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97 Cards in this Set
- Front
- Back
- 3rd side (hint)
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Exclusionary Rule - SCOPE
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Prohibits introduction of evidence obtained in violation of D's rights
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Fruit of the Poisonous Tree Exceptions
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- Fruits from statements obtained in violation of Miranda
- Evidence obtained from a source independent of original liability - Intervening act of D's free will provides the evidence - Inevitable discovery - Violations of knock & announce |
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Exclusionary Rule Inapplicable to:
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Grand juries
Civil proceedings Internal agency rules Parole revocation hearings |
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Good Faith Reliance on Law, Search Warrant, or Clerical Error Okay WHEN
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Police act in GF based on
- Case law - Facially valid statute or ordinance - Computer report containing clerical errors - Reliance on defective search warrant (unless) |
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Reliance on defective search warrant exceptions
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- Affadavit so lacking in PC that could not r/ably rely on
- Warrant defective on face - Affiant lied or misled the magistrate - magistrate wholly abandoned her judicial role. |
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Impeachment use of Excluded Evidence
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- can impeach w/otherwise voluntary confession that violated Miranda
- Use evidence obtained from illegal search to impeach D's testimony |
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Harmless Error
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- No overturn on appeal if admitting illegal evidence was harmless error.
- Habeas standard: D claiming constitutional error, released if shows error had substantial and injurious effect or influence in determining jury's verdict. |
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4th Amendment Arrests & other Detentions
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- Seizures under 4A must be r/able
- Seizures = RP would believe not free to leave |
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Arrests
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- In custody of police against one's will for prosecution/interrogation
- PC req'd - Warrant generally not req'd except for non-emergency home arrests |
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Other detentions
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- Investigatory detentions (Stop and Frisk)
- If police have r/able suspicion criminal activity supported by articulable facts, may detain - If RS detainee armed and dangerous, may frisk for weapons -For no longer than necessary - Property seizures ok if brief w/ r/able suspicion |
Think of the Mission Hill class action.
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Automobile Stops
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1. R/able suspicion to stop unless special need for roadblock.
2. Seizure of occupants included w/car stop, have standing 3. Police may order occupants out for safety, frisk and search if r/able belief armed 4. Pretextual stops ok as long as they believe they violated a traffic law |
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Roadblock reqs
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Stop on basis of neutral, articulable standard.
To serve purposes closely related to particular problem pertaining to cars and their mobility |
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Detention to Obtain Warrant
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If PC drugs in house, detain for r/able time and prevent entry w/o police to prevent evidence destruction
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Occupants of the premisis
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Can be detained while executing valid warrant
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Station house detention
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Only w/PC for arrest if taking to station for questions or prints
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Evidentiary search and seizure
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1. Must be r/able
2. Need warrant except in 6 situations 3. Gov't conduct req'd for 4A to apply |
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Reasonable Expectation of Privacy/Standing
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- REOP based on totality of circs
- Per se REOP 1) D owns/possesses place searched; 2) Place searched was D's home; 3) D is overnight guest or owner of place searched |
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NO REOP
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- Sound of one's voice
- Handwriting - Paint on outside of your car - Account records held at bank - Location of car on public road or its arrival at a private residence - Areas outside home and related buildings (curtilage) - Garbage left for collection - Smell of one's car, luggage |
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Searches pursuant to warrant
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- Probably cause req'd
- Warrant must be precise on its face - Neutral and detached magistrate req'd |
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PC req'd
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- To believe seizable evidence will be found when W executed
- Affidavit w/circs enabling magistrate to determine PC - Police may r/ably rely on validity of warrant and evidence admissible |
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Use of informants
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- Totality of circs test for PC
- Affidavit must be sufficient even though reliability and credibility of informer/knowledge basis not established |
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Warrant invalid if D can prove
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- False statement included in affidavit by the affiant
- Affiant intentionally or recklessly included it AND - False statement material to finding PC |
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Execution of the warrant
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- Only police can execute
- Knock and announce presence, wait r/able time unless exigent - Seize contraband, fruits and instrumentalities of crime - May detain persons found on presence, but only search if named in warrant |
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Exceptions to warrant requirement
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1. Search incident to lawful arrest
2. Automobile exception 3. Plain view 4. Consent 5. Stop and Frisk 6. Hot pursuit, evanescent evidence, and other emergencies |
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Search incident to lawful arrest
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- Person and areas where might get weapon or destroy evidence
- Protective sweep if believe accomplice hiding - Inventory after incarceration |
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Automobile Exception
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- If PC --> search whole car that might hold the contraband for which have PC.
