Criminal Procedure Mbe With Ny Distinctions

Front 1

Constitutional Requirements Binding on States

Back 1

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):
1. The Fourth Amendment PROHIBITION AGAINST UNREASONABLE SEARCHES AND SEIZURES; and the EXCLUSIONARY RULE;
2. The Fifth Amendment PRIVILEGE AGAINST COMPULSORY SELF-INCRIMINATION;
3. The Fifth Amendment PROHIBITION AGAINST DOUBLE JEOPARDY;
4. The Sixth Amendment right to SPEEDY TRIAL;
5. The Sixth Amendment right to a PUBLIC TRIAL;
6. The Sixth Amendment right to TRIAL BY JURY;
7. The Sixth Amendment right to CONFRONT WITNESSES;
8. The Sixth Amendment right to COMPULSORY PROCESS for obtaining witnesses;
9. The Sixth Amendment right to ASSISTANCE OF COUNSEL in felony cases and in misdemeanor cases in which imprisonment is imposed; and
10. The Eighth Amendment PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENT.

Front 2

Jurisdiction Over Persons in NY

Back 2

NY has jurisdiction over all persons within the state. Where NY has jurisdiction over the act and the person is not within its physical territory, jurisdiction over the person is obtainable if the defendant is FLEEING FROM JUSTICE.

Front 3

Jurisdiction Over Acts in State

Back 3

A person may be convicted if the conduct that occurred within NY is sufficient to establish:
1. An element of the offense;
2. An attempt to commit the offense; or
3. A conspiracy to criminal solicitation to commit the offense or otherwise establish the complicity of at least one of the persons liable therefor.

Front 4

Jurisdiction Over Acts Out of State

Back 4

Even though none of the conduct constituting the offense may have occurred within NY, a person may be convicted in NY if:
1. The offense committed was a result offense and the result occurred within NY;
2. The statute defining the offense is designed to prevent the occurrence of a particular effect in the state and the conduct constituting the offense committed was performed with the intent that it would have such effect in NY;
3. The offense was an attempt to commit a crime within NY; or
4. The offense committed was a conspiracy to commit a crime within NY and an overt act in furtherance of the conspiracy occurred within NY.

Front 5

Venue in NY

Back 5

The power to indict is vested in the county within which the conduct has some connection. A court cannot commence an action unless the criminal conduct bears a nexus to the geographical jurisdiction of the court.

Front 6

Note

Back 6

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

Front 7

Constitutional Rights Not Binding on States

Back 7

The right to indictment by a grand jury 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.

Front 8

Constitutional Rights Not Binding on States: Right to Indictment in NY: Right to Indictment

Back 8

The NY Constitution is similar to the US Constitution but permits a defendant to waive indictment by grand jury with the prosecutor’s approval if the crime charged is not punishable by death or by life imprisonment.

Front 9

Constitutional Rights Not Binding on States: Prohibition Against Excessive Bail in NY

Back 9

Excessive bail is prohibited in NY.

Front 10

Exclusionary Rule: In General—Scope of the Rule

Back 10

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 in exploitation of the unconstitutionally obtained evidence) must also be excluded unless the costs of excluding the evidence outweigh the deterrent effect exclusion would have on police misconduct.

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EXCEPTIONS TO FRUIT OF THE POISONOUS TREE DOCTRINE

Back 11

1. The fruits derived from statements obtained IN VIOLATION OF MIRANDA;
2. Evidence obtained from a SOURCE INDEPENDENT of the original illegality;
3. An INTERVENING ACT OF FREE WILL by the defendant (“attenuation”—e.g., defendant is illegally arrested but is released and later returns to the station to confess);
4. INEVITABLE DISCOVERY—i.e., the prosecution can show that the police would have discovered the evidence whether or not the police acted unconstitutionally; and
5. 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.

Front 12

Exclusionary Rule: Exception—Balancing Test in NY

Back 12

In NY the inevitable discovery exception does not permit the introduction of primary evidence, which was “obtained during or as an immediate consequence of the challenged police conduct,” but is limited to secondary evidence, which was “obtained indirectly as a result of leads or information gained from the primary evidence.”

Front 13

Exclusionary Rule: Limitations: Inapplicable to Grand Juries, Civil Proceedings, Violations of State Law, Internal Agency Rules, and Parole Revocation Proceedings

Back 13

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.

Front 14

Exclusionary Rule: Limitations: Good Faith Reliance on Law, Defective Search Warrant, or Clerical Error

Back 14

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.

NY: NY does NOT recognize the good faith exception for defective search warrants.

Front 15

Exclusionary Rule: Limitations: Use of Excluded Evidence for Impeachment Purposes

Back 15

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 in 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.

Front 16

Exclusionary Rule: Limitations: Knock and Announce Rule Violations

Back 16

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

Front 17

Exclusionary Rule: Harmless Error Test

Back 17

If illegal evidence is admitted, a resulting conviction should be overturned ON APPEAL unless the government can show beyond a 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.

Front 18

Exam Tip

Back 18

The harmless error standard never applies to the denial of the right to counsel AT TRIAL; i.e., this error never harmless.

Front 19

Enforcing the Exclusionary Rule

Back 19

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 guilty

Front 20

Fourth Amendment: In General

Back 20

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

Front 21

Fourth Amendment: Arrests and Other Detentions

Back 21

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

Front 22

Fourth Amendment: What Constitutes a Seizure?

Back 22

A seizure occurs when, under the totality of the circumstances, a reasonable person would feel that he was not free to decline the officer’s requests or otherwise terminate the encounter.

NY: In NY, police PURSUIT is a seizure.

Front 23

Fourth Amendment: Requirements for Arrest Warrant in NY

Back 23

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

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Arrests

Back 24

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

Front 25

Arrests: Probable Cause Requirement

Back 25

An arrest 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.

Front 26

Arrests: Warrant Generally Not Required Except for Home Arrests

Back 26

A warrant generally is not required before arresting a person IN A PUBLIC PLACE. However, police generally must have a warrant to effect a nonemergency arrest of a person in his home.

NY: A police officer may arrest a person without a warrant when he reasonably believes (probable cause) that a FELONY OR MISDEMEANOR has been committed by the offender, WHETHER IN THE OFFICER’S PRESENCE OR OTHERWISE.

Front 27

Warrantless Arrests by Private Persons in NY

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

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Other Detentions in NY

Back 28

“SLIDING SCALE OF POLICE AUTHORITY”

Front 29

Other Detentions in NY: MINIMAL INTRUSION/REQUEST FOR INFORMATION

Back 29

Police can APPROACH AND REQUEST information except on “whim or caprice.” Individual’s right not to respond and even to run away does NOT give police probable cause to arrest.

Front 30

Other Detentions in NY: Common Law Right to Inquire

Back 30

Police have “founded suspicion that criminal activity is afoot.” Can ASK QUESTIONS; DETENTION MUST BE SHORT OF SEIZURE. If individual gives explanations, police must release.

Front 31

Other Detentions in NY: Forcible Stop and Detention and Frisk

Back 31

Police have “REASONABLE SUSPICION” that individual has committed or is committing a crime. Under the limited “PLAIN FEEL” doctrine, if police reasonably believe they are in danger, they can FRISK in order to see if the suspect is ARMED. They may make a warrantless seizure of anything REASONABLY BELIEVED TO BE A WEAPON that is found during such frisk.

Front 32

Other Detentions in NY: Police Pursuit

Back 32

Impedes the individual’s freedom of movement, and so must be based on “REASONABLE SUSPICION” that a crime has been, is being, or is about to be committed.

Front 33

Other Detentions in NY: Automobile Stop

Back 33

The NY Court of Appeals has specifically held that police CAN stop a moving vehicle for “inspection” if they have reason to believe there is a traffic violation based on their observation. A stop is also valid if it is made pursuant to a roadblock at which passing vehicles are stopped in a UNIFORM AND NONDISCRIMINATORY MANNER. If police have “founded suspicion” of criminal activity, they may perform a canine sniff of the vehicle’s exterior. Occupants of a stopped car can be questioned, but the questioning cannot escalate to restraint without reasonable suspicion of criminal involvement. Occupants can be completely searched only if taken into custody.

Front 34

Other Detentions in NY: Arrest

Back 34

Police have “PROBABLE CAUSE” to believe individual has committed a crime.

Front 35

Investigatory Detentions (Stop and Frisk)

Back 35

If the police has a REASONABLE SUSPICION 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. If the police also have reasonable suspicion that the detainee is ARMED AND DANGEROUS, they may frisk the detainee for weapons.

Front 36

Investigatory Detentions (Stop and Frisk): Duration and Scope

Back 36

Investigatory stops are not subject to a specific time limit. The police must act in a DILIGENT AND REASONABLE MANNER IN CONFIRMING OR DISPELLING THEIR SUSPICIONS. 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.

Front 37

Property Seizures

Back 37

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

Front 38

Automobile Stops

Back 38

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 police to set up roadblocks to stop cars without individualized suspicion that the driver violated some law. To be valid, the roadblock must:
1. Stop cars on the basis of some NEUTRAL, ARTICULABLE STANDARD (e.g., every car); and
2. 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).

