Criminal Procedure - Barbri 2011 - Mbe

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CONSTITUTIONAL RESTRAINTS ON CRIMINAL PROCEDURE - CONSTITUTIONAL REQUIREMENTS BINDING ON STATES

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The first eight amendments to the U.S. Constitution apply to the federal government. Most of these rights are applicable to the states through the Due Process Clause of the Fourteenth Amendment. The following rights are binding on the states (as well as the federal government):

The Fourth Amendment prohibition against unreasonable searches and seizures, and the exclusionary rule;

The Fifth Amendment privilege against compulsory self-incrimination;)

The Fifth Amendment prohibition against double jeopardy;

The Sixth Amendment right to speedy trial;The Sixth Amendment right to a public trial;

The Sixth Amendment right to trial by jury;The Sixth Amendment right to confront witnesses;

The Sixth Amendment right to compulsory process for obtaining witnesses;

The Sixth Amendment right to assistance of counsel in felony cases and in misdemeanor cases in which imprisonment is imposed;

The Eighth Amendment prohibition against cruel and unusual punishment.

Note: The Constitution provides the floor of protection for criminal defendants. States are free to grant greater protection, and many do.

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CONSTITUTIONAL RESTRAINTS ON CRIMINAL PROCEDURE - CONSTITUTIONAL RIGHTS NOT BINDING ON STATES

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The right to indictment by a grand ju ry for capital and infamous crimes has been held not to be binding on the states. It has not yet been determined whether the Eighth Amendment prohibition against excessive bail creates a right to bail. However, most state constitutions create a right to bail and prohibit excessive bail.

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EXCLUSIONARY RULE - IN GENERAL-SCOPE OF RULE

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The exclusionary rule is a judge-made doctrine that prohibits introduction of evidence obtained in violation of a defendant's Fourth, Fifth, and Sixth Amendment rights-. Under the rule, unconstitutionally obtained evidence is inadmissible at trial, and all "fruit of the poisonous tree" (i.e., evidence obtained from exploitation of the unconstitutionally obtained evidence) must also be excluded. Exceptions to fruit of the poisonous tree doctrine:

The fruits derived from statements obtained in violation of Miranda;

Evidence obtained from a source independent of the original illegality;

An intervening act of free will by the defendant (e.g., defendant is illegally arrested but is released and later returns to the station to confess);

Inevitable discovery-i.e., the prosecution can show that the police would have discovered the evidence whether or not the police acted unconstitutionally; and

Violations of the knock and announce rule.

Note: It is difficult to have live witness testimony excluded on exclusionary rule grounds. Also, a defendant may not exclude a witness's in-court identification on the ground that it is the fruit of an unlawful detention.

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EXCLUSIONARY RULE - IN GENERAL-SCOPE OF RULE - LIMITATIONS ON THE RULE - Inapplicable to Grand Juries, Civil Proceedings, Violations of State Law, InternalAgency Rules, and Parole Revocation Proceedings

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The exclusionary rule is inapplicable to grand juries unless evidence was obtained in violation of the federal wiretapping statute. The rule is also inapplicable at parole revocation proceedings, in civil proceedings, or where evidence was obtained contrary only to state law or agency rules.

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EXCLUSIONARY RULE - IN GENERAL-SCOPE OF RULE - LIMITATIONS ON THE RULE - Good Faith Reliance on Law, Defective Search Warrant, or Clerical Error

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The exclusionary rule does not apply when the police arrest someone erroneously but in good faith thinking that they are acting pursuant to a valid arrest warrant, search warrant, or law.

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EXCLUSIONARY RULE - IN GENERAL-SCOPE OF RULE - LIMITATIONS ON THE RULE - Use of Excluded Evidence for Impeachment Purposes

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Some illegally obtained evidence may still be used to impeach defendant's credibility if he takes the stand at trial. Specifically, an otherwise voluntary confession taken i n violation of the Miranda requirements is admissible for impeachment purposes, and evidence obtained from an illegal Search may be used by the prosecution to impeach defendant 's, but not others', statements.

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EXCLUSIONARY RULE - IN GENERAL-SCOPE OF RULE - LIMITATIONS ON THE RULE - Knock and Announce Rule Violations

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Exclusion is not an available remedy for violations of the knock and announce rule pertaining Lo the execution of a warrant.

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EXCLUSIONARY RULE - IN GENERAL-SCOPE OF RULE - HARMLESS ERROR TEST

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If illegal evidence is admitted, a resulting conviction should be overturned on appeal unless the government can show beyond reasonable doubt that the error was harmless. In a habeas proceeding where the petitioner claims constitutional error, he should be released if he can show that the error had a substantial and injurious effect or influence in determining the jury's verdict; if the judge is in grave doubt as to the harm, the petition must be granted.

Exam Tip

The harmless error standard never applies to the denial of the right to counsel at trial; i.e., this error is never harm less.

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EXCLUSIONARY RULE - IN GENERAL-SCOPE OF RULE - ENFORCING THE EXCLUSIONARY RULE

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A defendant is entitled to have the admissibility of evidence or a confession decided as a matter of law by a judge out of The hearing of the jury. The government bears the burden of establishing the admissibility by a preponderance of the evidence.

The defendant has the right to testify at a suppression hearing without his testimony being admitted against him at trial on the issue of guilt.

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FOURTH AMENDMENT - IN GENERAL

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The Fourth Amendment provides that people should be free from uneasonable searches and seizures.

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FOURTH AMENDMENT - ARRESTS AND OTHER DETENTIONS

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Governmental seizures of persons, including arrests, are seizures within the scope of the Fourth Amendment and so must be reasonable.

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FOURTH AMENDMENT - ARRESTS AND OTHER DETENTIONS - What Constitutes a Seizure?

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A seizure occurs when a reasonable person would believe that she is not free to leave or terminate an encounter with the govemment.

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FOURTH AMENDMENT - ARRESTS AND OTHER DETENTIONS - Arrests

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An arrest occurs when the police take a person into custody against her will for purposes of criminal prosecution or interrogation.

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FOURTH AMENDMENT - ARRESTS AND OTHER DETENTIONS - Arrests - Probable Cause Requirement

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An an·est must be based on probable cause-i.e., trustworthy facts or knowledge sufficient for a reasonable person to believe that the suspect has committed or is committing a crime.

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FOURTH AMENDMENT - ARRESTS AND OTHER DETENTIONS - Arrests - Warrant Generally Not Required Except for Home Arrests

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A warrant generally is not required before arresting a person in a public place. However, police generally must have a warrant to effect a non-emergency arrest of a person in his home.

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FOURTH AMENDMENT - ARRESTS AND OTHER DETENTIONS - Other Detentions - Investigatory Detentions (Stop and Frisk)

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If the police have a reasonable suspicious of criminal activity or involvement in a completed crime, supported by articulable facts (i.e., not merely a hunch), they may detain a person for investigative purposes. lf the police also have reasonable suspicion that the detainee is armed and dangerous, they may frisk the detainee for weapons.

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FOURTH AMENDMENT - ARRESTS AND OTHER DETENTIONS - Other Detentions - Investigatory Detentions (Stop and Frisk) - Duration and Scope

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The detention must be no longer than necessary to conduct a limited investigation to verify the suspicion. The police may ask the detained person to identify himself (i.e.; state his name) and generally may arrest the detainee for failure to comply with such a request. The detention will also turn into an arrest if during the detention other probable cause for arrest arises.

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FOURTH AMENDMENT - ARRESTS AND OTHER DETENTIONS - Other Detentions - Investigatory Detentions (Stop and Frisk) - Property Seizures

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Brief property seizures are similarly valid if based on reasonable suspicion.

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FOURTH AMENDMENT - ARRESTS AND OTHER DETENTIONS - Other Detentions - Automobile Stops

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Generally, police may not stop a car unless they have at least reasonable suspicion to believe that a law has been violated. However, if special law enforcement needs are involved , the Supreme Court allows pol ice to set up road blocks to stop cars without individualized suspicion that the driver violated some law. To be valid, the roadblock must: (i) stop cars on the basis of some neutral, articulable standard (e.g., every car);and (ii) be designed to serve purposes closely related to a particular problem pertaining to automobiles and their mobility (e.g., a roadblock to test for drunk drivers is valid because of the pervasiveness of the drunk driving problem, but a roadblock to search cars for illegal drugs is not valid because the purpose of such a checkpoint is only to detect evidence of ordinary criminal wrongdoing).

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FOURTH AMENDMENT - ARRESTS AND OTHER DETENTIONS - Other Detentions - Automobile Stops - Seizure of All Occupants

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An automobile stop constitutes a seizure not only of the automobile's driver, but also of any passengers as well. Thus, passengers have standing to raise a wrongful stop as a reason to exclude evidence found during the stop.

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FOURTH AMENDMENT - ARRESTS AND OTHER DETENTIONS - Other Detentions - Automobile Stops - Police May Order Occupants Out

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After lawfully stopping a vehicle, in the interest of officer safety, the officer may order the occupants of the vehicle to get out. Moreover, if the officer reasona bly believes the detainees to be armed, he may frisk the occupants and search the passenger compartment for weapons, even after he has ordered the occupants out.

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FOURTH AMENDMENT - ARRESTS AND OTHER DETENTIONS - Other Detentions - Automobile Stops - Pretextual Stops

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If the police reasonably believe a driver violated a traffic law, they may stop the car, even if their ulterior motive is to investigate whether some other law-for which the police lack probable cause-has been violated.

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FOURTH AMENDMENT - ARRESTS AND OTHER DETENTIONS - Other Detentions - Detention to Obtain a Warrant

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If the police have probable cause to believe that a suspect has hidden drugs in his home, they may, for a reasonable time, prevent him from going into the home unaccompanied so that they can prevent him from destroying the drugs while they obtain a search warrant.

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FOURTH AMENDMENT - ARRESTS AND OTHER DETENTIONS - Other Detentions - Occupants of the Premises

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

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FOURTH AMENDMENT - ARRESTS AND OTHER DETENTIONS - Other Detentions - Station House Detentions

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Police must have full probable cause for arrest to bring a suspect to the station for questioning or fingerprinting.

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FOURTH AMENDMENT - ARRESTS AND OTHER DETENTIONS - Grand .Jury Appearance

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Seizure of a person (by subpoena) for a grand jury appearance is not within the Fourth Amendment's protection.

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FOURTH AMENDMENT - ARRESTS AND OTHER DETENTIONS - Deadly Force

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There is a Fourth Amendment "seizure" when a police officer uses deadly force to apprehend a suspect. An officer may not use deadly force unless it is reasonable to do so under the circumstances (e.g., where the suspect poses a danger to his own life or the lives of others).

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FOURTH AMENDMENT - EVIDENTIARY SEARCH AND SEIZURE

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Like arrests, evidentiary searches and seizures must be reasonable to be valid under the Fourth Amendment, but here reasonableness requires a warrant except in six circumstances. Evidentiary search and seizure issues should be approached using the following analytical model:

Does defendant have a Fourth Amendment right (seizure by the government concerning a place or thing in which defendant had a reasonable expectation of privacy )?

Did the government have a valid warrant (issued by neutral and detached magistrate on a showing of probable cause and reasonably precise as to the place to be searched and items to be seized)?

If the police did not have a valid warrant, did they make a valid warrantless search and seizure?

