Criminal Procedure

Front 1

Limitations on Exclusionary Rule

Back 1

1) Does not apply to conduct of the grand jury
2) Does not apply to civil proceedings
3) To qualify, the search must violate either the federal constitution or a federal statute
4) Does not include to use of evidence for impeachment purposes (this includes non-Mirandized confessions and illegally seized evidence)
5) Does not apply to parole revocation proceedings
6) Does not apply to violations of the knock and announce rule
7) There is a good faith defense to exclusion at commone law when the police rely in good faith on a judicial opinion later changed, a statute or ordinance later declared unconstitutional, or a defective search warrant
For NY:
NY does NOT recognize the good faith reliance limitation

Front 2

Exclusionary Rule

Back 2

A victim of an illegal search or coerced statement can have that search or statement excluded from subsequent prosecution. If illegal evidence is admitted, a resulting conviction should be overturned unless the government can show beyond a reasonable doubt that the error was harmless. Denial of right to counsel is never harmless.

Front 3

Fruit of the Poisonous Tree

Back 3

Excludes evidence that was obtained or derived from unlawful police action. Ways to break the chain from the original police action:
1) Demonstrate an independent source
2) Inevitable discovery
3) Intervening acts of free will on the part of the defendant
4) Live witness testimony
5) In court identification
This does NOT apply if the original police illegality is a Miranda violation - evidence resulting from that violation can be admitted.

Front 4

Law of Arrest

Back 4

Arrest warrants are generally not required prior to arresting someone in a public place but the non-emergency arrest of an individual in his own home requires an arrest warrant.

Front 5

Stationhouse Arrest

Back 5

Police need probable cause to arrest you to compel you to come to the police station either for interrogation or fingerprinting

Front 6

Automobile Stops

Back 6

Police generally need reasonable suspicion that the law is being violated to stop a car. If special law enforcement needs are involved, then the police can set up roadblocks to stop cars without individual suspicion but the roadblock must:
1) Stop cars on the basis of some neutral, articulable standard and
2) Be designed to serve purposes more closely related to a particular problem related to cars and their mobility

Front 7

Request for Information in NY

Back 7

This is the least intrusion of police into a person's life. Police can request informaiton based on anything except a whim or caprice and the individual has the right to not respond to the request and even run away without giving probable cause for arrest.

Front 8

Common Law Right to Inquire in NY

Back 8

The police must have founded suspicion of criminal activity. They can ask questions and the detention must be brief. If the individual gives an explanation, the police must release him.

Front 9

Stop and Frisk in NY

Back 9

Police need reasonable suspicion. Note: if they stop a person at gun point, the police always need at least reasonable suspicion.

Front 10

Police Pursuit in NY

Back 10

This impedes the individual's freedom of movement so it must be based on a reasonable suspicion that a crime has been, is being, or is about to be committed

Front 11

Arrest in NY

Back 11

A full arrest requires probable cause that a felony or misdemeanor has been committed by the offender whether in the officer's presence or not. This does not require a warrant.

Front 12

Warrant of Arrest in NY

Back 12

Must be subscribed by the issuing judge and contain:
1) The name of the issuing court
2) The date of the issuing court
3) The name or title of an offense charged in the underlying accusatory instrument
4) The name of the defendant to be arrested or description with reasonable certainty if the name is unknown
5) The police officer(s) to whom the warrant is addressed
6) A direction that the police officer arrest the defendant and bring him before the issuing court

Front 13

Private Arrest in NY

Back 13

A private person can make a warrantless arrest when:
1) A felony has in fact been committed by the offender or
2) Any crime has in fact been committed by the offender in the presence of the arresting private person

Front 14

4th Amendment Right: Government Conduct

Back 14

1) Publicly paid police on or off duty
2) Any private individual working at the direction of the public police
3) Privately paid police/secuirty workers ONLY if they are deputized with the power to arrest

Front 15

4th Amendment Right: Reasonable Expectation of Privacy

Back 15

This gives you standing to object to an illegal search
Automatic standing:
1) You own the premises searched
2) You live on the premises searched, whether you own it or not
3) Overnight guests
Sometimes standing:
1) You are legitimately present when the search takes place
2) You own the property seized
Note: if you are in the car and do not claim to own the seized you do not have standing just because you were in the car and if you are on property only to do something illegal like cut up drugs for sale, you do not have standing to object to the search
For NY:
If you are in the car when a weapon is seized, you do have standing to object to the search becaues there is a presumption of possession attributed to all the passengers in the car

