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113 Cards in this Set
- Front
- Back
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Constitutional Requirements Binding on the States:
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i. 4th Amend prohibition against unreasonable searches and seizures, and the exclusionary rule
ii. 5th Amend privilege against compulsory self-incrimination and prohibition against double jeopardy iii. 6th Amend right to speedy trial, public trial, trial by jury, confront witnesses, compulsory process for obtaining witnesses, assistance of counsel in felony cases and in misdemeanor cases in which imprisonment is imposed; and iv. 8th Amend prohibition against cruel and unusual punishment. (Death penalty, prisoner rights) |
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Rights not binding on states
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The right to indictment by a grand jury for capital and infamous crimes.
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Exclusionary Rule
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Prohibits introduction of evidence obtained in violation of a defendant’s 4th, 5th, and 6th Amendment rights. (illegal search or coerced confession) Under the exclusionary rule, unconstitutionally obtained evidence is inadmissible at trial, and all “fruit of the poisonous tree” must also be excluded.
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Exceptions to the fruit of the poisonous tree doctrine (breaks chain of inadmissibility):
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1. Evidence obtained from a source independent of the original illegality
2. An intervening act of free will by the defendant (D returns to confess after illegal arrest) 3. Inevitable discovery – prosecution can show that police would have discovered the evidence whether or not the police acted unconstitutionally; 4. Live witness testimony, in court identification 5. The fruits derived from statements obtained in violation of Miranda |
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Limitations on Exclusion - Exclusion does not apply to:
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Exclusion does not apply to proceedings of grand juries unless Federal wiretapping laws have been violated, civil proceedings, violations of state law, internal agency rules and parole revocation hearings.
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Limitations on Exclusion - Good faith Reliance
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Exclusion is also not applied where there is good faith reliance on i) a statute or ordinance later declared unconstitutional, or ii) a defective search warrant as a result of insufficient probable cause.
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Limit to Good Faith Reliance on a defective search warrant
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However, good faith reliance upon a defective search warrant will not suffice when
a) affidavit is so lacking in probable cause no reasonable officer could rely on it, b) warrant is facially defective, c) affiant lied to or misled the magistrate, or d) magistrate has wholly abandoned his judicial role. [FLAP] |
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Limitations on Exclusion - Impeachment
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Non-mirandized voluntary confessions and illegally seized real or physical evidence inadmissible from the state’s case in chief may be introduced as evidence for the purpose of impeaching defendant’s testimony if he takes the stand at trial.
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Limitations on Exclusion - knock and announce rule
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Exclusion is not an available remedy for violations of the knock and announce rule pertaining to the execution of a warrant.
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Harmless Error Test:
In Habeas proceeding: Denial of counsel: |
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.
i. In a habeas proceeding where the D 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. ii. Harmless error never applies to the denial of counsel. This error is never harmless. |
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Enforcing the Exclusionary Rule - Judge
Enforcing the Exclusionary Rule - Government |
A judge decides the admissibility of the evidence out of the hearing of the jury. The government bears the burden of establishing the admissibility by a preponderance of the evidence.
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Fourth Amendment Right against Unreasonable Search & Seizure
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The 4th Amend provides that people should be free from unreasonable searches and seizures.
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When does a Seizure occur?
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A seizure occurs when a reasonable person would believe that he is not free to leave or terminate an encounter with the government.
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Arrest occurs
Probable cause requirement |
An arrest occurs when the police take a person into custody against her will for the purpose of criminal prosecution or interrogation.
Probable Cause Requirement: An arrest must be based on probable cause. |
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Warrant Requirement - Public Arrest Warrant Requirement - Home Arrest |
A warrant is generally not Required Except for Home Arrests: A warrant is generally not required for arresting a person in a public place. Police generally must have a warrant to effect a nonemergency arrest of a person in his home. |
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Investigatory Detentions - Terry Stop/Terry Frisk
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If the police have a reasonable suspicion of criminal activity or involvement in a completed crime, supported by articulable facts they may detain a person for investigative purposes.