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FOURTH AMENDMENT - Governmental Conduct Required

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The Fourth Amendment generally protects only against governmental conduct (i.e., police or other government agents), and not against searches by private persons-including private security guards-unless deputized as officers of the public police.

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FOURTH AMENDMENT - Reasonable Expectation of Privacy - Standing

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To have a Fourth Amendment right, a person must have his own reasonable expectation of privacy with respect to the place searched or the item seized. The determination is made on the totality of the circumstances, but a person has a legitimate expectation of privacy any time:

He owned or had a right to

possession of the place searched;

The place searched was in fact his home, whether or not he owned or had a right to possession of it; or

He was an overnight guest of the owner of the place searched.

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FOURTH AMENDMENT - Reasonable Expectation of Privacy - Things Held Out to the Public

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One does not have a reasonable expectation of privacy in objects held out to the public.

Note: Use of sense-enhancing technology that is not in general public use (t.g .. a thermal imager as opposed to a telephoto camera lens) to obtain information from inside a suspect's home that could not otherwise be obtained without physical intrusion violates the suspect's reasonable expectation of privacy.

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FOURTH AMENDMENT - Searches Conducted Pursuant to a Warrant

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Generally, the police must have a warrant to conduct a search unless it falls within one of the six exceptions to the warrant requirement.

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FOURTH AMENDMENT - Searches Conducted Pursuant to a Warrant- Showing of Probable Cause

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A warrant will be issued only if there is probable cause to believe that seizable evidence will be found on the person or premises at the time the warrant is executed. Officer:. must submit to a magistrate an affidavit setting forth circumstances enabling the magistrate to make a determination of probable cause independent of the officers' conclusions.

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FOURTH AMENDMENT - Searches Conducted Pursuant to a Warrant- Showing of Probable Cause - Use of informers

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An affidavit based on an jnformer's tip must meet the ''totality of the circumstances" test. Under this test, the affidavit may be sufficient even though the reliability and credibility of the informer or his basis for knowledge are not estab lished . Note that the informer's identity generally need not be revealed.

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FOURTH AMENDMENT - Searches Conducted Pursuant to a Warrant- Showing of Probable Cause - Going "Behind the Face" of the Affidavit

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A search warrant issued on the basis of an affidavit will be held invalid i f the defendant establishes all three of the fol lowing:

A false statement was included in the affidavit by the affiant (the officer applying for the warrant);

The affiant intentionally or recklessly included the false statement; and

The false statement was material to the finding of probable cause.

Exam Tip: This test for invalidating the affidavit is very restrictive-all three requirements for invalidity (falsehood, intentionally or recklessly included, and material to probable cause) must be met. Thus, if the affiant believed the lie, or if he intentionally included the lie but it was not material to the finding of probable cause (because there was sufficient other evidence), the affidavit is valid. Therefore, a defendant is rarely successful in challenging the affidavit.

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FOURTH AMENDMENT - Searches Conducted Pursuant to a Warrant- Showing of Probable Cause - Going "Behind the Face" of the Affidavit - Police May Reasonably Rely on Validity of Warrant

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Evidence obtained by the police in reasonable reliance on a facially valid warrant may be used by the prosecution, despite an ultimate finding that the warrant was not supported by probable cause.

Exam tip: This good faith exception applies only if the police obtained a warrant and it is invalid. The exception does not apply if the police failed to obtain a warrant.

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FOURTH AMENDMENT - Searches Conducted Pursuant to a Warrant- Warrant Must Re Precise on Its face

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A warrant must describe with reasonable precision the place to be searched and items to be seized. If it does not, the warrant is unconstitutional , even if the underlying affidavit gives such detail.

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FOURTH AMENDMENT - Searches Conducted Pursuant to a Warrant- Search of ThirdwParty Premises Permissible

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A warrant may be obtained to search premises belonging to nonsuspects, as long as there is probable cause to believe that evidence will be found there.

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FOURTH AMENDMENT - Searches Conducted Pursuant to a Warrant- Neutral and Detached Magistrate Requirement

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The magistrate who issues the warrant must be neutral and detached (e.g., state attorney general is not neutral).

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FOURTH AMENDMENT - Searches Conducted Pursuant to a Warrant- Execution of Warrant

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Only the police (and not private citizens) may execute a warrant, and it must be executed without unreasonable delay. Police must knock , announce their purpose, and wait a reasonable time for admittance (unless the officer has reasonable suspicion, based on facts, that announcing would be dangerous or futile or would inhibit the investigation). Police may seize any contraband or fruits or instrumentalities of crime that theydiscover, whether or not specified in the warrant. In any case, remember that violations of the knock and announce rule will not result in the suppression of evidence otherwise properly obtained-the exclusionary rule does not apply here.

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FOURTH AMENDMENT - Searches Conducted Pursuant to a Warrant- Execution of Warrant - Search of Persons Found on Searched Premises

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A warrant founded on probable cause to search for contraband authorizes the police to detain occupants of the premises during a proper search, but a search warrant does not authorize the police to search persons found on the premises who were not named in the warrant.

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FOURTH AMENDMENT - Exceptions to Warrant Requirement

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All warrantless searches are unconstitutional unless they fit into one of six recognized exceptions to the warrant requirement.

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FOURTH AMENDMENT - Exceptions to Warrant Requirement - Search Incident to Constitutional Arrest

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Incident to a constitutional arrest (i.e., one based on probable cause to believe a law has been violated and that meets other constitutional requirements), the police may search the person and areas into which he might reach to obtain weapons or destroy evidence.The police may also make a protecti ve sweep of the area if they believe accomplices may be present. The search must be contemporaneous in tjme and place with the arrest, but , at least with respect to searches of automobiles, the term "contemporaneous" does not necessarily mean ''simultaneous." Thus, e.g., the police may search the interior of an automobile ajler securing a recen t occupan t of the automobile in a squad car i rthey have reason to believe thal the vehicle contains evidence of the crime for which therecent occupant was arrested. (See below.)

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FOURTH AMENDMENT - Exceptions to Warrant Requirement - Search Incident to Constitutional Arrest - Constitutional Arrest Requirement

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If an arrest is unconstitutional, any search incident to that arrest is also unconstitutional.

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FOURTH AMENDMENT - Exceptions to Warrant Requirement - Search Incident to Constitutional Arrest - Constitutional Arrest Requirement - Automobiles

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The police may conduct a search of the passenger compartment of an automobile incident to arrest only if at the time of the search:

The arrestee is unsecured and still may gain access to the interior of the vehicle; or

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

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FOURTH AMENDMENT - Exceptions to Warrant Requirement - Search Incident to Constitutional Arrest - Constitutional Arrest Requirement - Search Incident to Incarceration or lmpoundment

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At the police station, the police may make an inventory search of the arrestee's belongings pursuant to established department procedure. Similarly, the police may make an inventory search of an impounded vehicle.

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FOURTH AMENDMENT - Exceptions to Warrant Requirement - "Automobile" Exception

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If the police have probable cause to believe that a vehicle contains fruits, instrumentalities, or evidence of a crime, they may search the whole vehicle and any container that might reasonably contain the item for which they had probable cause to search. If a warrantless search of a vehicle is valid, the police may tow the vehicle to the station and search it later.

Note: If the police have probable cause to believe that an automobile itself is contraband, they may seize it from a public place without a warrant.

Exam Tip Note that the police have fairly broad authority to search a vehicle depending on what they are looking for. If there is probable cause to search the vehicle, the police can search the entire car and anything in it that might contain the evidence. Thus, if they are looking for evidence of illegal drugs, they can look in almost anything in the car, but if they are looking for undocumented aliens, they cannot look inside a small suitcase.

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FOURTH AMENDMENT - Exceptions to Warrant Requirement - "Automobile" Exception - Passenger's Belongings

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The search may extend to packages belonging to a passenger; it is not limited to the driver's belongings.

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FOURTH AMENDMENT - Exceptions to Warrant Requirement - "Automobile" Exception - Containers Placed in Vehicle

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If the police have probable cause only to search a container in a vehicle (e.g., luggage recently placed in the trunk), they may search only the container, not other parts of the vehicle

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FOURTH AMENDMENT - Exceptions to Warrant Requirement - Plain View

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The police may make a warrantless seizure when they:

Are legitimately on the premises;

Discover evidence, fruits or instrumentalities of crime, or contraband ;

See such evidence i n plain view; and

Have probable cause to believe (i.e., it must be immediately apparent) that the item is evidence, contraband , or a fruit or instrumentality of crime.

Exam Tip: For this exception, be sure the police officer is legitimately on the premises (i.e., where she has a lawful right to he), such as on a public sidewalk or i n a home executing a warrant. If she is, anything the officer sees (or smells, hears, etc.) in plain view is admissible. Thus, if while executing a search warrant for a handgun, the officer opens a small drawer where the gun could be and sees heroin, the heroin is admissible since it was in plain view of an officer who had a right to look there.

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FOURTH AMENDMENT - Exceptions to Warrant Requirement - Consent

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A warrantless search is valid if the police have a voluntary and intelligent consent. Knowledge of the right to withhold consent is not a prerequisite to establishing a voluntary and intelligent consent. The scope of the search may be limited by the scope of the consent, but generally extends to all areas to which a reasonable person under the circumstances would believe it extends.

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FOURTH AMENDMENT - Exceptions to Warrant Requirement - Consent - Authority to Consent

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Any person with an apparent equal right to use or occupy the property may consent to a search, and any evidence found may be used against the other owners or occupants. However, an occupant cannot give valid consent to a search when a co-occupant is present and objects to the search and the search is directed against the co-occupant.

Exam Tip: Exam questions on the validity of warrantless searches often suggest consent as a choice, especially the consent of someone other than the defendant. Be careful to check whether the person has reasonably apparent authority to consent. For example, a homeowner parent can certainly consent to a search of the home's kitchen, and probably to a search of her son's room unless the facts strongly indicate that the parent does not have a right to go in the room (e.i., always locked, only defendant has key, etc.). Note : The Supreme Court has not yet decided whether a parent may consent over the objection of his child

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FOURTH AMENDMENT - Exceptions to Warrant Requirement - Stop and Frisk - Standards

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As noted above, a police officer may stop a person without probable cause for arrest if she has an articulable tmd reasonable suspicion of criminal activity. The officer may require the detainee to state his name, and if the officer also reasonably believes that the person may be armed and presently dangerous, she may conduct a protective frisk.

Exam Tip: Remember that a stop is not an arrest, and thus an officer need not have probable cause. However, he must have a reason to believe that criminal activity i s afoot. Thus, seeing a person pace i n front of a jewelry store might justify a stop. A frisk will be justified only if the officer reasonably thinks that the suspect has a weapon.

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FOURTH AMENDMENT - Exceptions to Warrant Requirement - Stop and Frisk - Scope of Intrusion

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The scope of the frisk is generally limited to a pat down of outer clothing, unless the officer has specific information that a weapon is hidden in a particular area of the suspect's clothing. An officer may also order occupants out of a stopped vehicle and frisk them and search the passenger compartment of the vehicle if the officer has a reasonable belief that an occupant is dangerous.

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FOURTH AMENDMENT - Exceptions to Warrant Requirement - Stop and Frisk - Admissibility of Evidence

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During a pat down, an officer may reach into the suspect's clothing and seize any item that the officer reasonably believes, based on its "plain feel is a weapon or contraband, and such items are admissible as evidence.