Front 16

4th Amendment Right: Things Held out to the Public

Back 16

You have no right of privacy to these things which include:
1) The sound of your voice
2) The sytle of your handwriting
3) The paint on the outside of your car
4) Account records held by a bank
5) Monitoring the locaiton of your car in a public street or in your driveway
6) Anything that can be seen across the open fields
7) Anything that can be seen from flying over in the public airspace
8) The odors emanating from your luggage
9) Your garbage set out on the curb for collection

Front 17

Valid Search Warrant

Back 17

Requires
1) Probable cause
2) Must be reasonably precise on its face
3) Search of 3rd party premises is permissible as long as there is probable cause to believe that the evidence will be there
4) The warrant msut be issued by a neutral and detached magistrate (neutral and detached from the often competitive law enforcement business)
5) Only police and not private citizens may execute a warrant and it must be executed without delay - police must knock, announce their purpose and wait a reasonable time for admittance unless they have reason to suspect such announcement would be dangerous/futile/inhibit investigation

Front 18

Search Warrant Informer Affidavits

Back 18

Affidavits of informers are used to show probable cause and have these characteristics:
1) They need enough information about the informer for the magistrate to make a common sense evaluation of probable cause
2) The identity of the informer is not usually required
3) When the defendant attacks the validity of the affidavit, he can go "behind the face" of the affidavit

Front 19

Invalidity of Search Warrant Informer Affidavits

Back 19

To be invalid, the defendant must show ALL of the following:
1) A false statement was included in the affidavit by the affiant (officer applying for the warrant)
2) The affiant intentionally or recklessly included the false statement and
3) The false statement was material to the finding of probable cause

Front 20

Search Warrant Informer Affidavits in NY

Back 20

A search warant must:
1) Set forth sufficient underlying facts and circumstnaces to allow the magistrate to know how the informer got her information and
2) The affidavit must establish the reliability and credibility of the informer (generally by pointing to prior success with the informer)

Front 21

Search Warrant Exception:
Search Incident to a Lawful Arrest

Back 21

1) Arrest must be lawful
2) Search must be contemporaneous to the time and location of the arrest
3) The search must be of the individual and areas the individual could reach either to get a weapon or destroy evidence ("wingspan")
4) At the police station, police may take an inventory search of the arrestee's belongings and search impounded vehicles

Front 22

Search Warrant Exception:
Automobile Exception

Back 22

1) Before the police can use this exception, the police need probable cause
2) If, but only if, before ht epolice search anything or anybody then they can search without a warrant the entire car including the interior compartment and the trunk and any package/luggage/container they find within the car that could reasonably contain the item they have probable cause to be searching for, regardless of who owns the item. If they find what they are searching for, they can arrest the person searched.
The police cannot open things that could not possibly contain what they are searching for.
3) Probable cause to search teh car can arise after the car is stopped, as long as it arises befor eyou search anybody or anything
4) If a warrantless search is valid, the police may tow the vehicle to the police station and search it later

Front 23

Search Warrant Exception:
Plain View Seizure

Back 23

Police officer must be
1) Legitimately present
2) Where he or she sees the evidence, fruits, or instrumentalities of the crime or contraband in plain view and
3) Have probable cause to believe the item is evidence, contraband, fruit, or instrumentality of the crime

Front 24

Search Warrant Exception:
Consent

Back 24

The consent must be voluntary and intelligent
Does not work if the police say "we have a warrant, can we look around"
Police do NOT have to warn you that you have the right not to consent
Authority to Consent:
1) If 2 people have equal right to use a piece of property, either can consent.
2) Parent can consent to search son's room unless he clearly does not allow parent's entry (signs on the door, locked room, he's the only one with the key)
3) Police cannot act on the consent from one occupant if a co-occupant is present and objects to the search and the search is directed against the co-occupant

Front 25

Search Warrant Exception:
Stop and Frisk

Back 25

Police must have a reasonable suspicion to stop suspects and if they think the suspect is armed they can pat them down and frisk them.
If they find weapons, they are admissible so long as the stop and frisk was reasonable.
If they find other evidence, it is admissible if it could have seemed like weapon/contraband from the outside.

