Criminal Procedure

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Exclusionary Rule

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This is a judge made rule that is used as a remedy in American constitution when some one is subject to an illegal search or a coercive confession, that search or coercion is EXCLUDED from any subsequent criminal prosecution.

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Limitations to Exclusionary Rule

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Exlcusionary Rule does nto apply in:

1. Grand jury, civil or parole revocation proceedings.

2. Impeachment Purposes - Prosecution may use illegally obtained evidence when impeaching (not in their case-in chief) the Defendant (no other witnesses)

3. Good Faith reliance on a search warrant - Unless:
a. So lacking in PC that a reasonable person would not believe this was a valid search warrant;

b. Defective on its face (lacking PC or Particularity)

c. mislead magistrate

d. Magistrate has abandoned its judicial role.

4. Good faith reliance on Law - where a judicial opinion was changed or a law that was once enacted was later found unconstitutional.

5. Violations of Knock and announce rule - exclusionary rule is not an available remedy for knock and announce.

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"Fruit of the Poisonous tree" Doctrine

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Any evidence that is obtained by the initial illegality of the police will be excluded as fruit of the poisonous tree.

Exceptions (III)

1. Independent Source
2. Intervening act of free will of D
3. Inevitable discovery

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Harmless Error test

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A conviction will not necessarily be overturned because of improperly retrieved evidence. The court will look at whether the conviction would have still resulted despite the improper evidence. If it would have than the court will not over turn due to HARMLESS ERROR.

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4th Amendment

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The 4th Amendment protects citizens from UNREASONABLE searches are seizures.

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Seizure

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A reasonable person would not feel he is free to leave

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Arrest

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An arrest must be based on probable cause.

1. Arrests in public places - Arrest warrant not required so long as there is probable cause.

2. Non-emergency arrest - requires a warrant if non-emergency arrest of someone in his home.

Station House Detention - The police need probable cause to arrest you and compel you to come to the police station either for fingerprinting or interrogation.

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Investigatory Detentions

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Police have the authority to briefly detain someone even if they lack probable cause to arrest.

General Rule - Police can detain for investigative purposes if they have (1) reasonable suspicion that ccriminal activity is afoot (2) supported by articulable facts. Cannot detain any longer than necessary.

Where police have reasonable suspicion depends on TOTALITY OF CIRCUMSTANCES.

Special Case - can frisk if they have reasonable suspicion that the person may be armed.

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Automobile Stops

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Police may stop a car if they have reasonable suspicion that a law has been violated.

Standing - All occupants in the car have standing to exclude evidence found during the stop.

Police may order all passengers out of the car and if reason to believe they are armed may frisk and search passenger compartment.

Traffic Stops and police dogs - during a routine traffic stop, a sniff is not a search unless the police extend the stop longer than it takes them to right the ticket or conduct normal inquiries.

Exceptions - Road Blocks are Ok as long as they are neutrally applied and designed to serve a purposes related to problems with vehicles.

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Evidentiary Search and Seizure Approach

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1. Government Conduct
2. Reasonable Expectation of privacy (Standing)
3. Valid Search Warrant (if not look at good faith)
4. Exceptions

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I. Government Conduct

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Publicly paid police (on or off duty); private persons acting at the direction of the police; privately paid police deputized with the power to arrest.

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II. Reasonable Expectation of Privacy

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Always - If D owned or had right to possession of place searched; live on the premises; or are an overnight guest.

Sometimes - Legitamately present where the search takes place or own the personal property seized.

Never - (1) Passenger in car who doesn't claim ownership of car or stuff seized. (2) just on the premises of someone else's property.

A. Things Held out to the public - no reasonable expectation of privacy to things held out to the public (voice, smell, handwriting, bank account records, location of your car, open fields, anything that can be seen over public airspace and garbage but OUT ON CURB TO BE PICKED UP)

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III. Did Police have Valid Search Warrant

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2 Requirements: (PP)

1. Probable Cause - believe seizable evidence will be found at time warrant is executed.

2. Particularity - name with PARTICULARITY the places to be searched and items to be seized.

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A. Informers

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Police ca rely on hearsay; warrant can be valid if based on anonymous informers tip.

a. If officers affidavit is based on informants probable cause than it's sufficiency is determined by totality of circumstances.

Relevant factors that are taken into account are the informants reliability/ credibility and basis of knowledge.

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B. Knock and Announce

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Police must knock and announce when they have a search warrant UNLESS they have reason to believe that doing so would be dangerous or futile and inhibit investigation.