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FOURTH AMENDMENT - Exceptions to Warrant Requirement - Hot Pursuit, Evanescent Evidence, and Other Emergencies

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Police in hot pursuit of a fleeing felon may make a warrantless search and seizure and may even pursue the suspect into a private dwelling. Police may also seize without a warrant evidence likely to disappear before a warrant can be obtained. Police may also . enter premises without a warrant to address emergencies that could affect health or safety.

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FOURTH AMENDMENT - Administrative Inspections and Searches

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Inspectors must have a warrant for searches of private residences and commercial buildings, but the probable cause required to obtain a warrant is more lenient than for other searches: A showing of a general and neutral enforcement plan will justify issuance of a warrant.

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FOURTH AMENDMENT - Administrative Inspections and Searches - Exceptions Permitting Warrantless Searches

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The following warrantless searches have been upheld:

Administrative searches to seize spoiled or contaminated

food;

Administrative searches of a business within a highly regulated industry;

Inventory searches of arrestees or their vehicles pursuant to established department procedre;

Searches of airline passengers prior to boarding;

Searches of parolees and their homes-even without reasonable grounds for the

search, at least as long as there is a statute authorizing such searches;

Searches of government employees' desks and file cabinets where the scope is reasonable and there i s a work-related need or reasonable suspicion of work-related misconduct;

Drug tests of railroad employees involved in an accident ;

Drug tests of persons seeking customs employment in positions connected to drug interdiction; and

Drug tests of public school students who participate in extracurricular activities.

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FOURTH AMENDMENT - Administrative Inspections and Searches - Exceptions Permitting Warrantless Searches - Public School Searches

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A warrant or probable cause is not required for public school officials to search public school students or their possessions; only reasonable grounds for the search are necessary. A school search will be held to be reasonable only i f:

(i) it offers a moderate chance of .finding evidence of wrongdoing;

(ii) the measures adopted to carry out the search are reasonably related to the objectives of the search; and

(iii) the search is not excessively intrusive in light of the age and sex of the student and nature of the i n fraction.

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FOURTH AMENDMENT - Searches in Foreign Countries and at the Border - Searches in Foreign Countries

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The Fourth Amendment does not supply lo searches and seizures by United States officials in foreign countries and involving a n alien, at least where the alien docs not have a substantial connection to the United States.

Thus, for example, the Fourth

Amendment was held not to bar the use of evidence obtained in a warrantless search of an alien's home in Mexico.

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FOURTH AMENDMENT - Searches in Foreign Countries and at the Border - Searches at the Border or Its Equivalent

Back 61

No warrant is necessary for border searches. Neither citizens nor noncitizens have any Fourth Amendment rights at the border. Roving patrols inside the U.S. border may stop a vehicle for questioning of occupants if an officer reasonably suspects that the vehicle contains illegal aliens. Border officials may stop a vehicle at a fixed checkpoint i n side the border for questioning of occupants and may disassemble t he vehicle, even without reasonable suspicion.

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FOURTH AMENDMENT - Searches in Foreign Countries and at the Border - Opening International Mail

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Permissible border searches include opening of international mail when postal authorities have reasonable cause to suspect that the mail contains contraband.

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FOURTH AMENDMENT - Searches in Foreign Countries and at the Border - Immigration Enforcement Actions

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The Immigration Services Division may do a "factory survey" of the work force in a factory to determine citizenship or each employee. Moreover.even illegally obtained evidence (i.e., evidence obtained in violation of the Fourth Amendment) may be used in a civil deportation hearing.

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FOURTH AMENDMENT - Searches in Foreign Countries and at the Border -

Back 64

Officials with "reasonable suspicion" that a traveler is smuggling contraband in her stomach may detain the traveler.

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FOURTH AMENDMENT - Wiretapping and Eavesdropping

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Wiretapping (and other forms of electronic surveillance violating a reasonable expectation of privacy) constitutes a search under the Fourth Amendment. A valid warrant authorizing a wiretap may be issued if:

(i) there is showing of probable cause,

(i i) the suspected persons involved in the conversations to be overheard are named,

(iii) t he warrant describes with particularity the conversations that can he overheard,

(iv) t he wiretap is limited to a short period of time,

(v) the wiretap is terminated when the desired information has been obtained, and

(vi) return is made to the court, showing what conversations have been intercepted.

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FOURTH AMENDMENT - Wiretapping and Eavesdropping - Exceptions

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A speaker assumes the risk that the person to whom he is talking is an informer wired for sound or taping the conversation. A speaker has no Fourth Amendment claim if he makes no attempt to keep a conversation private.

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FOURTH AMENDMENT - Wiretapping and Eavesdropping - Pen Registers

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Although pen registers (devices that record only phone numbers that are dialed from a phone) are not controlled by the Fourth Amendment, by statute judicial approval is required before a pen register may he used.

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FOURTH AMENDMENT - METHOD OF OBTAINING EVIDENCE THAT SHOCKS THE CONSCIENCE

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Evidence obtained in a manner offending a "sense of justice" is inadmissible under the Due Process Clause. The reasonableness of searches within a person's body is determined by balancing society's need against the magnitude of the intrusion. Taking of a blood sample is usually upheld, but surgery (e.g., to remove a bullet) requires great need.

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CONFESSIONS - INTRODUCTION

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The admissibility of a defendant's confession (or other incriminating admission) involves analysis under the Fourth, Fifth, Sixth, and Fourteenth Amendments.

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CONFESSIONS - FOURTEENTH AMENDMENT-VOLUNTARINESS

Back 70

For a self-incriminating statement to be admissible under the Due Process Clause, it must be voluntary, as determined by the totality of the circumstances. A statement will be involuntary only if there is some official compulsion (e.,:., a confession is not involuntary merely because it is a product of mental illness.

Harmless Error Test Applies: If an involuntary confession is admitted into evidence, the harmless error test applies; i.e.,the conviction need not be overturned if there is other overwhelming evidence of guilt.

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CONFESSIONS - SIXTH AMENDMENT RIGHT TO COUNSEL

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Th Sixth Amendment guarantees the right to the assistance of counsel in all criminal proceedings, which include all critical stages of a prosecution after judicial proceedings have begun (e.g.. formal charges have been filed). It prohibits the police from deliberately eliciting an incriminating statement from a defendant outside the presence of counsel after the defendant has been charged unless he has waived his right to counsel.

Exam Tip: Note that there can be no violation of the Sixth Amendment right to counsel before formal proceedings have begun . Thus, a defendant who is arrested but not yet charged does not have a Sixth Amendment right to counsel but does have a Fifth Amendment right to counsel (see below) under Miranda.

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CONFESSIONS - SIXTH AMENDMENT RIGHT TO COUNSEL - Stages at Which Applicable

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A defendant has a right to be represented by privately retained counsel, or to have counsel appointed for him by the state i f he is indigent, at the following stages:

(i) custodial police interrogation;

(ii) post-indictment interrogation, whether or not custodial;

(iii) preliminary hearings to determine probable cause to prosecute;

(iv) arraignment;

(v) post-charge lineups;

(vi) guilty plea and sentencing;

(vii) felony trials;

(viii) misdemeanor trials when imprisonment is actually imposed or when a suspended jail sentence is imposed;

(ix) overnight recesses during trial;

(x) appeals as a matter of right; and

(xi) appeals of guilty pleas.

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CONFESSIONS - SIXTH AMENDMENT RIGHT TO COUNSEL - Stages at Which Not Applicable

Back 73

Blood sampling;

(ii) taking of handwriting or voice exemplars;

(iii) precharge or investigative lineups;

(iv) photo identifications;

(v) preliminary hearings to determine probable cause to detain;

(vi) brief recesses during the defendant's testimony at trial;

(vii) discretionary appeals;

(viii) parole and probation revocation proceedings; and

(ix) post-conviction proceedings.

Front 74

CONFESSIONS - SIXTH AMENDMENT RIGHT TO COUNSEL - Offense Specific

Back 74

The Sixth Amendment is offense specific. Thus, even though a defendant's Sixth Amendment rights have attached regarding the charge for which he is being held, he may be questioned regarding unrelated, uncharged offenses without violating the Sixth Amendment right to counsel (although the interrogation might violate the defendant's Fifth Amendment right to counsel under Miranda; see below). Two offenses will be considered different if each requires proof of an additional element that the other crime does not require.

Front 75

CONFESSIONS - SIXTH AMENDMENT RIGHT TO COUNSEL - Waiver

Back 75

The Sixth Amendment right to counsel may be waived. The waiver must he knowing, voluntary, and intelligent. However, the waiver does not necessarily require the presence of counsel, at least if counsel has not actually been requested by the defendant but rather was appointed by the court.

Front 76

CONFESSIONS - SIXTH AMENDMENT RIGHT TO COUNSEL - Remedy

Back 76

At nontrial proceedings (such as post-indictment interrogations), the harmless error rule applies to deprivations of counsel. But if the defendant was entitled to a lawyer at trial, the failure to provide counsel results in automatic reversal of the conviction, even without a showing of specific unfairness in the proceedings. Similarly, erroneous disqualification of privately retained counsel at trial results in automatic reversal.

Front 77

CONFESSIONS - SIXTH AMENDMENT RIGHT TO COUNSEL - Impeachment

Back 77

A statement obtained in violation of a defendant's Sixth Amendment right to counsel, while not admissible in the prosecution's case-in-chief, may be used to impeach the defendant's contrary trial testimony. This rule is similar to the rule that applies to Miranda violations.

Front 78

CONFESSIONS - FIFTH AMENDMENT PRIVILEGE AGAINST COMPELLED SELF INCRIMINATION - Miranda Warnings

Back 78

For an admission or confession to he admissible under the Fifth Amendment privilege against self incrimination , a person i n custody must, prior to interrogation, be informed, in substance, that:

He has the right to remain silent;

Anything he says can be used against him in court;

He has the right to presence of an attorney;

and If he cannot afford an attorney, one will be appointed for him if he so desires.

Exam Tip: Despite the fact that the Miranda warnings mention a right to counsel, the failure to give the warnings violates a defendant's Fifth Amendment right to be free from compelled self-incrimination, not his Sixth Amendment right to counsel. Thus, do not be fooled by an answer choice that states such failure is a violation or defendant's Sixth Amendment rights.

Front 79

CONFESSIONS - FIFTH AMENDMENT PRIVILEGE AGAINST COMPELLED SELF INCRIMINATION - Miranda Warnings - When Required - Government Conduct

Back 79

Anyone in the custody of the government and accused of a crime must be given Miranda warnings prior to interrogation by the police.

Governmental Conduct: Generally, Miranda warnings are necessary only if the detainee knows that he is being interrogated by a government agent.

Inapplicable at Grand Jury Hearing: The Miranda requirements do not apply to an uncharged witness testifying before a grand jury. even if r he witness was compelled by subpoena to be there.

Front 80

CONFESSIONS - FIFTH AMENDMENT PRIVILEGE AGAINST COMPELLED SELF INCRIMINATION - Miranda Warnings - When Required - Custody Requirement

Back 80

Whether a person is i n custody depends on whether the person's freedom of action is denied i n a significant way based on the objective circumstances (e.i,, an arrest constitutes custody; a routine traffic stop does not constitute custody).

