctrine extended to: when police act in g.f. based on case law later changed or facially valid statute later declared unconstitutional, or upon info entered/not entered into computer system by gov. employee not integral part of law enforcement . Even if info entered/not entered by police, so long as simple negligence, Leon applies. |
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"Going behind the Face" of a Search Warrant
Challenging a facially valid SW: ILLEGAL ENTRY |
Evidence seized under valid S.W. still admissible even if preceded by illegal entry.
So long as independent source for issuance of SW, where evidence later seized under SW not observed during illegal entry. Same result even if evidence later seized under SW observed during illegal entry, so long as independent source for issuance of warrant. |
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CONSENT SEARCHES: 3rd Party Consent
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Consent given by one occupant is not valid in the face of the refusal of another physically present occupant. "We.hold that a warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident."
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SEARCH & SEIZURE: Reasonable Expectation of Privacy (REP)
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Garbage at curb? No REP.
Backyard from private plane 1K’ up? No. Helicopter 400’ up? No. Open fields? No. Curtilage? YES. Factors: proximity to house; within enclosure surrounding house?; nature of use; steps taken to protect from observation? Detention facilities? No Enhancing senses: flashlight, binoculars: OK; thermal imaging: No. Kyllo (firm, bright line @ entrance to house). |
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SEARCH & SEIZURE
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4th A protects against unreasonable search & seizure.
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SEARCH & SEIZURE: What is a search/seizure?
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Katz: reasonable expectation of privacy (REP) (not something D knowingly exposes to public view); 4th A protects people, not places.
Protects against unreasonable S & S. Rejects trespass doctrine. (phone call; public ph. booth) A search is a gov. intrusion upon a justifiable expectation of privacy. This is both OBJECTIVE (expectation of privacy that society prepared to recognize) & SUBJECTIVE (actual, by D). |
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PROBABLE CAUSE (PC)
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Gates: TOTALITY OF CIRCUMSTANCES (TOC).
(old test: Aguilar/Spinelli. 2 prongs: underlying circumstances to judge validity of informant’s conclusion—basis of information; support claim that informant is reliable) Fluid concept; turns on assessment of probabilities; deficiency in 1 prong of Aguilar can be made up for by other. Give magistrate’s determination of p.c. great deference: OK so long as subst. basis for concluding that p.c. existed. Test for magistrate: TOC—is there a fair probability that contraband or evid. of crime will (presently) be found in part. place. Corroboration of informant via innocent activity can be suff. |
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PC to SEARCH
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P.C. for search: present location of certain objects. Info can become “stale.”
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PC to ARREST
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P.C. for arrest: that crime committed & D did it.
Right to review of p.c. by magistrate. Needn’t give full adversarial safeguards. Review w/i 48 hrs. In extradition, no review of p.c. in asylum state. |
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PC: Attack of Warrant/Affidavit
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Can attack warrant/affidavit sufficient on its face (Franks v. Delaware).
Need: subst. prelim showing that false st. (know. & inten. made, or w/reckless disregard for truth) included in affidavit & that statement necess. for p.c. Then hrg.; if perjury or reckless disregard estab’d by D by prep. of evid., set aside those f’s & judge p.c. |
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WARRANTS: Must be issued by detached/neutral magistrate
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Place to be searched must be described particularly enough so officer, w/reas. effort, can id. place. Items to be seized must also be described sufficiently.
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Execution of WARRANT
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1. Usually w/i 10 days. Nighttime service usually requires extra showing.
2. Knock-notice: part of reasonableness requirement of 4th A, not just statutory requirement. If violation, don’t apply exclusionary rule. 3. Searching people on scene: Need more than mere presence. 4. May detain people at scene to ascertain connection w/premises. |
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EXCLUSIONARY RULE
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14th A requires application of exclusionary rule in state court. Purpose: to deter police misconduct. (If private citizen finds contraband & turns over to police, n/a, unless agent of police.
Leon: modifies exclus. rule so as not to bar use in P’s case-in-chief of evid. obtained by police acting in reasonable reliance on SW issued by neutral/detached magis., even if later deter’d that insuff. p.c. If affidavit so lacking in indicia of p.c. as to render official belief entirely unreasonable, or if magis. misled by info. affiant knew or would have known false except for reckless disregard for truth, doctrine n/a. If non-police gov. emp. enters incorrect info., or fails to remove info. frm. computer system, & police rely on it in g.f.? crt. clerk--OK. CDC employee integral part of law enf. team & Leon n/a. But: even if mistake by law enforcement, if only negligent, Leon applies. 3. It is no defense to crim. charge if D illegally arrested. 4.Exclusionary rule n/a to private persons. 5. N/A to violations of knock notice. |
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ARRESTS
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1. May arrest in public w/o warrant, for F in presence or upon p.c., or for misd. in presence. May arrest for misd. committed in officer’s presence, w/o W, in public place & needn’t be breach of peace.
