Criminal Procedure

Front 1

Fourth Amendment →

Back 1

prohibits unreasonable government searches and seizures (✪NY = Art 1 § 12)
a. An unreasonable government search or seizure is unconstitutional if it is NOT authorized by a warrant OR conducted under circumstances giving rise to the exception to the warrant requirement

Front 2

Fourth Amendment Limit

Back 2

4A DOES NOT provide protection from searches and seizures:
i. By the government that are reasonable
ii. By the government of non-US citizens on foreign soil
iii. By the government of US citizens on foreign soil, THOUGH the government MUST make a showing of probable cause
iv. That are private, whether reasonable or unreasonable (i.e. conducted by private citizens BUT NOT once police start using the private citizen as an agent of the police)

Front 3

Warrants Probable Cause Requirement

Back 3

To obtain a valid search or arrest warrant, the government MUST demonstrate probable cause
1. The PC requirement is intended to strike a balance or compromise between privacy interests and effective law enforcement

Front 4

Probable Cause Standard

Back 4

For a warrant to issue, a detached, disinterested magistrate MUST find that, taking into account the experience and expertise of the officer, the government has demonstrated by oath or affirmation a substantial basis of PC, which:
1. For an arrest warrant, it is more probable than not that a crime has been committed AND the person to be arrested committed that crime
2. For a search warrant, it is more probable than not that evidence of a crime or contraband presently is located in a certain place
3. These “more probable than not” showings MAY be based on hearsay
iii. ✪In NY, the warrant MUST comply with the CPL, such that the details of the court and judge’s authority are readily apparent

Front 5

Warrants (Particularity)

Back 5

A search or arrest warrant must be sufficiently particular as to the place or person who is to be seized
1. It must be sufficiently specific so as to leave nothing to the discretion of the searcher
a. Ex. A warrant to search a suspect’s home for “contraband” without more is too broad
2. May be Severed: If a warrant contains specific, as well as overly-broad aspects, the warrant MAY be severed so that the permissible portion survives

Front 6

Warrants (All Persons Present)

Back 6

general warrants that apply to a specific location BUT permit the police to search every person they find there
1. Such warrants are NOT per se unconstitutional BUT police MUST demonstrate that the place searched is:
a. Devoted to an ongoing illicit purpose AND
b. That there is probable cause to believe that a particular person to be searched is involved in criminal activity

Front 7

Search and Seizure
(Constitutional Violations)

Back 7

1. If a government search or arrest is made without a warrant or pursuant to a defective warrant, then absent an exception, the suspect MAY be entitled to suppression of the illegally-obtained evidence under the Exclusionary Evidence Rule OR money damages in tort through a §1983 civil rights claim to compensate the plaintiff
2. Expect of Privacy Showing: To assert a violation of 4A, the suspect MUST be able to demonstrate a “reasonable expectation of privacy” (REP) in the area searched, or the thing to be seized

Front 8

Expectation of Privacy Showing

Back 8

To assert a violation of 4A, the suspect MUST be able to demonstrate a “reasonable expectation of privacy” (REP) in the area searched, or the thing to be seized
a. Absent this showing, D lacks standing to challenge the search or seizure and to suppress incriminating evidence obtained as a result
b. REP has two parts:
i. D MUST show a subjective expectation of privacy, AND
ii. Society MUST recognize it as objectively reasonable

Front 9

Expectation of Privacy
(In home)

Back 9

Individuals are entitled to a heightened REP in their homes
i. Thus, the police MAY NOT search a suspect’s home with heat sensors or other advanced technology without a warrant

Front 10

Expectation of Privacy
(public space)

Back 10

D DOES NOT have an REP in her movements on public streets
i. ✪However, in NY and MBE, police MUST obtain a warrant to place a GPS tracking device on a suspect’s car for an extended period of time
e. A car thief has NO REP in a stolen car and thus lacks standing to challenge its search
i. HOWEVER, if the thief locks the stolen car in his garage at home, then he has an REP in that car and garage and now has standing to challenge the search
f. An invited over-night guest or family member has an REP in a dwelling and standing to contest its search
i. A casual visitor DOES NOT

Front 11

Expectation of Privacy
(open fields)

Back 11

4A protection DOES NOT extend to MBE open fields because objectively there can be NO REP for activities conducted outside the curtilage (30-50 feet surrounding the home)
a. ✪In NY, D MAY demonstrate an REP in an open field IF D abides by NY property laws to establish that REP

Front 12

Expectation of Privacy
(abandoned property)

Back 12

NO REP exists in abandoned property, which MAY be seized without probable cause and without a warrant
a. D’s abandonment of the property (disclaim ownership) MAY NOT be the result of police misconduct
b. Garbage placed outside the curtilage for collected is deemed abandoned, and the police MAY search through it without a warrant

Front 13

Wiretaps

Back 13

1. An REP exists in telephone conversations, emails, and faxes
a. The police MAY NOT record or listen to conversations by means of an instrument, device, or equipment without:
i. A warrant, OR
ii. The consent of one party to the conversation

Front 14

Wiretaps
(NY CPL reqs)

Back 14

Under the CPL, a wiretapped warrant application requires a “particular description of the nature and location of the communication facilities” AND a limited definite time duration NOT to exceed 30 days without an application for extension
a. Does not require that the warrant contain the particular phone number being tapped, only the wire – otherwise, Ds would continually change their numbers

Front 15

Wiretaps
(PC req)

Back 15

To obtain a wiretap warrant, the police MUST have probable cause to believe that the particular communications related to the offense will be intercepted and show that normal investigative procedures have failed or are likely to fail, or are too dangerous to employ
4. If the police inadvertently hear unrelated incriminating conversations, they MUST amend the warrant with the court as soon as possible

Front 16

Wiretaps
(upon expiration)

Back 16

When the warrant expires, the tapes MUST immediately be brought to the judge to be sealed, AND the D MSUT be notified within 90 days
a. For a delay to result in suppression, D MUST demonstrate prejudice
6. To use the tapes in court, the People MUST within 15 days after the arraignment provide D with a copy of the warrant and its supporting papers

Front 17

Wiretaps
(3rd Person Incrimination)

Back 17

If 4A is violated by a wiretap and incriminating evidence is obtained against a third person who is NOT a party to the conversation, the third person has NO REP, and therefore no standing to challenge the 4A violation

Front 18

Eavesdropping Evidence

Back 18

unlawfully obtained by ANYONE is NOT admissible against an “aggrieved person”, i.e. a participant in the conversation in a NY civil or criminal case
a. ✪Unlawful eavesdropping is also a crime in NY

Front 19

Warrant Execution

Back 19

Absent an exception, a warrantless arrest of D in his home is NOT permitted

Front 20

Warrant Execution
(Payton violation)

Back 20

A Payton violation occurs if police arrest D in his home WITHOUT:
a. D’s consent,
b. Exigent circumstances, OR
c. An arrest warrant.

Front 21

Warrant Execution
(3rd Party Home)

Back 21

To enter a third party’s home to arrest D, police MUST have a search warrant for the third party’s home

Front 22

Warrant Execution
(Incriminating Statements)

Back 22

obtained by the police AFTER a warrantless PC arrest in the home are NOT suppressed in MBE because although the entry was illegal, the arrest was based on probable cause
a. ✪NY suppresses such statements
i. Under NY law, had an arrest warrant been obtained, formal judicial proceedings would have commenced and D’s right to counsel would have indelibly attached, thus prohibiting any police interrogation outside the presence of counsel

Front 23

Knock and Talk Tactics

Back 23

Courts have upheld “knock and talk” tactics whereby police approach D’s home to investigate and inquire without a warrant

Front 24

Anticipatory Search

Back 24

If the police know that a warrant has been issued and is on the way, they MAY enter the premises BEFORE the warrant arrives
a. HOWEVER, they MUST be careful NOT to exceed the scope of that warrant
b. If the police have PC to expect that contraband will be delivered to a particular location, BUT they DO NOT know exactly when, they may obtain an anticipatory search warrant, which is triggered upon satisfaction of the condition in the warrant, i.e. the delivery of the contraband

Front 25

Announcement Rule

Back 25

Ordinarily, when executing the warrant, the police MUST first knock and announce their authority and purpose
a. Exceptions: UNLESS the court finds that the police had reason to believe that:
i. Evidence might be destroyed (“evanescent evidence”), OR
ii. They may encounter violence, i.e. the officer’s announcement may place them in peril and would be futile
b. After waiting 15 to 20 seconds after announcing their arrival, police MAY be justified in breaking down D’s door to execute a warrant for drugs
i. Somewhat subjective inquiry = if worried car will be destroyed, wait longer; if worried drugs flushed down toilet, wait less. Consider time of day and evidence concerned about.
c. §1983 Remedy: If the police violate the knock requirement, evidence found pursuant to the warrant NEED NOT be suppressed
i. A §1983 Civil Rights Claim is the remedy

Front 26

No-Knock Warrant

Back 26

Where the police demonstrate that a knock with subject them to imminent danger, the magistrate MAY issue a no-knock warrant, excusing the knock requirement

Front 27

All-Hours Warrant

Back 27

Generally, a NY search warrant should be executed between 6am and 9pm, BUT an all-hours warrant MAY be issued
i. Failure to obtain an all-hours warrant will NOT necessarily render invalid a warrant executed at night

Front 28

Warrant Exceptions (BACHSPIES)

Back 28

1. An unreasonable government search or seizure without a warrant is unconstitutional UNLESS the prosecution can establish one of the warrant exceptions – BACH’S PIES: ✪Figure out lead-in statement for each one of these

Front 29

B

BACHSPIES

Back 29

Border Searches
a. Routine warrantless searches MAY be made of persons and property crossing the U.S. border
b. Elements: The elements of a border search are:
i. It MUST be conducted at the border OR its functional equivalent (i.e. in the airport)
ii. Reasonable certainty that the border has been crossed
c. Initially routine and suspicionless warrantless border searches of a person are limited to some form of inspection of the person and his luggage
i. Anything more intrusive than a frisk is non-routine and REQUIRES a heightened articulable level of suspicion
ii. Highly intrusive border searches of a car or computer equipment MAY be made without individualized suspicion
d. Suspected Drug Trafficker: When a traveler entering the country appears to fit the profile of a possible drug trafficker, this is sufficient articulable suspicion to detain, search, and question WITHOUT administering Miranda warnings
i. i.e. people who pay for plane tickets in cash, using an alias