If the police also have a reasonable suspicion that the detainee is armed and dangerous, they may frisk the detainee for weapons. |
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Investigatory Detentions
Terry Stop/Terry Frisk - Duration and Scope |
The detention must be no longer than necessary to conduct a limited investigation to verify the suspicion.
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Investigatory Detentions
Stop and Frisk - Property Seizures |
Brief property seizures are similarly valid if based on reasonable suspicion.
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Investigatory Detentions - Automobile stops:
An Automobile stop constitutes seizure of? What can Police do with occupants of car? What if police has ulterior motive to stop a car? |
Police may not stop a car unless they have at least reasonable suspicion to believe that a law has been violated.
1. An Automobile stop constitutes seizure of all occupants in car. 2. Police may order occupants out and if he suspects occupants have weapons he may search the passenger compartments of the vehicle. 3. If police reasonably believes a driver violated a traffic law they may stop the car even if their ulterior motive is to investigate whether some other law has been violated. |
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Investigatory Detentions - Roadblocks
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To be valid roadblocks must
1. Stop cars on the basis of some neutral, articulable standard; 2. Be designed to serve purposes closely related to a particular problem pertaining to automobiles and their mobility. |
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Investigatory Detentions - Checkpoints |
A checkpoint violates the 4th Amendment where its primary purpose is indistinguishable from the general interest in crime control or where the checkpoint is not based on individualized suspicion of wrongdoing. |
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Investigatory Detentions - Detention to Obtain a Warrant
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if police have probable cause to believe that a suspect has hidden drugs in his home they may for a reasonable time prevent him from going into the home unaccompanied so that they can prevent him from destroying the drugs while they obtain a search warrant.
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Investigatory Detentions - Station House Detentions
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Police must have full probable cause for arrest to bring a suspect to the station for questioning or fingerprinting.
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Evidentiary Search and Seizure Approach
5 Steps |
Evidentiary Search and Seizure should be approached using the following analytical model:
1. Is there governmental conduct? 2. Is there a reasonable expectation of privacy? Does the D have standing? 3. Did the police have a valid search warrant? 4. If the warrant is not valid, does an officer's good faith defense save the defective search warrant? 5. If the warrant is not valid or the police did not have a warrant does the search fall under one of the six exceptions to the warrant requirement? |
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4th Amendment |
The 4th Amendment generally prohibits unreasonable searches and seizures. In order to bring suit for a 4th Amendment claim the D must show that there was 1) government action 2) involving a search or seizure, and 3) that the D has standing. |
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Government conduct required
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4th Amend protects only against governmental conduct and not against searches and seizures by private persons. Government actors includes police and private parties working for police.
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Reasonable Expectation of Privacy - Standing
[PHO] |
Does D have a reasonable expectation of privacy?
Standing: is automatic when the party 1. 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 or the place searched. |
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Reasonable Expectation of Privacy - Public view
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One does not have a reasonable expectation of privacy in objects held out to the public.
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Reasonable Expectation of Privacy - No expectation of privacy in:
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a. The sound of one’s voice
b. One’s handwriting c. Paint on outside of one’s vehicle d. Account records held by bank e. The location of one’s vehicle on public roads or its arrival at a private residence. f. Areas outside the home and related buildings (curtilage) g. Garbage left for collection at the curb h. Land visible from a public place, even a plane or helicopter i. The smell of one’s car or luggage (sniff test). |
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No Reasonable Expectation of Privacy when:
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No reasonable expectation of privacy when
1. D lacks standing to object to the illegality of the search and 2. Item was already exposed to the public view |
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Search Warrant
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A valid search warrant must be issued upon probable cause by a neutral and detached magistrate indicating precisely on its face what place is to be searched and what items are to be seized.
