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38 Cards in this Set
- Front
- Back
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Key Amendments Tested
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4th
- prohibition against unreasonable searches and seizures 5th -- Privilege against compulsory self-incrimination -- Double Jeopardy 6th -- Speedy trial -- Trial by jury -- Confrontation -- Assistance of Counsel 8th -- Death penalty -- Prison rights |
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Exclusionary Rule
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Remedy for someone who has been the victim of an ILLEGAL SEARCH or COERCED CONFESSION can (among other remedies like 1983) have the product of the search or statement EXCLUDED from criminal prosecution
LIMITATIONS ON THE RULE: -- DOES NOT apply to grand juries -- NOT available in civil proceedings -- Search must violate the Constitution or federal statute -- NOT a remedy in parole revocation hearings -- CAN BE USED TO IMPEACH D'S TESTIMONY (including Miranda violations) -- NOT available remedy for violations of KNOCK-AND-ANNOUNCE in execution of warrants |
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Fruit of the Poisonous Tree
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Excludes illegally sezied evidence and all evidence obtained from police illegality
THREE WAYS GOV. CAN BREAK THE CHAIN (The Three "I's") 1. Gov. can show independent source for the evidence 2. Inevitable discovery 3. Intervening acts of free will on the part of the D |
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Exclusionary Rule and Convictions
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HARMLESS ERROR RULE:
-- Conviction will be upheld if the conviction would have resulte despite the improper evidence |
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4A: Arrests and Detentions
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Must be based on PROBABLE CAUSE.
-- Needed to arrest you and take you to stationhouse for fingerprints and/or interrogation Warrants not required to arrest in a PUBLIC PLACE. --Non-emergency arrest in the home requires warrant NOTE: unlawful arrest, by itself, has no impact on criminal prosecution |
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4A: Investigatory Stops (Terry Stops)
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RULE: police can briefly detain person even lacking probable cause so long as they have
a) reasonable suspicion supported by b) articulable facts of criminal activity c) under totality of the circumstances AUTOMOBILES -- Police may stop a car if they have reasonable suspicion that a law has been violated -- Exception: checkpoints that are NEUTRALLY applied TRAFFIC STOPS AND POLICE DOGS -- A sniff is not a search so long as the police do not extend the stop beyond the time needed to issue a ticket |
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4A: Search and Seizure: STEP ONE: Governmental conduct?
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REQUIREMENTS:
-- Publicly paid police (on or off duty) or officers deputized to arrest (store security, etc.) -- Private individual acting for police |
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4A: Search and Seizure: STEP TWO: Reasonable expectation of privacy?
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AUTOMATIC STANDING
-- Own the premises -- Live on or in the premises -- Invited overnight guests -- SOMETIMES: when you own the property seized and have expectation of privacy in property or area searched NO STANDING -- Things held out to public a. sound of your voice b. style of handwriting c. paint on your car d. account records in a bank e. monitoring location of your car f. OPEN FIELDS g. anything seen from PUBLIC AIR SPACE h. odors from luggage i. garbage at curb |
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4A: Search and Seizure: STEP THREE: Valid search warrant?
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TWO CORE REQUIREMENTS
-- Probably cause: fair probability that contraband or evidence of the crime will be found -- Particularity: must state place to be searched and things to be seized (VERY perticular) WARRANTS AND INFORMANTS -- Officer's affidavit for PC based on TOTALITY OF CIRCUMSTANCES -- Informant's reliability, credibility, and basis of knowledge are relevant factors -- Anonymous tip can be PART of basis for warrant NO KNOCK ENTRY -- Permitted under exigent circumstances of: a) would be dangerous, futile, or inhibit investigation b) destruction of evidence |
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4A: Search and Seizure: STEP FOUR: If warrant is not valid, did officer's good faith defense save defective warrant?