- but if PC only for container placed in car, cannot search rest of car - Sieze car itself if believe it's contraband |
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Plain View
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- Police legitimately on premises
- Discover evidence, fruits/instrumentalities - In plain view - PC to believe (immediately apparent) item is seizable |
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Consent
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- Voluntary and intelligent
- Scope of search limited to scope of consent - Authority to consent (anyone w/equal right to use/occupy prop; unless co-occupant presnt and objects to search against himself; evidence can be used against other owners/occupants) |
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Stop and Frisk
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- Pat down of outer clothing
- Inside of car if order occupants out and believe dangerous - Reach in and seize if r/ably think weapon or contraband |
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Hot pursuit, evanescent evidence, or other emergencies
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- Police in hot pursuit of fleeing felon may make warrantless search and seizure and may enter private dwelling
- May seize ev likely to disappear before W obtained - Contaminated food and drugs, person injured or threatened w/injury, burning fires all justify Wless search/seize |
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Administrative inspections/searchs
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lesser PC req'd for W. General and neutral enforcement plan sufficient
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Searches of projects by housing authority don't need same probable cause as police.
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Searches in Foreign Countries and at Border
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At the border and its equivalent, roving patrols inside US border may stop vehicle for qs if r/able belief vehicle contains illegal aliens.
may stop vehicle at fixed checkpoint inside border for qs and may disassemble car w/o r/able suspicion. Opening international mail ok if r/able cause to believe contains contraband Detentions okay if r/able suspicion traveler = mule |
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Wiretapping and Eavesdropping = Search under 4A
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Warrant requires: Probable cause, suspected persons to be overheard named, W describes w/ particularity conversations.
Short period of time. Termination when desired info obtained Return made to court showing what conversations intercepted. |
All the things GW did NOT do.
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Exceptions to warrant reqs for wiretapping/eavesdropping
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assumption of risk that you're talking to an informant
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Other than that George Bush is president...
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Confessions - which As apply?
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14A - DP voluntariness.
6A - Rt to Counsel 5A - Privilege//Self-incrimination |
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14A- DP Voluntariness
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- Statement admissible only if voluntary under the totality of the circumstances
- Need govt compulsion to be involuntary - Harmless error test applies |
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6A - Rt to Counsel
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- Kicks in when judicial proceedings begin
- Police cannot deliberately elicit statement w/o atty present after 6A attaches unless D waives right - Offense specific - can q re: unrelated/uncharged offenses w/o atty present |
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5A - Privilege//Self-Incrimination - when Miranda req'd
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- In custody and accused of a crime
- Before interrogation (words/conduct police should know likely elicit a response) - D must know gov't is the one interrogating - Waiver - if knowing, voluntary & intelligent |
Always remember the questions you SHOULD have asked that polygraphist...
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Right to terminate interrogation
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- At any time by invoking rights
- Silence - Police must stop asking re: topic of interrogation (but can q later re: unrelated issue) - Counsel - all qs stop until atty present unless waiver. D must invoke specifically and unambiguously. |
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Effect of Violation
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- Statements inadmissible except: Can use statements obtained in violation to impeach D. If question first then Miranda inadvertently and D gives second statement AFTER miranda, #2 is admissible
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Public Safety Exception to miranda
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Okay to interrogate w/o Miranda if r/ably prompted by public safety
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Pre-trial Identification - substantive bases for attack
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6A right to Counsel: For post-charge line-up/show-up
DP - ID cannot be unnecessarily suggestive or have substantial likelihood of misidentification Exclude in court identification unless witness has independent source |
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Pre-trial procedures
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- Preliminary hearing to determine probably cause to detain. If PC not already established and significant constraints on D's liberty, must hold.
Pretrial detention - Bail. Arbitrary denial of bail is DP violation. |
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Grand Juries
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Conducted in secret
No right to notice, presence, confrontation, or to introduce evidence No right to counsel or miranda No right to have evidence excluded No right to challenge subpoena Can refuse to answer qs based on 5A Exclusion of minorities = reverse conviction if indicated by GJ that excluded minorities, but harmless error applies |
all of the reasons why grand juries are terrible, and fly in the face of the constitution.
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Speedy Trial
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- Look at the totality of the circs, the length and reason for delay, whether D asserted right, prejudice to D, etc.
- If violated, dismiss w/prejudice |
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Prosecutorial duty to disclose exculpatory info
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DP violation if don't disclose
Reverse conviction if evidence favorable to D and prejudice resulted. |
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Notice of alibi, intent to present insanity defense
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D to give notice to prosecutor
If alibi, must give DA list of witnesses, and DA gives D list of rebuttal witnesses |
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Competency to Stand Trial
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Not a defense, but a bar to trial.
