Lecture 24 - Ny & Multistate Criminal Procedure - 5Th And 6Th Amendments

Front 1

The 5th protects only evidence of a testimonial or communicative nature that would reveal a person's subjective knowledge or thought process. It does not protect real or demonstrative evidence compelled for the objective purpose of identification. Thus, a criminal D may be compelled to give what?

Back 1

Fingerprints, blood, writing, or voice samples or be compelled to hand over his ID, stand in a lineup, or try on a glove even if he knows this will incriminate him.

Front 2

A motorist suspected of a DWI who fails or refuses to take a sobriety test that does not involved communicative though (e.g. take a breathalyzer test or walk in a straight line) may have the evidence of the failure or refusal used against him. Would is his inability to coherently repeat the alphabet backwards or calculate the year of his 12th birthday be introduced?

Back 2

His inability to coherently repeat the alphabet backwards or calculate the year of his 12th birthday may not be introduced because these reveal incriminating mental confusion and are testimonial in nature (i.e. here his words and not merely his slurred speech support the inference of intoxication).

Front 3

Who must be given the Miranda warnings?

Back 3

Anyone subjected to custodial interrogation must first be given Miranda warnings regardless of the severity of the crime. Custodial interrogation is questioning reasonably likely to illicit an incriminating response that is initiated by law enforcement after a person has been taken into custody (i.e. questioning under circumstances in which an RPP objectively would believe she was not free to leave).
Whether a suspect is in custody is to be determined by examining the totality of the circumstances (e.g. an infant’s age is an objectivefactor that the court may consider when the child was in custody).

Front 4

Where are Miranda warnings nor required?

Back 4

Miranda warnings are not required when government agents question a D who is not in custody (e.g. where D 1. voluntarily enters a police station, 2. is questioned by a probation officer, 3. is questioned on the phone, or 4. is questioned during a brief traffic stop or stop and frisk before D is placed under arrest).

Front 5

What do Miranda warnings require from the police?

Back 5

Miranda warnings require the police to clearly inform D before custodial questioning that 1. D has the right to remain silent, 2. anything D says can be used against D in court, 3. D has the right to an attorney during interrogation, and 4. if D cannot afford counsel, the state will pay for an attorney.

Front 6

Do Miranda warnings have to be verbatim?

Back 6

The warnings do not have to be exactly verbatim as long as they clearly inform D of her rights before custodial interrogation begins.

Front 7

In order for a suspect to invoke the right to remain silent (or to counsel), under the 5th amendment, the suspect must do what?

Back 7

Unambiguously and unequivocally invoke the right.

Front 8

May a prosecutor refer to or use D’s post-Miranda silence? What about pre-arrest silence?

Back 8

A prosecutor may not use or refer to D's post-Miranda silence.
The Supreme Court held, however, that pre-Miranda pre-arrest silence during non-custodial questioning may be used against D as an adoptive admission.

Front 9

When may the suspect voluntarily waive Miranda rights?

Back 9

If the right to counsel has not indelibly attached, the suspect may voluntarily waive her Miranda rights. The waiver is not voluntary if it is the product of threats, violence, or false promises likely to produce a false confession.

Front 10

When is mere deception permissible?

Back 10

Mere deception is permissible if it does not render the confession fundamentally unfair. The length of the interrogation (9 hours) without more does not render it involuntary.
However, in NY, a "marathon" interrogation (49.5 hours) does not produce a voluntary confession even where D waived Miranda and counsel was made available and present after an 8 hour break.

Front 11

Do Miranda warnings given after an illegal arrest purge the confession?

Back 11

Miranda warnings given after an illegal arrest do not purge the confession from the taint of the illegal arrest unless D's confession was sufficiently attenuated from the arrest (2 hours between the illegal arrest and the confession).

Front 12

In NY, if a juvenile under age 16 is arrested without an arrest warrant, the police must attempt to immediately notify a parent or guardian of his whereabouts and permit them an opportunity to be present during questioning. What can a parent do in regards to Miranda rights?

Back 12

A parent may invoke the juvenile's Miranda rights, but it must be clear and unequivocal.

Front 13

What happens if Miranda warnings are not properly given?

Back 13

If Miranda warnings are not properly given, the charges are not automatically dismissed, but any incriminating statements may not be used against D in a criminal trial.

Front 14

A confession obtained in violation of Miranda is still admissible in what 3 instances?