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GENERAL RULE: good faith reliance overcomes defects with PC or particularity
FOUR EXCEPTIONS: a) affidavit underlying warrant is SO LACKING IN PC that no reasonable officer would have rlied b) affidavit underlying warrant is SO LACKING IN PARTICULARITY that reasonable officer wouldn't rely c) Police officer or prosecutor led to or misled the magistrate when seeking the warrant d) biased magistrate who has abandoned neutrality |
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4A: Search and Seizure: STEP FIVE: Exceptions to the Warrant Requirement: SEARCH INCIDENT TO LAWFUL ARREST
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RULE: arrest must be lawful and search must be contemporaneous in time and place
GEOGRAPHIC SCOPE: search limited to the person and areas into which teh person can reach to procure a weapon or destroy evidence (wingspan) SEARCH INCIDENT TO ARREST AND AUTOMOBILES -- Police may search interior of automobile ONLY IF a) arrestee is unsecured and still may gain access to the interior, OR b) police reasonably believe that evidence for the offence OF THE ARREST may be found in the vehicle (Gant) CARETAKER EXCEPTION: officer can conduct warrantless search if officer faces emergency threatening the health or safety of an individual or the public |
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4A: Search and Seizure: STEP FIVE: Exceptions to the Warrant Requirement: AUTOMOBILE EXCEPTION
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MUST HAVE PROBABLE CAUSE
-- If they have PC before searching anything or anyone, they can search the whole car, trunk, AND any container which could reasonably contain the item they had PC to look for (Ross) -- This PC can arise after car is stopped, but must arise before searching anyone or anything |
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4A: Search and Seizure: STEP FIVE: Exceptions to the Warrant Requirement: PLAIN VIEW EXCEPTION
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Rule: Officer must be legitimately present at the location where he views the item
-- Must be IMMEDIATELY APPARANT that the item is contraband |
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4A: Search and Seizure: STEP FIVE: Exceptions to the Warrant Requirement: CONSENT
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CONSENT MUST BE
a) voluntary, and b) intelligent THIRD PARTY CONSENT -- Where 2 people have an equal right to use property, either can consent -- But if both are present and one objects, no consent is given |
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4A: Search and Seizure: STEP FIVE: Exceptions to the Warrant Requirement: STOP AND FRISK
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TERRY STOP
-- Brief stop for purposes of investigating suspicious conduct -- STANDARD: REASONABLE SUSPICION TERRY FRISK -- pat down of the outer clothing and body to check for weapons -- PLAIN FEEL DOCTRINE APPLIES, TOO WEAPONS AND CONTRABAND ARE ADMISSIBLE IF OFFICER REASONABLY BELIEVES THAT'S WHAT HE'S CONFISCATING |
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4A: Search and Seizure: STEP FIVE: Exceptions to the Warrant Requirement: EVANESCENT EVIDENCE EXCEPTION
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Evanescent Evidence: evidence that might disappear quickly if the police take time to get a warrant
-- Ex: blood sample after DUI |
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4A: Search and Seizure: STEP FIVE: Exceptions to the Warrant Requirement: HOT PURSUIT EXCEPTION
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Rule of Thumb: if police are within 15 minutes, then it's OK
-- If they are truly in hot pursuit, they can enter anyone's home without awarrant and ANY evidence in plain view is ADMISSIBLE |
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4A: Search and Seizure: STEP FIVE: Exceptions to the Warrant Requirement: INVENTORY SEARCHES EXCEPTION
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BEFORE incarceration of an arestee, police may search
1) arrestee's personal belongings 2) arrestee's entire vehicle, including closed containers |
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4A: Search and Seizure: STEP FIVE: Exceptions to the Warrant Requirement: PUBLIC SCHOOLS EXCEPTION
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Public School children in extracurricular activitie can be RANDOMLY drug tested
T.L.O. -- Warrantless searches of public school effects like purses is permissible to investigate violations of school rules so long as there is a) a MODERATE chance of finding evidence of wrongdoing b) measures adopted to carry out the search are REASONABLY RELATED to the objectives of the search c) the search is NOT excessively intrusive |
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Wiretapping and Eavesdropping
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ALL wiretapping and eavesdropping requires a WARRANT
EXCEPTIONS -- Unreliable Ear: everyone takes the risk that the person to whom they are talking will be wired or consent to it, so no need for warrant -- Uninvited Ear: no 4A protection is you take no steps to keep convo private |
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Miranda, Generally
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MIRANDA WARNINGS
a) right to remain silent b) anything you say can be used against you in court c) right to an attorney d) if you can't afford one, one will be appointed for you TRIGGER FOR MIRANDA: custodial interrogation -- CUSTODY: At time of interrogation, you are not free to leave -- OBJECTIVE standard -- INTERROGATION: any conduct where police knew or should have known that they might elicit a response -- Spontaneous statements by D don't count MIRANDA WAIVER -- must be knowing, voluntary, and intelligent -- Totality of the circumstances determination |
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Invoking Miranda Rights
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RIGHT TO REMAIN SILENT:
-- Invoking right to remain silent must be unambiguous and spoken -- Police may reinitiate questioning if they a) wait significant period of time b) D is re-Mirandized c) questions are limited to a new crime RIGHT TO COUNSEL: -- Can be invoked by UNAMBIGUOUS request -- All questions must cease until a) accused is given an attorney b) accused initiates the further questioning -- NOTE: here, police MAY NOT even question about a totally unrelated crime |
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5A Right to Counsel, and 6A
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KICKS IN WHEN: D asserts his right to terminate interrogation and requests attorney
