Criminal Procedure - Jeff Adachi

Front 1

Criminal Procedure: The Big Picture

Back 1

FOURTH AMENDMENT VIOLATION?
~illegal detention or arrest?
~illegal search & seizure?
~effect of illegality obtained evidence?
FIFTH AMENDMENT VIOLATION?
~voluntary statement?
~Escobedo Violation?
~Miranda violation?
SIXTH AMENDMENT VIOATION?
~illegal lineup or right to counsel violation?
MISCELLANEOUS VIOLATIONS?

Front 2

Illegal Detention - rule

Back 2

Rule: Police officer may detain & question a person upon his reasonable belief that criminal activity is afoot.

Front 3

Illegal Detention - test

Back 3

1. Was D DETAINED? (would a reasonable person feel free to leave)
2. Did officer have OBJECTIVE BASIS for believing person was engaged or about to be engaged in criminal activity?
3. Was stop TEMPORARY and no longer than necessary?
4. If D FRISKED, did cop have reasonable belief that suspect was armed?

Front 4

Illegal Arrest - Rule

Back 4

In order to arrest a suspect, the cop must have probable cause to believe suspect committed a crime. Arrest occurs where D subject to physical restraint. Arrest warrant not required except when police enter private premises to arrest suspect.

Front 5

Illegal Arrest - test

Back 5

1. Was D under ARREST?
2. At moment of arrest, did cop have PROBABLE CAUSE to believe that D committed crime?

Front 6

Illegal Search and Seizure - test

Back 6

1. Does D have standing to assert a 4th Amendment violation? (reasonable expectation of privacy in the thing seized or place searched)
2. Did the police activity consitute a searc hor seizure?
3. Was a valid search warrant obtained?
4. Did the circumstance justify a WARRANTLESS search?
5. What scope of search was permissible and did police exceed it?

Front 7

Does D have Standing to assert a 4th Amendment violation?

Back 7

D must have a substantial ownership interest in premises searched or reasonable expectation of privacy in area search.

Front 8

Did the police activity constitute a search or seizure?

Back 8

Is police activity involved? 4th Amendment applies only to searches by police and government agents and does not apply to searches by private persons.

Was there a searc hor seizure? No search: prison cells, open fields, plain view items, pen registers, physical characteristics, band records, canine sniff, conversations overheard by police, use of technological aids to view/hear items in public view.

Front 9

Was a valid search warrant obtained?

Back 9

~Warrant issued by DISINTERESTED judge
~Based on PROBABLE CAUSE
~Sufficiently PRECISE as to the things to be seized and place to be searched
~VALIDLY SERVED
~Search not to exceed SCOPE
~GOOD FAITH EXCEPTION (exclusionary rule does not bar admission of evidence obtained by invalid search warrant if warrant issued by NEUTRAL & DETACHED magistrate and office had an OBJECTIVE REASONABLE BELIEF that warrant was valid)

Front 10

Did the circumstances justify a warrantless search?

Back 10

Exceptions to the warrant requirement (I C APE SHit):
1. Search INCIDENT to a lawful arrest
~Arrest must be lawful, i.e. supported by probable cause & limited to persons and areas within D's immediate reach
2. Did D CONSENT?
~Consent must be voluntary under the totality test and police cannot exceed scope of search and must be given by one with authority
3. AUTO Search
~Autos & motor homes may be search if probable cause to believe that auto contains contraband or if officer believes car itself is contraband; impounded autos are subject to inventory search.
4. PLAIN View
~Warrantless seizure of items in plain view is justified if the officer is in a place she is entitled to be.
5. EXIGENT Circumstances
~Warrantless search is justified where police reasonably believe delay would endanger police/public, allow destruction/removal of evidence
6. STOP and Frisk - Terry search pat down of outside clothing, officer safety, weapons/drugs
7. HOT Pursuit

Front 11

Illegal Electronic Surveillance

Back 11

Federal Warrant Requirements: Probable cause that crime is bieng or about to be committed, persons to be overheard names, conversations described with particularity, limited period and temrinated when desired information obtained. False friends doctrine holds that if either party to conversation consents, no warrant is required.