Front 30

A

BACHSPIES

Back 30

Automobile Stops & Searches ✪Favorite of bar examiners!
a. There is a diminished expectation of privacy in an automobile because: it is operated on public streets, serviced in public areas, its interior is highly visible, it is subject to extensive state regulation and inspection, and easily moveable

Front 31

Automobile Stops

Back 31

✪On exam, handle both: deal with stop first, and then search
i. To stop a car, the police MUST demonstrate:
1. Probable cause that a traffic violation occurred, OR
2. Reasonable suspicion of criminal activity.
ii. Pursuant to a valid stop, the police MAY as a protective measure order the driver and passengers to step out of or stay in the car
iii. Can be Minor: The police MAY use even a minor traffic infraction to stop a car they suspect was involved in criminal activity AS LONG AS the pretextual stop was supported by a traffic infraction
1. The question is NOT whether the reasonably prudent officer would have made the stop without the suspicion or hunch, BUT whether the officer legally could have stopped the car for the infraction
a. Can pull over for silly little things, even if wouldn’t without the suspicion
iv. ✪In NY, the police MUST have founded suspicion of criminal activity to ask the occupants of a vehicle involved in a routine traffic stop whether they possess weapons

Front 32

Automobile Stops (anonymous phone tip)

Back 32

The police MAY briefly stop a motorist on the basis of an anonymous phone tip suggesting that the motorist has engaged in criminal activity PROVIDED the aspects of the caller’s tip are confirmed by police observation
1. Ex. The police had reasonable suspicion to stop D’s car 8 miles from a crime and one hour after the crime when D’s car matched the eyewitness description of the make, model, color, and passenger of the getaway car

Front 33

Automobile Stops (parked car)

Back 33

vi. The right to approach a parked vehicle requires ONLY an articulable basis to request information from the occupants
1. Generally a seizure MUST be predicated on individualized suspicion
a. Thus, random vehicle stops based on a hunch are unconstitutional

Front 34

Check Points

Back 34

However, roadblocks and safety check points are permitted to check for drunk drivers, verify drivers’ licenses for highway safety, to catch dangerous criminals, to thwart imminent terrorist attacks, or obtain information about a recent crime
1. The police MUST uniformly stop vehicles in a non-discriminatory and non-arbitrary manner, thus minimizing police discretion as to whom to stop
2. Because random stops are made without individualized suspicion, the court will weigh:
a. The public interest served by the seizure,
b. The degree to which the seizure advances that interest, AND
c. The severity of the individual liberty interference
3. The primary purpose of the stop MAY NOT be to find evidence of “ordinary criminal activity” OR “general crime control”
a. Ex. Officers walking a dog around cars at a roadblock or a street crime unit stopping pedestrians in a high crime area is a seizure without individualized suspicion in violation of 4A

Front 35

Automobile Searches

Back 35

i. A warrantless search of the entire motor vehicle, including the trunk and containers, is permissible PROVIDED it is predicated on probable cause that the vehicle or a recent occupant contains contraband or evidence of a crime
1. Reasonable suspicion rises to probable cause when, based on the facts and circumstances viewed together, a reasonable belief CAN be formed that a crime was committed AND that participants in or evidence of that crime are in the car
2. PC Where Contraband Found: Generally, if an occupant or recent occupant of a vehicle is found to possess contraband (e.g. a syringe, bullets, or wearing a bullet-proof vest), PC exists to justify a search of the entire vehicle, including the trunk and closed containers for weapons or drugs
ii. Once police have PC that the car contains contraband, they can immediately search it and any containers therein, OR they can search it several days later under this automobile exception

Front 36

Search of Automobile Incident to Arrest

Back 36

iii. Police MAY search a vehicle incident to a recent occupants’ arrest ONLY IF:
1. The arrestee is within reaching distance of the passenger compartment at the time of the search (safety reason), OR
2. It is reasonable to believe the vehicle contains evidence relevant to the crime of the arrest
3. Absent these justifications, a search of an arrestee’s vehicle will be unreasonable UNLESS the police obtain a warrant, demonstrate PC, or show another exception to the warrant requirement applies
iv. Where no arrest is made, officers STILL MAY frisk the passenger if they reasonably believe that the suspect is dangerous and may gain control of weapons
v. If information gathered during the stop reveals a substantial likelihood of a weapon that poses an actual and specific danger to the officer’s safety, the officer is justified in engaging in a limited intrusion into the vehicle, notwithstanding D’s lack of access

Front 37

Search of Vehicle
Impound

Back 37

vi. If a vehicle is impounded, the police, without any PC that it contains contraband, MAY inventory the car
1. PROVIDED the inventory is conducted in accordance with police department defined standardized criteria, so as to limit what can be seized, and PROVIDED the inventory was NOT undertaken in bad faith for purposes of uncovering evidence of criminality
2. If police fail to follow the policy, or have no policy whatsoever, the search violates 4A

Front 38

Standing

Back 38

i. Ds have standing to challenge the admission of evidence ONLY when their own constitutional rights are violated
1. Passengers in a vehicle have standing to challenge the legality of a stop BUT UNLESS they can demonstrate an objective REP in the car, they CANNOT assert the illegality of a search of the car EVEN THOUGH they were legitimately present in it
a. HOWEVER, passengers MAY have standing to contest a search of a personal container IF they can establish an independent REP in that container
ii. ✪In NY, where the criminal inference of possession is the sole basis for charging D with possession of unclaimed drugs or a weapon, that NY D has automatic standing to challenge the legality of the search
1. i.e. where no one in the room claims ownership of drugs, inference that all have possession

Front 39

C

BACHSPIES

Back 39

Consent Searches
a. The police MAY search a person or place without a warrant and without PC IF they obtain the prior voluntary consent of the person in control of that area
b. ✪In MBE, BUT NOT NY, EVEN when officers have no suspicion, they MAY request consent to search
i. ✪In NY, before asking for consent to search, the police MUST first have “founded suspicion” that D is engaged in criminal activity
1. Rationale: Otherwise, would be too easy for officers to always claim that they had consent – it’s a check on them; otherwise, it’s the officer’s word against the criminal’s
c. The police MAY ask D for consent to search IWTHOUT first stating that D is free to go OR that she has constitutional rights to refuse the search
f. Once consent to search an area or a room is granted, police MAY search anywhere within that area where contraband MAY be secreted

Front 40

Consent Searches (voluntary requirement)

Back 40

Consent MUST be voluntary and affirmative
i. Key factors in considering whether consent is voluntary:
1. The number of police officers present (intimidation = non-consent)
2. Whether the consenter was under arrest and handcuffed (vulnerability)
3. The consenter’s past experience with law enforcement (less intimidated)

Front 41

Co-habitant consent

Back 41

In the D’s absence, a spouse, parent, or roommate MAY consent to a search of common areas, BUT NOT to areas in which the D had exclusive control
i. The police MUST demonstrate that they obtained consent from someone they reasonably believed had the authority to consent
1. i.e. the person who answered the door = reasonable to believe he has authority

Front 42

Consent-shared space

Back 42

In shared space where both co-tenants are present, BOTH must consent
h. A babysitter, landlord or hotel manager CANNOT validly consent to a search
i. Parolees who sign a consent statement as a condition to being released MAY validly relinquish their REP and consent to be searched randomly without a warrant or PC

Front 43

Consent--strip searches

Back 43

Post-arrest strip searches for misdemeanor suspects at the pre-arraignment stage are impermissible UNLESS a reasonable individualized suspicion exists that the arrestee MAY be hiding a weapon or contraband
i. Such searches of pre-arraignment felons however ARE permitted
ii. Officials MAY strip search any arrestee before admitting them to jail

Front 44

Searching the Body

Back 44

i. DNA Samples: The police MAY take DNA samples from people arrested in connection with a serious crime
ii. Consent or a warrant is required for police to extract evidence from the body or a body cavity
1. The court, based on PC, can order ONLY minor surgery involving no risks and only minor pain
2. Intoxication Limit: The USSC held that in drunk driving cases, the natural dissipation of alcohol DOES NOT constitute sufficient exigency in every case sufficient to justify conducting a blood test without consent or a warrant
iii. ✪Under the NY VTL, driver’s consent to giving a blood sample, if unconscious and reasonable grounds exist that he is intoxicated, if the driver is unconscious, the VTL requires the test to be completed within 2 hours of arrest

Front 45

Consent Following the Arrest

Back 45

l. Consent following an illegal arrest is invalid UNLESS the People demonstrate the consent was sufficiently attenuated from the illegal arrest= show some break in the chain so that the consent is not a product of the illegality

Front 46

H

BACHSPIES

Back 46

a. A warrantless entry into a building is permitted in immediate, continuous pursuit of a suspect if there is PC to believe that the suspect may be dangerous to the safety of the public
i. It can also be used to prevent the destruction of evanescent evidence
b. Factors Considered for a Warrantless Hot Pursuit – PAGE:
i. P – a clear showing of probable cause
ii. A – whether the suspect was armed
iii. G – the gravity of the offense
iv. E – the likelihood that the suspect or evidence will escape
c. Limit: A warrantless hot pursuit into the home is NOT permitted for a minor offense

Front 47

hot pursuit-deadly force

Back 47

d. Deadly force to prevent the escape of a suspect is an unreasonable seizure and deprivation of life without due process of law
i. Courts use an objective reasonableness standard from the perspective of a reasonable officer on the scene to determine if deadly force is necessary to protect the public and to stop a dangerous felon

Front 48

S

BACHSPIES

Back 48

School Searches
a. Students in public school have fewer First and Fourth Amendment rights, and a lower REP than adults
i. School authorities DO NOT need a warrant or PC to search students or their lockers IF there are reasonable grounds for believing the search will yield evidence that a penal law or school rule has been violated
b. The search MUST be justified at its inception by the presence of reasonable grounds for suspecting evidence and MAY NOT be excessively intrusive in light of the student’s age and gender and the nature of the infraction

Front 49

S (Gov Employees)

BACHSPIES

Back 49

i. A supervisor MAY search another government employee’s office or desk without a warrant IF he has reasonable suspicion of work-related wrongdoing OR has a work-related purpose
1. Ex. The government MAY conduct audits of government-issued email and text devices or employees who have been told of this possibility.
ii. Limit: A supervisor MAY NOT search the desk, files, or purse for personal items that do not belong to the government and have no connection to the employee’s office work