Front 81

CONFESSIONS - FIFTH AMENDMENT PRIVILEGE AGAINST COMPELLED SELF INCRIMINATION - Miranda Warnings - When Required - Interrogation Requirement

Back 81

"Interrogation" includes any words or conduct by the police that they should know would likely elicit a response from the detainee. Thus, Miranda warnings arc not required before spontaneous statements are made by a detainee. Note that routine hooking questions do not constitute interrogation.

Front 82

CONFESSIONS - FIFTH AMENDMENT PRIVILEGE AGAINST COMPELLED SELF INCRIMINATION - Miranda Warnings - When Required - Right to Waive Rights or Terminate Interrogation - Do Nothing

Back 82

After receiving Miranda warnings, a detainee has several options: do nothing, waive bis Miranda rights, assert the right to remain silent, or assert the right to consult with an attorney.

l) Do Nothing: If the detainee does not respond at all to Miranda warnings, the Court will not presume a waiver, but neither will the Court presume that the detainee has asserted a right to remain silent or to consult with an attorney. Therefore, the police may continue to question the detainee.

Front 83

CONFESSIONS - FIFTH AMENDMENT PRIVILEGE AGAINST COMPELLED SELF INCRIMINATION - Miranda Warnings - When Required - Right to Waive Rights or Terminate Interrogation - Waive Rights

Back 83

The detainee may waive his rights under Miranda. To be valid, the government must show by a preponderance of the evidence that the waiver was knowing,voluntary, and intelligent. The Court will look to the totality of the circumstances in determining whether this standard was met. But it appears that if the government can show that the detainee received Miranda warnings and then chose to answer questions, that is probably sufficient.

Front 84

CONFESSIONS - FIFTH AMENDMENT PRIVILEGE AGAINST COMPELLED SELF INCRIMINATION - Miranda Warnings - When Required - Right to Waive Rights or Terminate Interrogation - Invocation of Right to Remain Silent

Back 84

lf the detainee indicates that he wishes to remain silent, the police must scrupulously honor this request by not badgering the detainee. To he effective, thedeta inee's ind ication must be explicit, u nambiguous , and unequ ivocal (e.g., the accused's failure to answer does not constitute an invocation of the right to remai n silent). In any case. the Supreme Court has allowed later questioning to occur on an unrelated crime.

Front 85

CONFESSIONS - FIFTH AMENDMENT PRIVILEGE AGAINST COMPELLED SELF INCRIMINATION - Miranda Warnings - When Required - Right to Waive Rights or Terminate Interrogation - Invocation of Right to Counsel

Back 85

If the detainee unambiguously indicates that he wishes to speak to counsel, all questioning must cease until counsel has been provided unless the detainee: (i) then waives his right to counsel (e.g., by re-initiating questioning) or (i i) is released from the custodial interrogation and 14 days have passed since release. A request for counsel must be specific (i.e., indicate that the detainee desires assistance i n dealing with interrogation). Allowing the detainee to consult with counsel and then resuming interrogation after counsel has left generally does not satisfy the right to counsel -counsel must be present during the interrogation unless the detainee has waived the right.

Exam Tip: Note the difference here depending on what the detainee asks: If the detainee indicates that he wishes to remain silent, the pol ice probably may re-question him about a different crime after a break if fresh warnings arc administered . If the detainee requests counsel, the pol ice may not resume interrogating detainee until counsel is provided or the detainee initiates the questioning.

Front 86

CONFESSIONS - FIFTH AMENDMENT PRIVILEGE AGAINST COMPELLED SELF INCRIMINATION - Miranda Warnings - Effect of Violation

Back 86

Generally, evidence obtained in violation of the Miranda rules is inadmissible at trial under the exclusionary rule.

Front 87

CONFESSIONS - FIFTH AMENDMENT PRIVILEGE AGAINST COMPELLED SELF INCRIMINATION - Miranda Warnings - Effect of Violation - Use of Confession for Impeachment

Back 87

Statements obtained in violation or the Miranda rules may be used Lo impeach the defendant's trial testimony, but may not be used as evidence of guilt.

Front 88

CONFESSIONS - FIFTH AMENDMENT PRIVILEGE AGAINST COMPELLED SELF INCRIMINATION - Miranda Warnings - Effect of Violation - Warnings After Questioning and Confession

Back 88

If the police obtain a confession from a detainee without giving him Miranda warnings and then give the detainee Miranda warnings and obtain a subsequent confession, the subsequent confession will be inadmissible if the "question first, warn later" nature of the questioning was intentional (i.e., the facts make it seem like the police used this as a scheme to get around the Miranda requirements). However, a subsequent valid confession may be admissible if the original unwarned questioning seemed unplanned and the failure to give Miranda warnings seemed inadvertent.

Front 89

CONFESSIONS - FIFTH AMENDMENT PRIVILEGE AGAINST COMPELLED SELF INCRIMINATION - Miranda Warnings - Effect of Violation - Nontestimonial Fruits of an Unwarned Confession

Back 89

If t he police fail to give Miranda warnings and during interrogation a detainee gives the police information that leads to nontestimonial evidence, the evidence will be suppressed if the failure was purposeful, but if the failure was not purposeful, the evidence probably will not be suppressed.

Front 90

CONFESSIONS - FIFTH AMENDMENT PRIVILEGE AGAINST COMPELLED SELF INCRIMINATION - Miranda Warnings - Public Safety Exception

Back 90

The Supreme Court has allowed interrogation without Miranda warnings where it was reasonably prompted by a concern for public safety (e.g., to locate a hidden gun that could have caused injury to innocent persons).

Front 91

PRETRIAL IDENTIFICATION - SUBSTANTIVE BASES FOR ATTACK - Sixth Amendment Right to Counsel

Back 91

A suspect has a right to the presence of an attorney at any post charge lineup or show up. An accused does not have a right to counsel at photo identifications or when police take physical evidence, such as handwriting exemplars or fingerprints, from him.

Exam Tip: Recall that the right to counsel before trial is very limited and does not cover procedures where defendant is not personally confronted by the witness against him (as i n photo identification).

Front 92

PRETRIAL IDENTIFICATION - SUBSTANTIVE BASES FOR ATTACK - Due Process Standard

Back 92

A defendant can attack an identification as denying due process if the identification is unnecessarily suggestive and there is a substantial likelihood of misidentification

Exam Tip: Because a lineup does not involve compulsion to give "testimonial" evidence, a suspect's Fifth Amendment right against compelled self-incrimination does not apply. Thus, the defendant may not refuse to participate i n a lineup on this basis.

Front 93

PRETRIAL IDENTIFICATION - THE REMEDY

Back 93

The remedy for unconstitutional identifications is exclusion of the in-court identification.

Front 94

PRETRIAL IDENTIFICATION - THE REMEDY - independent Source

Back 94

A witness may make an in-court identification despite the existence of an unconstitutional pretrial identification if the in-court identification has an independent source. The most common independent source is opportunity to observe at the time of the crime (e.g., the witness viewed the defendant close up for 40 minutes during commission of the crime).

Front 95

PRETRIAL IDENTIFICATION - THE REMEDY - Hearing

Back 95

Admissibility of identification evidence should be determined at a suppression hearing in the absence of the jury, but exclusion of the jury is not constitutionally required. The government bears the burden of proving that:

(i) counsel was present;

(ii) the accused waived counsel; or

(iii) there is an independent source for the in-court identification. The defendant must prove an alleged due process violation.

Front 96

PRETRIAL PROCEDURES - PRELIMINARY HEARING TO DETERMINE PROBABLE CAUSE TO DETAIN

Back 96

A defendant's liberty can be restricted only on a finding of probable cause. If probable cause has already been determined (e.g., the arrest was pursuant to a warrant or a grand jury indictment), no preliminary hearing to determine probable cause need be held. If probable cause has not already been determined and there are significant constraints on an arrestee's liberty (e.g., jail or bail, but not release on recognizance), a preliminary hearing to determine probable cause must be held within a reasonable time (e.g., 48 hours) . The hearing is an informal , non adversarial proceeding. There is no real remedy for a denial of the hearing, but evidence discovered as a result of the unlawful detention can be excluded under the exclusionary rule.

Front 97

PRETRIAL PROCEDURES - PRETRIAL DETENTION -BAIL

Back 97

Most state constitutions create a right to be released on bail unless the charge is a capital one. Generally, bail can be set no higher than is necessary to assure the defendant's appearance at trial Refusal to grant bail or the setting of excessive bail may be appealed immediately; however, the Supreme Court has upheld portions of the federal Bail Reform Act that allow arrestees to be held without bail if they pose a danger or would fail to appear at trial.

Exam Tip: Since the Supreme Court has never held that the Eighth Amendment provision for to the states, the Eighth Amendment is not a very strong argument against a state's denial of bail. If, however, a stale provides for bail (and most states do), arbitrary denials of bail will violate due process-detainees must he given the opportunity to prove eligibility.

Front 98

PRETRIAL PROCEDURES - PRETRIAL DETENTION -BAIL - Defendant Incompetent to Stand Trial

Back 98

Standards for commitment and subsequent release of defendants incompetent to stand trial must be essentially identical with those for commitment of persons not charged with a crime; otherwise there is a denial of equal protection.

Front 99

PRETRIAL PROCEDURES - GRAND JURIES - Use of Grand Jury

Back 99

The Fifth Amendment right to indictment by grand jury has not been incorporated into the Fourteenth Amendment, but some state constitutions require grand jury indictment. Most states east of the Mississippi and the federal system use the grand jury as a regular part of the charging process. Western states generally charge by filing an information -a written accusation of the crime prepared and presented by the prosecutor.

Front 100

PRETRIAL PROCEDURES - GRAND JURIES - Grand Jury Proceedings - Secrecy and Detendant's Lack of Access

Back 100

Grand jury proceedings are conducted in secret. The defendant has no right to notice that the grand jury is considering an indictment against him , to he present and confront witnesses at the proceeding, or to introduce evidence before the grand jury

Front 101

PRETRIAL PROCEDURES - GRAND JURIES - Grand Jury Proceedings - No Right to Counsel or to Miranda Warnings

Back 101

A witness subpoenaed to testify before the grand jury does not have the right to receive Miranda warnings, nor is he entitled to a warning that he is a "potential defendant" when called to testify before the grand jury. Witnesses have no right to have an attorney present.

Front 102

PRETRIAL PROCEDURES - GRAND JURIES - Grand Jury Proceedings - No Right to Have Evudence Excluded

Back 102

A grand jury may base its indictment on evidence that would be inadmissible at trial, and an indicted defendant may not have the indictment quashed on the ground that it is based on illegally obtained evidence.

Exam Tip: For purposes of the Multistate Bar Exam, keep in mind these major differences between grand jury proceedings and criminal trials:

The "defendant" (grand jury witness) has no right to have counsel present during his grand jury testimony;

The grand jury may consider evidence that wouldbe excluded at the criminal trial (e.g., illegally obtained evidence or hearsay); andT

he "defendant" (grand jury witness) must appear if called, although he can refuse to answer specific questions on the grounds that they may incriminate him.

Front 103

PRETRIAL PROCEDURES - GRAND JURIES - Grand Jury Proceedings - No Right to Challenge Subpoena

Back 103

There is no right to challenge a subpoena on the Fourth Amendment grounds that the grand jury Jacked "probable cause"-or any reason at all-to call a witness for questioning.