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Search Warrant - Informers
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Affidavit based on an informers tip must meet the totality of the circumstances test – the affidavit may be sufficient even though the reliability and credibility of the informer or his basis for knowledge are not established.
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Search warrant - Invalid Affidavit
[FIRM] |
A search warrant issued on the basis of an affidavit will be held invalid if the D establishes that:
1. A false statement was included in the affidavit by the affiant (officer getting warrant) 2. The affiant intentionally or recklessly included the false statement; and 3. The false statement was material to the finding of probable cause. |
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Search Warrant - Police may reasonable rely (good faith) on affidavit
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Evidence obtained by the police in reasonable reliance on a facially valid warrant may be used by the prosecution, despite an ultimate finding that the warrant was not supported by probable cause.
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Search Warrant - Warrant must be precise
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Warrant must describe with reasonable precision the place to be searched and items to be seized.
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Search Warrant - Neutral and Detached Magistrate
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W must be issued by a neutral and detached Magistrate.
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Search Warrant - Execution of warrant
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Only the police may execute a warrant and must be done without unreasonable delay. Police must knock and announce their purpose and wait a reasonable time for admittance – unless doing so would be dangerous.
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Good Faith Defense to an Invalid Search Warrant |
A police officer's good faith reliance upon a defective search warrant as a result of insufficient probable cause can save a defective search warrant. |
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Limitation of Good Faith Defense [FLAP] |
However, good faith reliance upon a defective search warrant will not suffice when: 1. the warrant is facially defective 2. The affiant lied to or misled the magistrate, or 3. The magistrate has wholly abandoned his judicial role 4. The affidavit is so lacking in probable cause no reasonable officer could rely on it. |
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Exceptions to Warrant Requirements (6)
[CATHIP] |
All warrantless searches are unconstitutional unless they fit into one of the six recognized exceptions to the warrant requirements.
1. Consent 2. Auto Search exception 3. Investigatory Detentions Terry Stop/Terry Frisk 4. Hot Pursuit / Evanescent Evidence 5. Incident to Lawful Arrest 6. Plain View |
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Exceptions to Warrant Requirements - Consent
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When the defendant gives voluntary and intelligent consent, the police may perform a warrantless search and seizure.
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Exceptions to Warrant Requirements - Third party consent |
Where two or more persons have a right to use or occupy the property or premises (or the officers reasonably believe they have), any of these users or occupants may consent to a warrantless search of the common areas. 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 at the co-occupant. |
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Exceptions to Warrant Requirements - Auto Search exception
Timing and Method for search Permissible scope |
When officers have probable cause to believe the vehicle contains fruits, instrumentalities or evidence of a crime, the officer may search the whole vehicle and any container that might reasonably contain the item for which he has probable cause to search.
1. Timing & Method. Probable cause may arise after stopping the vehicle so long as probable cause arises before the search, and method may include towing the vehicle for a later search. Furthermore, a vehicle may be seized from a public place without a warrant. 2. Permissible scope of the search is dictated by probable cause which prohibits police from automatically searching the entire car. |
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Exceptions to Warrant Requirements - Investigatory Detentions Terry Stop/Terry Frisk
Duration and Scope Property Seizures |
Terry stop -If the police have a reasonable suspicion of criminal activity or involvement in a completed crime, supported by articulable facts they may detain a person for investigative purposes.
Terry Frisk - If the police also have a reasonable suspicion that the detainee is armed and dangerous, they may frisk the detainee for weapons. |
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Exceptions to Warrant Requirements - Hot Pursuit / Evanescent Evidence
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Police in hot pursuit of a fleeing felon may make a warrantless search and seizure. Police may also seize without warrant evidence likely to disappear before a warrant can be obtained.
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Exceptions to Warrant Requirements - Incident to Lawful Arrest.
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When the suspect is lawfully arrested, an officer may search the arrestee’s wingspan and make a protective sweep of the area if they believe accomplices are present. The search must be contemporaneous in time and place to the arrest.