-- Arises ONLY when suspect is Mirandized and asks for a lawyer; police can't question on any topic without attorney at this point -- NOT offense specific (unlike 6A) AT ALL OTHER TIMES, you getting a lawyer invokes your 6A right and it IS OFFENSE SPECIFIC |
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Pretrial Identifications
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Can be attacked on 2 grounds:
1) DENIAL OF RIGHT TO COUNSEL -- Post-charge lineups and show-ups give rise to right to counsel -- NO right to counsel when a) they show only photos b) taking blood samples c) handwriting samples d) preliminary hearings for PC e) brief recesses during D's testimony at trial f) parole and probation revocation hearings 2. DENIAL OF DUE PROCESS -- if the ID'ing technique is unnecessarily suggestive -- Remedy: exclude in-court ID NOTE: denial of either of these rights can be overcome by prosecutor showing INDEPENDENT SOURCE |
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Bail
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Bail issues are immediately appealable
Preventative detention IS CONSTITUTIONAL |
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Grand Juries
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Exclusionary rule DOES NOT apply
Secret proceedings D has no right to appear or send witnesses on his own behalf |
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Prosecutorial Disclosure of Exculpatory Information
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Failure to disclose voilates DP and may be grounds for reversal if
a) evidence is favorable to the D, AND b) prejudice, meaning there is a reasonable probability that the result would have been different |
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Right to Unbiased Judge
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Bias means
a) financial interest in the case, OR b) actual malice against D |
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Right to a Jury
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Attaches anytime max sentence exceeds 6 months
-- 6+, not 6 even NUMBER OF JURORS -- Minimum: 6, which must be unanimous -- If 12 used, no C'l right to unanimous CROSS SECTIONAL JURY REQUIREMENT -- right to jury pool of fair cross section of community, but not right to diverse paneled jury BATSON CHALLENGES -- Can exclude juror for "any reason" except a) race b) gender |
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Right to Trial Counsel
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APPLIES AT:
-- all CRITICAL STAGES INEFFECTIVE ASSISTANCE -- Rule: there must be a deficiency, and but for it, the results would have been different -- Tough to prove and usually requires specific errors IMPLICIT RIGHT TO SELF-REPRESENTATION -- D has the right to defend himself so long as his waiver of trial counsel is KNOWING, INTELLIGENT, AND D CAN COMPENTENTLY PROCEED PRO SE NOTE: D can be found compentent to stand trial but incompetent to go pro se |
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Right to Confront Witnesses
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Normally entitled to face-to-face confrontation
EXCEPTION: -- when preventing face-to-face confrontation serves an important public purpose and reliability is otherwise assured -- If a D is disruptive and removed from courtroom, right is relinquished |
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Guilty Pleas and Plea Bargaining
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UNMODIFIABLE after sentencing.
Judge MUST address D on the following: a) nature of the charge b) max/min. penalties c) right to demand trial -- All must be on the record |
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4 Bases for Withdrawing Plea Bargains
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1) Plea was involuntary, b/c of mistake in plea taking ceremony
2) Lack of jurisdiction 3) Ineffecive assistance of counsel 4) Failure of prosecutor to keep agreed-upon plea bargain |
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Death Penalty
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UNCONSTITUTIONAL if D can't present MITIGATING facts/circumstances
Can NEVER be automatic penalty to a crime State can't limit mitigating evidence or factors AT ALL ONLY a jury can determine AGGRAVATING FACTORS justifying imposition of death |
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Double Jeopardy
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JURY TRIAL: attaches when jury is sworn
BENCH TRIAL: attaches when first witness is sworn -- Does not attach when proceedings are civil EXCEPTIONS PERMITTING RETRIAL: a) jury is hung b) mistrial for manifest necessity (D has emergency) c) retrial after successful appeal, BUT CANNOT BE RETRIED FOR A MORE SERIOUS CRIME THAN CONVICTED OF d) breach of agreed-upon plea by D; plea can be w/d and original charges reinstated SAME OFFENSE -- Two crimes are NOT the same if each crime requires proof of an ADDITIONAL ELEMENT that the other does not -- LESSER INCLUDED OFFENSES: being put in jeopardy for a greater offense bars retrial for any lesser included offense (can't be tried for robbery, then retried for larceny and assault) -- EXCEPTION: later-dying victims allow prosecution for murder after battery, etc. -- Bars retrial by SEPARATE SOVEREIGNS, too |
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5A Privilege Against Compelled Testimony
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Privilege against self-incrimination may be asserted by ANYONE in ANY type of case
-- Must be asserted first time the question is asked, or waived -- Must be claimed in civil proceeding to prevent privilege from being waived in later criminal action SCOPE OF THE PROTECTION -- 5A protects from "compelled" testimony -- Does NOT protect citizens from having gov. use physical evidence in incriminating ways -- Non-Testimonial Evidence is: blood, handwriting, voice, hair |
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5A and Prosecutorial Conduct
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UC'l for prosecutor to make negative conduct about D's
a) failure to testify or b) choosing to remain silent -- Exception: If D counsel claims D was not allowed to tell "his side," prosecutor can comment that D did not take the stand -- IF prosecutor comments improperly, HARMLESS ERROR applies |
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5A Can be Eliminated in 3 Ways...
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1) Under grant of immunity
2) No possibility of incrimination -- SOL has run on he crime, e.g. 3) Waiver -- If D takes the stand he waives 5A privilege as to all legitimate subjects of cross |