Front 50

P

BACHSPIES

Back 50

Plain View Searches
a. There is NO REP for incriminating items left in plain view
i. The police MAY seize items in plain view that they immediately recognize as contraband OR the evidence OR fruit of a crime
ii. HOWEVER, the officer MUST NOT violate 4A to obtain the plain view vantage point
b. A police officer MAY use a flashlight to plainly view what would have been observable in daylight
i. The use of a device to enhance the senses of the officer DOES NOT render unreasonable an otherwise reasonable search

Front 51

P (Dog sniff)

Back 51

A dog sniff MAY be a search, BUT generally is NOT so intrusive as to require PC or a warrant. USSC.
i. Thus, the police MAY use trained dogs to sniff airport luggage or a properly-stopped vehicle for drugs
1. Not considered sense-enhancing technology
ii. Limit: HOWEVER, a dog sniff in a place entitled to a heightened REP (i.e. outside D’s front door) IS a “search” for 4A purposes
1. ✪In addition, in NY the police MUST demonstrate founded suspicion that criminality is afoot to permit a dog to sniff around the outside of a car
iii. Dog’s Reliability: The showing of the reliability of a drug detection dog’s alert DOES NOT require more than the dog’s certification by a bona fide organization after testing

Front 52

I

BACHSPIES

Back 52

a. For the protection of police and for the preservation of evidence, the police MAY make a warrantless search incident to an arrest AND may search any containers within the suspect’s immediate control (wingspan or grabable area) for weapons OR evidence of which the suspect may gain control
i. ✪In NY, the arrest MUST be lawful, BUT in MBE, the search MAY even be made incident to an illegal arrest that was conducted in good faith

Front 53

I (NY-closed containers)

BACHSPIES

Back 53

b. ✪In NY, to search a closed container incident to an arrest, the police MUST be able to show that exigent circumstances, defined as a reasonable belief that the suspect may gain possession of a weapon or be able to destroy evidence located in the container, existed at the time of the arrest and that the search WAS NOT significantly divorced in time or place from the arrest
i. ✪In MBE, don’t necessarily need exigent circumstances

Front 54

I (Protective Sweep/Ambush Exception)

BACHSPIES

Back 54

c. Under the related Protective Sweep or Ambush Exception, when the police have specific and articulable facts that the arrest area (D’s home) MAY harbor additional suspects, then as an incident to D’s arrest, the police MAY sweep the entire home BUT ONLY into those areas where a person could hide (a closet)
i. Police protection justification

Front 55

E

BACHSPIES

Back 55

Emergency Searches
a. 4A will NOT prevent a police officer from aiding someone in imminent danger
i. Thus, under the Emergency Aid Doctrine, the police may constitutionally enter protected areas without a warrant PROVIDED:
1. The police have an objective reasonable belief that there is an emergency and an immediate need for police aid to protect life or property AND
2. There is a reasonable connection between the emergency and the area searched
b. ✪In MBE, the officer’s subjective motive for entering the premises is NOT relevant IF an object of emergency exists
i. ✪HOWEVER, NY MAY retain the element the search MAY NOT be primarily motivated by an intent to seize evidence

Front 56

E (homicide scene search)

BACHSPIES

Back 56

While there is no separate murder scene exception to 4A, the police MAY make a prompt, limited, warrantless search of a homicide scene to determine if there are other victims, or if the killer is on the premises

Front 57

2nd S

BACHSPIES

Back 57

a. ✪In MBE, a D claiming an improper police seizure MUST show EITHER physical force OR a submission to a show of authority (intimidation) in which D actually “yields” to the police
i. ✪In NY, D NEED NOT show physical force or a submission to authority BUT RATHER a “significant interruption” of liberty of movement (doesn’t feel he’s free to leave)
ii. Ex. An officer without a warrant and without probable cause yelled, “stop!” and “freeze!” and D kept walking away, started to run, and threw away a bag of drugs.
1. Since this order was not accompanied by restraint or physical force, there was no MBE seizure.
2. NY would probably say this is a seizure; need to show more in MBE

Front 58

4 Types/Levels of Stops

Back 58

b. Four Types (Levels) of Stops – FAIR: levels increase as intrusion gets greater
i. F – stop and frisk, requiring reasonable suspicion (level 3)
ii. A – stop and arrest, requiring probable cause (level 4)
iii. I – stop and inquire, requiring founded suspicion (level 2 and ✪NY ONLY)
iv. R – stop and request information, requiring an articulable basis (level 1)

Front 59

Request for Information, Level 1

Back 59

1. Involves general, non-threatening questioning, such as asking for identification, or D’s destination
2. These questions need only be supported by an articulable, objective, credible reason to justify a stop, which NEED NOT necessarily be related to criminal activity

Front 60

Stop and Inquire, Level 2

Back 60

1. A CL inquiry consists of accusatory questioning that would lead an RPP to believe that he is suspected of wrongdoing OR he has become the focus of a police investigation
a. This stop and questioning is justified ONLY if there is founded suspicion that there is criminality afoot

Front 61

Stop and Frisk, Terry Stop, Level 3

Back 61

In order to forcibly stop and detain someone, the police MUST have reasonable suspicion to believe that the suspect is engaged in criminal activity

Front 62

Terry Stop (reasonable suspicion)

Back 62

some minimal level of objective fact that D was involved in criminal activity
a. RS is the equivalent of acting suspiciously under circumstances that indicate that a crime has been or is about to be committed BUT the circumstances are less convincing than those giving rise to probable cause
3. Where the police can demonstrate RS, they MAY briefly detain D to question him and allow witnesses to ID him
4. If the stop is prolonged, the police MUST show that they diligently pursued a means of investigation that was likely to confirm their suspicion
a. The police MAY NOT unreasonably detain beyond such limited intrusion for their own convenience
5. If there is a RS AND the officer has an articulable basis to believe that he may be in danger because the suspect may be armed, the 4A permits a brief detaining and frisk for weapons before commencing the temporary questioning

Front 63

Terry Stop (Purpose of Frisk & Plain Feel Doctrine)

Back 63

The purpose of a frisk is NOT to discover evidence BUT RATHER to permit the police a reasonable opportunity to pursue questioning without fear of violence
a. ✪Plain Feel Doctrine: HOWEVER, if during the MBE frisk for weapons, the officer immediately recognized drugs by their “plain feel”, then the evidence MAY be used against the MBE defendant
b. ✪NY has rejected the plain feel doctrine

Front 64

Terry Stop (Unprovoked Flight)

Back 64

Unprovoked flight from the police is a factor heavily weighed in justifying a stop and frisk
a. ✪Therefore, in MBE BUT NOT NY, a stop and frisk MAY be justified where, in a high crime area, the police unexpectedly appear, and the suspect flees on foot

Front 65

Terry Stop (Anonymous Tips)

Back 65

a. To justify a frisk, a anonymous tip MUST be confirmed by police observation
b. An AT with a detailed description of a man in a plaid shirt at a particular bus stop carrying a gun DOES NOT provide reasonable suspicion of criminal activity to warrant a stop and frisk

Front 66

Stop and Arrest (level 4)

Back 66

1. Requires facts and circumstances that would lead an RPP to conclude that it is more probable than not that the person arrested is the perpetrator of a crime that has been or is being committed
2. PC to arrest exists where:
a. The police observe the commission of a criminal offense, EVEN a petty offense, OR
b. Circumstances exist giving rise to PC

Front 67

Stop and Arrest (informants-aguinar spinelli test)

Back 67

ii. ✪NY Aguillar-Spinelli Two-Pronged Test: To establish PC based on hearsay, NY uses the old two-pronged Aguillar-Spinelli Trustworthiness Test, based on the reliability of:
1. The informant’s veracity, AND
2. The source of the informant’s information, i.e. how he knows, what he saw, and how recently
3. Veracity:
a. The veracity of a disclosed citizen, e.g. an eyewitness or victim, is presumed
b. The veracity of an undisclosed informant is determined by the court weighing:
i. His past track record for supplying reliable leads,
ii. Whether he made the statement under oath,
iii. Whether he made a declaration against his own penal interest, OR
iv. Police corroboration of the information

Front 68

Stop and Arrest (informants-mbe gates totality test)

Back 68

: The two-pronged Aguilar-Spinelli Rule has been replaced by the USSC MBE by the Gates Totality of the Circumstances Test → whether the evidence viewed as a whole provides a substantial basis for the magistrate’s finding of PC
1. The MBE court, in determining whether to issue a warrant, makes a practical common sense decision on the hearsay in the affidavit to determine whether there is a fair probability of PC
2. Thus, in MBE, police corroboration of an anonymous tip MAY be sufficient to establish PC
a. IN addition, the court may rely on D’s reputation in determining the reliability of the information

Front 69

Stop and Arrest (informant-ex parte hearing)

Back 69

: If after a search or arrest, D moves to suppress by attacking PC, then to ensure that the informant exists and actually gave the police sufficient evidence, the court will hold a mandatory ex parte hearing to review additional information
1. Where D’s guilt is at issue, disclosure of the informant’s identity MAY NOT occur in an ex parte proceeding

Front 70

Stop and Arrest (fellow officer report)

Back 70

A police officer having no personal knowledge MAY make a warrantless arrest based on the PC contained in a fellow officer’s report over police radio
1. Under the Fellow Officer Rule, the reliability of the information is presumed AS LONG AS the police as an organization had sufficient information to establish PC
d. If a police officer has PC that a crime has been committed, an arrest is valid EVEN IF the crime charged is NOT closely related to the crime cited by the officer at the time of the arrest

Front 71

Stop and Arrest (Phone Call)

Back 71

By statute, NY affords an arrested adult one phone call upon request
i. For a juvenile offender, the police MUST immediately notify the parent or legal guardian

Front 72

Suppresion (remedies)

Back 72

When a person is harmed by government conduct that violates a constitutional right, the injured person has several remedies:
1. A constitutional tort claim against NYS in the NY Ct of Claims for money damages for the constitutional torts of NYS employees
2. Under 42 USC § 1983, a federal constitutional tort action personally against the municipal or state employee AND the municipality BUT NOT against the state
3. A private constitutional tort claim against federal employees, BUT NOT against the federal government

Front 73

Exclusion and Suppresion

Back 73

As a deterrent to future police misconduct, a court will suppress evidence seized in violation of 4A (The Exclusionary Evidence Rule) as well as any evidence derived from that seizure (the Derivative Evidence Rule, or the Fruit of the Poisonous Tree Doctrine)

Front 74

Suppresion Hearing

Back 74

A motion to suppress illegally seized evidence MUST be made after the arraignment (✪in NY, within 45 days of an omnibus motion)
1. A hearing will be held to determine what evidence will survive and what will be suppressed
2. D’s testimony at the suppression hearing MAY NOT be used at D’s trial on the prosecutor’s direct case
a. This prohibition resolves D’s self-incrimination dilemma when testifying as to the unreasonable of the search or seizure

Front 75

Exclusionary Evidence Rule

Back 75

: the EER was created by the judiciary to deter future police illegal searches and seizures
1. Courts generally DO NOT extend the sanction beyond the criminal trial UNLESS the rule’s deterrent purpose is served
3. Whether the EER is applied in subsequent civil cases or administrative agency hearings is determined by the foreseeable deterrent effect it would produce where the agency responsible for the illegal conduct is different from the agency wishing to use the illegally-obtained evidence
a. The deterrent effect is not nearly as compelling, and generally the EER is NOT applied; deterrence doesn’t cross over i.e. between city enforcement and state troopers

Front 76

Exclusionary Evidence Rule
(Thus, for example, the tainted evidence is admissible...)