Front 104

PRETRIAL PROCEDURES - GRAND JURIES - Grand Jury Proceedings - Exclusion of Minorities

Back 104

A conviction resulting from an indictment issued by a grand jury from which members of a minority group have been excluded will he reversed without regard to harmlessness of error.

Exam Tip: For purposes of the Multistate Bar Exam, exclusion of minorities is about the only defect sufficient to quash a grand jury indictment.

Front 105

PRETRIAL PROCEDURES - SPEEDY TRIAL - Standards

Back 105

A determination of whether a defendant's Sixth Amendment right to a speedy trial has been violated is made by an evaluation of the totality of the circumstances. Factors considered are the length of delay, reason for delay, whether defendant asserted his right, and prejudice to defendant. The remedy for a violation of the right to speedy trial is dismissal with prejudice.

Front 106

PRETRIAL PROCEDURES - SPEEDY TRIAL - When Right Attaches

Back 106

The right to speedy trial does not attach until the defendant has been arrested or charged. If the defendant is charged and is incarcerated in another jurisdiction, reasonable efforts must be used to obtain in the presence of the defendant. Also, it is a violation of the right to speedy trial to permit the prosecution to indefinitely suspend charges.Note: The defendant does not need to know of the charges for the speedy trial rights to attach.

Exam Tip: When a speedy trial issue is raised in a question, first check the timing-has the defendant been arrested or charged? If not, there is no right to a speedy trial.

Front 107

PRETRIAL PROCEDURES - PROSECUTORIAL DUTY TO DISCLOSE EXCULPATORY INFORMATION AND NOTICE OF DEFENSES - Prosecutor's Duty to Disclose Exculpatory Evidence

Back 107

The government has a duty to disclose material, exculpatory evidence to the defendant. Failure to disclose such evidence-whether willful or inadvertent-violates the Due Process Clause and is grounds for reversing a conviction if the defendant can prove that: (i) the evidence is favorable to him because it either impeaches or is exculpatory; and (ii) prejudice has resulted (i.e., there is a reasonable probability that the result of the case would have been different if the undisclosed evidence had been presented at trial).

Front 108

PRETRIAL PROCEDURES - PROSECUTORIAL DUTY TO DISCLOSE EXCULPATORY INFORMATION AND NOTICE OF DEFENSES - Notice of Alibi and Intent to Present Insanity Defense

Back 108

If the defendant is going to use an alibi or insanity defense, he must notify the prosecution. If an alibi is to be used, the defend ant must give the prosecution a list of his witnesses. The prosecution must give the defend ant a list of the witnesses it will use to rebut the defense.The prosecutor may not comment at trial on defend ant's failure Lo produce a witness named as supporting the alibi or on failure to present the alibi itself.

Front 109

PRETRIAL PROCEDURES - COMPETENCY TO STAND TRIAL - Competency and Insanity Distinguished

Back 109

Insanity is a defense to a criminal charge based on the defendant's mental condition at the time he committed the charged crime. A defendant acquitted by reason of insanity may not be retried and convicted, although he may be hospitalized under some circumstances. Incompetency to stand trial, on the other hand, is not a defense to the charge, but rather is a bar to trial. It is based on the defendant's mental condition at the time of trial. lf defendant later regains his competency, he can then be tried and convicted.

Front 110

PRETRIAL PROCEDURES - COMPETENCY TO STAND TRIAL - Due Process Standard

Back 110

A defendant is incompetent to stand trial if he either (i) lacks a rational as well as factual understanding of the charges and proceedings, or (ii ) lacks sufficient present ability to consult with his lawyer with a reasonable degree of understanding. The state may place on the defendant the burden of proving incompetency by a preponderance of the evidence, but requiring the defendant to show incompetency by "clear and convincing" evidence is unconstitutional.

Front 111

PRETRIAL PROCEDURES - COMPETENCY TO STAND TRIAL - Detention of Defendant

Back 111

A defendant who has successfully asserted the insanity defense may be confined to a mental hospital for a term longer than the maximum period of incarceration for the offense. However, the defendant cannot be indefinitely committed after regaining sanity merely because he is unable to prove himself not dangerous to others.

Front 112

PRETRIAL PROCEDURES - PRETRIAL PUBLICITY

Back 112

Excessive pretrial pu blicity prejudicial to the defenda nt may requ i re change of venue or retrial.

Front 113

TRIAL - BASIC RIGHT TO A FAIR TRIAL - Right to Public Trial

Back 113

The Sixth and Fourteenth Amendments guarantee the right to a public trial, but the right varies with the stage of the proceeding involved.

Front 114

TRIAL - BASIC RIGHT TO A FAIR TRIAL - Right to Public Trial - Pretrial Proceedings

Back 114

Preliminary probable cause hearings are presumptively open to the public and press, as are pretrial suppression hearings, although the latter may be closed to the public under limited circumstances (e.g., the party seeking closure has an overriding interest likely to be prejudiced by disclosure and there is no reasonable alternative besides closure). Similarly, a court must make "every reasonable effort" to accommodate public attendance at jury voir dire proceedings.

Front 115

TRIAL - BASIC RIGHT TO A FAIR TRIAL - Right to Public Trial - Trial

Back 115

The press and public have a First Amendment right to attend the trial itself, even when the defense and prosecution agree to close it. The state may constitutionally permit televising criminal proceedings over the defendant 's objection.

Front 116

TRIAL - BASIC RIGHT TO A FAIR TRIAL - Right to Unbiased Judge

Back 116

Due process is violated if the judge is shown to have actual malice against the defendant or to have had a financial interest in having the trial result in a guilty verdict.

Front 117

TRIAL - BASIC RIGHT TO A FAIR TRIAL - Must Judge Be Lawyer?

Back 117

A defendant in a minor misdemeanor prosecution has no right to have the trial judge he a lawyer if upon conviction the defendant has a right to trial de novo in a court with a lawyer judge, but for serious crimes, the judge probably must be law-trained.

Front 118

TRIAL - BASIC RIGHT TO A FAIR TRIAL - Other Due Process Rights - Due process is violated if:

Back 118

The trial is conducted in a manner making it unlikely that the jury gave the evidence reasonable consideration;

The state compels the defendant to stand trial in prison clothing;

The state compels the defendant to stand trial or appear at penalty phase proceedings visibly shackled, unless the court finds the shackling justified by concerns about court room security or escape; or

The jury is exposed to influence favorable to the prosecution.

Due process does not require the police to preserve all items that might be used as exculpatory evidence at trial, but does prohibit bad faith destruction.

Front 119

TRIAL - RIGHT TO TRIAL BY JURY - Right to Jury Trial Only for "Serious" Offenses

Back 119

There is no constitutional right lo jury trial for petty offenses but only for serious offenses. An offense is serious if imprisonment for more than six months is authorized. Also, there is no right to jury trial in juvenile delinquency proceedings.

Front 120

TRIAL - RIGHT TO TRIAL BY JURY - Right to Jury Trial Only for "Serious" Offenses - Contempt

Back 120

For civil contempt proceedings, there is no jury trial right. For criminal contempt proceedings , cumulative penalties totaling more than six months cannot be imposed without affording the defendant the right to a jury trial. lf a judge summarily imposes punishment for contempt during trial, penalties may aggregate more than six months without a jury trial .

Front 121

TRIAL - RIGHT TO TRIAL BY JURY - Right to Jury Trial Only for "Serious" Offenses - Contempt - Probation

Back 121

A judge may place a contemnor on probation for up lo five years without affording him the right to a jury trial, as long as revocation of probation would not result in imprisonment for more than six months.

Front 122

TRIAL - RIGHT TO TRIAL BY JURY - Number and Unanimity of Jurors

Back 122

There is no constitutional right to a jury of 12, but there must be at least six jurors to satisfy the right to a jury trial. The Supreme Court has upheld convictions that were less than unanimous, but probably would not approve an 8-4 vote for conviction. Six-person juries must be unanimous .

Front 123

TRIAL - RIGHT TO TRIAL BY JURY - Right to Venire Selected from Representative Cross-Section of Community

Back 123

A defendant has a right to have the jury selected from a representative cross-section of the community. He need only show the under-representation of a distinct and numerically significant group in the venire to show his jury trial right was violated. Note that a defendant does not have the right to proportional representation of all groups on his particular jury.

Front 124

TRIAL - RIGHT TO TRIAL BY JURY - Right to Venire Selected from Representative Cross-Section of Community - Use of Peremptory Challenges for Racial and Gender Based Discrimination

Back 124

Although generally a prosecutor may exercise peremptory challenges for any reason. the Equal Protection Clause forbids the use of peremptory challenges to exclude potential jurors solely on account of their race or gender. An equal protection-based attack on peremptory strikes involves three steps: (i) The defendant must show facts or circumstances that rise an inference that the exclusion was based on race or gender. (ii) Upon such a showing, the prosecutor must come forward with a race-neutral explanation for the strike (even an unreasonable explanation is sufficient, as long as it is race neutral). (ii i) The judge then determines whether the prosecutor's explanation was the genuine reason for striking the juror, or merely a pretext for purposeful discrimination. If the judge believes that the prosecutor was sincere, the strike may be upheld.

Front 125

TRIAL - RIGHT TO TRIAL BY JURY - Right to Impartial Jury - Right to Questioning on Racial Bias

Back 125

A defendant is entitled to questioning on voir dire specifically directed to racial prejudice whenever race is bound up in the case or he is accused of an interracial capital crimc.

Front 126

TRIAL - RIGHT TO TRIAL BY JURY - Right to Impartial Jury - Juror Opposition to Death Penalty

Back 126

In capital punishment cases, a state may not automatically exclude for cause all those who express a doubt or scruple about the death penalty; it must be determined whether the juror 's views would prevent or substantially impair performance of his duties in accordance with his instructions under oath. A death sentence imposed by a jury from which a juror was improperly excluded is subject to automatic reversal.

Front 127

TRIAL - RIGHT TO TRIAL BY JURY - Right to Impartial Jury - Juror Favoring Death Penalty

Back 127

lf a jury is to decide whether a defendant is to he sentenced to death, on voir dire the defendant must be allowed to ask potential jurors if they would automatically give the death penalty upon a guilty verdict A juror who answers affirmatively must be excluded for cause because such a juror cannot perform his duties in accordance with instructions as to mitigating circumstances.

Front 128

TRIAL - RIGHT TO TRIAL BY JURY - Right to Impartial Jury - Use of Peremptory Challenge to Maintain Impartial Jury

Back 128

If a trial court refuses to exclude for cause a juror whom the court should exclude, and the defendant uses a peremptory challenge to exclude the juror, there is no constitutional violation.

Front 129

TRIAL - RIGHT TO TRIAL BY JURY - Inconsistent Verdicts

Back 129

Inconsistent verdicts (e.g., finding defendant guilty and co-defendant not guilty on the same evidence) are not reviewable.

Front 130

TRIAL - RIGHT TO TRIAL BY JURY - Sentence Enhancement

Back 130

If substantive law provides that a sentence may be increased beyond the statutory maximum for a crime if additional facts (other than prior conviction) are proved, proof of the facts must be submitted to the jury and proved beyond reasonable doubt; the defendant's right to jury trial is violated if the judge makes the determination. The same general rule applies to sentencing enhancements after guilty pleas. In deciding whether to overturn a sentence for failure to submit a sentencing factor to the jury, the harmless error test is applied.