Front 39

Automobile Stops: Seizure of All Occupants

Back 39

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.

Front 40

Automobile Stops: Police May Order Occupants Out

Back 40

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 reasonably 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.

Front 41

Automobile Stops: Pretextual Stops

Back 41

If the police have probable cause to believe a driver violated a traffic law, they may stop the car, even if their ulterior motive is to investigate a crime for which they lack sufficient cause to make a stop.

Front 42

Detention to Obtain Warrant

Back 42

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.

Front 43

Occupants of the Premises

Back 43

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

Front 44

Station House Detentions

Back 44

Police must have full probable cause for arrest to bring a suspect to the station for questioning or fingerprinting against the person’s will.

Front 45

Grand Jury Appearance

Back 45

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

Front 46

Deadly Force

Back 46

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).

Front 47

Evidentiary Search and Seizure

Back 47

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:
1. Does defendant have a FOURTH AMENDMENT RIGHT (seizure by the GOVERNMENT concerning a place or thing in which defendant had a LEGITIMATE EXPECTATION OF PRIVACY)?
2. Did the government have a VALID WARRANT (issued by a 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)?
3. If the police did not have a valid warrant, did they make a VALID WARRANTLESS SEARCH AND SEIZURE?

Evidentiary Search and Seizure: Governmental Conduct Required

Front 48

Evidentiary Search and Seizure: Legitimate Expectation of Privacy: Standing

Back 48

To have a Fourth Amendment right, a person must have his own legitimate 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:

1. He owned or had a RIGHT TO POSSESSION of the place searched;
2. The place searched was in fact HIS HOME, whether or not he owned or had a right to possession of it; or
3. He was an OVERNIGHT GUEST of the owner of the place searched.

Front 49

Evidentiary Search and Seizure: Automatic Standing in NY

Back 49

Co-defendants traveling in a vehicle are PERMITTED automatic standing to challenge charges of CRIMINAL POSSESSION of a weapon which arise SOLELY because of the presumption of possession attributed to all passengers when weapons are found in vehicle.

Front 50

Legitimate Expectation of Privacy: Things Held Out to the Public

Back 50

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

Note: Use of sense-enhancing technology that is not is general public use (e.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 legitimate expectation of privacy.

Front 51

Legitimate Expectation of Privacy: Things Held Out to the Public in NY

Back 51

While the US Supreme Court has found that placement of a beeper on a vehicle to follow its movements on public roads does not constitute a search, the NY Court of Appeals held that attaching a global positioning satellite (“GPS”) tracking device to a vehicle is more intrusive and constitutes a search under both the Fourth Amendment and the NY Constitution.

Front 52

Vehicle Identification Numbers in NY

Back 52

A police officer may NOT reach into an automobile to move papers to observe the vehicle’s identification number.

Front 53

“Dial-a-Warrant” in NY

Back 53

Judicial authorization for a search warrant may be obtained by telephone or other electronic communication with a judge. The judge must administer the oath, make record of it, and if granted, the applicant must fill out the search warrant.

Note: There is NO SUCH THING AS AN ORAL SEARCH WARRANT—only oral applications. The warrant itself must be WRITTEN.

Front 54

Searches Conducted Pursuant to a Warrant

Back 54

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

Front 55

Searches Conducted Pursuant to a Warrant: Showing of Probable Cause

Back 55

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. Officers 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.

Front 56

Searches Conducted Pursuant to a Warrant: Showing of Probable Cause: Use of Informers

Back 56

An affidavit based on an informer’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 established. Note that the informer’s identity generally need not be revealed.

Front 57

Searches Conducted Pursuant to a Warrant: Showing of Probable Cause: Use of Informers in NY

Back 57

NY applies a MORE STRINGENT STANDARD than required by the US Constitution. In NY, under the “Aguilar-Spinelli” test, a search warrant application must demonstrate:
1. Veracity or RELIABILITY OF THE SOURCE of information; and
2. The BASIS OF THE INFORMANT’S KNOWLEDGE.

If the informer has not revealed the basis for his knowledge, probable cause for verification can arise only where the observation confirms SUFFICIENT DETAILS SUGGESTIVE OF OR DIRECTLY RELATED TO the criminal activity informed about.

Front 58

Searches Conducted Pursuant to a Warrant: Showing of Probable Cause: Going “Behind the Face” of the Affidavit

Back 58

A search warrant issued on the basis of an affidavit will be held invalid if the defendant establishes ALL THREE of the following:

1. A FALSE STATEMENT was included in the affidavit by the affiant (the officer applying for the warrant);
2. The affiant INTENTIONALLY OR RECKLESSLY included the false statement; AND
3. The false statement was MATERIAL TO THE FINDING OF PROBABLE CAUSE.

Front 59

Exam Tip

Back 59

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.

Front 60

Searches Conducted Pursuant to a Warrant: Showing of Probable Cause: Police May Reasonably Rely on Validity of Warrant

Back 60

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.

Front 61

Exam Tip

Back 61

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.

Front 62

Searches Conducted Pursuant to a Warrant: Showing of Probable Cause: Warrant Must Be Precise on Its Face

Back 62

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.

Front 63

Searches Conducted Pursuant to a Warrant: Showing of Probable Cause: Search of Third-Party Premises Permissible

Back 63

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.

Front 64

Searches Conducted Pursuant to a Warrant: Showing of Probable Cause: Neutral and Detached Magistrate Requirement

Back 64

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

Front 65

Searches Conducted Pursuant to a Warrant: Showing of Probable Cause: Execution of Warrant

Back 65

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). The scope of the search is limited to what is reasonably necessary to discover the items described in the warrant. Police may seize any contraband or fruits or instrumentalities of crime that they discover, 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.

Front 66

Execution of Warrant: Remedy in NY

Back 66

The NY Court of Appeals has not yet ruled whether violation of the knock and announce rule requires exclusion of evidence under NY law even though federal law does not require exclusion.

Front 67

Searches Conducted Pursuant to a Warrant: Showing of Probable Cause: Execution of Warrant: Search of Persons Found on Searched Premises

Back 67

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.

Front 68

Exceptions to Warrant Requirement

Back 68

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

Front 69

Search Incident to Constitutional Arrest

Back 69

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 protective sweep of the area if they believe accomplices may be present. The search must be CONTEMPORANEOUS in time and place with the arrest, but, at least with respect to search of automobiles, the term “contemporaneous” does not necessarily mean “simultaneous.” Thus, e.g., the police may search the interior of an automobile AFTER securing a recent occupant of the automobile in a squad car if they have reason to believe that the vehicle contains evidence of the crime for which the recent occupant was arrested.

Front 70

Search Incident to Constitutional Arrest: Constitutional Arrest Requirement

Back 70

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

Front 71

Search Incident to Constitutional Arrest: Automobiles

Back 71

The police may conduct a search of the passenger compartment of an automobile INCIDENT TO ARREST only if at the time of the search:
1. The ARRESTEE IS UNSECURED AND STILL MAY GAIN ACCESS to the interior of the vehicle; or
2. The police reasonably believe that EVIDENCE OF THE OFFENSE FOR WHICH THE PERSON WAS ARRESTED may be found in the vehicle.

Front 72

Search incident to a Lawful Arrest in NY: Geographic Scope

Back 72

NY affords the arrestee broader protection than is required by the US Constitution. In NY, the officer MUST SUSPECT that the arrested person may be ARMED to search containers in the “wingspan.” Furthermore, once an occupant has been REMOVED from a car, police may NOT REMOVE CLOSED CONTAINERS OR BAGS from the car to look for weapons or other evidence as an incident of the arrest. They may search the car only if they have a warrant or some other exception (e.g., the automobile exception) applies.

Front 73

Search Incident to Incarceration or Impoundment

Back 73

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

Front 74

“Automobile” Exception

Back 74

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.

Front 75

Exam Tip

Back 75

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.

Front 76

Automobile Exception: Passenger’s Belongings

Back 76

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

Front 77

Automobile Exception: containers placed in vehicle

Back 77

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.

Front 78

Plain View

Back 78

The police may make a warrantless seizure when they:

1. Are LEGITIMATELY ON THE PREMISES;
2. Discover EVIDENCE, FRUITS OR INSTRUMENTALITIES of crime, or CONTRABAND;
3. See such evidence in PLAIN VIEW; and
4. 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.

Front 79

Exam Tip

Back 79

For this exception, be sure the police officer is legitimately on the premises (i.e., where she has a lawful right to be), such as on a public sidewalk or in 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.

Front 80

Consent

Back 80

A warrantless search is valid if the police have a VOLUNTARY consent. Knowledge of the right to withhold consent is NOT a prerequisite to establishing a voluntary 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 believes it extends

Front 81

Authority to Consent

Back 81

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.

Front 82

Exam Tip

Back 82

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.g., 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.

Front 83

Stop and Frisk: Standards

Back 83

As noted above, a police officer may stop a person without probable cause for arrest if she has an ARTICULABLE AND REASONABLE SUSPICION of criminal activity. The officer mayeuire the detainee to state hs name, and if the officer also reasonably believes that the person may be armed and presently dangerous, she may conduct a protective frisk

Front 84

Exam Tip

Back 84

Remember that a STOP is not an arrest, and thus an officer need not have probable cause. Hoewever, he must have a reason to believe that criminal activity is afoot. Thus, seeing a person pace in 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.