Back 76

a. At the grand jury,
b. A civil tax trial,
c. At a parole revocation hearing,
d. At a child protection hearing,
e. To impeach or to prove the separate crime of perjury,
f. If the evidence is pre-existing and obtained from a source independent of the unlawful search or arrest (DMV records or D’s mug shot) (not tainted by the illegality because pre-existing)
i. A D MAY NOT invoke the Fruit of the Poisonous Tree Doctrine when the ONLY link between the improper police activity and the disputed evidence is that the police learned D’s name
g. ✪In MBE (not NY), if the evidence was obtained in good faith
i. Ex. Where police arrested D on a warrant because of his undue parking tickets. However, the D had paid the tickets, but record-keeping was poor. In MBE, will not exclude because officers acted in good faith. NY says this is the type of activity that we’re not seeking to deter.

Front 77

Inevitable discovery Doctrine

Back 77

Under the Doctrine of Inevitably Discovery, illegally-obtained evidence MAY be admissible PROVIDED the DA can establish by a “very high degree of probability” that without the police 4A misconduct, that same evidence inevitably would have been uncovered in the normal course of police investigation ✪Just tested on last summer
1. ✪NY limits the IDD so as to admit ONLY secondary evidence derived from the violation
2. ✪MBE would admit both the primary and secondary evidence

Front 78

Guilty Pleas/Absence of Constitutional or Jurisdictional Defects

Back 78

vi. In the absence of a constitutional or jurisdictional defect, a guilty plea ends the litigation and there are no appeals
1. EVEN where D expressly waives his right to an appeal, he may nevertheless appeal the following:
a. The right to a speedy trial,
b. The legality of a court-imposed sentence
c. Findings concerning D’s competency,
d. The denial of effective assistance of counsel,
e. Whether the appeal waiver was knowingly, intelligently, and voluntarily made.
2. ✪In NY, BUT NOT MBE, a D who unsuccessfully moves to suppress evidence, and who then pleads guilty because the incriminating evidence was not suppressed, DOES NOT forfeit the right to appeal the suppression order UNLESS as part of the plea, D voluntarily waives that right
3. ✪MBE, and NOT NY, will enforce, as an express condition to the dismissal of a criminal charge, D’s surrender of any civil claims

Front 79

1/3
Grand Jury (5A)

Back 79

i. The GJ is an ex parte secret proceeding to determine whether there is reasonable cause to try D for a crime
1. The DA and jurors take an oath of non-disclosure, and it is a crime to violate that oath
a. HOWEVER, witnesses are NOT sworn to secrecy absent a court-order
2. The GJ DOES NOT determine guilt or innocence, BUT RATHER determines whether the evidence accused is sufficient to establish all the elements of the crime AND whether there exists reasonable cause to believe that the accused committed the crime

Front 80

2/3
Grand Jury

Back 80

ii. All rights enumerated in 5A and 6A are deemed fundamental, incorporated into the 14A due process clause and binding on the states EXCEPT to the right to an indictment by a GJ
1. EVEN THOUGH the right to a GJ indictment is NOT fundamental, both the NY and US constitutions guarantee a GJ indictment (a majority vote 12 out of 23) for ALL felonies (not misdemeanors, not violations)

Front 81

3/3

Grand Jury

Back 81

iii. A felony charge MAY NOT go to trial without a grand jury indictment UNLESS the D, with the consent of the DA, waives that right in writing
1. ✪A NY D CANNOT waive a GJ indictment when facing life in prison

Front 82

DA + Grand Jury

Back 82

iv. The DA dominates the GJ proceeding because the DA, and not a judge, determines the admissibility of evidence and controls the proof presented (the DA runs the show)
1. Grand jurors MAY ask questions and/or insist that additional physical evidence or witnesses be subpoenaed
2. D MAY request orally or in writing that the GJ in its discretion consider calling witnesses that D proposes
a. The DA MUST convey D’s request in good faith
3. ✪NY Exculpatory Evidence: In NY, the DA MUST present exculpatory information to the jurors

Front 83

Grand Jury (grounds for challenge)

Back 83

An indicted D MAY challenge the competency or sufficiency of the evidence presented to the GJ by making a motion requesting that the court inspect the minutes by demonstrating “reasonable cause” to believe that there was insufficient legal evidence for an indictment, an exculpatory defense was not presented, or that the proceedings were totally biased or unfair

Front 84

No-Auto Dismissal (Grand Jury)

Back 84

If the DA presented incompetent, irrelevant, illegal, highly prejudicial, or hearsay evidence, the indictment WILL NOT automatically be dismissed PROVIDED that when the tainted evidence is removed from the record, the remaining legal evidence, if uncontradicted and unexplained, would warrant a conviction
a. Ex. If the only evidence presented to a NY GJ was testimony of D’s accomplice, then the court would dismiss the indictment because even if unexplained and uncontradicted, a NY D CANNOT be convicted solely on an the uncorroborated testimony of an accomplice.

Front 85

Grand Jury (unavailable witness)

Back 85

If a GJ witness is unavailable when the case goes to trial, the witness’s testimony CANNOT be read into the record because it is hearsay and violates D’s right to confrontation
1. Such testimony is NOT admissible as former testimony because the D did not have an opportunity to develop the testimony on direct or cross-examination

Front 86

NY limits on DA

Back 86

Absent court approval, the NY DA CANNOT:
1. Resubmit the case to another GJ after the first GJ voted not to indict
a. HOWEVER, court approval is NOT required to resubmit a charge to the same GJ or another IF the original GJ voted favorably on that charge
2. Unilaterally withdraw D’s case from the GJ AFTER it has considered the evidence and charges BUT BEFORE it has had an opportunity to vote
3. HOWEVER, if the GJ is struggling to reach a decision, OR a witness is not available and the GJ is due to be released, the DA MAY ask the GJ to cease deliberations OR withdraw the charges until more evidence may be presented

Front 87

NY Witness Immunity

Back 87

: In NY, any witness subpoenaed to appear before the GJ is automatically granted full transactional immunity and MAY NOT be prosecuted for any crime to which he testifies
1. ✪The MBE standard is not as broad, and only affords use immunity, which simply prohibits the government from directly or derivatively using compelled GJ testimony against the witness
a. Thus, if a prosecutor can establish a criminal case against the GJ witness, independent of the witness’s testimony, then W may be prosecuted for those crimes
2. An MBE witness has no right to have an attorney present at the GJ
a. HOWEVER, before answering specific questions, W may leave the room to consult his attorney
b. In many states, including NY, a witness who has waived immunity MAY bring an attorney into the GJ room, BUT that attorney MAY NOT ask questions or make objections

Front 88

D Testifying before GJ:

Back 88

A NY D who has been arrested and arraigned on a felony complaint, but who has NOT YET been indicted by the GJ, MUST be invited and given a “reasonable time” to decide whether to testify before the GJ
1. To testify, D must sign a waiver of immunity
a. The only time a D will go is when he’s very sympathetic; usually no one wants to waive their immunity
2. If the DA deprives an accused of this right, then within 5 days of his arraignment on the GJ indictment, the D MAY move to dismiss the indictment
3. HOWEVER, if the D is arrested on a GJ indictment, he NEED NOT be invited
a. i.e. the DA has been working on your case, presented before a GJ, and wants to arrest you based on the indictment obtained
b. Usually corruption cases

Front 89

(Lesser Included Crimes) A prosecutor MAY NOT unilaterally dismiss a count of a GJ indictment over D’s objection

Back 89

1. This is an issue for the court in the judge’s discretion

Front 90

Double Jeopardy

Back 90

i. Rule: The DJ clause of 5A provides that no person shall “for the same offense be twice-put in jeopardy of life or limb”
ii. DJ protects against two abuses:
1. A second prosecution by the same sovereign for the same offense after an acquittal or conviction
2. Multiple punishments by the same sovereign for the same offense
a. E.g. consecutive sentences rather than concurrent ones

Front 91

DJ Procedure

Back 91

A criminal D asserting DJ will commence an Article 78 proceeding against the judge
1. If it is a Sup Ct or County Ct judge, commence the Art 78 in the appellate division

Front 92

Dual Sovereignty Doctrine

Back 92

Under the dual sovereignty doctrine, municipalities and the state are considered one sovereign, BUT the federal government and the other 49 states are considered separate sovereigns
1. Thus, a D MAY be tried by a state, and then re-tried for the very same offense by the federal government or another state
2. ✪NY Limit: In NY, the CPL limits the DSD by prohibiting a subsequent NY criminal action where a sister state or the federal government has already tried that D on that “criminal transaction” UNLESS:
a. The completed crime was committed in NY AND the earlier federal or sister state prosecution involved only a related conspiracy, facilitation, or solicitation, OR
b. The federal or sister state crime contains some element that is NOT an element in the NY crime, and each statute is designed to prevent different kinds of evil or harm

Front 93

Blockberger Test

Back 93

In NY and MBE, courts use the Blockberger Test to determine whether two separate offenses arose out of the same criminal transaction
1. The test is whether each offense requires proof of at least one element or fact that the other statute does not contain
2. Ex. After an unsuccessful bank robbery, D pleads guilty to a federal weapons charge, which punished D for possessing a firearm as a prior felon. Two weeks later, D was indicted by a NY GJ for attempted first degree robbery while in possession of a loaded firearm.
a. Here, there is NO NY DJ or CPL violation because the NY indictment is for a separate offense, i.e. that is, the crime contains an element NOT present in the federal statute
b. The federal statute required proof that the possessor had a prior felony conviction, and the NY statute required the elements of robbery and its attempt
c. Moreover, both statutes were designed to prevent different evils – gun possession by prior felons versus robbery with a loaded weapon

Front 94

Blockberger Example #2

Back 94

3. Ex. Where D robbed a bank and exchanged gun fire with the police, D was convicted in federal court of the crime of robbing, a federally-insured institution. He then was indicted and tried for attempted murder, again the federal court.
a. There is no DJ violation because under the “same elements test”, the federally insured bank element is not an element of attempted murder

Front 95

NY One Trial Rule

Back 95

4. ✪NY One Trial Rule: NY (not MBE) requires that D be tried in one trial for ALL offenses arising out of one criminal transaction
a. Delayed Death Exception: If one offense results in physical injury to the victim, and the other is an offense of homicide based on the subsequent death of the victim from the very same injury (the delayed death exception), NY WILL permit a second trial on the same criminal transaction

Front 96

Merger Doctrine

Back 96

Lesser included offenses are considered the same offense under the Merger Doctrine and the court may ONLY impose one sentence for the greater crime
a. A lesser included offense exists when it is impossible to commit a particular crime without also committing, by the same conduct, another lesser offense
b. Ex. If D was tried and convicted for robbery, the DA CANNOT re-try the D for larceny and criminal assault because they are lesser included offenses of robbery and do not require proof of any element that was not needed to prove robbery.

