Crim Pro

Front 1

4TH AM

Back 1

The 4th Am provides that people should be free in their persons from UNREASONABLE searches and seizures.

Front 2

SEARCH

Back 2

A search is defined as a governmental intrusion into an area where a person has a REASONABLE and JUSTIFIABLE expectation of privacy.

Front 3

SEIZURE

Back 3

A seizure can be defined as the exercise of control by the government over a person or thing.

Front 4

Search/Seizure: Reasonableness

Back 4

What is reasonable under the 4th Am depends on the circumstances.

Katz: REP (not something D knowingly exposes to public view); 4th A protects people, not places.

Front 5

ARREST

Back 5

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

An arrest must be based on probable cause (PC).

Front 6

PROBABLE CAUSE (PC) to Arrest

Back 6

PC to arrest is present when, at the time of arrest the officer has within her knowledge reasonably trustworthy facts and circumstances sufficient to warrant a reasonably prudent person to believe that the suspect has committed a crime.

Front 7

Arrest Warrant (AW) Requirement

Back 7

Police generally need not obtain a warrant before arresting a person in a public place, even if they have time to get a warrant.

FELONY: A PO may arrest a person without a warrant when she as REASONABLE GROUNDS TO BELIEVE that a felony has been committed and that the person before her committed it.

Front 8

STOP & FRISK ("Terry Stop")

Back 8

Police have the authority to briefly detain a person for investigative purposes even if they lack PC to arrest. To make such a stop, police must have a REASONABLE SUSPICION supported by ARTICULABLE FACTS of criminal activity or involvement in a completed crime.

"REASONABLE SUSPICION that criminal activity is afoot."

To be valid under Terry, the investigatory stop must be relatively brief and in any event no longer than is necessary to conduct a limited investigation to verify the officer's suspicions.

They may require the person to identify himself, and may arrest him for failure to comply.

Front 9

PROBABLE CAUSE (PC) to Search

Back 9

Based on present location of certain objects.

Info can become “stale.”

Front 10

Automobile Stops

Back 10

Stopping a car is a seizure for 4th Am purposes. Thus, generally police may not stop a car unless they have at least REASONABLE SUSPICION to believe that a law has been violated.

Front 11

Search Incident to Arrest (SITA)

Back 11

A SITA is an exception to the warrant requirement.

The police may conduct a warrantless search incident to an arrest as long as it was made on probable cause.

The police need not actually fear for their safety of believe that they will find evidence of a crime as long as the suspect is placed under arrest.

SITA must be contemporaneous (time and place) with arrest.

Front 12

Stop & Frisk: Overview

Back 12

4th Amendment protects against "unreasonable searches and seizures." A search without a warrant is per se unreasonable and thus unconstitutional; burden is on the prosecution to show that a warrantless search was reasonable and thus constitutional.

An arrest is clearly a "seizure" of the person, arrests (with or without a warrant) must be based on probable cause. When the police detain or stop a person without probable cause to arrest, this is also a "seizure" for 4th Am purposes, and any attendant search of the person, their clothing, etc., is obviously a "search" for 4th Am purposes.

There are two separate inquiries: the reasonableness of the detention/stop, and the reasonableness of the pat search/frisk.

Front 13

Search Incident to Arrest (SITA): Scope

Back 13

Incident to a constitutional arrest, the police may search the person and areas into which he might reach to obtain weapons or destroy evidence (his "wingspan") (Chimel); may search area within D’s possession or under his control.

The police may also make a PROTECTIVE SWEEP of the area beyond the D's wingspan if they believe accomplices may be present (Buie).

Front 14

Stop & Frisk: Basic RULE

Back 14

Police officer may "detain" or stop a person if the officer has a "reasonable suspicion" that person is engaged in, or is about to be engaged in, criminal activity. Upon detaining the person, the officer may conduct a limited pat-search of the person for weapons, if the officer has "reasonable suspicion" the person may be armed and thus a threat to the officer or innocent bystanders. This is also called a "Terry" stop, or "stop and frisk."