Back 14

1. to impeach D if D takes the stand to testify, but not as evidence in chief or to impeach other defenses.
If the confession was coerced by violence, threats of violence, or false promises, then it cannot be used for any purpose, even impeachment.
2. under the public safety or emergency exception, the police may question a suspect in custody without Miranda about the location of a missing gun or kidnap victim for the protection of the police or public.
3. if Miranda warnings are not properly given or are inadvertently omitted by the police and an MBE defendant incriminates himself, the first confession is not admissible. However, if the police promptly correct their error and then properly administer Miranda warnings, the MBE D's second confession may be used against him.
NY disagrees and suppresses both confessions because once D has incriminated himself, he then believes he has little to lose by making his post-warning second confession (i.e. the cat is out of the bag). NY considers 2 confessions close in time to be a single continuous chain of events so that the illegality of the first confession taints the second confession and both are suppressed.
To determine whether there is a single continuous chain of events, NY looks at whether
(a) there was sufficient attenuation of time between the 2 confessions (15-20 minutes)
(b) different officers obtained the 2 confessions
(c) it was a change in location between the confessions and
(d) prior to the Miranda violation, D had indicated a willingness to speak to the police.
The Supreme Court held that if the police regularly follow a protocol of persistently and deliberately questioning Ds without first giving Miranda warnings and then once the confession is obtained, they administer Miranda, the second confession should be suppressed as well as the first.

Front 15

In MBE (not NY), unlike a 4th or 6th amendment violation where the fruit of the poisonous tree doctrine is fully applied, a 5th amendment Miranda violation results only in suppression of D's statement and not evidence derived therefrom. Thus, if defendant’s illegal confession leads the police to another witness’s testimony, or to real evidence, will the evidence be admitted?

Back 15

This evidence will be admitted.

Front 16

What does the Corpus Delicti Rule state?

Back 16

D may not be convicted solely upon her confession without some additional proof that the crime was committed. The corpus delicti rule requires corroboration of D’s confession by some other evidence tending to show the crime had occurred. The rule is usually satisfied by circumstantial evidence.
A NY corpus delicti statutory exception applies to felony murder where if the underlying felony was dismissed for lack of corroboration of defendant’s confession, defendant may nevertheless be convicted of felony murder.

Front 17

What is a speedy trial?

Back 17

The people have the right and the power to initiate a criminal prosecution at any time within the s/l, but once initiated by D's arrest or indictment, the people must pursuant to the 6th advance it to a speedy public trial unless there are reasonable grounds for its delay.

Front 18

In NY, the criminal s/l are what 4 things?

Back 18

(a) no s/l for a Class A felony (murder, rape, kidnapping, arson 1)
(b) 5 years for other felonies
(c) 2 years for misdemeanors and
(d) 1 year for violations.

Front 19

How is the s/l tolled?

Back 19

The s/l is tolled for a maximum of 5 years beyond the original statute (a) for each day D is outside of NY or (b) while the whereabouts or the identity of D is continuously unknown and unascertainable by due diligence.

Front 20

As governed by the 6th amendment there is a distinction between post-arrest and post-indictment, what is it?

Back 20

There is a distinction between post-arrest or post-indictment (readiness) delay governed by the 6th amendment (speedy trial) and pre-indictment pre-arrest delay governed by the due process clause (s/l). An unreasonable delay in arresting or indicting without good cause requires dismissal of the indictment only if the delay results in actual prejudice to the MBE D. NY requires dismissal without any showing of actual prejudice.

Front 21

What is considered a permissible purpose for delaying the indictment?

Back 21

A permissible purpose for delaying the indictment is attempting to gather evidence against D's accomplices or where a government agent continues to work under cover.

Front 22

Once a timely arrest has been made, D must promptly be tried or a motion to dismiss for violating speedy trial may be made. The court will consider the PRICE the defendant has paid. Explain what PRICE stands for.

Back 22

P - prejudice in the form of lost witnesses
R - the reason for the delay (staff shortages in the DA's office and calendar congestion in the court are factors that may excuse the DA's delay).
I - whether D was incarcerated during the delay
C - the severity of the charge
E - the extent of the delay

Front 23

Except for homicides, the NY CPL mandates dismissal of an indictment and release of an incarcerated defendant unless the people announce to the court their readiness for trial within what 4 timeframes?

Back 23

1. 6 months for a felony
2. 90 days for a Class A misdemeanor
3. 60 days for a Class B misdemeanor and
4. 30 days for a violation.