Front 85

Stop and Frisk: Scope of Intrusion

Back 85

The scope of the frisk is generally limited to a patdown 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 occpants 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.

Front 86

Stop and Frisk: Admissibility of Evidence

Back 86

During a patdown, 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.

Front 87

Hot Pursuit, Evanescent Evidence, and Emergency Aid Exceptions

Back 87

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 of safety.

Front 88

Evanescent Evidence Exception in NY

Back 88

BLOOD OR CHEMICAL TESTS—there is no common law right to perform these tests absent court order. However, the NY Vehicle and Traffic Law states that “any person who OPERATES A MOTOR VEHICLE in the state shall be deemed to have given his consent” to such a test.

Front 89

Administrative Inspections and Searches

Back 89

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.

Front 90

Administrative Inspections and Searches: Exceptions Permitting Warrantless Searches

Back 90

The following warrantless searches have been upheld:

1. Administrative searches to SEIZE SPOILED OR CONTAMINATED FOOD;
2. Administrative searches of a BUSINESS WITHIN A HIGHLY REGULATED INDUSTRY;
3. INVENTORY SEARCHES OF ARRESTEES or their vehicles pursuant to established department procedure;
4. Searches of AIRLINE PASSENGERS prior to boarding;
5. 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.
6. Searches of GOVERNMENT EMPLOYEES’ DESKS AND FILE CABINETS where the scope is reasonable and there is a work-related need or reasonable suspicion of work-related misconduct;
7. DRUG TESTS OF RAILROAD EMPLOYEES INVOLVED IN AN ACCIDENT;
8. DRUG TESTS OF PERSONS SEEKING CUSTOMS EMPLOYMEN IN POSITIONS CONNECTED TO DRUG INTERDICTION; and
9. DRUG TESTS OF PUBLIC SCHOOL STUDENTS WHO PARTICIPATE IN EXTRACURRICULAR ACTIVITIES.

Front 91

Administrative Searches: Public School Searches

Back 91

A warrant or probable cause is not required for public school officials to search public school students or their possessions; only REASONBLE GROUNDS for the search are necessary. A school search will be held to be reasonable only if:
1. It offers a MODERATE CHANCE OF FINDING EVIDENCE of wrongdoing;
2. The measures adopted to carry out the search are REASONABLE RELATED TO THE OBJECTIVES OF THE SEARCH; and
3. The search is NOT EXCESSIVELY INTRUSIVE in light of the age and sex of the student and nature of the infraction.

Front 92

Administrative Inspections and Searches: Inventory Search in NY

Back 92

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

Front 93

Searches of Parolees in NY

Back 93

The NY Court of Appeals has specifically held that a parolee’s right to be free of unreasonable searches and seizures is not violated when his parole officer makes a warrantless search of the parolee’s apartment, provided the officer’s conduct is rationally and reasonably related to the performance of his duty as a parole officer.

Front 94

Searches in Foreign Countries and at the Border: Searches in Foreign Countries

Back 94

The Fourth Amendment does not apply to searches and seizures by United States officials in foreign countries and involving an alien, at least where the alien does 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.

Front 95

Searches in Foreign Countries and at the Border: Searches at the Border or Its Equivalent

Back 95

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 occpants if an officer REASONABLY SUSPECTS that the vehicle contains illegal aliens. Border officials may stop a vehicle at a fixed checkpoint inside the border for questioning of occupants and may disassemble the vehicle, even without reasonable suspicion.

Front 96

Searches in Foreign Countries and at the Border: Opening International Mail

Back 96

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

Front 97

Searches in Foreign Countries and at the Border: Immigration Enforcement Actions

Back 97

The Immigration Services Division may do a “factory survey” of the work force in a factory to determine citizenship of 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.

Front 98

Searches in Foreign Countries and at the Border: Detentions

Back 98

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

Front 99

Wiretapping and Eavesdropping

Back 99

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:
1. There is a showing of probable cause,
2. The suspected persons involved in the conversations to be overheard are named,
3. The warrant describes with particularity the conversations that can be overheard,
4. The wiretap is limited to a short period of time,
5. The wiretap is terminated when the desired information has been obtained, and
6. Return is made to the court, showing what conversations have been intercepted.

Front 100

Wiretapping and Eavesdropping in NY

Back 100

“Eavesdropping” includes both “bugging” and “wiretapping.” Both are felonies if there is neither consent nor a properly issued eavesdropping warrant. Evidence obtained from eavesdropping by an unauthorized private person is INADMISSIBLE EXCEPT in a civil or criminal proceeding against the eavesdropper.

Note: It is permissible for any person to record his own conversation even without notice to other participants. One participant in the conversation may also permit a third person to record it without notice to other participants.

Front 101

Time Limits for Wiretap in NY

Back 101

An eavesdropping warrant cannot be issued for 1) any period longer than is necessary to achieve the warrant’s objective or 2) longer than 30 DAYS. Within 90 days after the termination of the warrant, the person whose conversations were seized must be informed.

Front 102

Wiretap Suppression Procedure in NY: Standing

Back 102

If the conversation incriminates a third party, it is ADMISSIBLE IF the third party was NOT A PARTY TO THE CONVERSATION and his premises or area of PRIVACY WAS NOT INVADED by the interception. Suppression is by pretrial motion.

Front 103

Wiretapping and Eavesdropping: Exceptions

Back 103

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.

Front 104

Pen Registers

Back 104

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 be used.

Front 105

Method of Obtaining Evidence that Shocks the Conscience

Back 105

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.

Front 106

Confessions: Introduction

Back 106

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

Front 107

Confessions: Reference to Multiple Crimes in NY

Back 107

When a confession refers to other crimes for which the defendant is not being tried, the confession must be edited to eliminate references to unrelated, and therefore irrelevant, criminal activity.

Front 108

Confessions: Fourteenth Amendment—Voluntariness

Back 108

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.g., a confession is not involuntary merely because it is a product of mental illness).

Front 109

Confessions: Fourteenth Amendment—Voluntariness: Arthur-Hobson Rule in NY

Back 109

NY has specifically ruled that the length of interrogation and custody are factors in determining voluntariness of confessions.

Front 110

Confessions: Fourteenth Amendment—Voluntariness: Harmless Error Test Applies

Back 110

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.

Front 111

Confessions: Sixth Amendment Right to Counsel

Back 111

The Sixth Amendment guarantees the right to the assistance of counsel in all criminal proceedings, which includes 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.

Front 112

Exam Tip

Back 112

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 under Miranda.

Front 113

Sixth Amendment Right to Counsel: Stages at Which Applicable

Back 113

A defendant has a right to be represented by privately retained counsel, or to have counsel appointed for him by the state if he is indigent, at the following stages:
1. Post-indictment interrogation, whether or not custodial;
2. Preliminary hearings to determine probable cause to prosecute;
3. Arraignment;
4. Post-charge lineups;
5. Guilty plea and sentencing;
6. Felony trials;
7. Misdemeanor trials when imprisonment is actually imposed or when a suspended jail sentence is imposed;
8. Overnight recesses during trial;
9. Appeals as of a matter of right; and
10. Appeals of guilty pleas.

There is also a Fifth Amendment right to counsel at any custodial police interrogation.

Front 114

Confessions: Sixth Amendment Right to Counsel: Stages at Which Applicable in NY

Back 114

NY affords greater protection to the defendant than does the US Constitution. NY provides for an “INDELIBLE” RIGHT to counsel. This indelible right to counsel attaches:
1. When the defendant is IN CUSTODY, the police are engaging in “ACTIVITY OVERWHELMING TO THE LAYPERSON,” and the defendant REQUESTS COUNSEL;
2. At ARRAIGNMENT;
3. Upon the filing of an ACCUSATORY INSTRUMENT; or
4. When there has been ANY SIGNIFICANT JUDICIAL ACTIVITY.

Front 115

Confessions: Sixth Amendment Right to Counsel: Stages at Which Not Applicable

Back 115

1. Blood sampling
2. Taking of handwriting or voice exemplars;
3. Precharge or investigative lineups;
4. Photo identifications;
5. Preliminary hearings to determine probable cause to detain;
6. Brief recesses during the defendant’s testimony at trial;
7. Discretionary appeals;
8. Parole and probation revocation proceedings; and
9. Post-conviction proceedings

Front 116

Confessions: Sixth Amendment Right to Counsel Approach: Stages at Which Not Applicable in NY

Back 116

INVESTIGATORY LINEUPS—No right to counsel exists as an “investigatory lineup” held prior to formal prosecutorial action EXCEPT when:
1. Police are AWARE that the defendant is REPRESENTED BY COUNSEL ON ANOTHER CHARGE; and
2. The defendant EXPLICITLY REQUESTS HIS ATTORNEY.

Police must then notify counsel and provide an opportunity for counsel to appear before they proceed with the lineup. If defense counsel contacts police to inform them of his intent to appear at lineup, counsel must be given reasonable opportunity to attend.