Front 97

Mistrials (DJ)

Back 97

1. DJ attaches in a jury trial when the jury is sworn – this is when the train starts running and you can’t stop it
a. Once jeopardy attaches and the trial begins, the D has the right to have his trial completed by that jury

Front 98

DJ generally prevents a judge from declaring a mistrial and ordering a new one WITHOUT the consent of the D EXCEPT: 1/3

Back 98

a. Where D requested the mistrial because the jury was exposed to prejudicial evidence
i. Exception: An exception arises here if the D can prove that the prosecutor deliberately intended to provoke or “goad” the D into asking for a mistrial and the court immediately grants it prior to verdict the prosecutor forces the D into it, so D won’t be charged for asking for it
b. Because of some absolute necessity, e.g. serious illness, death, or bribery of a necessary juror BUT NOT because a judge is being transferred or going on vacation
i. If during a trial the judge dies or becomes incapacitated, another judge may take over the proceedings IF he reads all the prior transcripts and becomes fully familiar with those proceedings

Front 99

DJ generally prevents a judge from declaring a mistrial and ordering a new one WITHOUT the consent of the D EXCEPT: 2/3

Back 99

c. Because the jury was hopelessly deadlocked
i. The judge MUST question the deadlocked jury and not grant a mistrial sua sponte
ii. The judge has the discretion as to how long to keep the jury together
1. Allen Charge: The judge may issue an Allen Charge, or a Dynamite Charge to firmly nudge the jury toward a verdict without violating D’s due process right to a non-coerced verdict. The judge may advise the jury, for example:
a. To take all the time it needs,
b. That a verdict need not be reached,
c. That conscientious beliefs should not be abandoned in order to reach a verdict
d. That the government has the burden of proving each element of the crime beyond a reasonable doubt
2. The judge MAY NOT force or intimidate the jury into reaching a verdict by urging a dissenting juror to abandon her convictions or by shaming a juror into reaching a verdict
a. Ex. Telling the juror that a re-trial would be expensive.

Front 100

DJ generally prevents a judge from declaring a mistrial and ordering a new one WITHOUT the consent of the D EXCEPT: 3/3

Back 100

3. The judge must specifically disclose verbatim to D’s counsel in open court and on the record the contents of any notes from the jury and provide counsel with an opportunity to suggest a response

Front 101

Appeals (DJ)

Back 101

1. If after jeopardy attaches, D successfully moves to dismiss to grounds unrelated to guilt or innocence (e.g. the DA’s trial delay, or attacking the constitutionality of the violated statute), the People are permitted to appeal the dismissal
a. If the appellate court reverses, the D may be retried
b. DJ DOES NOT prohibit a retrial where D seeks to end the trial on a basis unrelated to guilt or innocence
c. *This is deemed a continuation of the first jeopardy

Front 102

Appeals (DJ)
2. If D appeals his conviction successfully and the appellate court reverses and orders a new trial...

Back 102

the new trial is NOT deemed a second jeopardy, but rather is a continuation of the first

Front 103

Appeals (DJ)
3. When D successfully appeals a conviction and gets a new trial

Back 103

due process prevents the DA from charging D with a crime more serious than the one for which he was convicted in the first trial

Front 104

Appeals (DJ)
4. If after the retrial, D receives a longer sentence than what was imposed after the first trial

Back 104

a rebuttal presumption of judicial vindictiveness arises UNLESS the second harsher sentence is:
a. Supported by evidence that was not presented at the first sentencing, OR
b. Imposed by a different judge

Front 105

Appeals (DJ)
5. DJ prohibits an appeal by the DA after the trial if (1/2):

Back 105

a favorable appeal would require the D to be re-tried
a. Thus, the government CANNOT appeal a pre-verdict dismissal or a jury’s acquittal BUT MAY appeal a conviction that the judge dismissed
b. If at the close of the People’s evidence, the trial court on its own initiative incorrectly dismissed an indictment for insufficient evidence, DJ would preclude an appeal by the DA
i. Rationale: if the state was successful on the appeal, D would have to stand trial a second time

Front 106

Appeals (DJ)
5. DJ prohibits an appeal by the DA after the trial if (2/2):

Back 106

c. HOWEVER, if the trial judge waits for the jury to return a guilty verdict, and then dismisses the verdict as a matter of law, then the DA MAY appeal the dismissal
i. Because if the DA is successful, there will be no need for a second trial – the appellate court will simply reinstate the jury’s guilty verdict
d. Similarly, if the D earlier asked for a mistrial, but the judge did not immediately grant it and instead waited until the jury rendered a guilty verdict and then set that verdict aside, the ensuing new trial would NOT violate DJ
e. If the judge grants an acquittal by erroneously ruling that the prosecutor has failed to prove a fact it was not required by law to prove (like an unnecessary element of a prima facie case), DJ bars a re-trial

Front 107

NY Appeal of a Suppresion Order

Back 107

6. ✪In NY, the People may ONLY appeal a suppression order if it renders the DA’s case so weak as to make it legally impossible to prosecute D without that evidence, this limits appeals by the People to orders, which as a practical matter, have destroyed its case
a. Accordingly, if the appellate court upholds the suppression order, the prosecutor MAY NOT change her mind and attempt to prosecute

Front 108

Time to Appeal a Conviction

Back 108

A D has 30 days to appeal a conviction, but NY appellate courts have discretion in criminal cases ONLY to grant an additional 30 days if based on, for example:
a. Improper conduct of a public official
b. The death, disability, or disappearance of D’s lawyer
c. A failure of communication between the D and his diligent attorney

Front 109

State Grounds Only

Back 109

Where a state court decision rests on adequate and independent state grounds, the DA CANNOT appeal to have it overturned by an application of more lenient federal protection grounds

Front 110

Rights Against Self Incrimination

Back 110

i. Unless granted immunity, every natural person (not a corporation or business entity) has a 5A right against self-incrimination
1. Once invoked, 5A prohibits the government from compelling incriminating testimonial or communicative evidence from the witness

Front 111

Rights Against Self Incrimination
(Business Records Limit)

Back 111

Subpoenaed business records of a corporation, LLC, partnership, or sole proprietorship are NOT protected by 5A and its privilege against self-incrimination
1. Thus, an individual MAY NOT rely on the privilege to avoid producing corporate records, which are in her possession in a representative capacity, EVEN IF those records might incriminate her personally

Front 112

Rights Against Self Incrimination
(civ and crim)

Back 112

iii. The privilege against SI applies to witness testimony in BOTH civil and criminal trials
1. It extends NOT ONLY to refusing to answer the question asked, BUT ALSO to refusing to explain how the answer might incriminate the witness

Front 113

Silence and its Presumption

Back 113

iv. Once the witness invokes the right, a rebuttable presumption arises that the answer might tend to incriminate him
1. Limit: The court MAY compel the witness to answer the question ONLY after the questioning party demonstrates as a matter of law that the witness’s response to the question cannot possibly incriminate him
a. i.e. the statute of limitations or immunity – W can be asked about crimes that are 20 years old (SOL has run)

Front 114

Criminal Prosecution Only Limit:

Back 114

5A MAY NOT be invoked to avoid potential loss of employment, civil liability, or disgrace within the community
1. The ONLY basis for invoking 5A is that the witness’s testimony could subject her to criminal prosecution within the US
vi. Prosecutors MAY NOT call a criminal D as a witness OR directly or indirectly refer in front of the jury to D’s decision not to testify the P would want the D on the stand having to plead the fifth at every question = the jury will get the hint
1. D MAY request a jury charge that D’s silence MUST be disregarded by the jury

Front 115

Civil Permissible Inference

Back 115

Where D invokes 5A in a civil case or administrative proceeding, an inference MAY be drawn that D’s response would have been unfavorable to her position
1. The court will dismiss the case if a civil plaintiff invokes 5A on areas germane to her claim

Front 116

Demonstrative Evidence Limit

Back 116

: A motorist suspected of DWI who fails or refuses to take a sobriety test that does not involve communicative thought (e.g. a breathalyzer or to walk in a straight line) may have the evidence of the test or his refusal to take it used against him
1. His inability to coherently repeat the alphabet backwards or to calculate the year of his 12th birthday MAY NOT be introduced because they reveal incriminating mental confusion and are testimonial in nature

Front 117

Right to a Speedy Trial (6A)

Back 117

the People have the right and power to initiate a criminal prosecution at any time within the SOL BUT once initiated by D’s arrest or arraignment, the People MUST pursuant to 6A advance it to a speedy public trial UNLESS there are “reasonable grounds” for its delay

Front 118

Right to a Speedy trial (NY SOLs)

Back 118

ii. ✪NY SOLs: In NY, the criminal SOL are:
1. No SOL for a class A felony (i.e. murder, rape, kidnapping)
2. 5 years for other felonies (i.e. burglary, robbery)
3. 2 years for misdemeanors
4. 1 year for violations
5. The SOL is tolled, BUT NOT for more than 5 years beyond the original SOL, for:
a. Each day the D is outside NY
b. Where the whereabouts or identity of D is unknown, or unascertainable by due diligence