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Exceptions to Warrant Requirements - Incident to Lawful Arrest
Auto search incident to arrest |
The police may conduct a search of the passenger compartment of a car incident to arrest only if at the time of search:
a. The arrestee is unsecured and still may gain access to the interior of the vehicle; or b. The police reasonable believe that evidence of the offense for which the person was arrested may be found in the vehicle. |
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Exceptions to Warrant Requirements - Plain View
[LEPP] |
The police may make a warrantless seizure then 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 that the item is evidence, fruits or instrumentalities of crime, or contraband. |
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Border Searches
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Searches at the border do not require a warrant. Neither citizens or noncitizens have any rights at the border.
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Public School Searches
[MERONEI] |
Only reasonable grounds are necessary for public school searches. A school search will be held reasonable if:
1. It offers a moderate chance of finding evidence of wrongdoing; 2. The measures adopted to carry out the search are reasonably related to the objectives of the search; 3. The search is not excessively intrusive in light to the age and sex of the student. |
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Wiretapping and Eavesdropping (6)
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Constitutes a search under the 4th Amendment. A valid warrant authorizing a wiretap may be issued if
i. There is showing of probable cause ii. The suspected persons involved in the conversations to be overheard are named iii. The warrant describes with particularity the conversations that can be overheard iv. The wiretap is limited to a short period of time v. The wiretap is terminated when the desired information has been obtained vi. Return is made to the court showing what conversations have been intercepted. |
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Confessions
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Admissibility involves analysis under the 4th, 5th, 6th, and 14th Amendment. For a confession to be admissible under the 14th Amend Due Process Clause, it must be voluntary as determined by the totality of the circumstances. If an involuntary confession is admitted into evidence the Harmless Error test applies, the conviction need not be overturned if there is other overwhelming evidence of guilt.
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Miranda Statement
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A D in custody must, prior to interrogation be informed that:
i. He has the right to remain silent. (offense specific) ii. Anything he says can be used against him in court. iii. He has the right to the presence of an attorney; (not offense specific) and iv. If he cannot afford an attorney, one will be appointed for him if he so desires. |
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Miranda Requirement
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Miranda is required when a defendant confesses under custodial interrogation. D is in custody if:
i. D is in custody if D is not free to leave. This is an objective standard. ii. Interrogation defined as any conduct where police knew or should have know they might illicit an incriminating response from the suspect. |
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Miranda not required for:
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Miranda not required for a spontaneous statement.
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Miranda Waiver must be:
What test will the courts employ to determine proper waiver? |
i. Knowing, voluntary and intelligent.
Courts will employ a totality of circumstances test in determining proper waiver. |
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Right to Silence/counsel
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Invoking the right to silence or counsel must be explicit, unambiguous and unequivocal.
If D invokes right to counsel all questions must cease until 1. D is given an attorney and 2. D initiates further questioning. |
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Police may re-invoke interrogation if:
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Police may re-invoke interrogation if: they wait a significant amount of time, D is re-mirandized, and the questions are limited to a crime that was not the subject of the earlier questioning.
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Confession is voluntary if:
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Confession is voluntary if the police give Miranda Warnings and the defendant unambiguously waives his Miranda rights (i.e. right to remain silent; right to counsel).
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Effect of Miranda Violation
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When a confession is obtained without prior Miranda Warnings, the government might admit the evidence on the basis of:
1. Waiver, 2. Spontaneous statement (no interrogation), 3. Non-custodial interrogation (e.g., routine traffic stops & probation interviews), or 4. For impeachment of the D’s trial testimony |
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Exclusion of Pretrial identification (elements of claim)
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A pretrial identification is inadmissible if it was obtained in violation of D’s
1) 6th Amendment right to counsel or 2) 14th Amendment due process rights. |
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Pretrial Identification - 6th Amendment right to counsel
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A D has a right to counsel at any post-charge lineup or show-up.