Front 117

Confessions: Sixth Amendment Right to Counsel Approach: “Knowledge” that Defendant is Represented by Counsel in NY

Back 117

It is not necessary that the officials DIRECTLY INVOLVED with the investigation know that the defendant is represented by counsel as long as they COULD HAVE KNOWN (e.g., in the record).

Front 118

Confessions: Sixth Amendment Right to Counsel Approach: Infants in NY

Back 118

Attempts to keep a parent from a child held by police may INVALIDATE the child’s confession. However, there is no police-made invalidation where the police DO NOT ATTEMPT TO CONCEAL the child or deceive the family, EVEN IF a parent REFUSES permission to see the child.

A parent or legal guardian of a child may invoke the right to counsel on the child’s behalf. However, in order for the right to attach, the invocation of counsel must be UNEQUIVOCAL.

Front 119

Confessions: Sixth Amendment Right to Counsel Approach: Specific and Often Tested Examples in NY

Back 119

Examples:
1. D’s statement was taken after Attorney appeared at the police station and demanded access to D. D had no retained Attorney and was unaware of Attorney’s presence. Nevertheless, the statement was held inadmissible.
2. D was arrested, given Miranda warnings, and shown copies of an accomplice’s statement implicating D. D indicated a willingness to talk but first asked to call his mother. A few minutes later, D’s attorney telephoned D and told him not to talk to the police. D related this conversation to the police, said he would talk anyway, and confessed. The confessions was held inadmissible because the indelible right to counsel attached with the attorney’s phone call.

Front 120

Sixth Amendment Right to Counsel: Offense Specific

Back 120

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). Two offenses will be considered different if each requires proof of an additional element that the other crime does not require.

Front 121

Confessions: Sixth Amendment Right to Counsel: Offense Specific—Unrelated Charges in NY

Back 121

However, if the defendant is RELEASED AND LATER ARRESTED ON UNRELATED CHARGES, waiver can be made without the presence of counsel from prior charges.

Front 122

Sixth Amendment Right to Counsel: Waiver

Back 122

The Sixth Amendment right to counsel may be waived. The waiver must be 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 123

Confessions: Sixth Amendment Right to Counsel Approach: Waiver in NY

Back 123

In NY, WAIVER may be obtained from a criminal defendant who is actually and known to be represented by an attorney ONLY IN THE PRESENCE OF COUNSEL.

Example: D was in custody, but not under arrest. He had just been identified as the perpetrator at a lineup at which counsel was present. After counsel left and after D was given Miranda warnings, he confessed. The confession was held inadmissible because the “waiver” of the right to counsel occurred without counsel being present.

Front 124

Sixth Amendment Right to Counsel: Remedy

Back 124

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 125

Sixth Amendment Right to Counsel: Impeachment

Back 125

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 126

Fifth Amendment Privilege against Compelled Self-Incrimination: Miranda Warnings

Back 126

For an admission or confession to be admissible under the Fifth Amendment privilege against self-incrimination, a person in custody must, prior to interrogation, be informed, in substance, that:
1. He has the right to REMAIN SILENT
2. Anything he says CAN BE USED AGAINST him in court;
3. He has the right to presence of an ATTORNEY; and
4. If he cannot afford an attorney, one will be APPOINTED for him if he so desires.

Front 127

Exam Tip

Back 127

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 of a defendant’s Sixth Amendment rights.

Front 128

Fifth Amendment Privilege against Compelled Self-Incrimination: When Required

Back 128

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

Front 129

Fifth Amendment Privilege against Compelled Self-Incrimination: When Required: Governmental Conduct

Back 129

Generally, Miranda warnings are necessary only if the detainee KNOWS that he is being interrogated by a GOVERNMENT AGENT.

Front 130

Fifth Amendment Privilege against Compelled Self-Incrimination: When Required: Governmental Conduct: Inapplicable at Grand Jury Hearing

Back 130

The Miranda requirements do not apply to an uncharged witness testifying before a grand jury, even if the witness was compelled by subpoena to be there.

Front 131

Fifth Amendment Privilege against Compelled Self-Incrimination: When Required: Custody Requirement

Back 131

Whether a person is in custody depends on whether the person’s freedom of action is limited in a significant way based on the OBJECTIVE circumstances (e.g., an arrest constitutes custody; a routine traffic stop does not constitute custody).

Front 132

Fifth Amendment Privilege against Compelled Self-Incrimination: When Required: Interrogation Requirement

Back 132

“Interrogation” includes any words or conduct by the police that they should know would LIKELY ELICIT A RESPONSE from the detainee. Thus, Miranda warnings are not required before spontaneous statements are made by a detainee. Note that routine booking questions do not constitute interrogation.

Front 133

Fifth Amendment Privilege against Compelled Self-Incrimination: When Required: Interrogation Requirement—Spontaneous Statements in NY

Back 133

A SPONTANEOUS STATEMENT made by a defendant without any inducement, provocation, or encouragement by the authorities may properly be admitted, even if the statement was made in the absence of counsel. The statement must be “forced” upon the officer.

Note: If the statement is NOT BLURTED OUT and therefore not admissible as a confession, it is still admissible for IMPEACHMENT.

Front 134

Fifth Amendment Privilege against Compelled Self-Incrimination: When Required: Right to Waive Rights or Terminate Interrogation

Back 134

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

Front 135

Fifth Amendment Privilege against Compelled Self-Incrimination: Right to Waive Rights or Terminate Interrogation: Do Nothing

Back 135

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 136

Fifth Amendment Privilege against Compelled Self-Incrimination: Right to Waive Rights or Terminate Interrogation: Waive Rights

Back 136

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 AND VOLUNTARY. 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 137

Fifth Amendment Privilege against Compelled Self-Incrimination: Right to Waive Rights or Terminate Interrogation: Invocation of Right to Remain Silent

Back 137

If the detainee indicates that he wishes to remain silent, the police must scrupulously honor this request by not badgering the detainee. To be effective, the detainee’s indication must be explicit, unambiguous, and unequivocal (e.g. the accused’s failure to answer does not constitute an invocation of the right to remain silent). In any case, the Supreme Court has allowed later questioning to occur on an UNRELATED crime.

Front 138

Fifth Amendment Privilege against Compelled Self-Incrimination: Right to Waive Rights or Terminate Interrogation: Invocation of Right to Counsel

Back 138

If the detainee UNAMBIGUOUSLY indicates that he wishes to speak to counsel, ALL QUESTIONING MUST CEASE until counsel has been provided unless the detainee:
1. Then waives his right to counsel (e.g., by reinitiating questioning) or
2. 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 in 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.

Front 139

Exam Tip

Back 139

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

Front 140

Fifth Amendment Privilege against Compelled Self-Incrimination: Effect of Violation

Back 140

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

Front 141

Fifth Amendment Privilege against Compelled Self-Incrimination: Effect of Violation: Use of Confession for Impeachment

Back 141

Statements obtained in violation of the Miranda rules may be used to impeach the DEFENDANT’S trial testimony, but may not be used as evidence of guilt.

Front 142

Fifth Amendment Privilege against Compelled Self-Incrimination: Effect of Violation: Warnings After Questioning and Confession

Back 142

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 143

Fifth Amendment Privilege Against Compelled Self-Incrimination: Effect of Violation: Nontestimonial Fruits of an Unwarned Confession

Back 143

If the 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 144

Fifth Amendment Privilege Against Compelled Self-Incrimination: Public Safety Exception

Back 144

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.

NY: When police are searching for a person who has recently disappeared, the continued QUESTIONING of the suspected kidnapper need not terminate although the right to counsel has attached.

Front 145

Pretrial Identification: Substantive Bases for Attack: Sixth Amendment Right to Counsel

Back 145

A suspect has a right to the presence of an attorney at any POST-CHARGE lineup or showup. 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.

Front 146

Exam Tip

Back 146

Recall that the right to counsel BEFORE trial is very limited and does not cover procedures where the defendant is not personally confronted by the witness against him (as in photo identification).

Front 147

Pretrial Identification: Substantive Bases for Attack: Due Process Standard

Back 147

A defendant can attack an identification as denying due process if the identification is UNNECESSARILY SUGGESTIVE and there is a SUBSTANTIAL LIKELIHOOD OF MISIDENTIFICATION.

Front 148

Exam Tip

Back 148

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 in a lineup on this basis.

Front 149

Pretrial Identification: The Remedy

Back 149

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

Front 150

Pretrial Identification: The Remedy: Independent Source

Back 150

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 151

Pretrial Identification: The Remedy: Hearing

Back 151

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:
1. Counsel was present;
2. The accused waived counsel; or
3. There is an independent source for the in-court identification.

The defendant must prove an alleged due process violation.

Front 152

Pretrial Procedures: Preliminary Hearing to Determine Probable Cause to Detain

Back 152

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, nonadversarial 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 153

Pretrial Procedures: Pretrial Detention—Bail

Back 153

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.

Front 154

Exam Tip

Back 154

Since the Supreme Court has never held that the Eighth Amendment provision for bail applies to the states, the Eighth Amendment is not a very strong argument against a state’s denial of bail. If, however, a state provides or bail (and most states do), arbitrary denials of bail will violate DUE PROCESS—detainees must be given the opportunity to prove eligibility.