Front 119

Pre v Post Delay

Back 119

There is a distinction between post-arrest or post-indictment readiness delay governed by 6A (speedy trial) AND pre-indictment, pre-arrest delay governed by the due process clause (SOL)
1. ✪An unreasonable delay in arresting or indictment without good cause requires dismissal or the indictment ONLY if the delay results in actual prejudice to an MBE D
a. ✪NY requires dismissal without any showing of actual prejudice

Front 120

Permissible Delay:

Back 120

A permissible purpose for delaying the indictment is the attempt to gather evidence against D’s accomplice OR where a government agent continues to work undercover

Front 121

3. Once a timely arrest has been made, D must promptly be tried, or a motion to dismiss for violating speedy trial may be made
a. The court will consider the PRICE the D has paid: (factors to consider in whether to grant dismissal based on 6A)

Back 121

i. P – prejudice in the form of a lost witnesses (died, disappeared)
ii. R – the reason for the delay
iii. I – whether D is incarcerated during the delay
iv. C – severity of the charge
v. E – extent of the delay

Front 122

Timeframes for trial

Back 122

iv. ✪Except for homicides, the NY CPL mandates dismissal of the indictment and release of the incarcerated D UNLESS the People announce to the court their “readiness” for trial within:
1. 6 months for a felony
2. 90 days for a Class A misdemeanor
3. 60 days for a Class B misdemeanor
4. 30 days for a violation
v. The People need only demonstrate a prima facie case, or “legally sufficient” evidence at the time they declare their readiness
vi. D’s Delay: Delays caused, requested, or consented to by D are NOT counted in computing these time periods
1. If D fails to provide reasonable notice of his motion to dismiss the indictment, D may ALSO waive this right to dismiss

Front 123

Right to a Jury Trial

Back 123

i. Under 6A, a criminal D is entitled to demand a jury trial for a “serious crime”, which is defined as one where the possible punishment could exceed 6 months
ii. 6A also requires that a jury set criminal fines that are beyond the maximum that the judge may impose
iii. The judge MAY grant the DA’s motion to reduce the charge from an A misdemeanor (up to 1 year in jail) to a B misdemeanor (up to 3 months) to avoid the jury trial requirement
iv. Prosecution for multiple petty offenses for which consecutive sentences could exceed 6 months DO NOT add up to a serious crime

Front 124

Jury requirements

Back 124

A NY felony jury MUST consist of 12 and the verdict MUST be unanimous
1. ✪In NY, a misdemeanor jury consists of 6, which the USSC held MUST reach a unanimous verdict
2. ✪In MBE, if the jury is more than 6, a unanimous verdict is NOT constitutionally required to reach a beyond a reasonable doubt decision

Front 125

Substitution

Back 125

Once deliberations have begun, alternate jury MAY be substituted for deliberating jurors BUT ONLY if D consents in writing and in open court
1. If no alternates are available, a mistrial MUST be declared UNLESS D consents in writing and on the record to proceed with less than 12
2. ✪An MBE (not NY) D MUST obtain the DA’s consent to waive a jury trial on a “serious crime”
a. If D waives the jury, the MBE DA has a right to demand one

Front 126

Determination of Aggravating Circumstances

Back 126

vii. The jury, and NOT the judge, makes factual findings on aggravating circumstances that increase D’s punishment
1. A penal law empowering the judge to increase penalties for aggravating circumstances OTHER THAN D’s prior convictions violates 6A, which grants this role to the jury
a. Ex. Only the jury may increase D’s punishment for violating the penal law if the jury finds beyond a reasonable doubt that D selected his victim due to racial, gender, or religious bias
b. Likewise, 6A requires that a jury determine facts to increase criminal fines beyond the maximum that the judge may impose

Front 127

Right to a Fair Trial

Back 127

i. Rule: 6A guarantees the right to a fair trial, BUT NOT a perfect one
1. A new trial will be ordered IF D demonstrates by clear and convincing evidence that a substantial right has been prejudiced
a. i.e. Improper conduct by a juror may affect a substantial right of the D

Front 128

Impartial Jury

Back 128

D is entitled to be judged by an impartial jury
1. In evaluating the impartiality and fitness of a juror, the court should consider the “whole examination, including her appearance and demeanor”
a. Responses like, “I think” and “I’ll try” call into question whether the juror has given the required unequivocal assurance of her ability to set aside bias and render an impartial verdict based on the evidence
2. ✪In NY, even where a juror unequivocally claims she can set aside bias, she should not be placed on the jury if she personally knows a prosecution witness

Front 129

Impartiality Issues Examples

Back 129

1. A DA may be compelled to remove an American flag pin during trial
a. D’s right to a fair trial outweighs the DA’s 1A rights
2. Shackling Rule: Visibly shackling or handcuffing D denies D a right to fair trial because it leads the jury to believe that D is violent
a. The same rule applies in a bench trial, though the error may be harmless
b. An exception to the shackling rule arises where safety and security have become an issue
3. D’s right to a fair trial is not violated when a prosecutor carries out a threat to re-indict on more serious charges if D does not plead guilty to a pending charge

Front 130

Brady Trial

Back 130

1. Rule: Any admissible evidence materially favorable to the accused (exculpatory or impeachment material) in the prosecutor’s or police custody MUST be turned over to defense counsel IF it is willfully or inadvertently withheld by the state, and D can show prejudice, a new trial will be ordered
a. Prejudice exists if there is a reasonable probability that had the material been turned over, the result would have been different

Front 131

Brady Violation occurs only if...

Back 131

2. A Brady violation occurs ONLY IF the withheld material evidence was admissible or would have led to admissible evidence
a. Ex. A DA’s failure to disclose a polygraph test favorable to D DOES NOT violate Brady where such evidence is not admissible
b. Likewise, no Brady violation occurs when a DA fails to reveal that the DA’s sole eyewitness died the night before the DA accepted D’s guilty plea because the witness’s death DOES NOT tend to exculpate D, but merely makes the DA’s case more difficult to prove

Front 132

Examples of Evidence the must be turned over

Back 132

a. An eyewitness was unable to identify D at a line-up, and in face identified someone else
b. A prosecution witness was promised leniency
c. The DA knows a prosecution witness committed perjury
d. Someone else confessed to the crime
e. DNA demonstrates that D is not the perpetrator
f. A testifying officer is being investigated for perjury
g. An eyewitness’s statement that the getaway car was a different make than D’s car
h. That a rape victim accused another of rape under similar circumstances

Front 133

Two Types of Brady Demands

Back 133

4. There are two types of Brady Demands:
a. Specific Requests
b. General Requests, e.g. for “any and all” exculpatory material

Front 134

Brady Violations (USSC)

Back 134

5. Brady violations impinge on D’s right to a fair trial
a. The USSC held that regardless of which request is made, or even if no request is made, reversal is required if D can show that a “reasonable probability” exists that if the evidence had been produced at D’s trial, it would have affected the outcome of the case
i. Absent this reasonable probability, the Harmless Error Rule is applied

Front 135

Brady Violations (NY)

Back 135

b. ✪NY continues to follow this reasonable probability test BUT if the NY DA fails to disclose Brady material that was specifically requested, reversal is required where there exists a “reasonable possibility” that non-disclosure contributed to the guilty verdict
i. Presumption that this evidence was important
ii. If no request is made, it’s treated like a general request, requiring the D to show that there was a “reasonable possibility”

Front 136

Right to a Public trial

Back 136

6A guarantees a criminal D the right to a public trial, including at preliminary hearings, jury selection, and trial
ii. A criminal trial normally must be open to the public BUT the right to a public trial is fundamental, and NOT absolute
1. The court has the discretion to close the courtroom for a compelling reason
a. i.e. to prevent exposure of a sex-crime victim, or to protect the safety or effectiveness of prosecution witnesses or undercover officers still actively working or living in the community when targets of the pending investigation are in the courtroom
2. The trial court MUST consider alternatives to closure, EVEN IF D does not, and MUST articulate on the record the reason for closure

Front 137

Family Member Exceptions

Back 137

Once the prosecution meets the burden of showing that a courtroom must be closed to the general public in order to protect a witness’s safety, exceptions may be made for family members and for those having a close relationship with D by some person tie of more significance than ordinary friendship
1. Closure to D’s family is NOT permitted during jury selection due to “overcrowding” in the courtroom
2. D MUST preserve D’s objection by stating it on the record
3. An error in closing the courtroom is NOT subject to harmless error analysis and requires retrial
iv. D has a right to be tried in the county where the crime was committed

Front 138

Confrontation Clause

Back 138

i. The CC provides criminal Ds with the right to be present at ANY stage of the trial where witnesses or evidence is being offered against them OR where there are communications between the judge and the jury
1. i.e. in summation, the jury charges, requests from the jury while deliberating, or in receiving the verdict
ii. ✪NY extends the right to collateral and pretrial hearings where D may have something valuable to contribute because of his personal knowledge of the facts
1. e.g. at a Sandoval hearing, BUT NOT at a sidebar conference concerning a juror’s availability where D would have nothing meaningful to contribute
iii. D may waive the right to be present for D’s criminal trial, including through defiance of the process, which disrupts the trial
iv. The CC prevents the introduction of hearsay that is testimonial in nature against the criminal D, EVEN THOUGH it falls within a well-founded hearsay exception

Front 139

Protection of the Witness

Back 139

In NY and MBE, where disclosure of a witness’s identify would threaten the witness’s safety:
1. D and D’s counsel MAY be excluded from a suppression hearing, AND
2. The witness MAY be permitted to testify at the trial under an assumed name, or an undercover officer may disclose only his badge number
a. BUT Rosario and Brady material MUST be turned over for cross-examination
b. Not knowing name makes it difficult for other party to collect evidence i.e. impeachment; so DA must turn all that over

Front 140

Right to Counsel

Back 140

i. 6A guarantees the right to counsel for the criminal trial
1. The right is extended to the first criminal appeal by the due process and equal protection clauses of 14A
ii. 6A guarantees “effective” assistance of counsel from the time of D’s arraignment on any charge for which D could be incarcerated (i.e. misdemeanor or felony)
iii. ✪If the trial judge predetermines that no incarceration will be imposed, then the MBE D is NOT entitled to counsel
1. ✪NY preserves D’s right to insist on counsel EVEN THOUGH the judge won’t, but could, impose a jail sentence
v. A criminal D has the right to be represented by the attorney of D’s choice
1. If D is improperly denied counsel of his choice, the error is NOT harmless, and any conviction should be dismissed

Front 141

Right to counsel (MBE example)