Front 131

TRIAL - RIGHT TO TRIAL BY JURY - Sentence Enhancement - Distinguish-Judge May Decide Whether Sentences Run Consecutively

Back 131

A state legislature may give to its judges (rather than the jury) the power to decide whether sentences for multiple crimes are to run consecutively or concurrently, even though the decision is based on the facts of the case.

Front 132

TRIAL - RIGHT TO COUNSEL

Back 132

A defendant has a right to counsel. Violation of this right at trial, including erroneous disqualification of defendant's privately retained counsel, requires reversal. For non trial denials, the harmless error test is applied.Exam Tip Remember that the right to counsel is available i n misdemeanor cases only if imprisonment is actually imposed. Thus, if an exam question involves a non felony and defendant asks for counsel, is denied, and is convicted, whether the right to counsel has been violated depends on defendant's sentence: if he receives no imprisonment, his right has not been violated; if he receives prison time, his right has been violated.

Front 133

TRIAL - RIGHT TO COUNSEL - Waiver of Right to Counsel at Trial and Right to Defend Oneself

Back 133

A defendant has a right to defend himself at trial if, in the judgment of the judge, his waiver is knowing and intelligent and, based on the trial judge' s consideration of the defendant's emotional and psychological state, he is competent to proceed pro se. Note that a defendant docs not have a right to self-representation on appeal.

Front 134

TRIAL - RIGHT TO COUNSEL - Indigence and Recoupment of Cost

Back 134

The state generally provides counsel in close cases of indigence, but may then seek reimbursement from those convicted defendants who later become able to pay.

Front 135

TRIAL - RIGHT TO COUNSEL - Effective Assistance of Counsel

Back 135

The Sixth Amendment right to counsel includes the right to effective counsel. This right extends to the first appeal. Effective assistance of counsel is generally presumed.

Front 136

TRIAL - RIGHT TO COUNSEL - Effective Assistance of Counsel - Circumstances Constituting Ineffective Assistance

Back 136

An ineffective assistance claimant must show:

Deficient performance by counsel; and

But for the deficiency, the result of the proceeding would have been different (e.g., defendant would not have been convicted or his sentence would have been shorter).

The defendant must point out specific deficiencies and cannot base the claim on inexperience, lack of time to prepare, the gravity of the charges, the complexity of defenses, or accessibility of witnesses to counsel.

Front 137

TRIAL - RIGHT TO COUNSEL - Effective Assistance of Counsel - Circumstances Not Constituting Ineffective Assistance

Back 137

Circumstances not constituting ineffective

assistance include trial tactics and the failure to raise a constitutional defense that is later invalidated.

Front 138

TRIAL - RIGHT TO COUNSEL - Conflicts of Interest

Back 138

Joint representation is not per se invalid. However, if an attorney advises the trial court of a resulting conflict of interest at or before trial, and the court refuses to appoint separate counsel, the defendant is entitled to automatic reversal.

Front 139

TRIAL - RIGHT TO COUNSEL - Conflicts of Interest - Conflict with Attorney

Back 139

A defendant's conflict of interest with his attorney is rarely a ground for relief.

Front 140

TRIAL - RIGHT TO COUNSEL - Conflicts of Interest - No Right to Joint Representation

Back 140

A defendant has no right to be jointly represented with his co-defendants if the government can show a potential conflict of interest.

Front 141

TRIAL - RIGHT TO COUNSEL - Right to Support Services or Defense

Back 141

Where a defendant has made a preliminary showing that he is likely to be able to use the insanity defense, the state must provide a psychiatrist for the preparation of the defense.

Front 142

TRIAL - RIGHT TO COUNSEL - Seizure of Funds Constitutional

Back 142

The right to counsel does not forbid the seizure of drug money and property obtained with drug money, even where defendant was going to use such money or property to pay an attorney.

Front 143

TRIAL - RIGHT TO COUNSEL - Right Limited While Testifying

Back 143

A defendant has no right to consult with her attorney while testifying, and may be sequestered from her attorney during short breaks (e.g., 15 minutes as opposed to overnight).

Front 144

TRIAL - RIGHT TO CONFRONT WITNESSES

Back 144

The Sixth Amendment grants to a defendant in a criminal prosecution the right to confront adverse witnesses. The right is not absolute: Face to face confrontation is not required when preventing such confrontation serves an important public purpose (e.g., protecting child witnesses from trauma). Also, a judge may remove a disruptive defendant, and a defendant may voluntarily leave the courtroom during trial.

Front 145

TRIAL - RIGHT TO CONFRONT WITNESSES - Introduction of Co-Defendant's Confession

Back 145

If two persons are tried together and one has given a confession that implicates the other, the right of confrontation prohibits use of that statement, even where the confession interlocks with t he defendant's own confession, which is admitted. However, such a statement may be admitted if:

All portions referring to the other defendant can be eliminated;

The confessing defendant takes the stand and subjects himself to cross-examination with respect to the truth or falsity of what the statement asserts; or

The confession of the non-testifying co-defendant is being used to rebut the defendant's claim that his confession was obtained coercively.

Front 146

TRIAL - RIGHT TO CONFRONT WITNESSES - Prior Testimonial Statement of Unavailable Witness

Back 146

Under the Confrontation Clause, prior testimonial evidence (e.g., statements made at prior judicial proceedings) may not be admitted unless (i) the declarant is unavailable and (ii) the defendant had an opportunity to cross-examine the declarant at the time the statement was made.

Front 147

TRIAL - RIGHT TO CONFRONT WITNESSES - Prior Testimonial Statement of Unavailable Witness - What Is Testimonial?

Back 147

The Court has not provided a comprehensive definition of the term "testimonial," but has held that it includes, at a minimum, statements from a preliminary hearing, a grand jury hearing, a former trial, or police interrogation conducted to establish or prove past acts. However, statements from police interrogations intended to aid the pol ice in responding to an ongoing emergency-such as answering a 911 operator's question while reporting a crime in progress-are not testimonial.

Front 148

TRIAL - RIGHT TO CONFRONT WITNESSES - Prior Testimonial Statement of Unavailable Witness - What Is Testimonial? - Results of Forensic Lab Testing

Back 148

The results of forensic laboratory testing are testimonial in nature. Therefore, a lab report is not admissible into evidence at trial under the Confrontation Clause unless the technician who produced the test report is unavailable and the defendant had an opportunity to cross-examine him.

Front 149

TRIAL - RIGHT TO CONFRONT WITNESSES - Prior Testimonial Statement of Unavailable Witness - Forfeiture by Wrongdoing

Back 149

A defendant can be held to have forfeited a Confrontation Clause claim by wrongdoi ng. However, the Court will not find a forfeiture by wrongdoing unless the wrongdoing was intended to keep the witness from testifying (e.g., a statement made to the police by a victim who was later killed by defendant cannot be admitted in defendant's murder trial absent evidence that defendant murdered the victim to keep her from testifying).

Front 150

TRIAL - BURDEN OF PROOF AND SUFFICIENCY OF EVIDENCE

Back 150

The Due Process Clause requires in all criminal cases that the state prove guilt beyond a reason able doubt. The presumption of innocence is a basic component of a fair trial. However, the state may generally impose the burden of proof upon the defendant in regard to an affirmative defense, such as insanity or self-defense.

Front 151

TRIAL - BURDEN OF PROOF AND SUFFICIENCY OF EVIDENCE - Presumptions

Back 151

A mandatory presumption or a presumption that shifts the burden of proof to the defendant violates the Fourteenth Amendment's requirement that the state prove every element of the crime beyond a reasonable doubt.

Front 152

GUILTY PLEAS AND PLEA BARGAINING - TAKING THE PLEA - Advising Defendant of the Charge, the Potential Penalty, and His Rights

Back 152

The judge must determine that the plea is voluntary and intelligent. This must be done by addressing the defendant personally in open court on the record. Specifically, the judge must be sure that the defendant knows and understands things like:

The nature of the charge to which the plea is offered and the crucial elements of the crime charged;

The maximum possible penalty and any mandatory minimum; and

That he has a right not to plead guilty and that if he does plead guilty, he waives the right to trial.

Front 153

GUILTY PLEAS AND PLEA BARGAINING - TAKING THE PLEA - Advising Defendant of the Charge, the Potential Penalty, and His Rights - Attorney May Inform Defendant

Back 153

The judge need not personally explain the elements of each charge to the defendant on the record; it is sufficient that the record reflects that the nature of the charge and the elements of the crime were explained to the defendant by his own counsel.

Front 154

GUILTY PLEAS AND PLEA BARGAINING - TAKING THE PLEA - Remedy

Back 154

The remedy for a failure to meet the standards for taking a plea is withdrawal of the plea and pleading anew.

Front 155

GUILTY PLEAS AND PLEA BARGAINING - COLLATERAL ATTACKS ON GUILTY PLEAS AFTER SENTENCE

Back 155

Those pleas that are seen as an intelligent choice among a defendant 's alternatives are immune from collateral attack. But a plea can be set aside for (i) involuntariness (failure to meet standards for taking a plea), (ii) lack of jurisdiction, (iii) ineffective assistance of counsel, or (iv) failure to keep the plea bargain.

Front 156

GUILTY PLEAS AND PLEA BARGAINING - PLEA BARGAINING

Back 156

A plea bargain will be enforced against the prosecutor and the defendant, but not against the judge, who docs not have to accept the plea. A guilty plea is not involuntary merely he cause it was entered in response to the prosecution' s threat to charge defendant with a more serious crime if he does not plead guilty. There is no prosecutorial vindictiveness in charging a more serious offense when defendant demands a jury trial.

Front 157

GUILTY PLEAS AND PLEA BARGAINING - COLLATERAL EFFECTS OF GUILTY PLEAS

Back 157

A guilty plea conviction may be used as a conviction in other proceedings when relevant (e.g., as the basis for sentence enhancement). I lowever, a guilty plea neither admits the legality of incrimi nating evidence nor waives Fourth Amend menl claims i n a subsequent civil damages action.

Front 158

CONSTITUTIONAL RIGHTS IN RELATION TO SENTENCING AND PUNISHMENT - PROCEDURAL RIGHTS IN SENTENCING

Back 158

A defendant has a right to counsel during sentencing. The usual sentence may be based on hearsay and uncross-examined reports (i.e., defendant has no right to confrontation or cross examination). However, where a magnified sentence is based on a statute that requires new findings of fact to be made (e.g., defendant is mentally ill), those facts must be found i n a context that grants a right to confrontation and cross-examination.

Front 159

CONSTITUTIONAL RIGHTS IN RELATION TO SENTENCING AND PUNISHMENT - PROCEDURAL RIGHTS IN SENTENCING - Capital Sentencing

Back 159

A defendant in a death penalty case must have more opportunity for confrontation than need be given a defendant in other sentencing proceedings.

Front 160

CONSTITUTIONAL RIGHTS IN RELATION TO SENTENCING AND PUNISHMENT - RESENTENCING AFTER SUCCESSFUL APPEAL AND RECONVlCTION

Back 160

If a greater punishment is imposed on a defendant who has been reconvicted after a successful appeal than was imposed at the first trial, the judge must set forth in the record the reasons for the harsher sentence. This ensures that the defendant is not vindictively penalized for exercising his right to appeal.