POLICY: The central reasoning behind Terry was an attempt to balance the need for effective and safe law enforcement against the admitted intrusion into a person's freedom of movement and privacy (particularly in their bodies, clothing, etc.) that results from detention and pat-search. Hence, the focus on whether the police action in any situation was "reasonable" under the circumstances. If it was unreasonable, the 4th Am was violated, if it was reasonable, no 4th Am violation.

Front 15

Pat Search -- Dickerson

Back 15

If the officer can immediately recognize that as evidence of a crime or contraband, without any further manipulation, then the officer can reach in and retrieve that item without first obtaining a search warrant.

Front 16

Automobile Exception to Warrant Req't

Back 16

If the police have PC to believe that an automobile contains contraband or fruits, instrumentalities, or evidence of a crime, they may search the vehicle without a warrant.

Define PC with respect to locating evidence. Can refer back to analysis re: Anonymous tip.

Front 17

Ordering D out of Vehicle

Back 17

Officer is permitted to order either the driver or the passengers out of the vehicle for the officer’s safety.

D may argue that it was a prolonged detention.

Front 18

Automobile Exception to Warrant Requirement: SCOPE

Back 18

If the police have full PC to search a vehicle, they can search the ENTIRE VEHICLE (including the trunk) and all containers within the vehicle that MIGHT CONTAIN THE OBJECT for which they are searching.

Front 19

Prolonged Detention

Back 19

Q: Did it become a de facto arrest?

If it became a de facto arrest, it can no longer be supported by reasonable suspicion alone; officer would have to have PC

Analysis: things that can happen on the scene that can justify the officer to prolong the detention for longer than originally allowed.

Front 20

FOTPT: Basic RULE

Back 20

Basic Rule: In addition to excluding all evidence which has been illegally obtained, any additional evidence acquired either directly or indirectly from the illegal arrest, search, or seizure must also be excluded as tainted "fruit of the poisonous tree." (Wong Sun v. US.)

Front 21

Warrantless Search

Back 21

Warrantless search is presumptively unreasonable under the 4th Am. unless a SW exception may apply. Exceptions:

1) SITA

2) Auto Exception

3) Inventory/Impound Search (Inevitable Discovery)

4) "Pat Search" of Car

Front 22

FOTPT: Purging the Taint

Back 22

Purging the taint: Otherwise inadmissible "fruits" of an unlawful search/seizure may yet be admitted as evidence, provided the taint is dissipated or purged by any of the following:

1. Independent evidence: the evidence was also obtained from a source independent of the original illegality.

2. Inevitable discovery: the evidence would have been discovered regardless of the original illegality.

3. An intervening act of free will by the D.

Front 23

SITA: Test under GANT

Back 23

Gant says that an officer can search the vehicle of a recent occupant if:

i. The arrestee was not secured and still had access to the car (at time of search); OR

ii. If it is reasonable to believe that the car contains evidence relating to the crime of arrest.

Front 24

Consent to Search (S.W. Exception)

Back 24

Must be free & voluntary (not result of duress/coercion, express or implied); determined by T.O.C. Right to refuse but one factor.

Needn't give Miranda warnings nor advise of right not to consent.

May be given after arrest.

Third party may consent if possesses common actual authority over premises or apparent authority (if police reasonably believe at time has such authority).

Scope: defined by object; what reasonable 3rd party would believe based upon exchange between S & officer.

Front 25

Inventory/Impound Search (Inevitable Discovery)

Back 25

Prosecutor may argue that even if none of the previously discussed exceptions would apply, the police would have found the evidence within the vehicle after an impound search (inevitable discovery)

Front 26

Stop & Frisk: SCOPE

Back 26

The scope of the frisk is generally limited to a pat-down of the outer clothing for concealed instruments of assault.

An officer may reach directly into an area of the suspect's clothing, such as his picket, without a preliminary frisk, when she has specific information that a weapon is hidden there, even if the information comes from an informant's tip lacking sufficient reliability to support a warrant.