Front 24

When must the people demonstrate a prima facie case?

Back 24

The people need only demonstrate a prima facie case or "legally sufficient evidence" at the time they declare readiness.

Front 25

What type of delays are not counted when computing time periods?

Back 25

Delays caused, requested, or consented to by D are not counted in computing the time periods.

Front 26

If D fails to provide reasonable notice of motion to dismiss the indictment, D may also do what?

Back 26

Waive this right.

Front 27

What is a jury trial?

Back 27

Under the 6th amendment, a criminal D is entitled to demand a jury trial for "a serious crime", which is defined as one where the possible punishment could exceed 6 months. The judge may grant the DA's motion to reduce a charge from a Class A misdemeanor (up to 1 year in jail) to a Class B misdemeanor (up to 3 months in jail) to avoid the jury trial requirement.

Front 28

Prosecution for multiple petty offenses for which consecutive sentences could exceed how many months?

Back 28

6 months do not add up to a serious crime.

Front 29

How many create a NY felony jury?

Back 29

A NY felony jury consists of 12 and the verdict must be unanimous.

Front 30

How many create a NY misdemeanor jury?

Back 30

A misdemeanor jury consists of 6, which the Supreme Court held must reach a unanimous verdict. In MBE, where a jury is more than 6, a less than unanimous verdict may still be beyond a reasonable doubt.

Front 31

When may alternate jurors be used?

Back 31

Once deliberations have begun, alternate jurors may be substituted for deliberating jurors, but in NY, only if D consents in writing and in open court. If no alternatives are available, a mistrial must be declared unless D consents in writing and on the record to proceed with less than 12.

Front 32

An MBE, but not NY, defendant must obtained the DA's consent to waive a jury trial on a serious crime. If D waives the jury, the MBE DA has what right?

Back 32

The right to demand a jury.

Front 33

The jury and not the judge makes factual findings on aggravating circumstances that increase D's punishment. What does a penal law allo?

Back 33

A penal law empowering the judge to increase penalties for aggravating circumstances (e.g. facts that trigger or increase mandatory minimum sentences) other than D's prior convictions, violates the 6th amendment.

Front 34

What does the 6th amendment guarantee?

Back 34

The 6th amendment guarantees the right to a fair trial, but not a perfect one.

Front 35

When may a new trial be ordered?

Back 35

A new trial will be ordered if D demonstrates by clear and convincing evidence that a substantial right has been prejudiced (e.g. improper conduct by a juror such as an improper site visit). If D cannot demonstrate that a substantial right was violated, the error will be deemed harmless.

Front 36

D is entitled to be judged by an impartial jury. What’s used in evaluating impartiality and fitness of a juror?

Back 36

In evaluating the impartiality and fitness of a juror, the court should consider the whole examination including her appearance and demeanor. Responses like "I think" or "I might have an opinion slightly more in one direction" all into question whether the juror has given the required unequivocal assurance of her ability to set aside bias and render an impartial verdict based on the evidence.

Front 37

In NY, even where a juror unequivocally claims she can set aside bias, should she or should she not be placed on jury?

Back 37

She should not be placed on a jury if she personally knows prosecution witnesses.

Front 38

Visibly shackling or handcuffing D denies D a fair trial because it leads the jury to believe that D is violent. What is the exception to this rule?

Back 38

An exception to this rule arises where safety and security have become an issue. Even in a bench trial, the court must articulate specific justification for restraining a criminal defendant during trial. A defendant’s right to a fair trial is not violated when a prosecutor carries out a threat to reindict her on more serious charges if she does not plead guilty to the pending charge.
In NY, visible or even invisible routine restraint of a criminal D is impermissible without a sufficient inquiry into the individual D's threat to court security. Where evidence of guilt is overwhelming however, this error maybe harmless.

Front 39

What is Brady Material and when must it be turned over?

Back 39

The prosecutor must turn over to defense counsel, any admissible evidence materially favorable to the accused (exculpatory or impeachment material) in the prosecutor's or police custody. If it is willfully or inadvertently withheld by the state and D can show prejudice, a new trial will be ordered. Prejudice exists if there is a reasonable probability that had the material been turned over, the result would have been different.
A Brady violation occurs only if the withheld "material evidence" was admissible or would have led to admissible evidence. For example, a DA's failure to disclose a polygraph test favorable to D does not violate Brady where such evidence is not admissible. Likewise, no Brady violation occurs when a DA fails to reveal that the DA's sole eye-witness died before the DA accepted D's guilty plea. The witness's death does not tend to exculpate D, but merely makes the DA's case more difficult to prove.
The Court of Appeals recentlydeclined to expand the Brady obligation to include allegations of misconduct brought against police witnesses in unrelated crimes.