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Pretrial Identification - 14th Amendment Right to Due Process
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Due Process: If unnecessarily suggestive and creates a substantial likelihood of mis-identification, the lineup violates D's due process rights.
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Remedy for Unconstitutional pre-trial identification
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Remedy for unconstitutional pre-trial identification is to exclude the in-court identification.
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Pretrial Identification - No right to counsel for:
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Police going out to show W or V photographs, taking of blood samples, taking of handwriting samples, taking of fingerprints, pre-charge lineups, brief recess during D testimony at trial, parole and probation revocation proceedings.
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Government Defense for pretrial identification problem:
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Independent Source: If the prosecution establishes by clear and convincing evidence that there is an independent source (e.g. witness observed D at time of crime committing the crime) for an in-court identification, then the id is admissible despite an improper pretrial id.
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Pre-trial identification admissibility Hearing: Governments Burden of proof: |
Admissibility of identification evidence should be determined at a suppression hearing. The government has the burden of proving that (i) counsel was present, (ii) the accused waived counsel; or (iii) there is an independent source for the in-court identification. |
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Pre-Trial Procedures - Preliminary Hearing
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A Preliminary Hearing is held to determine probable cause. If probable cause has already been determined (grand jury indictment, arrest warrant) then a hearing is not held.
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Pre-Trial Procedures - Bail
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Bail issues are immediately appealable, Preventative detention is constitutional.
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Pre-Trial Procedures - Grand Jury
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Exclusionary rule does not apply to grand juries. The proceedings of grand juries are secret therefore D has no right to appear, nor any rights to send in witnesses.
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Pre-Trial Procedures - Prosecutors duty to disclose exculpatory evidence
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Prosecutor's failure to disclose evidence whether willful or inadvertent violates due process and may be grounds for reversal of conviction if:
1. Evidence is favorable to D and 2. Prejudice resulted – reasonable probability that result would have been different if the evidence had been disclosed. |
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Competency to Stand Trial
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Due process standard: A D 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. |
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Right to a Fair Trial - Due Process is violated if:
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Due process is violated if:
A. The trial is conducted in a manner making it unlikely that the jury gave the evidence reasonable consideration; B. The state compels the D to stand trial in prison clothing; C. The state compels the D to stand trial or appear at proceedings visibly shackled, unless shackling is justified by court concerns about security or escape; or D. The jury is exposed to influence favorable to the prosecution. |
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Right to a Speedy Trial: A violation of this right results in: The right attaches: |
The 6th amendment guarantees a criminal D a right to a speedy trial in both federal and state courts. A violation of this right results in a complete dismissal of the charges against the D. The rights attaches once the D is accused. |
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Right to a Speedy Trial - The court judges violations by balancing: |
The court judges violations by balancing: 1) the length of the delay 2) the reason for the delay 3) the D's assertion of his right to a speedy trial, and 4) the prejudice to the D. |
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Right to Jury Trial - Unbiased Judge
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D has a right to an unbiased judge. Due process is violated if the judge has a financial interest in the outcome of the case, or some actual malice against the D.
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Right to Jury Trial - Right attaches when:
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When the offense is serious and the maximum authorized sentence for the offense exceeds six months.
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Right to Jury Trial - Jury
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D is constitutionally entitled to a jury trial with a jury drawn from a fair cross-section of the community and an impartial jury.
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Jury - Fair cross section |
Fair Cross-Section. Does not entitle D to an individual jury that is a cross-section of the community, only a jury pool. |
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Jury - Preemptory challenges |
Preemptory challenges: Prosecutor can remove a juror for any reason whatsoever, however, neither the Prosecutor nor the Defense can exercise preemptory challenges to remove a juror based only on gender or race. |
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Right to Jury Trial - Jury size
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When it is a jury trial, there is no right to a unanimous 12 person jury, only a right to a six jury minimum and unanimity if only six jurors.