Front 27

Stop & Frisk: "Pat Search" of Automobile

Back 27

A PO may order persons out of a car if the officer reasonably believes the driver or any passenger is armed and dangerous.

Moreover, the officer may search the vehicle, even if the officer has NOT ARRESTED the occupant and has ordered the occupant out of the vehicle, provided the search is LIMITED TO THOSE AREAS IN WHICH A WEAPON MAY BE PLACED or hidden and the officer possesses a reasonable belief that the occupant is dangerous.

Front 28

PC: Anonymous tips

Back 28

Under Gates: Totality of Circumstances.

--Fluid concept; turns on assessment of probabilities.

TOC—is there a fair probability that contraband or evidence of crime will (presently) be found in particular place?

Front 29

EXCLUSIONARY RULE

Back 29

The exclusionary rule prohibits the introduction, at criminal trial, of evidence obtained in violation of a D's 4th, 5th, or 6th Amendment rights.

Front 30

Fruit of the Poisonous Tree (FOTPT)

Back 30

Generally, not only must ILLEGALLY OBTAINED EVIDENCE be excluded, but also ALL EVIDENCE OBTAINED OR DERIVED from exploitation of that evidence. The courts deem such evidence the tainted fruit of the poisonous tree.

Front 31

SEARCH & SEIZURE: Reasonable Expectation of Privacy (REP)

Back 31

Garbage at curb? No REP.

Backyard from private plane 1K’ up? No. Helicopter 400’ up? No.

Open fields? No.

Curtilage? YES.
Factors: proximity to house; within enclosure surrounding house?; nature of use; steps taken to protect from observation?

Detention facilities? No

Enhancing senses: flashlight, binoculars: OK; thermal imaging: No. Kyllo (firm, bright line @ entrance to house).

Front 32

Fruit of the Poisonous Tree (FOTPT) -- Exception -- INEVITABLE DISCOVERY

Back 32

If the prosecution can show that the police would have discovered the evidence whether or not they had acted unconstitutionally, the evidence will be admissible.

Front 33

VOLUNTARINESS (14th AM)

Back 33

For confessions to be admissible, the DPC of the 14th Am requires that they be VOLUNTARY. Voluntariness is assessed by looking at the totality of the circumstances (TOC), including the suspect's age, education, and mental and physical condition, along with the setting, duration, and manner of police interrogation.

Front 34

6th Am RIGHT TO COUNSEL

Back 34

The 6th Am provides that in all criminal prosecutions, the D has a right to the assistance of counsel. It applies at all CRITICAL STAGES of a criminal prosecution after formal proceedings have begun.

The right is violated when the police deliberately elicit an incriminating statement from a D without first obtaining a waiver of the D's right to have counsel present.

The 6th Am right has been limited to cases where ADVERSARY JUDICIAL PROCEEDINGS have begun (e.g., formal charges have been filed). Thus, the right DOES NOT APPLY TO PRE-CHARGE CUSTODIAL INTERROGATIONS.

Front 35

6th Am RIGHT TO COUNSEL: Stages when Applicable

Back 35

1) custodial police interrogation

2) post-indictment interrogation whether custodial or not

3) preliminary hearings to determine PC to prosecute

4) arraignment

5) post-charge lineups and showups

6) guilty plea and sentencing

7) felony trials

(more)

Front 36

6th Am RIGHT TO COUNSEL: Stages when NOT Applicable

Back 36

1) Taking of blood samples

2) taking of handwriting samples

3) pre-charge or investigative lineups

4) photo identifications

5) preliminary hearings to determine PC to detain

6) brief recess during Ds testimony at trial

7) Parole and probation revocation proceedings.

Front 37

6th Am RIGHT TO COUNSEL: Waiver

Back 37

The 6th Am right to counsel may be waived. The waiver must be KNOWING, VOLUNTARY, AND INTELLIGENT.