Front 26

Search Warrant Exception:
Hot Pusuit and Evanescent Evidence

Back 26

Evanescent Evidence:
Evidence that would disappear very quickly if took the time to get the warrant (like a scraping under the fingernails)
Hot Pursuit:
Needs to be HOT and
1) Police can pursue suspect into a private dwelling
2) Police may seize wihtout a warrant evidence likely to disappear before a warrant can be obtained
3) Contaminated food or drugs, children in trouble, burning fires may justify warrantless search or seizures
4) Warrantless entry is proper whenver hte police see someone is injured or threatened with injury

Front 27

NY Search Warrant Exception:
Lawful Arrest

Back 27

Officer must suspect that the arrested person may be armed to search containers in the "wingspan" and once an occupant is removed from teh car the police may NOT remove closed containers or bags to look for weapons or other evidence

Front 28

NY Search Warrant Exception:
Traffic Violations

Back 28

NY COA says police can stop moving vehicles for "inspection" if they have reason to believe that there is a traffic violation. A stop is also valid if it is made pursuant to a roadblock at which passing vehicles are stopped uniformly and nondiscriminatorily

Front 29

NY Search Warrant Exception:
Emergency Doctrine

Back 29

1) Police must have reasonble grounds to believe that there is an emergency at hand and an immediate need for assistance for proteciton of life or property
2) The search must not be primarily motivated by intent to arrest and seize evidence and
3) There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched

Front 30

Evanescent Evidence

Back 30

Any person who operates a motor vehicle shall be deemed to have given his consent to blood or chemical tests

Front 31

Administrative Inspecitions and Searches

Back 31

Probable cause for a warrant for inspectors to search private homes/commercial buildings is more lenient than other searches - just show a general and neutral enforcement plan.

Front 32

Administrative Inspecitions and Searches in NY

Back 32

Warrantless impoundment and inspection of a person's vehicle is valid as an administrative search under the highly regulatory industry of motor vehicle safety

Front 33

Other Exceptions Permitting Warrantless Searches

Back 33

1) Administrative searches to seize spoiled or contaminated food
2) Searches of businesses within a highly regulated industry
3) Inventory searches of arrestees
4) Searches of airline passengers prior to boarding
5) Searches of probationer's homes even wihtout reasonable suspicion where a statute provides that as a condition of probation the probationer agrees to searches by police or probation officers at any time, with or wihtout a warrant or probable cause
6) Searches of government employee's desk and file cabinets whereh the scope is reasonable and there is a work related need or reasonable suspicion of work related misconduct
7) Drug tests of railroad employees involved in an accident
8) Drug tests of persons seeking customs employment in positions connected with drug interdiction and
9) Drug tests of public school students who participate in extracurricular activities

Front 34

Searches in Foreign Countries, Border, and International Mail

Back 34

These are permitted without warrants
If officials have a reasonable suspicion that a travelr is smuggling contraband in his stomach they can detain the traveler
Roving patrols that reasonably suspect a vehicle inside the US border contians illegal aliens can stop the vehicle for questioning and border officials at fixed checkpoints inside the border can stop vehicles for quesitoning and dissemble the vehcile without reasonable suspicion

Front 35

Search of Parolee in NY

Back 35

A parole officer can make a warrantless search of the parolee's apartment that is rationally and reasonably related to the parole officer's duties

Front 36

Wiretapping and Eavesdropping

Back 36

Requires a warrant EXCEPT for unreliable ears
For NY:
"Eavesdropping" includes "bugging" and "wiretapping" - both are felonies without a warrant or consent
Any person can record their own conversations.
Wiretap warrants are good for 30 days and the person being tapped must be informed of that within 90 days of the termination of the warrant.
If a 3rd party is incriminated by teh conversation it is admissibe if the 3rd party was not a party to the conversation and his premises or area of privacy was not invaded.

Front 37

Miranda Warnings

Back 37

The Miranda warnings are the constitutional prerequisite of admissibility of any product of custodial interrogation.
The warnings are unnecessary for a spontaneous statement or "blurting out."
The right to counsel under the Miranda rights is not offense specific.
Failure to give the Miranda Warnings is a 5th Amendment violation.

Front 38

Miranda Warnings: Legal Standard for Custody

Back 38

If at the time of the interrogation you are not free to leave, you are in custody. This covers the police station but also can cover your home or hospital bed if you are not free to leave.
Probation interviews and routine traffic stops are not custodial.