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Right to Jury Trial - Exclusion of jurors (capital case)
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When a juror’s views about the death penalty would substantially impair the performance of their duties, P may exclude her for cause in a capital case.
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Double Jeopardy
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Once jeopardy attaches, a defendant cannot be retried for the same offense by the same sovereign after a dismissal, acquittal, or conviction not reversed by defense appeal. Likewise, under the doctrines of collateral estoppel and res judicata once an acquittal (not conviction) has been rendered on a particular issue, the defendant cannot be retried as to the issue. (Ash v. Swenson).
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Double Jeopardy - Separate Sovereigns
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DJ bars retrial for same offense for the same sovereign. A state court must acknowledge the final judgment of another state.
i. State and Federal are separate sovereigns. D can be tried in federal court and state court for possession of drugs and double jeopardy would not be violated. ii. Courts of different states are separate sovereigns. |
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Double Jeopardy - Attachment
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i. Jeopardy attaches in a jury trial when jury is sworn
ii. Jeopardy attaches in a bench trial when the first witness is sworn. iii. Jeopardy does not attach when the proceedings are civil. |
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Double Jeopardy - Exceptions
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When the trial involves a breach of agreed upon plea bargain by defendant, hung jury, mistrial for manifest necessity, or retrial after successful appeal by the defense, double jeopardy does not apply. (unless the reversal was for insufficient evidence).
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Double Jeopardy - Upon retrial after a successful appeal:
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D cannot be convicted of a more serious charge than he was convicted of in the first trial.
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Double Jeopardy - Breach of agreed upon plea bargain by D
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when D breaches a plea agreement his plea and sentence can be withdrawn and the original charges can be reinstated.
i. If D makes a plea bargain to testify D must testify in the first trial and any subsequent trial or the plea bargain can be withdrawn. |
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Double Jeopardy - Two crimes do not constitute the same offense:
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Two crimes do not constitute the same offense Each crime requires proof of an additional element that the other does not have.
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Double Jeopardy - Lesser included offenses:
Exception: |
Being put in jeopardy for a greater offense bars retrial of any lessor included offense. i.e. D is tried for robbery, D cannot be retried for lesser offense of larceny.
Exception: if D convicted for battery and V dies, D can be tried for murder. |
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Right to counsel - 5th amendment right to counsel
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5th amendment right to counsel (judge made rule) is invoked by a D invoking his Miranda right to counsel – not offense specific.
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Right to counsel - 6th Amendment right to counsel
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6th Amendment right to counsel is guaranteed by the constitution and is offense specific. Applies after judicial proceedings have begun. It prohibits police from deliberately eliciting an incriminating statement from D outside the presence of counsel after the D has been charged unless he has waived his right to counsel.
i. There is no violation of the 6th Amend until formal proceedings have begun. A D who is arrested but not charged does not have a 6th Amend right to counsel but does have a 5th Amend right to counsel under Miranda. |
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Right to counsel - Waiver
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Right to counsel can be waived; waiver must be intelligent, knowing, and voluntary.
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Right to counsel - Ineffective counsel
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For ineffective counsel there must be deficient performance by counsel and “but for” such deficiency the results of the proceeding would have been different.
i. Such a claim can only be made out by specifying particular errors by trial counsel. |
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Right to counsel - Self representation
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D has a right to defend himself so long as his waiver of trial counsel is knowing and intelligent and he is competent to proceed Pro Se.
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Right to Confront Witnesses
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6th Amend grants to D in a criminal trial the right to confront adverse witnesses.
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Right to Confront Witnesses - Right is not absolute
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1. The absence of face to face confrontation between D’s and the accuser does not violate the 6th amendment when preventing such confrontation serves an important public service and the reliability of the witness testimony is otherwise assured.
2. A D who is disruptive may be removed from the courtroom thereby relinquishing the right to confront witnesses. |
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Right to Confront Witnesses - CoDefendant's Confession
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If 2 persons are tried together and one has given a confession that implicates the other, the right of confrontation prohibits use of that statement.