Front 38

5TH AM (MIRANDA)

Back 38

The 5th Am provides that no person shall be compelled to be a witness against himself. Interpreted to mean that a person shall not be compelled to give self-incriminating testimony

Front 39

MIRANDA: When Required

Back 39

Anyone in police CUSTODY and accused of a crime, no matter how minor a crime, must be given Miranda warnings PRIOR TO INTERROGATION by the police.

Front 40

MIRANDA: Custody

Back 40

Whether a person is in custody depends on whether the person's freedom of action is denied in a significant way.

Under Berkemer, courts use an objective test from suspect's view: Whether a reasonable person in the suspect’s position would feel that his freedom of movement was restricted to the degree associated with formal arrest.

Does not include temporary detentions

Front 41

MIRANDA: Interrogation

Back 41

"Interrogation" refers not only to express questioning, but also to any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect.

Front 42

MIRANDA: Waiver

Back 42

A suspect may waive his Miranda rights. To be valid, the gov't must show, by a preponderance of the evidence, that the waiver was KNOWING, VOLUNTARY, AND INTELLIGENT. The ct will look to the totality of the circumstances.

--Waiver not presumed by silence.
--Request for atty must be specific.

INVOCATION of the right to remain silent must be UNAMBIGUOUS.

Front 43

Miranda: Effect of Violation

Back 43

Generally, evidence obtained in violation of Miranda is inadmissible at trial.

However, a confession obtained in violation of the D's Miranda rights, but otherwise voluntary, may be used to IMPEACH THE D's TESTIMONY if he takes the stand at trial, even though such a confession is inadmissible in the state's case in chief as evidence of guilt.

However, a truly INVOLUNTARY confession is INADMISSIBLE for any purpose.

Front 44

FOTPT of Prior Miranda Violation

Back 44

Elstad – when you have a non-coercive Miranda violation, as far as a subsequent warned statement, it is sufficient for the original Miranda violation to suppress the unwarned statement. In Elstad, the questioning was out in the field and was very brief, so there is a substantial factual difference between Elstad or Siebert.

Based on which controls, you either have to do a FOTPT analysis or you don’t. These facts are much closer to Elstad, so you would NOT have to do the FOTPT analysis.

Front 45

SEARCH: Exigent Circumstances

Back 45

If no one in house, no chance drugs can be destroyed & no exigent circum’s.

Freeze scene to get SW. Can hardly raise incentive to get SW w/o giving police a fair chance to do so.

If police have PC to believe contraband is present & reas. conclude evid. will be destroyed/removed before can get SW, W-less s. justified (lists factors). See also: exigent circum’s re: arrests, above.

There is no “homicide-scene” exception.

Police may enter home w/o W if have objectively reasonable basis for believing occupant injured or imminently threatened w/ injury.

Front 46

CONSENT SEARCHES

Back 46

Voluntariness of consent by TOC.

Knowledge of right to refuse is but one factor. Must not be result of duress or coercion, express or implied (fact that under arrest doesn’t prohibit valid consent). Needn’t give Miranda warnings nor advise of rt. not to consent.

Scope of consent--what reas. person would believe, based on exchange btw. officer & S. Scope usually defined by expressed object.

3rd party consent—consent by 3rd party who possesses common authority over premises suff.

EX: Valid when 3rd party is one whom police, at time, reas. believe to possess common authority over premises, even if does not.

EX: Clerk doesn’t have authority to consent to search of guest’s room. Chapman: landlord doesn’t have auth. to consent to s. of tenant’s apt. Spouse? Burden may be lighter on P. Employer? Not to private areas like desk drawers in locked office, but yes to common workbench. Randolph: objecting present co-occupant trumps present consenting co-occupant.