Exceptions: A judge need not give reasons i f the greater sentence was imposed upon a de novo trial or in a state that uses jury sentencing, unless the second jury was told of the first jury's sentence.

Front 161

CONSTITUTIONAL RIGHTS IN RELATION TO SENTENCING AND PUNISHMENT - SUBSTANTIVE RIGHTS IN REGARD TO PUNISHMENT

Back 161

The Eighth Amendment prohibits cruel and unusual punishment. A penalty that is grossly disproportionate to the seriousness of the offense- committed is cruel and unusual. State appellate courts do not have to compare the death sentence imposed in a case under appeal with other penalties imposed in similar cases.

Front 162

CONSTITUTIONAL RIGHTS IN RELATION TO SENTENCING AND PUNISHMENT - SUBSTANTIVE RIGHTS IN REGARD TO PUNISHMENT - Death Penalty - For Murder

Back 162

The death penalty can be imposed only under a statutory scheme that gives the judge or jury reasonable discretion, full information concerning defendants, and guidance in making the decision. The statute cannot he vague. Moreover, it must allow the sentencing body to consider all mitigating evidence.

Based on Prior Convictions: If the death sentence is partly based on the aggravating factor of defendant's prior conviction, the sentence must he reversed if the prior conviction is invalidated.

Standard of Review: A death sentence that has been affected by a vague or otherwise unconstitutional factor can still be upheld, but only if all aggravating and mitigating factors involved are reweighed and death is still found to be appropriate.

Front 163

CONSTITUTIONAL RIGHTS IN RELATION TO SENTENCING AND PUNISHMENT - SUBSTANTIVE RIGHTS IN REGARD TO PUNISHMENT - Death Penalty - For Rape or Felony Murder

Back 163

The Eighth Amendment prohibits imposition of the death penalty for the crime of raping an adult woman or a child if the rape was neither intended to result in nor did result in death.

Rationale: The penalty is disproportionate to the offense. Also, the same logic precludes the death penalty for felony murder unless the felony murderer's participation was major and he acted with reckless indifference to the value of human life.

Front 164

CONSTITUTIONAL RIGHTS IN RELATION TO SENTENCING AND PUNISHMENT - SUBSTANTIVE RIGHTS IN REGARD TO PUNISHMENT - Death Penalty - Sanity Requirement

Back 164

The Eighth Amendment prohibits executing a prisoner who is insane at the time of execution, even if he was sane at the time the crime was committed.

Front 165

CONSTITUTIONAL RIGHTS IN RELATION TO SENTENCING AND PUNISHMENT - SUBSTANTIVE RIGHTS IN REGARD TO PUNISHMENT - Death Penalty - Mental Retardation

Back 165

It is cruel and unusual punishment to impose the death penalty on a person who i s mentally retarded.

Front 166

CONSTITUTIONAL RIGHTS IN RELATION TO SENTENCING AND PUNISHMENT - SUBSTANTIVE RIGHTS IN REGARD TO PUNISHMENT - Death Penalty - For Minors

Back 166

Execution of persons who were under 18 years old at the time they committed their offense (including murder) violates the Eighth Amendment.

Front 167

CONSTITUTIONAL RIGHTS IN RELATION TO SENTENCING AND PUNISHMENT - SUBSTANTIVE RIGHTS IN REGARD TO PUNISHMENT - Death Penalty - Lethal Injection

Back 167

The mere possibility that the three-drug lethal injection protocol used by many states to carry out executions might be administered improperly and thus cause the condemned unnecessary pain does not make the procedure cruel and unusual punishment. lt would be cruel and unusual only if the condemned can prove that there is a serious risk of inflicting unnecessary pain or that an alternative procedure is feasible, may be readily implemented, and in fact significantly reduces substantial risk of severe pain .

Front 168

CONSTITUTIONAL RIGHTS IN RELATION TO SENTENCING AND PUNISHMENT - SUBSTANTIVE RIGHTS IN REGARD TO PUNISHMENT - Status Crimes

Back 168

A statute that makes it a crime to have a given "status" violates the Eighth Amendment because it punishes a mere propensity to engage in dangerous behavior. However, it i s permissible to make criminal specific activity related to a certain status (e.g., driving while intoxicated).

Front 169

CONSTITUTIONAL RIGHTS IN RELATION TO SENTENCING AND PUNISHMENT - SUBSTANTIVE RIGHTS IN REGARD TO PUNISHMENT - Considering Defendant's Perjury

Back 169

ln determining the sentence, the trial judge may take into account a belief that the defendant committed perjury while testifying at trial on his own behalf.

Front 170

CONSTITUTIONAL RIGHTS IN RELATION TO SENTENCING AND PUNISHMENT - SUBSTANTIVE RIGHTS IN REGARD TO PUNISHMENT - Imprisonment of Indigents for Nonpayment

Back 170

Where aggregate imprisonment exceeds the maximum period fixed by statute and results directly from involuntary nonpayment of a fine or court costs, there is an impermissible discrimination and violation of the Equal Protection Clause.

Front 171

CONSTITUTIONAL PROBLEMS ON APPEAL - NO RIGHT TO APPEAL

Back 171

There is no federal constitutional right to an appeal.

Front 172

CONSTITUTIONAL PROBLEMS ON APPEAL - EQUAL PROTECTION AND RIGHT TO COUNSEL ON APPEAL

Back 172

If an avenue of post-conviction review is provided, conditions that make the review less accessible to the poor than to the rich violate equal protection . Thus, indigents must be given counsel at state expense during a first appeal granted to all as a matter of right and for appeals of guilty pleas and pleas of nolo contendere.

In a jurisdiction using a two-tier system of appellate courts with discretionary review by the highest court, an indigent defendant need not he provided with counsel during the second, discretionary appeal.

Front 173

CONSTITUTIONAL PROBLEMS ON APPEAL - RETROACTIVITY

Back 173

If the Supreme Court announces a new rule of criminal procedure (e.x., one not dictated by precedent) i n a case on direct review, the rule must be applied to all other cases on direct review.

Front 174

COLLATERAL ATTACK UPON CONVICTION - AVAILABILITY OF COLLATERAL ATTACK

Back 174

After appeal is no longer available or has proven unsuccessful, defendants may generally still attack their convictions collaterally.

Front 175

COLLATERAL ATTACK UPON CONVICTION - HABEAS CORPUS PROCEEDING

Back 175

An indigent has no right to appointed counsel at a habeas corpus proceeding. Petitioner has the burden of proof by preponderance of evidence to show an unlawful detention. The state may appeal the grant of a writ of habeas corpus. A defendant generally may bring a habeas petition only if the defendant is i n custody. Generally, this includes anyone who has not fully served the sentence about which he wishes to complain.

Front 176

RIGHTS DURING PUNISHMENT - RIGHT TO COUNSEL AT PAROLE AND PROBATION REVOCATION

Back 176

Revocation of probation also involves imposition of a new sentence, the defendant is entitled to representation by counsel i n all cases i n which she is entitled to counsel at trial. If, after probation revocation, an already imposed sentence of imprisonment springs into application, or if the case involves parole revocation, the right to counsel is available only if representation is necessary to a fair hearing (e.g., defendant denies commission of alleged acts, or issues arc otherwise difficult to present and develop).

Front 177

RIGHTS DURING PUNISHMENT - PRISONERS' RIGHTS

Back 177

Prisoners' rights issues rarely appear on the Multistate Bar Exam, and when they do appear they usually involve the same constitutional analysis as set out in the general constitutional law outline. The most important rules peculiar to criminal procedure are:

Due Process:

Prison regulations impinge on due process rights only if the regulations impose "atypical and significant hardship" in relation to the ordinary incidents of prison life.

No Fourth Amendment Protection in Cells:

Prisoners have no reasonable expectation of privacy in their cells and so have no Fourth Amendment protection with respect to searches of their cells.

Right of Access to Courts:

Prisoners must he given reasonable access to the courts.

First Amendment Rights:

Prisoners' First Amendment rights of freedom of speech, association, and religion may be burdened by regulations reasonably related to penological interests (e.g., running a safe and secure prison). Note that incoming mail can be broadly regulated, but outgoing mail generally cannot be regulated . Note also that a federal statute prohibits states from interfering with a prisoner's religious practices absent a compelling interest.

Right to Adequate Medical Care:

Prisoners have a right to adequate medical care under the Eighth Amendment prohibition against cruel and unusual punishment.

Front 178

RIGHTS DURING PUNISHMENT - NO RIGHT TO BE FREE FROM DISABILITIES UPON COMPLETION OF SENTENCE

Back 178

A person convicted of a felony may be unable to vote instate elections, and this disability can constitutionally continue beyond the term of her sentence.

Front 179

DOUBLE JEOPARDY - WHEN JEOPARDY ATTACHES

Back 179

Under the Fifth Amendment, a person may not be retried for the same offense once jeopardy has attached. Jeopardy attaches in a jury trial at the impaneling and swearing of the jury. In bench trials jeopardy attaches when the first witness is sworn. Commencement of a juvenile proceeding bars a subsequent criminal trial for the same offense. Jeopardy generally docs not attach in civil proceedings other than juvenile proceedings.

Front 180

DOUBLE JEOPARDY - EXCEPTIONS PERMITTING RETRIAL

Back 180

Certain exceptions permit retrial of a defendant even if jeopardy has attached:

A state may retry a defendant whose first trial ends in a hung jury.

A trial may he discontinued and the defendant re-prosecuted for the same offense when there is manifest necessity to abort the original trial or when termination occurs at the behest of the defendant on any ground not constituting acquittal on the merits.

A state may retry a defendant who has successfully appealed a convict ion unless the ground for reversal was insufficient evidence to support a guilty verdict. Retrial is permitted when reversal is based on the weight (rather than sufficiency) of the evidence. However, on retrial,a defendant may not be tried for a greater offense than that for which he was convicted . A harsher sentence may be imposed for reasons other than vindictiveness for taking an appeal, but if the jury found that the death penalty was not appropriate in the first trial, a death sentence may not be imposed at the second trial.

Charges may be reinstated after a defendant breaches her plea bargain.

Front 181

DOUBLE JEOPARDY - SAME OFFENSE - General Rule-When Two Crimes Not the Same Offense

Back 181

Two crimes are the same offense unless each crime require proof of an additional element that the other does not require, even though some of the same facts may be necessary to prove both crimes.

Front 182

DOUBLE JEOPARDY - SAME OFFENSE - Cumulative Punishments for Offenses Constituting the Same Crime

Back 182

Even ff two crimes constitute the same offense under this test, multiple punishments are permissible if there was a legislative intent to have the cumulative punishments (e.g., a defendant can be sentenced both for robbery and using a weapon during the commission of a crime if statutes so provide).

Front 183

DOUBLE JEOPARDY - SAME OFFENSE - Lesser Included Offenses

Back 183

Attachment of jeopardy for a greater offense bars retrial for lesser included offenses. Attachment of jeopardy for a lesser included offense bars retrial for a greater offense, except that retrial for murder is permitted if the victim dies after attachment of jeopardy for battery. A state may continue to prosecute a charged offense despite defendant's guilty plea to a lesser included or "allied" offense stemming from the same incident.