If D later regains competency, can be tried. DP standard - incompetent if lack of understanding of the charges and proceedings OR lack sufficient present ability to assist lawyer in preparing his defense. If found insane, committed until sane |
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Pretrial publicity
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Can change venue or retrial if prejudice to D
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Basic right to fair trial
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- Public
- Unbiased judge - DP |
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Right to Public Trial
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1. Pretrial proceedings - can close suppression hearings to public in ltd circs
2. Trial: Press and public have 1A right to attend, even if D and P agree to close. State may permit televising proceedings over D's objection |
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Right to Unbiased Judge
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DP violation if actual malice // D or financial interest in verdict
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DP violation if:
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1. Trial conducted in manner making it unlikely jury gave evidence r/able consideration
2. State compels D to stand trial in prison clothing 3. State compels D to appear at trial/sentencing visibly shackled (unless justified by concerns re: security or escape) 4. Jury is exposed to influence favorable to prosecution |
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Right to jury trial for serious offenses
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- more than 6mo jail
- not for juvenile proceedings - If just probation, up to 5 years can be imposed w/o jury rt. as long as revocation of probation doesn't mean more than 6mo jail |
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Number and Unanimity of Jurors
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At least 6
No unanimous jury unless it's just 6 |
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Right to Venire selected from representative cross-section of community
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Only group from which selected has to be representative
Show under-rep of distinct and numerically significant group |
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Racial and gender based preemptory challenges violate EP. What's the test?
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D offers facts/circs inferring discrim
DA gives race-neutral explanation Judge decides if exp = pretext |
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Right to impartial jury
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OK for D to ask about racial prejudice on voir dire if race is an issue in the case or if D is accused of interracial capital crime
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Impartial jury w/ Death Penalty cases
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- Automatic exclusion only if opposed juror's views would prevent or substantially impair performance of duties.
- If juror would auto give death penalty upon guilt, may exclude Death sentence imposed by jury from which juror improperly excluded is subject to auto reversal |
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Sentence enhancement
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Jury decides if add'l facts req'd to enhance est'd beyond r/able doubt.
Harmless error applies |
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Right to Counsel
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- If denied at trial = reversal
- If denied other than at trial = harmless error test |
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Stages at which D has right to atty
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- Custodial police interrogation
- Post-indictment interrogation whether or not custodial - Prelim hearings to decide PC to prosecute - Arraignment - Post charge lineups - Guilty plea and sentencing - Felony trials - Misdemeanor trials where imprisonment is actually imposed - Overnight recesses during trial - Appeals as a matter of right and of guilty pleas |
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Waiver of right to counsel and right to defend self
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Judge must determine waiver is knowing and intelligent
D need not be able to effectively represent self D does not have rt to self-rep on appeal |
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Effective assistance
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6A - effective assistance at trial and on first appeal.
Deficient performance by atty AND but for deficiency, result would have been different |
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Conflicts of interest
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- Auto reversal if atty advises ct of conflict from joint rep and ct refuses to appoint sep counsel.
- No rt to joint rep if DA can show potential conflict of interest |
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Admission of Co-D's admission that implicates other only if
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- All portions referring to other D can be redacted.
- Confessing D takes stand and subjects himself to x-exam w/ respect to truth or falsity of what statement asserts OR - Confession of non-testifying Co-D is being used to rebut D's claim that his confession was obtained coercively |
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Hearsay
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- Prior testimonial statements admissible only if D had opp to X exam when statement made
- Testimonial if made to prove past acts - Non-testimonial if responding to ongoing emergency |
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Burden of proof and sufficiency of evidence
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- DA to prove guilt beyond r/able doubt
- D to prove affirmative defenses If mandatory or shift burden to D, presumptive violation of 14A. |
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Taking the Plea - advising D of charge, potential penalty, and his rights
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- judge must determine plea is voluntary and intelligent
- Address D in court, on the record to be sure D understands, knows the 1) nature of the charge and crucial elements of crime, 2) Max possible penalty and mandatory minimum, and 3) D has right not to plead not guilty, but if he does plead, he waives right to trial. (D's atty can inform) |
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Collateral attacks on guilty pleas after sentence
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Set aside plea if involuntary, lack of jx, ineffective assistance of counsel, failure to keep plea bargain
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Plea bargaining
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Judge not required to accept.