Front 39

Miranda Warnings: Legal Standard for Interrogation

Back 39

Interrogation includes more than just asking questions and is defined as ANY conduct where the police knew or should ahve known that there might be a damaging statement given.
This does not include spontaneous statements.
Once the defendant asks for an attorney, all interrogation must end until the attorney is present.

Front 40

Miranda Waiver

Back 40

Must be knowing, voluntary and intelligent. There is no waiver based on silence or shoulder shrugging.
For NY:
If the police know or should have known that the defendant was represented by counsel, waiver is only effective if the knowing, intelligent, voluntary waiver is done in the presence of counsel.

Front 41

Right to Counsel in NY

Back 41

Attaches:
1) When the defendant is in custody and the police engages in activity overwhelming to the layperson and the defendant requests counsel or
2) At arraignment or
3) At the filing of an accusatory instrument (ex: grand jury, charge) or
4) When there has been significant judicial activity.

Front 42

Sixth Amendment Right to Counsel

Back 42

When you ask for an attorney other than after hearing Miranda rights in interrogation. The Sixth Amendment right to counsel is offense specific and the attorney will only have to be present if the defendant was being asked questions about the attorney's case.

Front 43

Arthur Hobson Rule - NY

Back 43

The length of an interrogation and custody are factors in determining the voluntariness of confessions

Front 44

Confessions - Infants

Back 44

Attempts to keep parents from children held by police may invalidate a child's confession. There is no invalidation if there is no attempt to conceal a child or deceive the family even when the parent refused permission to see the child.

Front 45

Spontaneous Statement in NY

Back 45

It will be admitted if it is "forced" on the police officer without any inducement, provocation or encouragement by the police.

Front 46

Emergency Exception to Right to Counsel in NY

Back 46

When police search for a person recently disappeared, the continued questioning of suspected kidnappers need not terminate although the right to counsel has attached.

Front 47

Pretrial Identification: Possible means of attack

Back 47

1) Right to counsel if lineup/showup is post charge. There is no right to counsel when police show victim/witness photographs.
2) If the lineup/showup is so unnecessary and substantially suggestive or unlikely to result in a mistaken identity then it denies due process of law
If you show either of the above, the lineup/showup is excluded UNLESS the prosecutor can show the witness/victim has an independent source for identification

Front 48

Requirements for Post-Charge Identification Evidence

Back 48

1) Counsel was present
2) Accused waived counsel or
3) There is an independent source for the in court idetnification

Front 49

Pretrial Identification in NY

Back 49

No right to counsel at "investigatory lineups" held prior to formal prosecutorial action except when:
1) Police are aware that defendant is represented by counsel on another charge and
2) Defendant explicitly requests his attorney (police must contact attorney and give him a reasonable amount of time to come to the lineup)

Front 50

Bail

Back 50

Immediately appealable and preventitve detention is constitutional

Front 51

Grand Juries

Back 51

Done in secret.
The defendant has no right to notice that the grand jury may be considering indicting him or to confront the victim/witnesses and a witness doesn't have a right to get the Miranda warnings or know that he may be a potential defendant.
Grand jury may base its indictment on evidence not admittable at trial.
There is no right to challenge a grand jury subpoena
If minorities are excluded from a grand jury, any conviction resulting from that indictment will be reversed regardless to harmless error

Front 52

Grand Juries in NY

Back 52

1) Between 16 and 23 people, 12 must agree to indict
2) Witness who has not been granted immunity may consult with counsel but not in the grand jury room. A witness that waived immunity may be accompanied by trial to the grand jury room.
Waiver must be in writing, signed by the witness, and it must be sworn before the jury. The waiver can be limited to certain subjects.
3) Grand jury indictment in NY must be aesd on legally competent/sufficient evidence that could be used at trial
4) Any witness testifying before the grand jury gets transactional immunity unless he chooses to waive that immunity
5) If defendant requests an opportunity to testify that request will be granted as long as he waives immunity

Front 53

Waiving Indictment in NY

Back 53

Can waive grand jury indictment if:
1) He is being held for grand jury action
2) The crime is punishable other than by death or life imprisonment and
3) The district attorney consents

Front 54

Grand Jury Indictments in NY

Back 54

Grand Jury may indict when:
1) Evidence establishes all the elements of the crime
2) The evidence is legally sufficient and
3) The evidence establishes reasonable cause to belive the accused committed the crime