Back 141

iv. MBE Example: There is NO right to counsel if the only sentence imposed is a fine
1. BUT if a jail term is imposed, then EVEN THOUGH the judge immediately suspends it and puts the D on probation, D’s right to counsel is violated because D’s possible future violation of probation could reinstate the sentence arising from the uncounseled conviction

Front 142

Pro se Gaurantee

Back 142

6A guarantees a criminal D the right to conduct her own defense at trial (pro se)
1. If she voluntarily and intelligently elects to proceed without counsel, the trial court MUST:
a. Make a searching inquiry into D’s ability to represent herself, AND
b. Specifically warn D of the dangers of self-representation
2. ✪In NY, D must make the pro se request before the start of the criminal trial
a. Once the trial begins with the assistance of counsel, D may elect to proceed pro se BUT ONLY under compelling circumstances
3. Courts may insist on representation by counsel for Ds who, although competent to stand trial, suffer from mental illness such that they are NOT competent to conduct trial proceedings without assistance
4. A state MAY constitutionally deny a criminal appellate the right to self-representation without violating equal protection or due process

Front 143

Proving Ineffectiveness
MBE

Back 143

1. ✪MBE Overcoming Presumption: In MBE, to obtain a new trial on the ground that D’s counsel was “ineffective”, D MUST overcome the presumption of effective representation by proving:
a. The lawyer’s performance was deficient, i.e. it fell below prevailing professional norms, AND
b. Counsel’s inadequate representation prejudiced D and reasonable probability exists that but for counsel’s errors, D would have been acquitted

Front 144

Proving Ineffectiveness
NY Standard

Back 144

2. ✪NY’s Standard: NY standard is less stringent and more favorable to D
a. NY considers the fairness of the trial as a whole, RATHER than counsel’s impact on the outcome of the case
i. NY’s “meaningful representation standard” still requires that D prove that counsel’s actions were truly ineffective and that D was denied a fair trial, BUT DOES NOT require proof that but for counsel’s errors, the outcome probably would have been different

Front 145

Ineffective Counsel
(Isolated Errors)

Back 145

3. Isolated errors by counsel WILL NOT rise to the level of ineffective assistance of counsel UNLESS the error is so egregious that D did not receive a fair trial

Front 146

Proving Ineffectiveness Examples

Back 146

a. In NY, the failure of defense counsel to investigate facts or witnesses is such fundamental error that it gives rise to ineffective assistance of counsel
i. Likewise, a failure to follow through on a request for a Sandoval hearing is ineffective assistance
b. In MBE, defense counsel’s failure to investigate a client’s past history in order to oppose the death sentence is ineffective assistance
c. Under either standard, a disagreement about strategies, tactics, or the scope of possible cross-examination is not sufficient for a new trial
d. Representation of an unlicensed attorney is per se ineffective

Front 147

Accuracy of Information in Plea Bargain Negotiations

Back 147

viii. A D is entitled to the conveyance of accurate information regarding plea bargain negotiations
1. The failure of counsel to relay a plea bargain to D is ineffective assistance where D can demonstrate that he would have been willing to accept the offer
2. The right to effective assistance DOES NOT include counsel on “collateral consequences” of guilty pleas, but HAS been recognized as extending to include assistance regarding deportation risks associated with a guilty plea

Front 148

Conflicting Interests (Multiple Ds)

Back 148

ix. The right to receive effective counsel MAY be impaired if one lawyer represents the conflicting interests of multiple Ds
1. BUT joint representation of co-Ds is NOT per se a denial of effective assistance of counsel UNLESS D can prove:
a. An actual conflict of interest existed, AND EITHER:
i. D did not effectively waive it, OR
ii. The conflict adversely affected the lawyer’s performance as to the co-D raising the conflict issue
b. The court will hold a Gomberg Hearing to address these conflict issues

Front 149

Recess Consultation

Back 149

A testifying D’s right to counsel requires that he be allowed to consult with his lawyer during an extended or overnight recess of the trial BUT NOT during a brief recess, i.e. after his direct testimony, but just prior to his cross examination

Front 150

Right to Counsel (prof responsibility)

Back 150

1. A lawyer MUST NOT assist a client in committing a crime
a. If a lawyer knows that a client has committed or is about to commit perjury, she MUST take reasonable measures, including if necessary disclosure to the tribunal
2. A lawyer MAY NOT offer or use evidence she knows is false (other than the testimony of a D in a criminal trial), and may refuse to offer evidence she believes is false, REGARDLESS of the client’s wishes
3. If the criminal client persists in testifying falsely, the lawyer MAY ONLY permit the client to testify in a narrative, and MAY NOT ask her client direct questions concerning the false manner
a. In summation to the jury, the lawyer MAY NOT refer to ANY perjured testimony
b. It’s more important that the D be able to testify in his own defense; but lawyer has to be careful in letting him talk but not participating in it

Front 151

When right to counsel attaches

Back 151

1. The point at which D’s right to counsel attaches is critical because once it attaches in NY, the police MAY NOT interrogate D outside the presence of D’s attorney, who MUST witness any subsequent waiver

Front 152

A criminal D’s right to the assistance of counsel attaches: three ways
(1)

Back 152

a. 1 - At Request: In NY and MBE, when a suspect in custody clearly and unambiguously asks for the assistance of an attorney, thereby invoking the 5A right against self-incrimination (usually in response to Miranda warnings)
i. All further interrogation must immediately cease until counsel is provided
ii. A criminal D’s right to counsel includes the right of the accused to have any attorney present while considering whether to waive Miranda

Front 153

A criminal D’s right to the assistance of counsel attaches: three ways
(2-a)

Back 153

✪MBE at Appearance: In MBE, the 6A right to counsel attaches when D appears before a judicial officer and hears the charges against him (usually at the arraignment)
i. HOWEVER, this MBE right to counsel MAY be waived by a D who has done nothing to affirmatively accept his right to counsel

Front 154

A criminal D’s right to the assistance of counsel attaches: three ways
(2-b)
1/3

Back 154

✪NY at Commencement: In NY, regardless of whether D has requested counsel, the right automatically and indelibly (can’t later lose it) attaches under 6A following the commencement of “formal judicial proceedings”, i.e. the point at which the government has committed itself to prosecute
i. This occurs when the character of the police function shifts to the investigatory to the accusatory stage, and the assistance of counsel becomes indispensible

Front 155

A criminal D’s right to the assistance of counsel attaches: three ways
(2-b)
2/3--criminal action commencement

Back 155

ii. In NY, by statute, a criminal action commences upon filing of an accusatory instrument, so that the right to counsel attaches upon the earliest of:
1. The filing of a felony complaint or a grand jury indictment
2. The filing of an arrest warrant, OR
3. At the D’s preliminary arraignment
iii. The MBE and NY right to counsel that attach after commencement of judicial proceedings are “offense-specific”
1. In both NY and MBE, this right to counsel DOES NOT extend to crimes “unrelated” to the crime to which D is charged (apply the Blockberger DJ rule for a “different” offense)

Front 156

A criminal D’s right to the assistance of counsel attaches: three ways
(2-b)
3/3--criminal action commencement

Back 156

iv. ✪In MBE, the right provides the right to counsel at custodial interrogation concerning ONLY the specific offense charged (i.e. burglary), and DOES NOT attach to crimes factually related to the pending charges (i.e. a murder committed during the burglary)
v. ✪In NY, the right applies to all crimes related to the pending crime, REGARDLESS of whether D has been charged with them
1. By comparison, when a D invokes his Miranda right to counsel, D MAY NOT subsequently be interrogated regarding ANY offense related or unrelated outside the presence of counsel
vi. Thus, once formal criminal charges are pending, and the police are aware that D has counsel, the police STILL may question D without the presence of his counsel on unrelated crimes UNLESS:
1. The NY or MBE D requests counsel after being read Miranda on the new charges, OR
2. The NY D is incarcerated and represented by counsel

Front 157

A criminal D’s right to the assistance of counsel attaches: three ways
(3)

Back 157

Counsel’s Request: Prior to the commencement of formal judicial proceedings, counsel MAY notify the police that D is represented by counsel and may no longer be questioned basically this is counsel invoking #1
i. ✪MBE DOES NOT follow #3
1. The USSC held that as long as a suspect validly waived his Miranda right to counsel, his voluntary statements to the police prior to commencement of judicial proceedings and his affirmative acceptance of counsel, are admissible EVEN THOUGH police prevented efforts by an attorney to contact D

Front 158

Subsequent Waiver

Back 158

Once D has been given Miranda warnings and the right to counsel has been clearly and unequivocally invoked, the MBE D may subsquently waive his right outside the presence of counsel IF:
i. The MBE D reinitiates the conversation w the police (✪NY does NOT follow this rule, and D CANNOT subsequently waive his right without his attorney present), OR
ii. 14 days after the suspect is released from custodial interrogation (don’t know yet whether NY follows this)
b. ✪Once the right to counsel attaches in NY, it CANNOT subsequently be waived by D UNLESS D’s attorney is present to witness the waiver
c. If a NY or MBE D blurts out or voluntarily makes statements to police after the right to counsel attaches, they WILL NOT be suppressed
i. BUT the prosecution MUST show that the statements were in no way a product of an “interrogation environment”, i.e. not induced, provoked, or encouraged by police, no matter how subtly (i.e. offered to get D a cup of coffee and proceeded to engage him in convo)

Front 159

Subsequent Waiver (Prison Informant)

Back 159

In NY or MBE, a prison informant MAY act as a “passive listener” EVEN on the pending crime
i. Limit: If the informant is more than passive, the incarcerated suspect’s statements are NOT admissible on the state’s direct case
1. HOWEVER, they may be used to impeach the D

Front 160

Line Ups

Back 160

i. A D has NO 5A or 6A to refuse to stand in a lineup
ii. Before formal judicial proceedings have commenced, counsel is NOT constitutionally required at a lineup at the pre-indictment, pre-arraignment investigatory stage (MBE rule) UNLESS ✪in NY:
1. The police are aware D has counsel on this matter AND counsel has requested to be present, OR
2. D has counsel on any matter, and D requests that counsel be present, in which case, counsel MUST be given notice and a reasonable opportunity to appear
a. Feb 2002 Essay #2

Front 161

Line Up Id exclusion

Back 161

Evidence of a lineup ID is inadmissible at trial if:
1. Made without the presence of a required attorney (in MBE, post-6A; in NY, pre-6A if D has an atty, or D or atty requests he be there)
2. It was the fruit of an unlawful arrest
a. HOWEVER, if PC existed, but the means of affecting the arrest were unlawful (e.g. in a home without a warrant, the ID WILL NOT be suppressed)
3. The lineup procedure was “unduly suggestive”, thus creating a substantial likelihood that D would be singled out for ID
4. ✪In NY, absent exigent circumstances, an ID from a stationhouse show up arranged by the police is inadmissible
a. ✪MBE has no per se rule, but instead looks at the totality of the circumstances to determine if the lineup or show up was reliable

Front 162

Prompt and Immediate Showup

Back 162

iv. In both NY and MBE, a “prompt and immediate” show up (within an hour, but not two) at or near the crime scene is an acceptable means of securing a reliable ID while witness memories are still fresh

Front 163

Independent Id Exception

Back 163

EVEN THOUGH the ID from an improper show up or lineup is suppressed, if the ID witness has a reliable, independent recollection of D that was NOT tainted by the improper lineup or show up, she still can make a subsequent in-court ID of the D

Front 164

If after conducting a pre-trial Wade hearing (a case), the court improperly permits identification testimony at the trial...