Enforced against D and DA Guilty plea is not involuntary just because it was entered in response to DA's threat to charge D with more serious crime |
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Procedural rights during sentencing
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Right to attorney
Right to confront if sentence requires new findings of fact and if capital crime |
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Re-sentencing after successful appeal and reconviction
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judge must give reason if greater sentence imposed unless de novo trial or state jury sentencing
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8A Right against cruel and unusual punishment
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- can't have penalty grossly disproportionate to the seriousness of offense.
Special rules for Death Penaly Status crimes are a violation Considering Ds perjury ok when sentencing Imprisonment of indigents of nonpayment not okay if in prison for longer than maximum statute allows |
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Death Penalty
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For murder: Statute must give judge/jury r/able discretion and guidance, must allow consideration of mitigating cirs.
If based on prior convictions and a prior conviction reversed, death sentence reverse. - No death penalty for felony murder unless participation is major, acted w/ reckless indifference to human life. - must be sane at time of execution, none for mentally retarded or under 18 when committed crime |
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Appeals
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No consitutional right to appeal. If it is allowed, must be equally accessible to the poor.
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Collateral attack upon conviction
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- Available even if appeal not unavailable or was unsuccessful
- Habeas corpus proceeding: no right to apptd atty, D's burden to show unlawful detention by preponderance of the evidence, and state can appeal grant of writ. |
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Rights during punishment
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- Right to counsel at parole and probation revocation.
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Prisoners' Rights
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- Due process vilated only if prison regs are atypical and significant hardship.
- No 4A protection in cell bc no REOP. - Right of R/able access to courts. - Some first A rights - Right to adequate medical care under 8A. |
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1A rights of prisoners.
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- Burden ok if r/ably related to penal interests.
- Fedearl statute prohibits states from interfereing w/prisoner's religious practices absent compelling interest. - Incoming mail regulated - Outgoing mail NOT regulated. |
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Double Jeopardy Attaches When:
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- when jury empanelled and sworn.
- If bench trial, when first witness sworn. - Juvenile proceedings at commencement. |
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Exceptions permitting retrial even though DJ attached:
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- Hung jury
- Manifest necessity to abort original trial or when termination occurs at behest of D on any ground not constituting acquittal on merits. - Cannot charge greater offense on retrail - D breaches plea bargain. |
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DJ and same offense
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- Not the same offense when each reqs proof of evidence that the other does not.
- Cumulative punishments for offenses constituting same crime OK if statute intends it. |
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Lesser Included Offenses and DJ
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If DJ attaches for lesser, no retrial for greater unless victim dies after batter.
If DJ is for greater, no retrial for lesser. Can retry for greater if new evidence that has not occurred at time of prosecution, or has not been discovered despite due diligence. |
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Separate sovereigns?
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DJ does not apply
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Appeals by prosecution and DJ
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Even after J attached, prosecution may appeal any dismissal on D's motion that does not constitute an acquittal on the merits.
DJ does not bar appeals by prosecution if a successful appeal would not require a retrial |
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Collateral Estoppel
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No trial/conviction if prior case resulted in factual determination inconsistent w/one req'd for conviction
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Privilege against compelled self-incrimination
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- Only natural persons may assert
- Can assert if response to Q links speaker to crime. - Must assert in civil proceeding to prevent waiver in criminal |
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Method for invoking
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Criminal D refuses to take stand
Other witnesses invoke after hearing a question |
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Comments on D's silence
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- No post-miranda silence
- No comment on D not taking stand. (can comment of failure to take stand when comment is in response to D's atty asserting that D wasn't allowed to give his side of the story) - D may request jury instruction not to draw adverse inference, judge may offer sua sponte over D's objection. - Impermissible comments subject to harmless error |
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Elimination of Privilege
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- When granted immunity.
- Immunity only pertains to offenses to which question relates |
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Waiver of Privilege
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D waives by taking stand
W waives by giving incriminating testimony |
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Rights that must be afforded in Juvenile Court Proceedings
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- Written notice of charges.
- Assistance of counsel - Opportunity to confront and X-examine. - Right not to testify - Right to have guilt est by proof beyond r/able doubt |
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Right to jury in juvie?
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NO.
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Pre-trial detention
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OK if juvenile is serious risk to society as long as limited time.
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Forfeiture Axns
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Actions brought directly against property
Rights for those whose interest in prop would be lost be forfeiture |
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Right to pre-seizure notice and hearing
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Personal property = no right
Real property = right unless exigent circs Criminal forfeiture may be subject to 8A no protection for innocent owner who voluntarily entrusted property to wrongdoer. |
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