Front 155

Pretrial Detention—Bail: Incompetent to Stand Trial

Back 155

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 156

Grand Juries: Use of Grand Jury

Back 156

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 157

Grand Juries in NY

Back 157

Grand juries consist of between 16 and 23 persons. Twelve votes are needed to indict. A citizen may waive indictment for a crime, but only if:
1. He is being held for grand jury action;
2. The crime is punishable other than by death or life imprisonment; and
3. The district attorney consents.

Front 158

Grand Juries in NY: Witness Immunity in NY

Back 158

Any witness who testifies IN A GRAND JURY PROCEEDING AUTOMATICALLY RECEIVES TRANSACTIONAL IMMUNITY UNLESS HE HAS WAIVED IMMUNITY or volunteers information not responsive to any inquiry, knowing it is not responsive. However, a grand jury witness who testifies after pleading guilty and before sentencing receives no imunity.

Note: Every witness in a grand jury proceeding must give any evidence requested even though that evidence may tend to incriminate him.

Front 159

Grand Juries in NY: Witness Immunity in NY: Written Waiver

Back 159

WRITTEN WAIVER of immunity, signed by the witness, is REQUIRED. The waiver must also be sworn to before the jury. The witness has a right to confer with counsel if asked to sign such a waiver. The waiver may be limited to certain subjects or to a certain period of time.

Front 160

Grand Juries in NY: Witness Immunity in NY: Defendant as Witness

Back 160

If a defendant REQUESTS THE OPPORTUNITY TO TESTIFY before the grand jury, that request must be granted, provided the defendant WAIVES IMMUNITY. The district attorney is obliged to give notice of grand jury proceedings to the defendant. The defendant must be given a reasonable time to appear.

Front 161

Grand Jury Proceedings: Secrecy and Defendant’s Lack of Access

Back 161

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 be present and confront witnesses at the proceeding, or to introduce evidence before the grand jury.

Front 162

Grand Jury Proceedings: No Right to Counsel or to Miranda Warnings

Back 162

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 163

Grand Jury Proceedings: No Right to Counsel or Miranda Warnings in NY

Back 163

A witness who has been granted immunity may consult with counsel, but not in the grand jury room. A witness who has waived immunity may be accompanied into the grand jury room by counsel, but counsel may not take part in the proceeding.

TRAUMATIC CRIMES—Any witness to a traumatic crime may be accompanied by a social worker, rape crisis counselor, psychologist, or other professional providing emotional support to the witness.

Front 164

Grand Jury Proceedings: No Right to Have Evidence Excluded

Back 164

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.

Front 165

Grand Jury Proceedings: No Right to Have Evidence Excluded in NY

Back 165

NY narrows the scope of admissible evidence at grand jury proceedings.

INDICTMENT—The grand jury may indict when the evidence:
1. Establishes all of the ELEMENTS of the crime;
2. Is LEGALLY SUFFICIENT to establish that the accused committed the offense; and
3. Establishes REASONABLE CAUSE to believe that the accused committed the crime.

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

Front 166

Grand Juries in NY: Witnesses Who May Be Videotaped in Lieu of Examination at Grand Jury Proceeding

Back 166

CHILD WITNESS—12 years old or younger may be videotaped in lieu of appearing.

SPECIAL WITNESS—A person who cannot attend the proceeding because the person is either:
1. Physically ill or incapacitated; or
2. More than 12 years old but would suffer very severe emotional or mental stress if required to testify in person concerning the CRIME OF INCEST.

The district attorney may make an EX PARTE APPLICATION to the court for an order authorizing the videotaping of an examination of a special witness.

Front 167

Exam Tip

Back 167

For purposes of the MBE, keep in mind these major differences between grand jury proceedings and criminal trials:

1. The “defendant” (grand jury witness) has no right to have counsel present during his grand jury testimony;
2. The grand jury may consider evidence that would be excluded at the criminal trial (e.g., illegally obtained evidence or hearsay); and
3. The “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 168

Grand Jury Proceedings: No Right to Challenge Subpoena

Back 168

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

Front 169

Grand Jury Proceedings: Exclusion of Minorities

Back 169

A conviction resulting from an indictment issued by a grand jury from which members of a minority group have been excluded will be reversed WITHOUT REGARD to harmlessness oof error.

Front 170

Exam Tip

Back 170

For purposes of the MBE, exclusion of minorities is about the only defect sufficient to quash a grand jury indictment.

Front 171

Speedy Trial: Standards

Back 171

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 the 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 172

Speedy Trial: Specific Time Periods in NY

Back 172

FELONY—6 months
A MISDEMEANOR—90 days
B MISDEMEANOR—60 days
VIOLATION—30 days

EXCLUSIONS FROM TIME PERIODS:
1. Reasonable delay resulting from other proceedings.
2. Continuance.
3. Absence of the defendant, if the defendant’s absence causes the delay.
4. Reasonable delay caused by joinder of co-defendant.
5. Delay caused by the defendant’s detention in another jurisdiction.
6. Delay caused by exceptional circumstances.
7. Period during which action has been adjourned in contemplation of dismissal.

Front 173

Speedy Trial in NY: Remedy—Dismissal

Back 173

If the prosecution is not ready for trial, the defendant may be entitled to either release from custody or dismissal of the charge, depending on the amount of the delay. Unexcused delay requires dismissal upon the defendant’s motion. Whether the defendant is prejudiced by delay is irrelevant. The EXCEPTIONS to dismissal are:
1. HOMICIDE, or
2. SUDDEN UNAVAILABILITY OF MATERIAL EVIDENCE.

Front 174

Speedy Trial: When Right Attaches

Back 174

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 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.

Front 175

Exam Tip

Back 175

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 176

Prosecutorial Duty to Disclose Exculpatory Information and Notice of Defenses: Prosecutor’s Duty to Disclose Exculpatory Evidence

Back 176

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:
1. The evidence is FAVORABLE to him because it either impeaches or is exculpatory; and
2. 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 177

Prosecutor’s Duty to Disclose Exculpatory Information in NY

Back 177

NY specifically provides that, upon demand, the defendant may obtain for inspection and copying:
1. His own or a co-defendant’s statement to a law enforcement officer, including grand jury testimony;
2. Tapes of bugged conversations intended to be used at trial;
3. Relevant photos or drawings made by police;
4. Reports of physical, mental, or scientific tests or experiments;
5. Any other property obtained from the defendant;
6. The approximate date, time, and place of the offense charged;
7. Anything that the state or federal Constitution requires to be disclosed to the defendant by the prosecutor prior to trial; and
8. All specific instances of the defendant’s conduct that the prosecutor intends to use at trial to impeach the defendant’s credibility.

Between the time the jury is sworn in and the prosecutor’s opening statement, the prosecutor must give the defense ANY PRIOR WRITTEN OR RECORDED STATEMENTS OF PERSONS TO BE CALLED AT WITNESSES as well as known criminal records of prosecution witnesse

Front 178

Notice of Alibi and Intent to Present Insanity Defense

Back 178

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 defendant must give the prosecution a list of his witnesses. The prosecution must give the defendant a list of the witnesses it will use to rebut the defense. The prosecutor may not comment at trial on defendant’s failure to produce a witness named as supporting the alibi or on failure to present the alibi itself.

Front 179

Notice of Alibi and Intent to Present Insanity Defense in NY

Back 179

The defendant must notify the prosecutor within 30 DAYS FROM A “NOT GUILTY PLEA” if raising insanity as a defense. Within 20 DAYS AFTER ARRAIGNMENT, the prosecutor may serve the defendant with demand for the alibi defense, and the defendant must reply within eight days.

Front 180

Defendant’s Duty of Disclosure in NY

Back 180

Before the defendant’s direct case, the defense must make available ANY RELEVANT PRIOR WRITTEN OR RECORDED STATEMENTS BY A DEFENSE WITNESS. The prosecution may demand physical, mental, or scientific reports, the results of which the defendant intends to introduce at trial.

Front 181

Continuing Duty of Disclosure in NY

Back 181

If a party finds, before or during trial, additional discoverable material, that party must promptly disclose or inform the other side of is refusal to disclose or apply for a protective order.

Front 182

Nonproduction in NY

Back 182

Failure of the prosecution to call a witness or the failure of any party to introduce previously disclosed material “shall not, by itself, constitute grounds for any sanction or for adverse comment at any point at trial.”

Front 183

Competency to Stand Trial: Competency and Insanity Distinguished

Back 183

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. If defendant later regains his competency, he can then be tried and convicted.

Front 184

Competency to Stand Trial: Due Process Standard

Back 184

A defendant is incompetent to stand trial if he either:

1. Lacks a rational as well as factual understanding of the charges and proceedings, or
2. Lacks sufficient present ability to consult with his lawyer with a reasonable degree of understanding.

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 “clear and convincing” evidence is unconstitutional.

NY: In NY, the prosecution must establish the defendant’s competency by a preponderance of the evidence.

Front 185

Competency to Stand Trial: Detention of Defendant

Back 185

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 186

Pretrial Publicity

Back 186

Excessive pretrial publicity prejudicial to the defendant may require change of venue or retrial.

Front 187

Opening Statement in NY

Back 187

By statute, the prosecutor’s opening statement cannot be waived in a jury trial.