Front 47

SEARCHES: Drug Testing

Back 47

1. Employees applying for drug interdiction work or to carry firearms? OK.

2. Random test of 10% of school athletes OK.

3. All students doing extracurricular activities OK.

4. Not OK to test pregnant patients & turn over to police.

[Student searches generally: T.L.O. : school administrator may search student w/o warrant upon reasonable suspicion that either school rules or law is violated [defined as moderate chance of finding evidence of wrongdoing]; search must be reasonable & not excessively intrusive]

Front 48

5th AM: What does it cover?

Back 48

1. Privilege against compulsory self-incrimination

2. Prohibition against double jeopardy

Front 49

6th AM: What does it cover?

Back 49

1. Right to a speedy trial;

2. Right to a trial by jury;

3. Right to confront witnesses;

4. Right to assistance of counsel.

Front 50

8th AM: What does it cover?

Back 50

(8th Am Prohibition Against Cruel and Unusual Punishment)

1. The death penalty;

2. Prisoner Rights.

Front 51

Exclusionary Rule: Exceptions

Back 51

1. Does not apply to grand jury proceedings.

2. Does not apply to civil proceedings.

3. Search in question must violate the federal constitution or a federal statute.

4. Not available in parol revocation hearings

5. Excluded evidence may be used for IMPEACHMENT purposes (can be used to impeach the credibility of the D if he takes the stand).

6. Not available for violations of the knock and announce rule.

Front 52

Exclusionary Rule: Remedy

Back 52

A conviction will not necessarily be overturned because improperly obtained evidence was admitted at trial.

On appeal, the court will apply the HARMLESS ERROR test.

Under the test, a conviction will be UPHELD if the conviction would have resulted despite the improper evidence.

Front 53

Search & Seizure: Questions to ask

Back 53

1. GOVERNMENTAL CONDUCT?

2. REP?

3. DID POLICE HAVE A VALID SEARCH WARRANT?

4. If the warrant is NOT VALID, does the officer's GOOD FAITH DEFENSE save the detective SW?

5. If SW is invalid and cannot be saved by GF defense, or if police never had any warrant at all, then ask if there are any valid EXCEPTIONS to the warrant requirement.

Front 54

Governmental Conduct

Back 54

--search must be by publicly paid police or a private individual acting at the direction of the police.

--privately paid police actions DO NOT constitute governmental conduct unless they are DEPUTIZED with the power to arrest you.

Front 55

REP: Standing

Back 55

--if you OWN the premises searched

--if you LIVE ON the premises searched.

--if you are an OVERNIGHT GUEST (must be invitee)

--And SOMETIMES if you own the property seized (you have standing only if you have a REP in the item or area searched).

Front 56

REP: NOT Standing

Back 56

You have NO REP, and therefore no standing, with respect to anything that you hold out to the public everyday.

Examples:

--The sound of your VOICE.

--The style of your HANDWRITING.

--The paint on the outside of your car.

--Account records held by a bank

--Monitoring the LOCATION OF YOUR CAR on a public street or in your driveway (Police can put a GPS locator on your car!)

--anything that can be seen across the OPEN FIELDS doctrine.

--anything that can be seen by flying over from public airspace.

--the ODORS emanating from your luggage or your car.

--Your GARBAGE set out on the curb for collection.

Front 57

Requirements for a VALID SEARCH WARRANT

Back 57

There are two requirements for a facially valid search warrant: (i) PROBABLE CAUSE; and (ii) PARTICULARITY.

PC: There must be a fair probability that contraband or evidence of a crime will be found int the area to be searched.

PARTICULARITY: The SW must state with particularity the place to be searched and the items to be seized.

--If based on informants: TOC test, plus informant's reliability/credibility and basis of knowledge.
--A SW may be based IN PART on an informant's tip even though that informant remains anonymous.

Front 58

Good Faith Defense to an INVALID SW

Back 58

An officer's GOOD FAITH RELIANCE on a SW overcomes defects with the probable cause or particularity requirements.