Front 55

Grand Jury Dismissal in NY

Back 55

If the grand jury does not indict and dismisses:
1) Defendant must be released if being held in custody upon the charge
2) The matter may not be resubmitted to the same or another grand jury unless the court allows resubmission and
3) The defendant must be notified within 90 days of filing the dismissal unless resubmission has been allowed or the court for good cause and exigent circumstances postpones giving notice

Front 56

Right to Speedy Trial

Back 56

Evaluated on totality of the circumstnaces considering:
1) Length of delay
2) Reason for delay
3) Whether defendant asserted his right and
4) Prejudice to defendant
Remedy for a violation is dismissal with prejudice.
Right to speedy trial does not attach until defendant has been arrested or charged an dprosecution cannot indefinitely suspend charges. The defendant does not need to know of the charges for the speedy trial right to attach.

Front 57

Right to Speedy Trial in NY

Back 57

If prosecution isn't ready for trial, defendant may be released from custody or have the charge dismissed, depending on the delay. Unexcused delay requires dismissal upon the defendant's motion with the exception of:
1) Homicide or
2) Sudden unavailability of material evidence
Exceptions from Time Periods:
Reasonable delay from other proceedings, continuance, absence of defendant if defendant causes delay, reasoanble delay caused by joinder of defendants, delay caused by defendant detention in another jurisdiction, delay by exceptional circumstances, and period during which action is adjourned in contemplation of dismissal

Front 58

Prosecutorial Duty to Disclose Exculpatory Information

Back 58

Prosecution must disclose exculpatory evidence and failure to do so is grounds for reversing a conviction if defendant can prove:
1) Evidence is favorable to defendant because it is either impeachement or exculpatory evidence and
2) Prejudice has resulted

Front 59

Defendant Notification of Use of Alibi or Insanity Defense

Back 59

Defendant must notify the prosecutor if he intends to use an alibi or insantiy defense and if he uses either he must give the prosecution a list of witnesses. The prosecution must give the defendant a list of rebuttal witnesses.

Front 60

Incomptetency

Back 60

Incompetency bars trial and is shown if defendant:
1) Lacks a rational as well as factual understanding of the charges and proceedings or
2) Lacks sufficient present ability to consult with his lawyer with a reasonable degree of understanding

Front 61

Right to Fair Trial

Back 61

The 6th and 14th Amendments guarantee the right to a public trial. Pretrial proceedings can be limited and closed in circumstances but the press and public have a 1st Amendment right to attend the trial.
A judge cannot show malice agains tthe defendant or have a financial interest in a guilty verdict.
Defendants have a right to a judge that is law-trained in trials for serious crimes.
Other Due Process Violations:
1) Trial conducted in a manner makin git unlikely that the jury gave the evidence reasonable consideration
2) State compels defendant to stand trial in prison clothing
3) State compels defendant to be visibly shackled, unless there is a justification for courtroom security or preventing escape
3) The jury is exposed to influence favorable to the prosecution

Front 62

Right to Jury Trial

Back 62

Attaches whenever defendant is tried for an offense with a maximum authorized sentence exceeding 6 months (no right to jury trial if maximum sentence is up to and including 6 months).
For criminal contempt, the sum of the sentence imposed governs.
Minimum amount of jurors is 6 and they must be unanimous, if there are more jurors, unanimity is not required.
You have a righ tto a fair cross-sectioned jury pool from your community (even though your own jury may not be cross-sectioned).
It is unconstitutional for parties to exercise preemptory challenges on account of a juror's race or gender.
Inconsistent verdicts are not reviewable

Front 63

Right to an Impartial Jury

Back 63

1) Defendant is entiteld to question on voir dire about racial prejudice whenever race is bound up in the case or he is accused of an interracial capital crime
2) In capital punishment cases, a state may not automatically exclude for cause all lpotential jurors who express doubt or scruple about the death penalty, it must be determined that the juror's views would prevent or substantially impair performance of his duties in accordance with his instructions and oath
3) If the jury is deciding the death sentence, the defendant has the right on voir dire to ask potential jurors if they would automatically give the death penalty upon a guilty verdict and a juror who answers affirmatively must be excluded because such a juror cannot perform his duties according to instructions on mitigating circumstances
4) There is no constitutional violation if a trial court refuses to exclude for cause a juror it should exclude, and the defendnat uses a peremptory challenge to exclude the juror