Front 188

Basic Right to a Fair Trial: Right to Public Trial

Back 188

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

Front 189

Basic Right to a Fair Trial: Right to Public Trial: Pretrial Proceedings

Back 189

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 190

Basic Right to a Fair Trial: Right to Public Trial: Trial

Back 190

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 191

Basic Right to a Fair Trial: Right to Unbiased Judge

Back 191

Due Process is violated ift he 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 192

Basic Right to a Fair Trial: Must Judge Be Lawyer?

Back 192

A defendant in a minor misdemeanor prosecution has no right to have the trial judge be 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 193

Basic Right to a Fair Trial: Other Due Process Rights

Back 193

Due Process is violated if:

1. The trial is conducted in a manner making it UNLIKELY THAT THE JURY GAVE THE EVIDENCE REASONABLE CONSIDERATION;
2. The state compels the defendant to stand trial in PRISON CLOTHING;
3. 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 courtroom security or escape; or
4. 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 194

Right to Trial by Jury in NY: Waiver

Back 194

UNLESS the indictment charges MURDER IN THE FIRST DEGREE, the defendant may at any time before trial may WAIVE A TRIAL BY JURY if the waiver is:
1. IN WRITING
2. SIGNED in open court,
3. IN THE PRESENCE OF THE JUDGE, and
4. With the judge’s APPROVAL.

Front 195

Right to Trial by Jury: Right to Jury Trial Only for “Serious” Offenses

Back 195

There is no constitutional right to 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 196

Right to Trial by Jury: Right to Jury Trial Only for “Serious” Offenses: Contempt

Back 196

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 jury trial. If a judge summarily imposes punishment for contempt DURING TRIAL, penalties may aggregate more than six months without a jury trial.

Front 197

Right to Trial by Jury: Right to Jury Trial Only for “Serious” Offenses: Contempt: Probation

Back 197

A judge may place a contemnor on probation for up to 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 198

Right to Trial by Jury: Number and Unanimity of Jurors

Back 198

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 199

Right to Trial by Jury in NY: Number of Jurors in NY

Back 199

INDICTMENT (FELONIES)—12 jurors, with up to four alternates, at the discretion of the court. A jury of 12 can be waived by the defendant in open court, at least when a juror becomes ill, leaving only 11.

INFORMATION (CRIMES LESS THAN FELONIES)—Six jurors, with up to two alternates. If the punishment is six months’ imprisonment or less, there is no jury.

Front 200

Right to Trial by Jury: Right to Venire Selected from Representative Cross-Section of Community

Back 200

A defendant has a right to have the jury selected from a representative cross-section of the community. He need only show the underrepresentation 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 201

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 201

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:

1. The defendant must show FACTS AND CIRCUMSTANCES THAT RAISE AN INFERENCE that the exclusion was based on race or gender.
2. 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).
3. The judge then determines whether the prosecutor’s explanation was the genuine reasn 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 202

Right to Trial by Jury: Right to Impartial Jury: Right to Questioning on Racial Bias

Back 202

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 crime.

Front 203

Right to Trial by Jury: Right to Impartial Jury: Juror Opposition to Death Penalty

Back 203

In capital punishment cases, a state ay not automatically exclude for cause all those who express a doubt 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 or oath. A death sentence imposed by a jury from which a juror was improperly excluded is subject to automatic reversal.

Front 204

Right to Trial by Jury: Right to Impartial Jury: Juror Favoring Death Penalty

Back 204

If a jury is to decide whether a defendant is to be 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 205

Right to Trial by Jury: Right to Impartial Jury: Use of Peremptory Challenge to Maintain Impartial Jury

Back 205

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 206

Right to Impartial Jury in NY

Back 206

A juror can be CHALLENGED FOR CAUSE for the following reasons:
1. Lack of qualifications (e.g., less than 18 years of age);
2. Not impartial because of the juror’s state of mind;
3. The juror is related within the sixth degree of consanguinity or affinity to the defendant, a person allegedly injured, a prospective witness, or counsel;
4. The juror was a party adverse to a defendant, victim, witness, or counsel in any civil action or was complained against or accused by any such person in a criminal action;
5. The juror was a witness at any preliminary examination or before the grand jury or is to be a witness at the trial; or
6. The juror served on the grand jury or served as a juror in a prior civil or criminal action involving the same conduct charged.

Front 207

Right to Trial by Jury: Inconsistent Verdicts

Back 207

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

Front 208

Right to Trial by Jury: Sentence Enhancement

Back 208

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 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 209

Right to Trial by Jury: Sentence Enhancement: Distinguish—Judge May Decide Whether Sentences Run Consecutively

Back 209

A state legislature may give 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 210

Right to Counsel

Back 210

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 nontrial denials, the harmless error test is applied.

Front 211

Exam Tip

Back 211

Remember that the right to counsel is available in misdemeanor cases only if imprisonment is actually imposed. Thus, if an exam question involves a nonfelony 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 212

Right to Counsel: Waiver of Right to Counsel at Trial and Right to Defend Oneself

Back 212

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 does not have a right to self-representation on appeal.

Front 213

Right to Counsel: Indigence and Recoupment of Cost

Back 213

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 214

Right to Counsel: Effective Assistance of Counsel

Back 214

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 215

Right to Counsel: Effective Assistance of Counsel: Circumstances Constituting Ineffective Assistance

Back 215

An ineffective assistance claimant must show:

1. DEFICIENT PERFORMANCE by counsel; and
2. 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 his claim on inexperience, lack of time to prepare, the gravity of the charges, the complexity of defenses, or accessibility of witnesses to counsel.

Front 216

Circumstances Constituting Ineffective Assistance in NY

Back 216

NY gives greater protection to attorneys than the federal test. In NY, to prevail on an ineffective assistance claim, a defendant must demonstrate:
1. That the attorney failed to provide “meaningful representation”;
2. That a single error can constitute ineffective assistance, but only when the error is “sufficiently egregious and prejudicial as to compromise a defendant’s right to a fair trial”;
3. The absence of any strategic explanation for the attorney’s performance; and
4. If citing ineffective assistance for failure to make a motion, the defendant must prove that the motion had a reasonable chance succeeding.

Front 217

Right to Counsel: Effective Assistance of Counsel: Circumstances Not Constituting Ineffective Assistance

Back 217

Circumstances NOT constituting INEFFECTIVE assistance include trial tactic and the failure to raise a constitutional defense that is later invalidated.

Front 218

Right to Counsel: Conflicts of Interest

Back 218

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 he court refuses to appoint separate counsel, the defendant is entitled to automatic reversal.

Front 219

Right to Counsel: Conflict of Interest

Back 219

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

Front 220

Right to Counsel: No Right to Joint Representation

Back 220

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

Front 221

Right to Counsel: Right to Support Services for Defense

Back 221

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 222

Right to Counsel: Seizure of Funds Constitutional

Back 222

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 223

Right to Counsel: Right Limited While Testifying

Back 223

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 224

Right to Confront Witnesses

Back 224

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 225

Right to Confront Witness in NY

Back 225

By statute, under certain circumstances, a child witness may testify from a separate room via two-way closed-circuit television.

Front 226

Right to Confront Witnesses: Introduction of Co-Defendant’s Confession

Back 226

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 the defendant’s own confession, which is admitted. However, such a statement may be admitted if:

1. All portions referring to the other defendant can be ELIMINATED;
2. 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
3. The confession of the nontestifying co-defendant is being used TO REBUT THE DEFENDANT’S CLAIM THAT HIS CONFESSION WAS OBTAINED COERCIVELY.

Front 227

Right to Confront Witnesses: Prior Testimonial Statement of Unavailable Witness

Back 227

Under the Confrontation Clause, prior testimonial evidence (e.g., statements made at prior judicial proceedings) may not be admitted unless:
1. The declarant is unavailable and
2. The defendant has an OPPORTUNITY TO CROSS-EXAMINE the declarant at the time the statement was made.

Front 228

Right to Confront Witnesses: Prior Testimonial Statement of Unavailable Witness: What is Testimonial?

Back 228

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 police in responding to an ONGOING EMERGENCY—such as answering a 911 operator’s question while reporting a crime in progress—are not testimonial.

Front 229

Right to Confront Witnesses: Prior Testimonial Statement of Unavailable Witness: What is Testimonial: Results of Forensic Lab Testing

Back 229

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 230

Right to Confront Witnesses: Prior Testimonial Statement of Unavailable Witness: Forfeiture by Wrongdoing

Back 230

A defendant can be held to have forfeited a Confrontation Clause claim b: Forfeiture by Wrongdoing

Front 231

Burden of Proof, Sufficiency of Evidence, and Jury Instructions

Back 231

The Due Process Clause requires in all criminal cases that the STATE prove guilt beyond a reasonable 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 232

Burden of Proof, Sufficiency of Evidence, and Jury Instructions: Presumptions

Back 232

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 233

Burden of Proof, Sufficiency of Evidence, and Jury Instructions: Jury Instructions

Back 233

A judge is to give a jury instruction requested by the defendant or the prosecution if the instruction is correct, has not already been given, and is supported by some evidence.