Front 40

What are the 2 types of Brady demands?

Back 40

1. specific requests and 2. general requests. (e.g. for "any and all exculpatory material").

Front 41

List off 7 examples of Brady Material.

Back 41

a) an eyewitness was unable to identify defendant at a lineup and in fact identified someone else
b) a prosecution witness was promised leniency
c) the DA knows a prosecution witness committed perjury
d) someone else confessed to the crime
e) DNA evidence demonstrats that D is not he perp
f) The office testifying at the suppression hearing is being investigated for perjury in another case
g) An eyewitness’s statement that the getaway car was a different make than D’s car.

Front 42

What do Brady violations impinge on?

Back 42

Brady violations impinge on D's right to a fair trial. The Supreme Court held that regardless which request is made or even if no request is made, reversal is required if D can show that a reasonable probability exists that if the evidence had been produced at D's trial, it would have affected the outcome of the case. Absent this reasonable probability, the harmless error rule is applied.
NY continues to follow the "reasonable probability" test, but if the NY DA fails to disclose Brady material that was specifically requested, reversal is required where there exists a reasonable possibility that non-disclosure contributed to the guilty verdict.

Front 43

What is a public trial and when is it allowed?

Back 43

The 6th guarantees a criminal D the right to a public trial, including preliminary hearings, jury selection, and trial.
A criminal trial normally must be open to the public, but the court has the discretion to close the courtroom to the public for a compelling reason (e.g. 1. to prevent exposure of a sex crime victim or 2. to protect the safety or effectiveness of prosecution witnesses or undercover officers still actively working or living in the community when targets of the pending investigation are in the courtroom). The trial court must consider alternatives to closure even if D does not and must articulate on the record the reason for closure.
Once the prosecution meets the burden of showing that a courtroom must be closed, in order to protect a witness's safety, exceptions should be made for family members and for those having a "close relationship" with D through some personal tie of more significance than ordinary friendship.
Closure to D's family is not permitted during jury selection due to overcrowding in the courtroom. D should preserve her objection by stating it on the record. An error enclosing the courtroom is not subject to harmless error analysis and requires retrial.

Front 44

What does the confrontation clause entail?

Back 44

This clause provides that CRIMINAL DEFENDANTS the right right to be present at any stage of the TRIAL where witnesses or evidence is being offered or where are communications between the judge and the jury (e.g. in summation, during jury charges, requests from jury while deliberating, or in receiving the verdict).
NY extends this right to collateral pre-trial and trial hearings, but only where the defendant may have something valuable to contribute because of the defendant's personal knowledge of the facts. For example, a sando val hearing, but not where a judge questions a juror on her availability to sit.
Defendants may waive the right to be present either through the defendant's attorney or because the court has removed the defendant from the court because of his disruptive conduct.
This confrontation clause also prevents introduction of hearsay evidence if it is of a "testimonial nature" even though that hearsay falls within a well-founded hearsay exception. AIRES DWARFS.

Front 45

In NY and MBE where the disclosure of the witness's identity would threaten the witness's safety, then what 2 things occur?

Back 45

1. the defendant and defense counsel may be excluded from a suppression hearing and
2. the witness may be permitted to testify at the trial under an assumed name or an undercover officer can disclose only his badge number, but Rosario material (prior written statements of a witness) and Brady exculpatory material or impeachment material must be turned over by the prosecution to defense counsel for cross-examination.

Front 46

What is the right to counsel?

Back 46

This guarantees the right to counsel for a criminal trial and this right is extended to the 1st criminal appeal by the due process and equal protection clauses of the 14th amendment.
The 6th amendment guarantees "EFFECTIVE" assistance of counsel from the time the defendant is arraigned on any charge for which the defendant could be incarcerated (i.e. a misdemeanor or felony). If the trial judge pre-determines that no incarceration will be imposed, then the MBE criminal defendant is not entitled to counsel, but NY preserves a defendant's right to insist on counsel even though the judge won't (but could) impose incarceration.
There is no right if the only sentence imposed is a fine, but if a jail term is imposed, then even though the judge immediately suspends the sentence and places the defendant on probation, his 6th amendment right to counsel is violated because if the defendant violates probation, the sentence could be reinstated, which would violate the 6th amendment and thus give rise to an uncounseled conviction.
A criminal defendant has the right to be represented by the attorney of the defendant's choice and if the court improperly denies this right, the harmless error rule is not applied and the defendant's conviction is automatically reversed.