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Search of Persons

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Warrant authorizes police to detain occupants during search, but not to search persons not named in the warrant.

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C. Good Faith Exception to invalid Search Warrant

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The general rule is that an officers good faith belief in the validity of a search warrant overcomes issues of probable cause and particularity.

UNLESS an officer intentioanlly misled magistrate; so lacking in probable cause that no reasonable person would believe that it to be valid

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IV. Exceptions to Warrant Requirement

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(If no warrant or invalid warrant)

S.P.A.C.E.S.

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1. Search Incident to a Lawful Arrest

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Pursuant to a (1) LAWFUL ARREST (arrest BEFORE search) police may make (2) CONTEMPORANEOUS (in time and space) search limited to (3) D's wingspan (Procure weapon or destroy evidence).

a. PROTECTIVE SWEEP - of an area immediately adjoining place of arrest is permissible (to search for others who may attack)

b. Search incident to arrest and automobiles - the police may search the interior of the auto incident to arrest ONLY IF:

a. The arrestee is INSECURE and still may gain access to interior of automobile OR

b. Police may reasonably believe that evidence of the offense for which the person was arrested may be found in the vehicle.

c. COMMUNITY CARETAKER - Justifies a warrantless search if the officer faces an emergency that threatens the health or safety of an individual or the public.

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2. Plain View

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1. Police legitimately on the premises

2. Discover IMMEDIATELY APPARENT evidence or contraband

3. in plain view (seen, heard, smelled or felt)

4. Have probable cause to believe it is evidence of crime or contraband.

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3. Automobile Exception

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If probable cause that vehicle contains evidence of the crime (can have probable cause after the stop, is sufficient); Police may search the whole vehicle including the the trunk or any container that they believe may contain the item.

BORDER SEARCHES - searches at the border do not require a warrant or probable cause or reasonable suspicion.

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4. Consent

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Consent must be voluntarily and intelligably obtained from a person with apparent right to occupy the property; cops don't have to inform person of right to refuse, but if cops lie and say they have a warrant, that negates consent.

3rd Party consent - if 2 or more people have equal right to that property than the one who DOES NOT consent to the search controls.

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5. Emergencies, Evanescent Evidence, Inventory and Hot Pursuit

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Police can enter private dwelling in hot pursuit.

a. Evanescent - Evidence that might disappear if the police took the time to get a warrant.

b. Hot Pursuit - if the police are not within 15 minutes behind the fleeting felon, it is not a valid hot pursuit exception.

c. INVENTORY searches - before incarceration of an arrestee's entire vehicle and personal belongings.

d. PUBLIC SCHOOL SEARCHES - public school children engaged in extracurricular activities can be randomly drug tested. And warrantless searches of public school children's effects (purse, school bag) is permissible to investigate violation of school rules. Must not be excessively intrusive.

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6. Stop and Frisk

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a. Can stop if articulable and reasonable suspicion of criminal activity.

b. Can frisk exterior of suspects close if suspect is armed and dangerous

c. May reach into suspects clothes and seize any item that he initially, at least, believed to be a weapon.

If no reasonable belief that suspect may have a weapon, than frisking interior of clothing for drugs requires probable cause.

d. Auto Stop

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Administrative Searches

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Must have a warrant for searches of private residences and commercial buildings, but probable cause requirement is more lenient when:

Exceptions: no warrant required when: Seizing spoiled or contaminated food, inventory searchesof arrestees, parolees and their homes; government employees desks and file cabinets, drug tests of railroad employees involved in accident

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Wiretapping

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All wiretapping and eavesdropping requires a warrant.

Exception - Unreliable ear or in a public place - speaker assumes risk that listener is a wired informer and if there is no showing of intention to keep conversation private.

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CONFESSIONS - 5th Amendment Privilege against Self Incrimination

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Miranda Warnings are required for a CUSTODIAL INTERROGATION. These rights must be given PRIOR to interrogation.

Miranda Warnins: That you have the right to remain silent, anything you say can and will be used against you in a court of law, you have the right to an attorney, if you can not afford one, one will be provided to you. Do you understand these rights?


a. CUSTODY

You are in custody if at the time of interrogation you feel you are not free to leave (you may not feel free to leave in your own home or hospital bed) (probation interview and traffic stops are not custodial)

b. INTERROGATION

words or conduct police should know would likely illicit an incriminating response (not required before spontaneous statements or routine booking questions).