Exception -New Evidence - An exception to the double jeopardy bar exists if unlawful conduct t hat is subsequently used to prove the greater offense (i) has not occurred at the time of prosecution for the lesser offense or (ii) has not been discovered despite due diligence.

Front 184

DOUBLE JEOPARDY - SAME OFFENSE - Conduct Used as a Sentence Enhancer

Back 184

The Double Jeopardy Clause is not violated when a person is indicted for a crime the conduct of which was already used to enhance the defendant's sentence for another crime.

Front 185

DOUBLE JEOPARDY - SAME OFFENSE - Subsequent Civil Actions

Back 185

The Double Jeopardy Clause prohibits only repetitive criminal prosecutions. Thus, a state generally is free to bring a civil action against a defendant even if the defendant has already been criminally tried for the conduct out of which the civil action arises. Similarly, the government may bring a criminal action even though the defendant has already faced civil trial for the same conduct unless it is clear from the statutory scheme that the purpose or effect of the statute is to impose a criminal penalty.

Front 186

DOUBLE JEOPARDY - SAME OFFENSE - SEPARATE SOVEREIGNS

Back 186

The constitutional prohibition against double jeopardy does not apply to trials by separate sovereigns. Thus, a person may be tried for the same conduct by both the state and federal governments or by two states, but not by a state and its municipalities

Exam Tip: Double jeopardy questions on the MBE occasionally raise the separate sovereign issue. The rule is simple: Separate sovereigns can try a defendant for the same offense. Beware of facts that try to divert you from this easy issue (e.g., statements about juries being empaneled or witnesses sworn in-things that go to attachment). Attachment does not matter if there are two separate sovereigns.

On the other hand, remember that municipalities are considered part of the state, and so both a state and its municipality cannot validly try a defendant for the same offense.

Front 187

DOUBLE JEOPARDY - SAME OFFENSE - APPEALS BY PROSECUTION

Back 187

Even after jeopardy has attached, the prosecution may appeal any dismissal on defendant's motion that does not constitute an acquittal on the merits. Also, the Double Jeopardy Clause does not bar appeals by the prosecution if a successful appeal would not require a retrial. There is no bar to a government appeal of a sentence pursuant to statute permitting such review. However, if the jury fails to impose the death penalty, the prosecution may not seek the death penalty on retrial after successful appeaI.

Front 188

DOUBLE JEOPARDY - SAME OFFENSE - COLLATERAL ESTOPPEL

Back 188

Under the doctrine of collateral estoppel, a defendant 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.

Front 189

PRIVILEGE AGAINST COMPELLED SELF-INCRIMINATION - WHO MAY ASSERT THE PRIVILEGE

Back 189

Only natural persons may assert the privilege, not corporations or partnerships. The privilege is personal and so may be asserted by a defendant, witness, or party only if the answer to the question might tend to incriminate him.

Front 190

PRIVILEGE AGAINST COMPELLED SELF-INCRIMINATION - WHEN PRIVILEGE MAY BE ASSERTED

Back 190

A person may refuse to answer a question whenever his response might furnish a link in the chain of evidence needed to prosecute him. The privilege must be claimed in civil proceedings to prevent the privilege from being waived for a later criminal prosecution. Thus, if an individual responds to questions instead of claiming the privilege during a civil proceeding, he cannot later bar that evidence from a criminal prosecution on compelled self-incrimination grounds.

Front 191

PRIVILEGE AGAINST COMPELLED SELF-INCRIMINATION - METHOD FOR lNVOKING PRIVllLEGE

Back 191

A criminal defendant has a right not to take the witness stand at trial and not to be asked to do so. In any other situation, the privilege does not permit a person to avoid being sworn as a witness or being asked questions. Rather, the person must listen to the questions and specifically invoke the privilege rather than answer the questions.

Note: Merely being required to furnish one's name after a Terry stop generally does not violate the Fifth Amendment because disclosure of one's name generally poses no danger or incrimination.

Front 192

PRIVILEGE AGAINST COMPELLED SELF-INCRIMINATION - SCOPE OF PROTECTION

Back 192

Testimonial but Not Physical Evidence:

The Fifth Amendment privilege protects only testimonial or communicative evidence and not real or physical evidence. For a suspect's communication to be considered testimonial, it must relate a factual assertion or disclose information.

Compulsory Production of Documents:

A person served with a subpoena requiring production of documents tending to incriminate him generally has no basis in the privilege to refuse to comply, because the act of producing the documents does not involve testimonial self-incrimination.

Seizure of Incriminating Documents: The Fifth Amendment does not prohibit law enforcement officers from searching for and seizing documents tending to incriminate a person.

When Does Violation Occur?
A violation of the Self-Incrimination Clause does not occur until a person's compelled statements are used against him in a criminal case.

Exam Tip: For purposes of the Multistate Bar Exam, two of the most important things to remember about the Fifth Amendment self-incrimination privilege are:

Only testimonial evidence is protected. Thus, a defendant has no self-incrimination basis to object to a lineup or other identification procedure-even if he is asked to say certain words ( e.g., "Your money or your life!''). This procedure does not involve testimonial evidence; the words arc used for identification purposes and not as testimony.

Likewise, only compelled testimonial evidence is privileged . Th us, if the defendant produced a writing of his own free will ( e.g., took incriminating notes or a meeting), the police may seize this writing, or the defendant may be compelled to produce it by subpoena, because he was not compelled to make the statement originally.

Front 193

PRIVILEGE AGAINST COMPELLED SELF-INCRIMINATION - PROHIBITION AGAINST BURDENS ON ASSERTION OF PRIVILEGE - Comments on Defendant's Silence

Back 193

A prosecutor may not comment on a defendant 's silence after being arrested and receiving Miranda warnings. Neither may the prosecutor comment on a defendant 's failure to testify at trial. However, a defendant, upon timely motion, is entitled to have the judge instruct the jury that they may not draw an adverse inference from the defendant's failure to testify.

Moreover, the judge may offer this instruction sua sponte, even over the defendant's objection .

Exception: A prosecutor can comment on a defendant 's failure to take t he stand when the comment is in response to defense counsel 's assertion that the defendant was not allowed to explain his side of the story.

Harmless Error Test Applies: When a prosecutor impermissibly comments on a defendant's silence, the harmless error test applies.

Front 194

PRIVILEGE AGAINST COMPELLED SELF-INCRIMINATION - PROHIBITION AGAINST BURDENS ON ASSERTION OF PRIVILEGE - Comments on Defendant's Silence - Penalties for Failure to Testffy

Back 194

The state may not chill exercise of the Fifth Amendment privilege against compelledd self incrimination by imposing penalties for failure to testify.

Front 195

PRIVILEGE AGAINST COMPELLED SELF-INCRIMINATION - ELIMINATION OF PRIVILEGE

Back 195

Grant of lmmunity:

A witness may be compelled to answer questions if granted adequate immunity from prosecution.

"Use and Derivative Use" Immunity Sufficient:"

Use and derivative use" immunity guarantees that the witness's testimony and evidence located by means of the testimony will not be used against the witness. However, the witness may still be prosecuted if the prosecutor shows that the evidence to be used against the witness was derived from a source independent of the immunized testimony.

Immunized Testimony Involuntary:

Testimony obtained by a promise of immunity is coerced and therefore involuntary. Thus, immunized testimony may not be used for impeachment of a defendant's testimony at trial. However, any immunized statements, whether true or untrue, can be used in a trial for perjury

Use of Testimony by Another Sovereign Prohibited:

Federal prosecutors may not use evidence obtained as a result of a state grant of immunity, and vice versa.

Front 196

PRIVILEGE AGAINST COMPELLED SELF-INCRIMINATION - ELIMINATION OF PRIVILEGE - No Possibility of Incrimination

Back 196

A person has no privilege against compelled self-incrimination i f there is no possihility of incrimination ( e.g., statute of limitations has run).

Front 197

PRIVILEGE AGAINST COMPELLED SELF-INCRIMINATION - ELIMINATION OF PRIVILEGE - Scope of Immunity

Back 197

Immunity extends only to the offenses to which the question relates and does not protect against perjury committed during the immunized testimony.

Front 198

PRIVILEGE AGAINST COMPELLED SELF-INCRIMINATION - WAIVER OF PRIVILEGE

Back 198

A criminal defendant. by taking the witness stand, waives the privilege to the extent necessary to subject him to any cross-examination . A witness waives the privilege only if he discloses incriminating information.

Front 199

JUVENILE COURT PROCEEDINGS - RIGHTS T!HlAT MUST BE AFFORDED

Back 199

The following rights must be given to a child during trial of a delinquency proceeding:

(i) written notice of charges,

(ii) assistance of counsel.

(iii) opportunity to confront and cross-examine witnesses,

(iv) the right not lo testify, and

(v) the right to have "guilt" established by proof beyond reasonable doubt.

The Supreme Court has held that there is no right to trial by jury in delinquency proceedings. Pretrial detention of a juvenile is allowed where it is found that the juvenile is a "serious risk'' to society, as long as the detention is for a strictly limited ti me before trial may be held.

Front 200

JUVENILE COURT PROCEEDINGS - DOUBLE JEOPARDY

Back 200

If the juvenile court adjudicates a child a delinquent, jeopardy has attached and the prohibition against double jeopardy prevents him from being tried as an adult for the same behavior.

Front 201

FORFEITURE ACTIONS - INTRODUCTION

Back 201

Actions for forfeiture are brought directly against property and are generally regarded as quasi criminal in nature. Certain constitutional rights may exist for those persons whose interest in property would be lost by forfeiture.

Front 202

FORFEITURE ACTIONS - RIGHT TO PRE-SEIZURE NOTICE AND HEARING

Back 202

The owner of personal properly (and others with an interest in it) is not constitutionally entitled to notice and a hearing before the property is seized for purposes of a forfeiture proceeding. A hearing is, however, required before final forfeiture of the property. Where real property is seized, notice and an opportunity lo be heard is required before the seizure of the real property unless the government can prove that exigent circumstances justify immediate seizure.

Front 203

FORFEITURE ACTIONS - MAY BE SUBJECT TO EIGHTH AMENDMENT - General Rule

Back 203

The Supreme Court has held that the Excessive Fines Clause of the Eighth Amendment applies only to fines imposed as punishment; it does not apply to civil fines. Thus, penal forfeitures are subject to the Clause, but civil forfeitures are not. Even if the Clause applies, the forfeiture will not be "excessive" unless grossly disproportionate to the gravity of the offense.

Front 204

FORFEITURE ACTIONS - MAY BE SUBJECT TO EIGHTH AMENDMENT - Compare-Nonpunitive Forfeiture

Back 204

Civil In Rem Forfeitures:

Civil in rem forfeitures generally are not subject to the Excessive Fines Clause.

Monetary Forfeitures: Monetary forfeitures (e.g., forfeiture of twice the value of illegally imported goods)brought i n civil actions generally arc not subject to the Eighth Amendment.

Front 205

FORFEITURE ACTIONS - PROTECTION FOR INNOCENT OWNER" NOT REQUIRED

Back 205

The Due Process Clause does not require forfeiture statutes to provide an ''innocent owner" defense (e.g., a defense that the owner look all reasonable steps to avoid having the property used by another for illegal purpose), at least where the innocent owner voluntarily entrusted the property lo the wrongdoer.