2. Payton: need AW to arrest S in own residence. 3. Steagold: need SW to arrest S in 3rd party’s residence. 4. Exigent circumstances exception. Factors: DUI suspect flees into home in juris. where non-crim., fine only—No exigent circum’s. See also: Minnesota v. Olson facts—held not to constitute exig. circum. Exigent circumstances = hot pursuit of fleeing felon; imminent destruction of evid., to prevent S’s escape; or risk of danger to police/others. In absence of hot pursuit, must be P.C. to believe 1 or more of other factors present. Whren: officer’s subjective beliefs irrelevant so long as p.c. (or reas. susp. to detain) [so long as valid reason or so long as reas. officer in same circumstances could have] |
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SITA: Passenger compartment & containers
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Can search auto—passenger compartment & containers, incident to arrest. Even if S separated frm. car; can s. zipped pocket of jacket found on back seat. Doesn’t matter if can’t hold weapon or evid.
Includes open/closed glove compartments; but not trunk. Not limited to situations where officer initiates contact w/S (i.e. applies not only where S in car when officer contacts him, but also if S gets out of car & goes to meet officer). But see, Gant: not search car, as SIA, when S is handcuffed in backseat of patrol car (may search if reason to believe that car contains evidence related to crime for which S arrested, tho). |
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SITA: Drawing blood
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Drawing blood after DUI did not offend sense of justice & doesn’t violate 5th A. Emergency situation; p.c. Accord, See Winston v. Lee (surgery to extract bullet not reas. search.)
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SITA: "wingspan"
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Chimel: may search area w/i D’s possession or under his control (area frm w/i which D might gain possession of weapon or destructible evid.--"WINGSPAN"), incident to arrest.
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PROTECTIVE SWEEPS
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Officer can, w/o p.c. or reas. susp., look in spaces immediately adjoining place of arrest frm. which an attack could immed. be launched (including closets). Beyond that area: need reas. susp. (as reas. prudent officer) to believe area harbors indiv. posing danger to those on scene.
Note: may apply to legal entries other than to arrest—such as consent, search warrant entries, etc. |
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SEARCH: Plain View
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1. Not really a SW exception; what officer sees from place he has right to be, in p.v., is not a search. Can’t use to extend to general exploratory search from room to room until find incrim. evid.
2. Arizona v. Hicks: can’t manipulate items like stereo equip., which are in p.v., to get serial nos.—is a search. |
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SEARCH: Exigent Circumstances
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If no one in house, no chance drugs can be destroyed & no exigent circum’s.
Freeze scene to get SW. Can hardly raise incentive to get SW w/o giving police a fair chance to do so. If police have PC to believe contraband is present & reas. conclude evid. will be destroyed/removed before can get SW, W-less s. justified (lists factors). See also: exigent circum’s re: arrests, above. There is no “homicide-scene” exception. Police may enter home w/o W if have objectively reasonable basis for believing occupant injured or imminently threatened w/ injury. |
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CONSENT SEARCHES
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Voluntariness of consent by TOC.
Knowledge of right to refuse is but one factor. Must not be result of duress or coercion, express or implied (fact that under arrest doesn’t prohibit valid consent). Needn’t give Miranda warnings nor advise of rt. not to consent. Scope of consent--what reas. person would believe, based on exchange btw. officer & S. Scope usually defined by expressed object. 3rd party consent—consent by 3rd party who possesses common authority over premises suff. EX: Valid when 3rd party is one whom police, at time, reas. believe to possess common authority over premises, even if does not. EX: Clerk doesn’t have authority to consent to search of guest’s room. Chapman: landlord doesn’t have auth. to consent to s. of tenant’s apt. Spouse? Burden may be lighter on P. Employer? Not to private areas like desk drawers in locked office, but yes to common workbench. Randolph: objecting present co-occupant trumps present consenting co-occupant. |
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INEVITABLE DISCOVERY
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Can’t argue that evid. would have been inevit. discovered if had obtained SW.