Front 234

Burden of Proof, Sufficiency of Evidence, and Jury Instructions: Jury Instructions: Instructions to Deadlocked Jury in NY

Back 234

In giving supplemental jury instruction to a deadlocked jury, in addition to reminding the jury of the importance of reaching a verdict, the court should make it clear that the jurors’ duty is to decide the case ONLY IF THEY CAN CONSCIENTIOUSLY DO SO.

Front 235

Plea Bargaining: Taking the Plea: Advising Defendant of the Charge, the Potential Penalty, and His Rights

Back 235

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 understand things like:
1. The NATURE OF THE CHARGE to which the plea is offered and the CRUCIAL ELEMENTS of the crime charged;
2. The MAXIMUM POSSIBLE PENALTY and any MANDATORY MINIMUM; and
3. That he has a RIGHT NOT TO PLEAD GUILTY and that if he does plead guilty, he WAIVES THE RIGHT TO TRIAL.

Front 236

Plea Bargaining: Taking the Plea: Advising Defendant of the Charge, the Potential Penalty, and His Rights: Attorney May Inform Defendant

Back 236

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 237

Plea Bargaining: Taking the Plea: Remedy

Back 237

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

Front 238

Plea Bargaining: Collateral Attacks on Guilty Pleas After Sentence

Back 238

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:
1. Involuntariness (failure to meet standards for taking a plea),
2. Lack of jurisdiction,
3. Ineffective assistance of counsel, or
4. Failure to keep the plea bargain

Front 239

Plea Bargaining

Back 239

A plea bargain will be enforced against the prosecutor and the defendant, but not against the judge, who does not have to accept the plea. A guilty plea is not involuntary merely because 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 240

Enforcement of the Plea Bargain in NY: Prosecution

Back 240

The sentencing court has the power to impose a lighter sentence than bargained for. The prosecution can then apply to withdraw consent to the plea if a sentence less severe than that negotiated is to be imposed.

If the court breaks a promise on which the defendant relied when pleading, the remedy is to withdraw the plea.

Front 241

Conditional Pleas in NY

Back 241

By pleading guilty, the defendant waives his right to appeal the merits of the plea bargain. The prosecutor can CONDITION the plea on the defendant’s WAIVER of the right the appeal his sentence and/or the right to appeal pretrial proceedings. However, waiver of the right to appeal does not prevent the defendant from withdrawing the plea.

Front 242

Collateral Attacks on Guilty Pleas After Sentence: Right to Appeal Pretrial Proceedings in NY

Back 242

NY, unlike most states and the federal courts, allows a defendant who pleaded guilty to appeal certain pretrial orders denying motions for suppression of:
1. Confessions;
2. Evidence from illegal searches and seizures; and
3. Identification testimony.

Front 243

Collateral Effects of Guilty Pleas

Back 243

A guilty plea conviction may be used as a conviction in other proceedings when relevant (e.g., as the basis for sentence enhancement). However, a guilty plea neither admits the legality of incriminating evidence nor waives Fourth Amendment claims in a subsequent civil damages action.

Front 244

Guilty Pleas and Plea Bargaining: Withdrawal of Plea in NY

Back 244

By statute, at any time before imposition of the sentence, the court in its discretion may permit a defendant to withdraw a plea of guilty to all or part of an indictment.

Front 245

Constitutional Rights in Relation to Sentencing and Punishment: Procedural Rights in Sentencing

Back 245

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 in a context that grants a right to confrontation and cross-examination.

Front 246

Constitutional Rights in Relation to Sentencing and Punishment: Capital Sentencing

Back 246

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

Front 247

Constitutional Rights in Relation to Sentencing and Punishment: Resentencing After Successful Appeal and Reconviction

Back 247

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 if 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 248

Constitutional Rights in Relation to Sentencing and Punishment: Substantive Rights in Regard to Punishment

Back 248

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 249

Substantive Rights in Regard to Punishment: Death Penalty: For Murder

Back 249

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 be vague. Moreover, it must allow the sentencing body to consider all mitigating evidence.

Front 250

Substantive Rights in Regard to Punishment: Death Penalty—Discretion in NY

Back 250

The NY Court of Appeals has held unconstitutional a jury instruction that “in the event the jury fails to reach unanimous agreement with respect to the death penalty or life in prison without parole, the court will sentence the defendant to a term of imprisonment with a minimum term of between 20 and 25 years and a maximum term of life.”

Rationale: The instruction creates a substantial risk of coercing jurors into sentencing a defendant to death in violation of the Due Process Clause.

Front 251

Substantive Rights in Regard to Punishment: Death Penalty: Based on Prior Convictions

Back 251

If the death sentence is partly based on the aggravating factor of defendant’s prior conviction, the sentence must be reversed if the prior conviction is invalidated.

Front 252

Substantive Rights in Regard to Punishment: Death Penalty: Standard of Review

Back 252

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 appropriate.

Front 253

Substantive Rights in Regard to Punishment: Death Penalty: For Rape or Felony Murder

Back 253

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 the human life.

Front 254

Substantive Rights in Regard to Punishment: Death Penalty: Sanity Requirement

Back 254

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

Front 255

Substantive Rights in Regard to Punishment: Death Penalty: Mental Retardation

Back 255

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

Front 256

Substantive Rights in Regard to Punishment: Death Penalty: For Minors

Back 256

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

Front 257

Substantive Rights in Regard to Punishment: Death Penalty: Lethal Injection

Back 257

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. It 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 258

Substantive Rights in Regard to Punishment: Status Crimes

Back 258

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

Front 259

Substantive Rights in Regard to Punishment: Considering Defendant’s Perjury

Back 259

In 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 260

Substantive Rights in Regard to Punishment: Imprisonment of Indigents for Nonpayment

Back 260

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 261

Constitutional Problems on Appeal: No Right to Appeal

Back 261

There is no federal constitutional right to an appeal

Front 262

Constitutional Problems on Appeal: Right to Appeal by Defendant in NY

Back 262

An appeal to an intermediate appellate court may be taken AS OF RIGHT by the DEFENDANT from the following:
1. A judgment other than one including a sentence of death, unless the appeal is based solely on the ground that a sentence was harsh or excessive when made on a guilty plea and the sentence did not exceed what the defendant agreed to as a condition of the plea;
2. A sentence other than one of death, if the sentence is either invalid as a matter of law or is harsh or excessive;
3. A sentence including an order of criminal forfeiture; or
4. An order setting aside a sentence other than one of death, upon motion of the prosecution.

Front 263

Constitutional Problems on Appeal: Right to Appeal by Prosecution in NY

Back 263

An appeal to an intermediate appellate court may be taken AS OF RIGHT by the PROSECUTION in certain situations. Appeals from the following are the most important:
1. An order dismissing an accusatory instrument or a count thereof;
2. A trial order of dismissal;
3. An order setting aside a verdict;
4. A motion to set aside the verdict before sentencing;
5. A sentence other than one of death (this appeal may only be based on invalidity as a matter of law); or
6. A motion made by the defense to suppress evidence.

Front 264

Constitutional Problems on Appeal: Equal Protection and Right to Counsel on Appeal

Back 264

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 contedere.

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

Front 265

Constitutional Problems on Appeal: Retroactivity

Back 265

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

Front 266

Collateral Attack Upon Conviction: Availability of Collateral Attack

Back 266

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

Front 267

Collateral Attack Upon Conviction: Habeas Corpus Proceeding

Back 267

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 in custody. Generally, this includes anyone who has not fully served the sentence about which he wishes to complain.

Front 268

Rights During Punishment: Right to Counsel at Parole and Probation Revocation

Back 268

If revocation of probation also involves imposition of a new sentence, the defendant is entitled to representation by counsel in all cases in 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 are otherwise difficult to present and develop).

Front 269

Rights During Punishment: Prisoners’ Rights

Back 269

Prisoners’ rights issues rarely appear on the MBE, 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:
1. Due Process
2. No Fourth Amendment Protection in Cells
3. Right of Access to Courts
4. First Amendment Rights
5. Right to Adequate Medical Care

Front 270

Rights During Punishment: Prisoners’ Rights: Due Process

Back 270

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.

Front 271

Rights During Punishment: Prisoners’ Rights: No Fourth Amendment Protection in Cells

Back 271

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

Front 272

Rights During Punishment: Prisoners’ Rights: Right of Access to Courts

Back 272

Prisoners must be given reasonable access to the courts.

Front 273

Rights During Punishment: Prisoners’ Rights: First Amendment Rights

Back 273

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.

Front 274

Rights During Punishment: Prisoners’ Rights: Right to Adequate Medical Care

Back 274

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

Front 275

Rights During Punishment: No Right to Be Free From Disabilities Upon Completion of Sentencing

Back 275

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

Front 276

Double Jeopardy: When Jeopardy Attaches

Back 276

Under the Fifth Amendment, a person may not be tried for the same offense once jeopardy has attached. Jeopardy attaches in a jury trial at the empaneling and swearing in 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 does not attach in civil proceedings other than juvenile proceedings.

Front 277

Double Jeopardy: When Jeopardy Attaches in NY

Back 277

In NY, a person may not be prosecuted twice for the same offense OR SEPARATELY PROSECUTED FOR TWO OFFENSES BASED UPON THE SAME ACT or criminal transaction.