Front 12

Effect of illegally obtained evidence

Back 12

Evidence & its fruits are excluded unless prosecutor can show evidence originated from idependent source or that police would have inevitably discovered the evidence. Procedurally, D makes a motion to suppress evidence outside the presence of the jury.

Front 13

Fifth Amendment Statements - test

Back 13

Was the statement voluntary?
Escobedo violation?
Miranda violation?

Front 14

Fifth Amendment Statements -
Was the statement voluntary?
Define it and what is the test?

Back 14

To be admissible, confession must be a product of rational intellect and free will.

Test: Totality of circumstances including D's age, background, education and circumstances surrounding police interrogation.
Burden: a preponderance of the evidence.

Front 15

Escobedo Violation - Rule

Back 15

Confession obtained while accused is denited 6th Amendment right to counsel after formal charges have been filed must be excluded.

Informant placed in D's cell violates ESCOBEDO RULE only if informant purposely elicits incriminating statements.

Front 16

Miranda Violation - Test

Back 16

1. Was the subject of questioning entitled to MIRNADA warnings? D must be IN CUSTODY (deprived of freedom in any significant way) and must be subject to INTERROGATION (words or actions by police that police should know are reasonably likely to elicit an incriminating response from a suspect).
2. Was D given FULL AND ADEQUATE MIRANDA warnings?
3. Did D INTELLIGENTLY AND KNOWINGLY waive his MIRANDA rights? D may expressly or impliedly waive MIRANDA rights, only if such waiver is knowing, intelligent and voluntary. Burden on prosecution.

Front 17

General Miranda Considerations

Back 17

~Statements obtained in violation of Miranda can be used to IMPEACH

~If D invokes right to counsel, further interrogation w/o counsel can only be had if D initiates.

~If right to remain silent invoked, police cannot continue or renew interrogation.

~Public safety exception allows use of un-Mirandized statements where interrogation based on public safety concerns.

Front 18

Illegal Line-up

Back 18

D entitled to counsel at police line-ups (but no photo line-ups) only AFTER HE IS FORMALLY CHARGED; if counsel not present, subsequent in court ID inadmissible unless prosecution can show that incourt ID was based on observation other than line-up & W cannot testify to ID of D at tainted line-up.

Due Process Attack: ID procedure must not be so impermissibly suggesetive so as to give rise to a very substantial likelihhod of misidentification. Effect: Exclusion of W's in court ID unless independent source shown.

Front 19

Right to counsel applies to these stages of a criminal proceeding

Back 19

Criminal: upon actual imprisonment and in all felony cases.

Juvenile proceedings: Where juvie's freedom curtailed.

Probation revocation hearings: case by case basis depending on complexity of allegations.

Not to grand jury, investigation proceedings, prison hearings, summary court martial

Front 20

Right to counsel applies to these proceedings

Back 20

~Custodial interrogation before and after formal charging
~Arraignment where plea required
~Post indictment line-up
~Preliminary hearings
~Sentencing and probation proceedings
~Where appeal is provided as a matter of right
~Psychiatric exam after formal charges filed
~Collateral hearings, usually not, but prisoner has right to law library and free transcript

Front 21

Right to Pre-Trial Release - Rule & Test

Back 21

8th Amendment provides that excessive bail shall not be required.

Test:
~Nature and circumstances of offense,
~weight of evidence,
~D's character and financial ability to make bail;
~whether D will appear;
~in non-capital case bail is required;
~in capital case, bail is discretionary.

Front 22

Right to a speedy trial - Rule and Test

Back 22

6th Amendment provides that once D formally charged or arrested, he must be given a speedy trial.

Test:
~Length of delay,
~reason for delay,
~whether D demanded early trial or caused delay, ~whether delay was prejudicial to fair trial.

Front 23

Right to Discovery

Back 23

Due process requires prosecutor to disclose evidence favorable to the accused after a specific request where such evidence is material to guilt or punishment OR would create a reasonable doubt as to D's guilt REGARDLESS of whether D requested it.
Prosecutor may request pretrial notice of alibi, statements of D, and a witness list if D has the same reciprocal rights.

Front 24

Right to Indictment

Back 24

5th Amendment provides for right to indictment by grand jury in federal cases.