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SEARCHES: Drug Testing
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1. Employees applying for drug interdiction work or to carry firearms? OK.
2. Random test of 10% of school athletes OK. 3. All students doing extracurricular activities OK. 4. Not OK to test pregnant patients & turn over to police. [Student searches generally: T.L.O. : school administrator may search student w/o warrant upon reasonable suspicion that either school rules or law is violated [defined as moderate chance of finding evidence of wrongdoing]; search must be reasonable & not excessively intrusive] |
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Pretrial Identification: Due Process Issues
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A ∆ can attack an identification as denying due process when the identification is UNNECESSARILY SUGGESTIVE and there is a SUBSTANTIAL LIKELIHOOD OF MISIDENTIFICATION. Both parts of this standard must be met for the ∆ to win.
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6th AM Right to a Speedy Trial
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A determination of whether the ∆s right to a speedy trial have been violated will be made by an evaluation of the totality of the circumstances. The following facts should be considered:
a) Length of the delay; b) Reason for the delay; c) Whether the ∆ asserted his right; and d) Prejudice to the ∆. The REMEDY for a violation of the constitutional right to a speedy trial is DISMISSAL with prejudice. |
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Prosecution's Duty to Disclose Exculpatory Evidence and Notice of Defenses
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The government has a duty to disclose material, exculpatory evidence to the ∆. Failure to disclose such evidence--whether willful or INADVERTENT--violates the DPC and is grounds for reversing a conviction if the ∆ can prove that:
a) The evidence at issue is FAVORABLE TO THE ∆ because it impeaches or is exculpatory; and b) PREJUDICE HAS RESULTED (i.e., there is a reasonable probability that the result of the case would have been different if the undisclosed evidence had been presented at trial). --Prosecution, however, may demand to know whether the ∆ is going to plead guilty or raise an alibi as a defense. |
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Incompetency to Stand Trial
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Due process of law prohibits the trial of a ∆ who is incompetent to stand trial. A ∆ is incompetent to stand trial under the due process standard if, because of her present mental condition, she either:
(i) Lacks a rational as well as a factual UNDERSTANDING OF THE CHARGES AND PROCEEDINGS against her; or (ii) Lacks sufficient present ABILITY TO CONSULT WITH HER LAWYER with a reasonable degree of understanding. |
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Pretrial Publicity
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Excessive pretrial publicity prejudicial to the ∆ may require change of venue or retrial.
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Right to a Public Trial
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The 6th and 14th Amendments grant the right to a public trial. However, the extent of this right varies according to the stage of the proceeding involved.
--this right extends to pretrial suppression hearings; such hearings may not be closed to the public (with exceptions for things like prejudice) |
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Right to an Unbiased Judge
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Due process is violated if the judge is shown to have ACTUAL MALICE against the ∆ or to have a FINANCIAL INTEREST in having the trial result in a verdict of guilty.
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Right to Trial by Jury
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The 6th Am right to trial by jury applies to the states. While recent court cases have zealously guarded the jury right, the states are given great latitude in the details of jury use and conduct.
There is no constitutional right to jury trial for petty offenses; only for serious offenses (if imprisonment for more than 6 months) --No absolute right to a jury of 12 --No absolute right to unanimity. --Right to have the jury selected be from a representative cross-section of the community. --Right to impartial jury |
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Ineffective Assistance of Counsel
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An ineffective assistance claimant must show:
(i) DEFICIENT PERFORMANCE by counsel; and that (ii) But for such deficiencies, the RESULT OF THE PROCEEDING WOULD HAVE BEEN DIFFERENT (e.g., ∆ would not have been convicted or his sentence would have been shorter). VERY hard standard to prove. |
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Right to Confront Witnesses
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The 6th Am grants to the ∆ in a criminal prosecution the right to confront adverse witnesses. This right seeks to ensure that:
(i) The fact finder and the ∆ OBSERVE THE DEMEANOR of the testifying witness; and (ii) The ∆ has the opportunity to CROSS-EXAMINE any witness testifying against him. BUT, a ∆ has no absolute right, as a judge may remove a disruptive ∆. |
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Burden of Proof
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The DPC requires in all criminal cases that the state prove guilt BEYOND A REASONABLE DOUBT. The prosecution must have the burden of proving the elements of the crime charged.
However, a State may impose the burden of proof upon the ∆ in regard to an AFFIRMATIVE DEFENSE such as insanity. |