A person is “PROSECUTED” for an offense when he is charged an accusatory instrument filed in a court of NY or any jurisdiction within the United States and the action either:
1. Terminates in a CONVICTION upon a plea of guilty; or
2. Proceeds to the trial stage and a JURY HAS BEEN IMPANELED AND SWORN IN or, in the case of a trial by the court without a jury, a witness is sworn in.

Front 278

Double Jeopardy: Exceptions

Back 278

Certain exceptions permit retrial of a defendant eve if jeopardy has attached:
1. If first trial ends in a HUNG JURY.
2. A trial may be discontinued and the defendant prosecuted for the same offense when there is MANIFEST NECESSITY to abort original trial or when termination occurs at behest of defendant on any ground not constituting acquittal on merits.
3. If defendant has SUCCESSFULLY APPEALED a conviction unless ground for reversal was insufficient evidence to support a guilty verdict. Retrial is permitted when reversal is based on 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. Harsher sentence may be imposed for reasons other than vindictiveness for taking appeal, but if jury found that death penalty was not appropriate in first trial, a death sentence may not be imposed at second trial.
4. Charges may be reinstated after defendant BREACHES PLEA BARGAIN

Front 279

Exceptions Permitting Retrial in NY

Back 279

A person is NOT deemed to have been “PROSECUTED” for an offense when:
1. Such prosecution occurred in a court which LACKED JURISDICTION over the defendant or the offense; or
2. Such prosecution was for a LESSER OFFENSE that could have been charged under the facts of the case and the prosecution was procured by the defendant, without the knowledge of the appropriate prosecutor, for the PURPOSE OF AVOIDING PROSECUTION FOR A GREATER OFFENSE.

Front 280

Double Jeopardy: Same Offense: General Rule—When Two Crimes Not the Same Offense

Back 280

Two crime are the same offense unless EACH CRIME REQUIRES PROOF OF AN ADDITIONAL ELEMENT that the other does not require, even though some of the facts may be necessary to prove both crimes.

Front 281

Double Jeopardy: Same Offense in NY

Back 281

NY follows the transaction test. The defendant has to be charged with all offenses arising from any single transaction EXCEPT when:
1. The offenses have SUBSTANTIALLY DIFFERENT ELEMENTS;
2. EACH CONTAINS AN ELEMENT NOT IN THE OTHER and is designed to prevent very different harms;
3. One is CRIMINAL POSSESSION and the other is CRIMINAL USE (other than sale);
4. Each involves death, injury, loss, etc., to DIFFERENT VICTIMS;
5. One consists of violation of another jurisdiction’s statute, which was terminated; by court order in the other jurisdiction for lack of evidence as to an element not in the other NY crime;
6. One offense is NY RICO and the other is FEDERAL RICO; or
7. One offense is to evade federal tax and the other is to evade NY tax.

Front 282

Double Jeopardy: Same Offense: Cumulative Punishments for Offenses Constituting the Same Crime

Back 282

Even if two crimes constitute the same offense under the “additional element” 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 283

Double Jeopardy: Same Offense: Lesser Included Offenses

Back 283

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 the defendant’s guilty plea to a lesser included or “allied” offense stemming from the same incident.

Front 284

Double Jeopardy: Same Offense: Lesser Included Offenses: Exception—New Evidence

Back 284

An exception to the double jeopardy bar exists if unlawful conduct that is subsequently used to prove the greater offense:
1. Has not occurred at the time of prosecution for the lesser offense, or
2. Has not been discovered despite due diligence.

Front 285

Double Jeopardy: Same Offense: Conduct Used as a Sentence Enhancer

Back 285

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 286

Double Jeopardy: Same Offense: Subsequent Civil Action

Back 286

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 287

Double Jeopardy: Separate Sovereigns

Back 287

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.

Front 288

Exam Tip

Back 288

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.

Front 289

Double Jeopardy: Appeals by Prosecution

Back 289

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 appeal.

Front 290

Double Jeopardy: Collateral Estoppel

Back 290

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 291

Privilege Against Compelled Self-Incrimination: Who May Assert the Privilege

Back 291

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 292

Privilege Against Compelled Self-Incrimination: When Privilege May be Asserted

Back 292

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 293

Privilege Against Compelled Self-Incrimination: Method for Invoking Privilege

Back 293

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 limit 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 of incrimination.

Front 294

Privilege Against Compelled Self-Incrimination: Scope of Protection: Testimonial but Not Physical Evidence

Back 294

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.

Front 295

Privilege Against Compelled Self-Incrimination: Scope of Protection: Testimonial but Not Physical Evidence in NY

Back 295

The NY Court of Appeals has specifically held that admission of photographs of tattoos on the defendant’s body, as evidence for committing a hate crime, does not violate a defendant’s privilege against self-incrimination.

Front 296

Privilege Against Compelled Self-Incrimination: Scope of Protection: Compulsory Production of Documents

Back 296

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.

Front 297

Privilege Against Compelled Self-Incrimination: Scope of Protection: Seizure of Incriminating Documents

Back 297

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

Front 298

Privilege Against Compelled Self-Incrimination: Scope of Protection: When Does Violation Occur?

Back 298

A violation of the Self-Incrimination Clause does not occur until a person’s compelled statements are used against him in a criminal case.

Front 299

Exam Tip

Back 299

For purposes of the MBE, two of the most important things to remember about the Fifth Amendment self-incrimination privilege are:
1. 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 are used for identification purposes and not as testimony.

2. Likewise, only COMPELLED testimonial evidence is privileged. Thus, if the defendant produced a writing of his own free will (e.g., took incriminating notes of 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 300

Privilege Against Compelled Self-Incrimination: Prohibition Against Burden on Assertion of Privilege: Comments on Defendant’s Silence

Back 300

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.

Front 301

Privilege Against Compelled Self-Incrimination: Prohibition Against Burden on Assertion of Privilege: Comments on Defendant’s Silence: Exception

Back 301

A prosecutor can comment on a defendant’s failure to take the 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.

Front 302

Privilege Against Compelled Self-Incrimination: Prohibition Against Burden on Assertion of Privilege: Comments on Defendant’s Silence: Harmless Error Test Applies

Back 302

When a prosecutor impermissibly comments on a defendant’s silence, the harmless error test applies.

Front 303

Privilege Against Compelled Self-Incrimination: Prohibition Against Burden on Assertion of Privilege: Penalties for Failure to Testify

Back 303

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

Front 304

Privilege Against Compelled Self-Incrimination: Elimination of Privilege: Grant of Immunity

Back 304

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

Front 305

Privilege Against Compelled Self-Incrimination: Elimination of Privilege: Grant of Immunity: “Use and Derivative Use” Immunity Sufficient

Back 305

“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.

Front 306

Privilege Against Compelled Self-Incrimination: Elimination of Privilege: Grant of Immunity: Immunized Testimony Involuntary

Back 306

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.

Front 307

Privilege Against Compelled Self-Incrimination: Elimination of Privilege: Grant of Immunity: Use of Testimony by Another Sovereign Prohibited

Back 307

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

Front 308

Privilege Against Compelled Self-Incrimination: Elimination of Privilege: No Possibility of Incrimination

Back 308

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

Front 309

Privilege Against Compelled Self-Incrimination: Elimination of Privilege: Scope of Immunity

Back 309

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

Front 310

Privilege Against Compelled Self-Incrimination: Waiver of Privilege

Back 310

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 311

Juvenile Court Proceedings: Rights that Must be Afforded

Back 311

The following rights must be given to a child during trial of a delinquency proceedings:
1. Written NOTICE of charges,
2. ASSISTANCE OF COUNSEL,
3. OPPORTUNITY TO CONFRONT and cross-examine witnesses,
4. The RIGHT NOT TO TESTIFY, and
5. 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 time before trial may be held.

Front 312

Juvenile Court Proceedings: Double Jeopardy

Back 312

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 313

Forfeiture Actions: Introduction

Back 313

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 314

Forfeiture Actions: Right to Pre-Seizure Notice and Hearing

Back 314

The owner of PERSONAL property (and others with an interest in it) is not constitutionally entitled to notice and 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 to be heard is required before the seizure of the real property unless the government can prove that exigent circumstances justify immediate seizure.

Front 315

Forfeiture Actions: May Be Subject to Eighth Amendment: General Rule

Back 315

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 316

Forfeiture Actions: May Be Subject to Eighth Amendment: Compare—Nonpunitive Forfeiture

Back 316

1. Civil In Rem Forfeitures: Civil in rem forfeitures generally are NOT subject to the Excessive Fines Clause.
2. Monetary Forfeitures: Monetary forfeitures (e.g., forfeitures of twice the value of illegally imported goods) brought in civil actions generally are NOT subject to the Eighth Amendment.

Front 317

Forfeiture Actions: Protection for “Innocent Owner” Not Required

Back 317

The Due Process Clause does NOT require forfeiture statutes to provide an “innocent owner” defense (e.g., a defense that the owner took all reasonable steps to avoid having the property used by another for illegal purposes), at least where the innocent owner VOLUNTARILY ENTRUSTED THE PROPERTY TO THE WRONGDOER.