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Right to Confront Witnesses - CoDefendant's Confession - How may a statement be admitted: |
Such a statement may be admitted if: 1. All portions referring to the other D can be eliminated; 2. The confessing D 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 non-testifying co-D is being used to rebut the D’s claim that his confession was obtained coercively. |
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Guilty Pleas - SC
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The SC will not disturb guilty pleas after sentencing.
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Guilty Pleas - Elements
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A guilty plea must be
1) voluntary and intelligent, and 2) judge must on the record address defendant personally to inform him of i. nature of the charge, ii. maximum authorized penalty and any mandatory minimum penalty, iii. that he has right to plead not guilty, and iv. by pleading guilty, he is waiving his trial. |
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Guilty Pleas - Defenses / Bases for Attack on Plea
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A plea can be set aside if: (i) it is involuntary, (ii) the court taking the plea lacked jurisdiction, (iii) there was ineffective assistance of counsel, or (iv) failure of prosecutor to keep agreed upon plea bargain (*likely in essay).
Note: A plea is not involuntary merely because it was entered in response to the P threat to charge the D with a more serious crime. |
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Guilty Pleas - Government Defense for withdrawing guilty plea:
Change in Plea Arrangement: |
i. Intelligent Choice among Alternatives & Advice of Competent Atty. Defendant should not be permitted to withdraw his guilty plea after sentence if it was (all things considered) an intelligent choice among his alternatives on the advice of a competent attorney.
ii. Change in Plea Arrangement. Plea arrangement may be changed prior to D’s entering his guilty plea. |
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5th Amend Privilege of self incrimination - Assertion
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5th Amend Privilege of self incrimination can asserted by any natural person in any type of case. The privilege cannot be invoked by a corporation or a partnership.
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5th Amend Privilege of self incrimination - Must be Invoked:
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i. The first time a question is asked or privilege is waived.
ii. In civil proceedings to prevent the privilege form being waived in later prosecutions. iii. If the individual responds to the questions instead of claiming the privilege he cannot later bar the evidence on 5th amendment grounds. |
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5th Amend Privilege of self incrimination - Method for invoking |
1) A criminal D has a right not to take the witness stand at trial and not to be asked to do so. 2) Others: the privilege does not permit a person to avoid being sworn in as a witness or being asked questions. A witness must be sworn in, must listen to the questions and specifically invoke the privilege rather than answer the questions. |
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5th Amend Privilege of self incrimination - Protects citizens from compelled testimony, it does not protect:
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Protects citizens from compelled testimony it does not protect citizens from government using physical evidence in ways to incriminate them. Such as blood sample, handwriting sample, voice sample, hair sample.
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5th Amend Privilege of self incrimination - Prosecutorial misconduct
D's choice to stay silent (exceptions) |
It is unconstitutional for Prosecutor to make a negative comment on D’s choice to stay silent after giving Miranda warnings or refusing to testify.
Except: i. When comment is in response to D’s counsel assertion the D was not allowed to tell his side of the story ii. When P impermissibly comments on D silence the harmless error test applies. |
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5th Amend Privilege of self incrimination - Privilege Can be eliminated by
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Privilege Can be eliminated by:
i. Under grant of immunity ii. When there is no possibility of incrimination. Statute of limitations has run on crime. iii. Waiver |
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Death Penalty - Statute preventing mitigating factors
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Any death penalty statute that does not allow D to present mitigating facts and circumstances is unconstitutional.
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Death Penalty - Statute limiting mitigating factors
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The state may not by statute limit the mitigating factors; all relevant mitigating evidence must be admissible or the death penalty statute is unconstitutional.
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Death Penalty - Automatic category imposing Death Penalty
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There can be no automatic category for imposition of the death penalty.
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Death penalty - jury determination
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Only a jury may determine the aggravating factors justifying the imposition of the death penalty.
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