Front 64

Right to Fair Trial

Back 64

The 6th and 14th Amendments guarantee the right to a public trial. Pretrial proceedings can be limited and closed in circumstances but the press and public have a 1st Amendment right to attend the trial.
A judge cannot show malice agains tthe defendant or have a financial interest in a guilty verdict.
Defendants have a right to a judge that is law-trained in trials for serious crimes.
Other Due Process Violations:
1) Trial conducted in a manner makin git unlikely that the jury gave the evidence reasonable consideration
2) State compels defendant to stand trial in prison clothing
3) State compels defendant to be visibly shackled, unless there is a justification for courtroom security or preventing escape
3) The jury is exposed to influence favorable to the prosecution

Front 65

Right to Jury Trial

Back 65

Attaches whenever defendant is tried for an offense with a maximum authorized sentence exceeding 6 months (no right to jury trial if maximum sentence is up to and including 6 months).
For criminal contempt, the sum of the sentence imposed governs.
Minimum amount of jurors is 6 and they must be unanimous, if there are more jurors, unanimity is not required.
You have a righ tto a fair cross-sectioned jury pool from your community (even though your own jury may not be cross-sectioned).
It is unconstitutional for parties to exercise preemptory challenges on account of a juror's race or gender.
Inconsistent verdicts are not reviewable

Front 66

Right to an Impartial Jury

Back 66

1) Defendant is entiteld to question on voir dire about racial prejudice whenever race is bound up in the case or he is accused of an interracial capital crime
2) In capital punishment cases, a state may not automatically exclude for cause all lpotential jurors who express doubt or scruple about the death penalty, it must be determined that the juror's views would prevent or substantially impair performance of his duties in accordance with his instructions and oath
3) If the jury is deciding the death sentence, the defendant has the right on voir dire to ask potential jurors if they would automatically give the death penalty upon a guilty verdict and a juror who answers affirmatively must be excluded because such a juror cannot perform his duties according to instructions on mitigating circumstances
4) There is no constitutional violation if a trial court refuses to exclude for cause a juror it should exclude, and the defendnat uses a peremptory challenge to exclude the juror

Front 67

Jury Trial in NY

Back 67

Prosecutor's opening statement cannot be waived.
Indictment (felonies): 12 jurors with up to 4 alternates at the discretion of the court.
Information (crimes less than felonies): 6 jurors with up to 2 alternates, and if punishment is for 6 months or less there is no jury.
Under certain circumstances, a child witness may testify from a separate room via two way closed circuit television

Front 68

Challenging Jurors in NY

Back 68

1) Lack of qualification (less than 18 years old)
2) Not impartial because of juror's state of mind
3) Juror is related within the 6th degree of consanguinity or afinity to the defendant, a person allegedly injured, a prospective witness, or counsel
4) Prospective juror was a party adverse to a defendant, victim, witness, or counsel in any civil action or was complained against or accused by any such person in a criminal action
5) Juror was a witness at any preliminary examination or before the grand jury or is to be a witness at trial
6) Juror served on teh grand jury or served as a juror in a prior civil or criminal action involving the same conduct charged

Front 69

Waiver of Jury Trial in NY

Back 69

Unless indictment charges murder in the 1st degree, defendant at any time before the trial may waive a trial by jury if the waiver is:
1) In writing
2) Signed in open court
3) In the presence of the judge and
4) With the judge's approval

Front 70

Times When Defendant has a Right to be Represented by Counsel

Back 70

1) Custodial Police Interrogation
2) Post-indictment Interrogation, whether custodial or not
3) Preliminary Hearings to determine probable cause to prosecute
4) Arraignment
5) Post-charge Lineups
6) Guilty Plea and Sentencing
7) Felony Trials
8) Misdemeanor Trials when imprisonment is actually imposed or when a suspended jail sentence is imposed
9) Overnight recesses during trial
10) Appeals as a matter of right and
11) Appeals of guilty pleas

Front 71

Times When Defendant does NOT have a Right to be Represented by Counsel

Back 71

1) Blood Sampling
2) Taking handwriting or voice samples
3) Precharge or investigative lineups
4) Photo identifications
5) Preiminary hearings to determine probable cause to detain
6) Brief recesses during the defendant's testimony at trial
7) Discretionary appeals
8) Parole and probation revocation proceedings and
9) Post-conviction Hearings