4 EXCEPTIONS:

1. The affidavit is SO LACKING IN PC that no reasonable PO would have relied on it.

2. The affidavit is SO LACKING IN PARTICULARITY that no reasonable PO would have relied on it.

3. The PO or Prosecutor LIED TO or MISLED the magistrate when seeking the SW.

4. If the magistrate is BIASED, and therefore has wholly abandoned his or her neutrality.

Front 59

EXCEPTIONS to the Search Warrant Requirement

Back 59

A. Search incident to a LAWFUL arrest (SITA).

B. Automobile Exception

C. Plain View

D. Consent

E. Stop and Frisk

F. Evanescent Evidence, Hot Pursuit, and Special Needs Searches.

Front 60

PLAIN VIEW

Back 60

Objects perceptible by an officer who is rightfully in a position to observe them can be seized without a search warrant and are admissible as evidence.

--must be immediately apparent that the item is contraband or fruit of the crime.
--no manipulation of the object allowed.

Front 61

CONSENT to search (exception to SW requirement)

Back 61

Consent to search must be VOLUNTARY and INTELLIGENT.

--BUT police saying they have a warrant negates the consent

--3rd party may give consent. But if one person does not consent, the person who does not consent controls.

Front 62

Public School Searches

Back 62

Public school children engaged in extracurricular activities (includes EVERYTHING--sports teams, chess club, school dances, etc.) can be randomly drug tested.

Warrantless searches of public school children's effects, such as purses and/or backpacks, is permissible to investigate violations of school rules.

BUT search still must not be excessively intrusive.

Front 63

Wiretapping and Eavesdropping

Back 63

All wiretapping and eavesdropping requires a warrant.

EXCEPTIONS:
--everybody assumes the risk that the person they are speaking with will either consent to the government monitoring the conversation or wiretapping, and therefore there is no basis for a REP.
--A speaker has no 4th Am right if she makes no attempt to keep the conversation private.

Front 64

MIRANDA Warnings

Back 64

You have a right to remain silent;

anything you say can be used against you in court;

you have the right to an attorney; and

if you cannot afford an attorney, one will be appointed for you if you so desire.

WARNINGS NEED NOT BE VERBATIM, so long as the SUBSTANCE of the warning is conveyed!

Front 65

BAIL

Back 65

Bail issues are IMMEDIATELY appealable.

Preventive detention IS constitutional.

Front 66

GRAND JURIES

Back 66

Exclusion does NOT apply to the conduct of grand juries. Accordingly, a grand jury witness may be compelled to testify based on illegally seized evidence.

The proceedings of grand juries are SECRET. D has no right to appear and no right to send in witnesses.

Front 67

Prosecutorial duty to disclose exculpatory information

Back 67

A prosecutor's failure to disclose evidence, whether willful or inadvertent, violates the DPC and may be grounds for reversal of a conviction.

A failure to disclose exculpatory info will constitute grounds for reversal if:

1. The evidence is favorable to the D, and

2. Prejudice has resulted, meaning there is a reasonable probability that the result would have been different had the information been disclosed.

Front 68

Trial: Right to an Unbiased Judge

Back 68

A D has a right to an unbiased judge.

BIAS means having a FINANCIAL INTEREST in the outcome of the case, or some ACTUAL MALICE against the D.

Front 69

Right to a Jury Trial

Back 69

The constitutional right to a jury trial attaches anytime the D is tried for an offense for which the maximum authorized sentence exceeds 6 months. If the maximum authorized sentence is up to or including 6 months, there is no constitutional right to a jury trial.

Minimum # of jurors is 6 (verdict must be unanimous).

BUT, no right to a unanimous 12 juror verdict (verdict may be 10-2 or 9-3).

You have a right to have the jury pool reflect a cross-section of the community, but no right to have the impaneled jury reflect a fair cross section of the community.

Jurors can be excluded for ANY REASON, except for race or gender.

Front 70

Right to Self-Representation

Back 70

A D has the right to defend himself so long as his waiver of trial counsel is KNOWING and INTELLIGENT, and he is COMPETENT to proceed pro se.