WAIVER

Can waive miranda rights if knowingly, voluntarily and intelligently. Courts will look at totality of circumstances but you can not waive by silence or shoulder shrugging.

INVOKING YOUR MIRANDA RIGHTS MUST BE UNAMBIGUOUS!

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Right to terminate Interrogation

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1. Right to remain silent - police can re-question about a different crime after a break and fresh warnings

2. 5th Amendment Right to Counsel - If D unambiguously requests counsel, ALL questioning must stop until counsel has been provided; reinitiation by the police without lawyer present violates this right, even if questioning on a different topic. However, the accused can voluntarily initiate further questioning or say something spontaneous.

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Effect of Violation of Miranda

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As a general rule if Miranda is violated the evidence is excluded.

EXCEPTIONS

1. May be used for impeachment

2. subsequent valid confession admissible of original unwarned questioning seemed unplanned and failure to give miranda warnings was inadvertent.

3. Public safety exception - no warnings necessary where interrogation reasonably prompted concern for public safety.

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5th Amendment right to counsel vs. 6th Amendment right to counsel

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1. The court related 5th Amendment right to counsel arises when a suspect invokes his miranda rights and requests an attorney.

a. the 5th Amendment right to counsel is NOT OFFENSE SPECIFIC and thus applies to the ENTIRE process of police custodial interrogation.

2. 6th Amendment right to counsel IS OFFENSE SPECIFIC, meaning counsel would only need to be present if the D were being asked questions about the SPECIFIC case for which the D has retained the counsel.

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Bases for Attack of Pre-Trial Identification

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1. DENIAL OF RIGHT TO COUNSEL

a. You have right to counsel at post CHARGE lineups and showups BUT NO right to counsel when police show photographs or when police take physical evidence.

2. DENIAL OF DUE PROCESS

a. If identification is UNNECESSARILY SUGGESTIVE and there's a substantial likelihood of misidentification that they are denying due process.

b. Remedy - Exclusion of in-court ID, but RARELY granted because can be allowed if INDEPENDENT SOURCE (such that the victim or witness had adequate opportunity to observe the D at the time of the crime.

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Pre- Trial Procedures

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1. Pre-Trial ID
2. Prelim Hearings
3. Bail
4. Grandjuries
5. Speedy Trail
6. Cpmpentency to stand trial
7. Prosecutorial duty to disclose
8. Pre-trail publicity.

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Preliminary Hearing

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Need if Probable Cause has not already been determined.

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Pre-Trial Detention (BAIL)

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Refusal to grant bail or excessive bail is IMMEDIATELY APPEALABLE

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Grand Juries

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1. States don't have to use grand juries as a regular part of the charging process.

2. Exclusionary Rule does not apply - so evidence that was inadmissible at trail is ok

3. Proceedings are secret; no right to appear or have witnesses.

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Speedy Trial

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Right attaches when D is arrested or charged; remedy is dismissal without prejudice. Speedy trial is determined by totality of circumstances.

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Prosecutorial Duty to Disclose exculpatory evidence

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Prosecutions failure ot disclose violates Due Process and is grounds for reversing conviction if evdience is favorable to defendant and there is a reasonable probability of a different result.

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Competency to Stand Trial

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Due Process prevents trial of person who either lacks rational and factual understanding of charges and proceedings, or lacks sufficient present ability to consult with lawyer.

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Pre-Trial Publicity

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If prejudicial may require change of venue or retrial.

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Trial - Right to a Fair Trial

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1. Right to Public trial
2. Right to an Unbiased Judge

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Trial – Right to a Jury trial

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1. The constitution grants the right to a jury trial anytime the D is tried for an offense for which the maximum authorized sentence exceeds 6 months.

2. The minimum number of jurors permissible is 6. If a court, does not have minimum number of jurors than the verdict must be unanimous. If 12 jurors, does not have to be unanimous.

3. Contempt: No jury for civil; jury for criminal if sentence is greater than 6 months.

4. Representatives – right to have jury selected from cross-section of community, but no right to have proportional representation on D’s particular jury. EP forbids preemptory challenges solely on the basis of race or gender.

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Trial – Right to Counsel

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A criminal D’s right to counsel applies to all critical stages of a prosecution, including trial.

a. Critical Stage – any formal interaction between the state and D which could adversely affect the D’s ability to exercise his rights.

RIGHT TO SELF REPRESENTATION - at trial can waive right if knowingly and intelligibly, he is competent to proceed (trial judge discretion) – no right to self representation on appeal.