Back 164

vi. If after conducting a pre-trial Wade hearing (a case), the court improperly permits identification testimony at the trial, then IF on appeal, the error is deemed harmless, then the court will NOT reverse the D’s conviction, since there is other overwhelming evidence of D’s guilt
1. Exception: HOWEVER, the court’s error WILL NOT be considered harmless where the only evidence against the D was testimony from a single eyewitness

Front 165

Miranda Warnings (rule)

Back 165

Anyone subjected to custodial interrogation MUST first be given Miranda warnings REGARDLESS of the severity of the crime
i. “custodial interrogation” → questioning initiated by law enforcement after a person has been taken into custody
1. That is, under circumstances where a reasonable person would objectively believe that she was not free to leave
2. An infant’s age is an objective factor that a court MAY consider in determining whether a child was in custody
ii. Whether a prisoner is in custody is determined by the totality of the circumstances

Front 166

Miranda warnings (limit)

Back 166

MWs are NOT required for government agents to question a D when the D is not in custody. Examples:
i. Where the D voluntarily enters a police station
ii. Questioning by an IRS agent at a taxpayer audit
iii. Questioning by a probation officer
iv. Questioning during a brief traffic stop or a stop and frisk BEFORE a D is placed under arrest
1. ✪HOWEVER, NY (not MBE) WILL suppress the statement if the police asked the D if he had a knife or a gun

Front 167

The Warning

Back 167

MWs require that the police MUST clearly inform the D BEFORE questioning that:
i. The D has a right to remain silent
ii. Anything the D says can be used against him in court
iii. He has a right to have an attorney present during questioning
iv. If he cannot afford an attorney, the state will pay for an attorney

Front 168

No Verbatim Requirement

Back 168

The warnings DO NOT have to be exactly verbatim AS LONG AS they clearly inform the D of his rights before custodial interrogation
i. The following were found sufficient by the USSC:
1. “You have the right to an attorney before answering our questions.”
a. Even though this language does not specifically advise the suspect that he is entitled to an attorney during the interrogation
2. Failing to tell the D that the appointment of an attorney would occur prior to the interrogation where he had been informed that he had the right to an attorney’s presence during questioning
3. After informing the D of the right to an appointed attorney during interrogation, he was advised that a lawyer would be appointed “if and when” the D went to court
a. The Court felt this simply anticipated a question the D might ask
b. That is, when will he get an attorney?

Front 169

Defendant's Silence

Back 169

e. A prosecutor CANNOT use or refer to a D’s post-MW silence. NYAA 411 (even the fact that he smiled).
i. The USSC held that pre-MW and pre-arrest silence during non-custodial questioning CAN be used against the D as an adoptive admission
1. Ex. After going to the police station and answering questions for an hour, the D fell silent when he was asked about shells that were found at the murder scene and whether they would match D’s gun at his home. On its direct case at the trial, the DA offered the D’s silence to the jury by stating that an innocent man would have immediately denied any involvement in the crime. The DA stated that the D did NOT state, “no, the shells are not going to match up to my gun,” or “what are you talking about? I wasn’t there.” June 2013.

Front 170

Defendant's Silence
(Invocation Requirement)

Back 170

A D MUST invoke his right to silence in order to benefit

Front 171

Waiver (miranda rights)

Back 171

If the right to counsel has not indelibly attached, a D MAY voluntarily waive her MRs
i. Limit: The waiver is NOT voluntary IF it is the product of threats, violence, or false promises likely to produce a false confession
ii. “Mere deception” is permissible PROVIDED it does not render the confession fundamentally unfair. NYAA 407.
1. Likewise, the length of the interrogation (9 hours) without more, DOES NOT render it involuntary

Front 172

Tainted Confession (26:00)

Back 172

MWs given after an illegal arrest DO NOT purge the confession from the taint of the illegal arrest UNLESS the confession was sufficiently attenuated from the arrest
i. A two-hour gap was sufficient attenuation
ii. ✪In NY, if a juvenile under 16 (JD) is arrested without an arrest warrant, then the police MUST attempt to immediately notify a parent or guardian of the JD’s whereabouts AND permit that person an opportunity to be present during MWs and questioning
2. A parent CAN invoke the JD’s right to counsel, BUT it must be clear and unequivocal. NYAA 408 & 409.

Front 173

Admissibility of Non-Mirandized Statements

Back 173

If MWs are NOT properly given, the criminal charges against the D are NOT automatically dismissed.

Front 174

Admissibility of Non-Mirandized Statements
Exceptions (1)

Back 174

If MWs are NOT properly given, the criminal charges against the D are NOT automatically dismissed. HOWEVER, any incriminating statements CANNOT be offered at the D’s criminal trial EXCEPT:
i. To impeach the D if he takes the stand to testify
1. This exception effectively prevents the D from testifying falsely on his own behalf
2. HOWEVER, the illegally obtained confession CANNOT be used as evidence in chief to impeach other defense witnesses
3. This impeachment rule applies also to 4A violations and to 6A right to counsel violations
4. Limit: If the confession was coerced by violence, threats of violence, or false promises, then it CANNOT be used for ANY purpose, even for impeachment

Front 175

Admissibility of Non-Mirandized Statements
Exceptions (2)

Back 175

ii. Under the public safety exception, the police MAY question a suspect in custody without MWs about the location of a missing gun, or missing kidnapped victim for the protection of the public or the police. NYAA 412.

Front 176

Admissibility of Non-Mirandized Statements
Exceptions (3)

Back 176

iii. If MWs are not properly given OR are inadvertently omitted by the police, and the MBE D incriminates himself, then that first confession is not admissible
1. HOWEVER, if the police promptly correct their error and administer proper MWs, then the MBE D’s second confession MAY be used against him PROVIDED neither confession was coerced

Front 177

Admissibility of Non-Mirandized Statements
Exceptions (3)---NY + MBE

Back 177

✪NY disagrees w MBE + suppresses both confessions because once a D has incriminated himself, and “lets the cat out of the bag,” he then believes he has little to lose by making 2nd confession
a. NY considers 2 confessions close in time to be a single continuous chain of events so that illegality of the 1st confession taints the 2nd confession and both are suppressed
b. To determine whether there is a single continuous chain of events, NY looks at whether:
i. There was sufficient attenuation between the two confessions (15 and 20 minutes was held sufficient)
ii. Different officers obtained the 2 confessions
iii. There was a change in location between the 2 confessions
iv. Prior to the Miranda violation, had the D indicated a willingness to speak w the police.
c. The USSC has held that if the police regularly follow a protocol of persistently and deliberately failing to administer MWs, but once a confession is obtained then administer MWs, then here both confessions should be suppressed

Front 178

Miranda + fruit of the poisonous tree

Back 178

Evidence derived from a Miranda violation WILL NOT be suppressed as “fruit from the poisonous tree”
i. ✪Where the MBE police (not NY) inadvertently and not deliberately fail to administer MWs, then 5A is violated ONLY if the D’s statement is offered against him at trial

Front 179

Derivative Evidence Rule

Back 179

HOWEVER, the 5A right against self-incrimination is NOT violated by introducing evidence derived from the D’s voluntary statements
1. Thus, if the illegally obtained confession leads the police to another witness or to real evidence, this evidence is admissible against a D at trial
a. Ex. The dead body or stolen property
2. Unlike a 4A or 6A violation where the Derivative Evidence Rule is fully applied, in MBE a 5A Miranda violation results ONLY in suppression of the statement at the trial BUT NOT evidence derived from those statements
3. In MBE, in order to invoke the DER based on a Miranda violation, the court must find:
a. That a 4A violation led to the confession, OR
b. Actual coercion or improper tactics were used in obtaining the D’s involuntary statement

Front 180

Corpus delicti rule (Body of Crime)

Back 180

(Body of Crime)
i. Rule: A MAY NOT be convicted (or indicted by a grand jury) solely upon her confession without some additional proof that a crime was committed
1. This rule requires corroboration of the D’s confession by some other evidence (usually circumstantial) tending to show a crime occurred
ii. ✪NY Felony-Murder Exception: A NY CD statutory exception applies to felony-murder where if the underlying felony was dismissed under the DCR for lack of corroboration of the D’s confession, that D may nevertheless be convicted of felony-murder

Front 181

Omnibus Motions

Back 181

i. The NY criminal D is limited to making ONE pre-trial omnibus motion within 45 days from the D’s arraignment, BUT a court has discretion “in the interest of justice” to permit a late motion

Front 182

Omnibus Motion may request (1/2):

Back 182

1. A Sandoval order asking the court to limit prior VIC acts and the use of D’s prior convictions if the D testifies
2. Suppression of evidence because of a 4A, 5A, or 6A violation
3. The dismissal of a grand jury indictment
4. Suppression of an improper lineup or show up
5. A separate trial where multiple Ds have been indicted and one D’s defense is irreconcilably in conflict with the other D’s
a. The USSC has held in this situation separate trials need not be granted
6. A constitutional challenge to a penal statute

Front 183

Omnibus Motion may request (2/2):

Back 183

7. Pre-trial discovery to obtain:
a. Any written, tape recorded, or other oral statement of a D or co-D who is to be tried jointly with the D
b. Any written report of a physical or mental exam, or any scientific test performed by a public servant, i.e. a breathalyzer or a DNA test
c. Any photograph or drawing made by a public servant
d. An inventory of property taken or a co-D
e. Any Brady exculpatory or impeachment evidence possessed by the prosecutor or the police
i. Ex. Where the victim picked someone else out of a lineup, or her initial description did not fit the D, or where the gun found on the robbery D was inoperable. NYAA 366-68.