BUT, a D may be found mentally competent to stand trial, yet incompetent to represent himself, as determined by the trial judge's discretion.

Front 71

Right to Confront Witnesses

Back 71

NOT AN ABSOLUTE RIGHT!

RULE: The absence of face-to-face confrontation between the D and accused does NOT violate the 6th Am when preventing such confrontation serves an important public purpose and the reliability of the witness' testimony is otherwise assured.

A D who is disruptive may be removed from the courtroom, thereby relinquishing his right of confrontation.

Front 72

Guilty Pleas

Back 72

The SC will not disturb guilty pleas after sentencing.

If a D pleads guilty, the judge must tell the D the following:
1. The nature of the charge; and
2. The maximum authorized penalty and any mandatory minimum penalty; and
3. The judge must tell him that he has a right not to plead guilty and to demand a trial; and
4. All of this must be ON THE RECORD.

Front 73

Plea Bargaining: 4 good reasons for withdrawing a guilty plea after sentence

Back 73

1. The plea was INVOLUNTARY (some mistake in plea taking ceremony)
BUT NOTE: A plea is not involuntary merely because it was entered in response to the prosecution's treats to charge D with a more serious crime.

2. Lack of jurisdiction;

3. Ineffective assistance of counsel;

4. Failure of the prosecutor to keep an agreed upon plea bargain.

Front 74

Death Penalty Rules

Back 74

1. Any death penalty statute that does not give the D a chance to present mitigating facts and circumstances is unconstitutional.

2. There can be no automatic category for imposition of the death penalty.

3. The state may not by statute limit the mitigating factors; all relevant mitigating evidence must be admissible or the statute is unconstitutional.

4. Only a jury--not a judge--may determine the aggravating factors justifying the imposition of the death penalty.

Front 75

DOUBLE JEOPARDY

Back 75

A. Jeopardy attaches in a jury trial when THE JURY IS SWORN.

B. In a bench trial, jeopardy attaches when the FIRST WITNESS IS SWORN.

C. Jeopardy does not generally attach when the proceedings are CIVIL (ex: you can be criminally prosecuted for tax fraud, and then have a civil proceeding against you to collect back taxes).

D. Two crimes do not constitute the same offense if each crime requires proof of an additional element that the other does not.

E. Double jeopardy bars retrial for the same offense by the same sovereign (separate sovereigns can bring separate claims).

Front 76

DOUBLE JEOPARDY: Exceptions for permitting retrial

Back 76

1. Jury is unable to agree upon a verdict.

2. Mistrials for manifest necessity.

3. A retrial after a successful appeal is not double jeopardy.

4. Breach of an agreed upon plea bargain by the D. RULE: When the D breaches a plea bargain agreement, his plea and sentence can be withdrawn and the original charge is reinstated.

Front 77

5th AM Privilege Against Compelled Testimony

Back 77

The 5th Am privilege against self-incrimination can be asserted by anyone in ANY TYPE of case. Anyone asked a Q under oath in any kind of case, wherein the response might tend to INCRIMINATE HIM is entitled to a 5th Am privilege.

--one must assert the privilege the FIRST TIME the question is asked or they will have been deemed to have waived the right.

--Protects citizens from COMPELLED TESTIMONY. Does not protect citizens from having the government use physical evidence in ways to incriminate them.

--The prosecution can compel a person to produce:
* a blood sample;
* a handwriting sample;
* a voice sample;
* a hair sample.

Front 78

Improper Prosecutorial Conduct

Back 78

It is unconstitutional for the prosecutor to make a negative comment on the Ds FAILURE TO TESTIFY or on a D CHOOSING TO REMAIN SILENT after being given the Miranda warnings.

BUT, a prosecutor can comment on the Ds failure to take the stand when the comment is in response to defense counsel's assertion that D was not allowed to explain his side of the story.

When the prosecutor impermissibly comments on a Ds silence, the HARMLESS ERROR test applies, and thus, the prosecutor's conduct may not be fatal to an otherwise sound conviction.