Criminal Procedure

Front 1

WARRANTS versus AFFIDAVITS

Back 1

a warrant is issued for a reasonable set of circumstances which detail as to person/place that may be searched or seized.

Front 2

AFFIDAVIT

Back 2

affidavit on its face demonstrates probable cause, but based on falsities then leads to an invalid, the DEFENDANT must show:
1) unintentional lie or mistruth.
2) relating to a "material" fact (absolutely necessary = material)
3) by a government official.

Front 3

#2 does the document on its face demonstrate probable cause? Is there a probability that evidence will be found?

Back 3

Flexible, common approach, looking at all of the surrounding circumstances to determine if it is likely that the police are going to find the evidence; who was the informant, has any information been corroborated, how much detail is there?

"Good Faith Limitation" on the exclusionary rule.
1) the government is proceeding in good faith (watch out for magistrate "shopping")
2) reasonable belief that it is a valid warrant,
the officers in fact have a warrant, which turns out to be invalid.

Front 4

WARRANT
(Executing the Warrant)

Back 4

Generally must knock and announce. Need and timing determined on a case-by-case basis. Exclusionary rule does not apply if violated.

Front 5

WARRANT
(Exceptions to the Warrant Rule)

Back 5

1. Search Incident to Arrest
2. Automobile Searches
3. The Plain View Doctrine
4. Consent
5. Stop and Frisk

Front 6

EXCEPTIONS TO THE WARRANT RULE--SEARCH INCIDENT TO ARREST

Back 6

1) as long as the arrest is valid
2) may search the area UNDER a person's control at the time of arrest (weapons or destruction of evidence)
3) WHEN IT IS UNDER the control of the person being arrested.

Front 7

AUTOMOBILE SEARCHES

Back 7

1) Probable Cause on the Open Road
2) later search that police arrived. Evidence still admissible without a warrant.
3) Containers as long as reasonable for the search
4) Car Inventory Search -- if seizure of car was valid
5) sobriety Check Point. Allowed IF:
a. Routinely Done
b. Specific Car Related Purposes
c. Limited Intrusion

Front 8

PLAIN VIEW DOCTRINE

Back 8

Police Officer is in a place where he has a lawful right to be, may testify as to all that is plainly opened the public. No expectation of privacy. SIGHT, SOUND, SMELL.
Link to execution a warrant:

Front 9

CONSENT
(Key Question: was the "Consent" valid?)

Back 9

(Totality of the circumstances)
1. What did the officer say?
2. Time of day?
3. Any show of force?
4. Was there a warning requirement?
(DO NOT CONFUSED with Miranda)

Front 10

CONSENT
(3rd-party consent)

Back 10

if the person turns out to not be the owner of the property, the rule here is one of "apparent authority". Did it "reasonably appear" that the person have the authority to bind the principle to give consent in this fact pattern.
1.Knock at dinnertime, vs. knock admitted day.

Front 11

CONSENT
(3 Exceptions on Apparent Authority)

Back 11

1. Hotel Operators
2. Landlords
3. Spouse if Defendant there, search directed against him/her and the Defendant objects.

Front 12

STOP AND FRISK

Back 12

"Terry V. Ohio"
no probable cause, no warrant, and consent. But it is on the street encounter, with limited intrusion. (An open hand pat down)

Front 13

STOP AND FRISK

Back 13

Three Step Approach:
1) "Reasonable Suspicion" that a crime is about to take place(less than probable cause)
2) officers can stop a person and ask questions, and answers do not dispel suspicion,
3) officers can Pat down the outer garments. Reach in and take weapons or drugs out, if there is then probable cause.

Front 14

PROBABLE CAUSE

Back 14

MUST be a limited intrusion, not full search, and not escorted away. Easy to find with weapons, more difficult with drugs.

"Fleeing Suspect" -- FLIGHT, BY ITSELF, is not enough to establish "reasonable suspicion", but it is a very important factor.

Front 15

EXIGENT CIRCUMSTANCES (Rule for Emergencies)

Back 15

Commonsense Notion. If the police cannot get a warrant, they don't have to. Example Illustrations:
1) Hot Pursuit
2) Scene of a Homicide -- responding to an emergency call
3) Sweep of Premises, to be sure no danger.