Front 47

The 6th amendment guarantees the criminal defendant the right to conduct her own defense (pro se) provided she intelligently elects to proceed without counsel, but the court must do what 2 things?

Back 47

1. make a "searching inquiry" into the defendant's ability to represent herself and
2. warn the defendant of the danger of self-representation.

Front 48

The NY defendant must make the pro se request when?

Back 48

Before the trial starts, but once it begins, then the defendant cannot proceed pro se unless there are compelling circumstances.

Front 49

Courts may insist on representation by counsel for defendants who even though what?

Back 49

They are competent to stand trial suffer from a mental illness so that they are not competent to conduct their own defense without the assistance of counsel. A state may constitutionally deny a criminal appelant the right to self-representation without violating equal protection or due process.

Front 50

In MBE, to obtain a new trial on this ground, the defendant must overcome the presumption of effective representation by proving what 2 things?

Back 50

1. the lawyer's performance fell below prevailing professional norms and
2. counsel's inadequate representation prejudiced the defendant and there exists a reasonable probability that but for counsel's errors, the defendant would have been acquitted.

Front 51

NY's standard is less stringent and more favorable to the criminal defendant. How and why?

Back 51

NY considers the fairness of the trial as a whole rather than counsel's incompetent impact on the outcome of the case (the prejudice). NY requires that the defendant prove that counsel's efforts were truly ineffective and because of that he was denied a fair trial, but NY does not require proof that "but for" counsel's errors, the outcome probably would have been different.

Front 52

What will isolated errors of counsel give rise to?

Back 52

Isolated errors of counsel will not give rise to ineffective assistance of counsel unless the error is so egregious that defendant did not receive a fair trial

Front 53

What is considered such an fundamental error that it gives rise to a prima facie?

Back 53

In NY, the failure of defense counsel to investigate facts or investigate witnesses is such a fundamental error that it gives rise to a prima facie ineffective assistance of counsel. Likewise, the Supreme Court has held that a defense counsel's failure to investigate the defendant's past history in order to oppose a death sentence amounted to ineffective assistance of counsel.

Front 54

Representation by an unlicensed attorney is what?

Back 54

Per se ineffective.

Front 55

A defendant is entitled to be made aware of any plea negotiations and counsel's, what happens if faulire to do so occurs?

Back 55

Failure to do so may result in ineffective assistance of counsel provided he can prove that he would have accepted the plea offer if it had been made.

Front 56

Lawyer is not required to inform defendant of all collateral issues, but is required to do what?

Back 56

Provide effective assistance of counsel includes advising the criminal defendant of any deportation risks associated with a guilty plea.

Front 57

The right to effective assistance may be impaired if one lawyer represents conflicting interests of multiple defendants, but the joint representation of co-defendants is not a per se denial of the 6th amendment. In this area, the defendant must prove 1 of 3 things.

Back 57

1. that an actual conflict of interest existed, 2. the defendant did not effectively waive the conflict, or 3. the conflict adversely affected the lawyer's performance as to the co-defendant raising the conflict issue.

Front 58

A testifying defendant's right to counsel requires what?

Back 58

That he be allowed to consult with his lawyer during an overnight recess during the trial, but he has no right to counsel during a brief recess after he finished his direct testimony and just prior to his cross-examination.

Front 59

A laywer must not assist a client in commiting a crime. If a lawyer knows that a client has committed or is about to commit perjury, she must do what?

Back 59

Take reasonable remedial measures ndcluding if necessary, disclosure to the court. A lawyer may not offer or not use evidence she know is false (other than to offer a criminal defendant’s testimony at trial) and may refuse to offer evidence she believes is false, regardless of the client’s wishes. If the criminal client insists on testifying falsely, the lawyer may permit the client to testify in a narrative, but may not ask direct questions concerning the false matter in summation to the jury, and the lawyer may not refer to any perjured testimony)

Front 60

When does the right to counsel attach?

Back 60

The point at which this right attaches is critical because once the right attaches in NY, then the police may not interrogate the defendant outside the presence of the defendant's attorney who must witness the defendant's waiver of this right.