Front 25

What rights does not D have during a Grand Jury proceeding? Can the 5th be asserted?

Back 25

Grand jury: no right to counsel, present evidence, x-exam/confront W's, & Miranda protections and exclusionary rule do not apply.

Grand jury can consider any evidence but a witness can assert the 5th.

Front 26

Right to a public trial

Back 26

6th Amendment provides for a public trial, not a private one but public/press may be excluded if no other reasonable alternatives exist to protect D's right to a fair trial.

Front 27

Right to a jury trial

Back 27

The 6th Amendment provides right to an impartial (though not ethnically balanced) jury in all trials where improsonment of 6 months or more is possible, or where the offense is serious, or where the actual sentence exceeds six months.

Front 28

Is a jury of 12 constitutionally required?

Back 28

A jury of 12 is not constitutionally required, but jury of 6 is required to promote reliability/representaiton; unanimous verdict required in federal trials, but not in state trials, with a 12 member jury; if only a 6 member jury, unanimity is required.

Front 29

Right to Confrontation

Back 29

6th Amendment provides that accused shall enjoy the right to be confronted with the witnesses against him in all criminal and accusatory proceedings, to use compulsory process to obtain witnesses and present a defense.

Statement of non-testifying co-D must be excluded unless it can be sanitized to exclude references which incriminate D.

D is entitled to face to face confrontation with accused and to observe demeanor of the witness.

Front 30

Was the right to counsel effective? Rule and test

Back 30

The failure of counsel to provide competent assistance is a denial of D's 6th Amendment rights.

Test:
1. Did adequacy of counsel fail MEASURABLY below the performance ordinarily expected of fallible lawyers?
2. Did it affect the OUTCOME OF TRIAL?

Front 31

Was the right to counsel waived?

Back 31

Any waiver of right to counsel must be made KNOWINGLY AND INTELLIGENTLY w/a heavy burden on state to prove waiver. D has the right to conduct his own defense, but the right to standby counsel is discretionary.

Front 32

Was right to counsel impaired by conflict of interest?

Back 32

Accused is denied right to counsel if his attorney is appointed to represent a co-D or former client w/conflicting interests.

Front 33

Cruel and Unusual Punishment Test

Back 33

1. Applies only to persons ALREADY CONVICTED of a crime.
2. Does the punishment FIT THE CRIME? GROSSLY DISPROPORTIONATE to severity of crime? Purposeless imposition.
3. Is the punishment BARBARIC regardless of the crime?

~Death penalty allowable if it is imposed under a statute that gives the factfinder the discretion to impose and requires full consideration of mitigating circumstances and D's background.

Front 34

Sentencing Rules

Back 34

D entitled to counsel but not to adversarial proceeding and has no right to cross-examine; judge may rely on hearsay and proof of prior convictions.

~In a death penalty case, D has a greater right to confront evidence presented against him.

Front 35

Guilty Plea

Back 35

Does record affirmatively show that D aware of charge and all elements; aware of penalty, voluntary plea, waived constitutional rights; nature and consequences of plea? An involuntary plea can be withdrawn at any time, while a voluntary withdrawal of plea is permissible only before sentence is imposed or imposition of sentence is suspended.

Front 36

Parole Revocation Hearing

Back 36

Mini-prompt hearing required, discovery, notice, opportunity to present evidence (but evidence rules need not apply) qualified right to counsel, and trier must make findings of fact.

Front 37

Double Jeopardy - Rule and test

Back 37

State & federal government are separate sovereignties: If same act sonstitutes federal/state crime, fed/state each may punish separately.

Test:

What constitutes DJ: Being acquitted by judge or jury on same offense or successful appeal where D's conviction reversed for insufficient evidence. SAME OFFENSE: if two offenses are same in both law and fact (where same act constitutes a vioation of two distinct statutory crimes, test as to whether there are two or one offense is whether each provision requires proof of an additional fact).

~When attached:
Jury trials: when jury sworn; non-jury trials: when first witness sworn.
~Collateral Estoppel: If ultimate fact already determined by final judgment, cannot be relitigated by same parties in any future lawsuit.