Front 72

Standard for Ineffective Assistance of Counsel

Back 72

Deficient performance by counsel and but for such deficiency the result of the proceeding would have been differnt.
Defendant must point to specific deficiencies and cannot raise claims based on lack of experience, time to prepare, gravity of charges, complexity of defenses, or accessibility of witnes to counsel.
Trial tactics and failure to raise a constitutional defense that is later invalidated do not constitute ineffective assistance of counsel

Front 73

Standard for Ineffective Assistance of Counsel in NY

Back 73

Defendant must show:
1) Attorney failed to provide "meaningful respresentation"
2) A single error can constitute ineffective assistance, but only when the error is "sufficinetly egregious and prejudicial as to compromise a defendant's right to a fair trial"
3) The absence of any strategic explanation for the attorney's performance and
4) Citing ineffective assistance for failure to make a motion, defendant must prove that the motion had a reasonable chance of succeeding

Front 74

Guilty Pleas and Plea Bargaining Generally

Back 74

1) Supreme Court is unwilling to disturb guilty pleas after sentencing
2) Supreme Court has adopted the contract theory of plea bargaining - treating plea bargaining like contracts and saying the terms should be revealed at the plea taking

Front 75

Taking the Plea

Back 75

Judge must tell the defendant:
1) The nature of the charge
2) The maximum authorized sentence and any mandatory minimum sentence
3) Defendant has a right to plea not guilty and demand a trial

Front 76

Bases for Withdrawing a Guilty Plea After Sentencing

Back 76

1) The plea was involuntary (mistake in plea taking)
2) Lack of jurisdiction to take the plea
3) Ineffective assistance of counsel
4) Failure of the prosecutor to keep an agreed upon plea bargain

Front 77

Guilty Plea in NY

Back 77

At time of sentencing, judge has the discretion to allow a defendant to withdraw a plea of guilty to all or part of an indictment.
Sentencing court has the power to impose a lighter sentence than that bargained for and the prosecution can apply to withdraw consent to the plea if a lighter sentence is imposed. If the court breaks a promise which the defendant relied on when pleading, the remedy is to withdraw the plea.

Front 78

In NY, Defendant who Pleads Guilty can Appeal Pretrial Orders Denying Motions for Supppression of

Back 78

1) Confessions
2) Evidence from illegal searches and seizures
3) Identification testimony

Front 79

Sentencing

Back 79

Defendant has a right to counsel during sentencing.
In death penalty cases, defendant must have more of an opportunity for confrontation than in other sentencing proceedings.
Re-sentencing afer successful appeal and re-conviction generally may not be harsher.

Front 80

Death Penalty

Back 80

1) Any death penalty statute that does not give defendant a chance to present mitigating facts and circumstances is unconstitutional
2) There can be no automatic category for imposition of the death penalty
3) States may not by statute limit the mitigating factors; all relevant mitigating evidence must be admissible or the statute is unconstitutional
4) Only a jury and not a judge may determine the aggravating factors justifying imposing the death penalty

Front 81

Prisoner's Rights

Back 81

1) Prison regulations impinge on due process rights only if the regulations impose "atypical and significant hardship" in relation to ordinary incidents of prison life
2) There is no 4th Amendment protection in cells (no reasonable expectation of privacy)
3) Prisoners must be given reasonable access to the courts
4) 1st Amendment rights to freedom of speech, association, and religion may be burdened by regulations reasonably related to penological interests (incoming mail can be regulated but not as much with outgoing)
5) Prisoners have a right to adequate medical care under the 8th Amendment prohibition against cruel and unusual punishment
Note: felons may be unable to vote in state elections even after released from prison

Front 82

Double Jeopardy

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Jury trial: Attaches when jury is sworn
Judge Trial: Attaches when first witness is sworn
Civil Trials: Does NOT usually attach
Generally 2 crimes are not the same offense if each crime requires proof of an adidtional element that the other does not. Cannot try a lessor or greater offense after you tried the other one although if a victim later dies after your trial for battery, you can be tried for that murder.

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When Re-Trial is Permitted

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1) Jury is unable to agree on a verdict and the jury is "hung"
2) Mistrials for manifest necessity
3) Re-trial after successful appeal
4) Breach of an agreed upon plea bargain by the defendant (plea and sentence can be vacated and original charge reinstated)

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Double Jeopardy and Different Sovereigns

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Different sovereigns can both try you for the same crime. Different sovereigns include 2 different state courts or the federal and state courts. But you cannot be separately prosecuted for a violation of a state and a municipality statute since they are within the same sovereign.