INEFFECTIVE assistance of counsel - there must be deficient performance by counsel and BUT FOR that deficiency the result of the proceeding would have been different. Such claim can only be made out by SPECIFYING PARTICULAR ERRORS (can’t just say that they were inexperienced.)

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Trial – 6th Amendment Right to Confront Witnesses

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1. Face-to-face confrontation between D and accuser doe not violate if there is a public purpose that the accurser not face (victim of sexual abuse) and the witness is reliable.

2. Co-Defendant Confession

Co- Defendants confession is generally inadmissible

Exception – if (1) all portions referring to other D can be eliminated (2) confessing D takes the stand and is subject to cross OR (3) confessing is used to REBUT D’s claim that his confession was obtained coercively.

HEARSAY – prior testimonial statement of an unavailable witness will be admitted only if D had an opportunity to cross the D at time the statement was made.

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Taking the Plea

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1. The SC will not disturb guilty pleas AFTER sentencing. If D pleads guilty the Judge must specifically address the D on the record about the following:

a. Address D personally
b. On the record
c. Explain the nature of the charge
d. Maximum possible penalty and mandatory minimum and
e. That the D does not have to plead guilty and guilty plea waives his right to a trial.

REMEDY – withdrawal of Plea and pleading Anew

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Collateral Attacks on Guilty Pleas AFTER sentencing

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The SC has adopted contract theory of Plea bargaining and will not disturb guilty pleas after sentencing.

EXCEPTIONS:

1. Voluntariness
2. Lack of Jurisdiction
3. Ineffective assistance of counsel
4. Failure of prosecutor to keep agreed upon plea bargain.

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Sentencing – Procedural Rights in Sentencing

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1. Right to Counsel
2. Death Penalty

Any death penalty statute that does not give D a chance to present MITIGAATING facts and CIRCUMSTANCES is UNCONSTITUTIONAL.

There can be NO AUTOMATIC category for imposition of the death penalty. States may not, by statute, limit the mitigating factors; all relevant mitigating factors must be admissible or statute is unconstitutional .

ONLY a JURY and not a judge may determine the aggravating factors justifying imposition of the death penalty.

Note: May appeal but no constitutional right to appeal.

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Double Jeopardy

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General Rule – 5th Amendment prohibits person from being retried for the same offense after jeopardy has attached.

When Jeopardy Attaches:

1. Jury Trial – empanelling and swearing of the jury
2. Bench Trial – once first witness is sworn
3. Civil Proceeding – generally does not attach, except in juvenile proceedings.

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EXCEPTIONS to Double Jeopardy

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1. Jury unable to agree upon a verdict (hung jury)
2. mistrial for Manifest necessity
3. D requests termination on any ground other than the MERITS
4. where D successfully appeals (But cannot be tried for a greater offense)
5. D breaches plea bargain (plea and sentence are withdrawn; original charges reinstated.)

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Same Offense

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2 Crimes are the same offense UNLESS each crime requires proof of an ADDITIONAL element that the other does not require.

1. Legislative inent – can authorize cumulative punishment for crimes constituting same offense

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Separate Sovereigns

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D may be tried for the same conduct by both state and federal government, or by 2 states, but not by same state or its municipalities.

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Collateral Estopple

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D may not be tried or convicted of a crime if a prior prosecution by that sovereignty resulted in a factual determination inconsistent with one required for conviction.

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Privilege Against Compelled Self- Incrimination

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1. What: The 5th Amendment privilege against compelled self incrimination can be asserted by anyone is any type of case where the response might be incriminating.

2. When: May assert whenever the response may furnish a link in the claim of evidence needed to prosecute him; must be claimed in civil proceedings to prevent waiver in later criminal prosecution.

3. How: In a criminal trial right not to be asked to take the witness stand and right not to be asked to do so. In Civil must take the stand and listen to questions and specifically invoke the priviledge.

4. Scope: Protects only (1) Compelled (2) testimonial BUT NOT PHYSICAL EVIDENCE (i.e. hair sample, blood sample, handwriting, lineups, IDS)

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Burdens of Assertion of Privilege

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Unconstitutional for prosecution to make a negative comment on D’s failure to testify or on his remaining silent on hearing Miranda but will usually be “brushed off” as a harmless error and not have effect on conviction.

Exception: Can make the comment to REBUT if D claims that he was not given the opportunity to speak on his own behalf.