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Double Jeopardy in NY

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All crimes arising from a single transaction must be tried together.
A person is "prosecuted" when he is charged by an accusatory instrument filed in a court of NY or any jurisdiction within the US and the action eitehr:
1) Terminates in a conviction up on a plea of guilty or
2) Proceeds to the trial stage and a jury has been impaneled and sworn in or in teh case of trial without a jury, a witness is sworn in

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Appeals to Intermediate Appellate Court as of Right by the Defendant in NY

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1) Judgment other than one including a death sentence, unless appeal is solely based on the gorund that a sentence was harsh or excessive when made on a guilty plea and the sentence did not exceed what the defendant agreed to as a condition of the plea
2) Sentence, other than death, if the sentence is either invalid as a matter of law or is harsh or excessive
3) Sentence including an order of criminal forfeiture
4) Order setting aside a sentence other htan one of deaht upon motion of the prosecution

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Appeals to Intermediate Appellate Court as of Right by the Prosecution in NY

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1) Order dismissing an accusatory instrument or count thereof
2) Trial order of dismissal
3) Order setting aside a verdict
4) Motion to set aside the verdict before sentencing
5) Sentence, other than one of death (may only be based on invalidity as a matter of law)
6) Motion made by the defense to suppress evidence

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Exceptions Permitting Retrial in NY

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A person is not deemed to have been prosecuted when:
1) Such prosecution occurred in a court which lacked jurisdiciton over the defendant or offense or
2) Such prosecution was for a lesser offense that could have been charged under the facts of the case and the prosecution was procured by defendant without the knowledge of the appropriate prosecutor, for the purposes of avoiding prosecution of the greater offense

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Transaction Test in NY

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Defendant has to be charged with all offenses arising from any single transaction except when:
1) The offenses have substantially different elements
2) Each contains an element not in the other and is designed to prevent very different harms
3) One is criminal possession, the other is criminal use (other than sale)
4) Each involved death, injury, loss, etc to different victims
5) Violation of another jurisdiction's statute, terminated by court order in the other jurisdiction for lack of evidence as to an element not in NY crime or
6) One offense is NY RICO and the other is federal RICO

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Fifth Amendment Privilege Against Compelled Testimony

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Anyone can assert the privilege in any case where they are asked a question under oath that the response to which may incriminate them, whether civil, criminal, administrative, or congressional
Corporations and partnerships may not use this privilege
If you ever give up the privilege on a question, it is given up for any future proceedings

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Scope of the Fifth Amendment Privilege Against Compelled Testimony

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It does NOT protect us from having the government use our bodies in ways to incriminate us
It does protect us against compelled testimony
Prosecutor cannot make a negative comment about a defendant's failure to testify or decision to remain silent after hearing the Miranda warnings

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Elimination of the Fifth Amendment Privilege Against Compelled Testimony

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1) Grant of Immunity (use and derivative use immunity - can use whatever had before the immunity)
2) There is no possibility of incrimination (SOL has run)
3) Waiver (when defendnat takes the stand)

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Elimination of the Fifth Amendment Privilege Against Compelled Testimony in NY

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NY grants the broader immunity of transactional immunity rather than use and derivative use immunity - immunizing you from any transaction you testify to

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Juvenile Court Proceedings Rights

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1) Written notice of the charges
2) Assistane of counsel
3) Opportunity to confront and cross-examine witnesses
4) Right not to testify
5) Righ tto have "guilt" established by proof beyond a reasonable doubt
There is no right to a jury in delinquency proceedings. Pretrial detention is allowed when the juvenile is a "serious risk" to society as long as that detention is for a strictly limited to the time before the trial
If the juvenile court finds the child delinquent, jeopardy attaches and the child cannot be tried again as an adult for the same behavior

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Forfeiture Actions

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Actions are brought directly against property and generally regarded as quasi-criminal.
The owner of personal property is not constitutionally entitled to notice and hearing before the proeprty is seized for purposes of a fofeiture proceeding. A hearing is required before final forfeiture of the property.
Where real property is seized, notice and an opportunity to be heard are required before the seizure of the property unless the government cna prove exigent circumstances justifying immediate seizure.
8th Amendment can apply for penal forfeitures where the forfeiture is "excessive" meaning that it is grossly disproportionate to the gravity of the offense.