Front 16

Fourth Amendment Limitations which DO NOT Apply

Back 16

1) Searches of Public School Children = "reasonable suspicion is the standard"
2) Garbage -- no probable cause, no warrant, no expectation of privacy.

Front 17

DUE PROCESS CLAUSE
(CONFESSIONS)

Back 17

Was a voluntary confession or was it coerced?

TEST to determine the voluntariness of a confession:Totality of circumstances: what did the police say? How long since the person had something to eat? When had the person last slept?

Front 18

CONFESSIONS

Back 18

STANDARD for determining voluntariness. Preponderance of the evidence.

PROCEDURE for determining voluntariness: Judge decides voluntariness, then gives it to the jurors for their consideration.

APPLIES in all CRIMINAL CASES.

Front 19

CONFESSIONS
(Custodial Interrogation)

Back 19

WARNINGS are required for STATEMENTS given in response to.

INTERROGATION is any action by the police reasonably likely to elicit a response, fact specific determination.

CUSTODY -- no right to Miranda warnings unless a suspect is in custody. Less than arrest, an objective standard. Would a reasonable person would have believed he could not leave?

Front 20

CUSTODY

Back 20

"The freedom of movement has been substantially limited, the defendant is not free to go."

Fact specific, location not NECESSARILY DETERMINATIVE:
1) on the street, what did officer say?
2) in defendant's own home, what did officer do?
3) traffic stop, Miranda does not apply to routine traffic stops.
4) stationhouse interrogation, beware the context, is a suspect there -- and remaining there -- by choice?

Front 21

CUSTODY
(The 4 Warnings)

Back 21

You have the right to remain silent.
Anything you say can be used against you.
You have the right to have an attorney present during questioning.
The government will provide you with an attorney if you can't afford one.

Front 22

MIRANDA WARNING

Back 22

KEY QUESTION: Was this a voluntary and willing waiver? Did the person really understand her rights? Did she freely give them up: did she speak the language; was she sober, how long since she had been without rest or food?

Front 23

CUSTODY
(BURDEN)

Back 23

Government must prove that the defendant understood her rights and voluntarily decided to speak; NO PRESUMPTION OF WAIVER!

Front 24

CUSTODY
(Resuming of Questioning)

Back 24

2 FACT PATTERNS
#1 -- The person is arrested, given the Miranda warnings, and says "I'm not talking, I know my rights"two hours later, officers come back in, give the Miranda warnings again and now the person make some incriminating statement.
#2 -- Exactly the same with one difference. Now the person says, "I'm not talking. I know my rights. I want a lawyer."

Once a request for counsel, Miranda always lasts.

Front 25

TWO LIMITATIONS on MIRANDA

Back 25

1. IMPEACHMENT -- IMPORTANT
"defendant confessions in violation of Miranda, doesn't get his warnings. At trial he testifies in a way which is totally inconsistent with the earlier confession. Can the earlier confession be used against him at trial?" YES, to IMPEACH.
(If Defendant takes the stand, can be used to impeach his in court statement, but not if earlier confession violated the Due Process Clause.
2. Public Safety Exception. -- A fleeing felon that is cornered in a store making an incriminating comment. It is admissible without warnings. Purpose: questions are for public safety, Miranda does not apply.

Front 26

EYEWITNESS IDENTIFICATION

Back 26

Witness views on illegal pretrial lineup. At trial, he identifies the defendant.
Is the in court identification admissible, even though there was an illegal pretrial identification? YES
RULES: No constitutional issue if the in court identification (in court!) IS INDEPENDENT of an illegal pretrial identification. Judge decides, looking to totality of circumstances.
Was the in court identification tainted by earlier illegal identification (NOT INDEPENDENT) then 2 constitutional issues:
1) Due Process Clause, only one question: Was the pretrial identification reliable? JUDGE decides. Description, Time, etc.
2) Six Amendment Right to Counsel.

Front 27

RULES to LINEUP IDENTIFICATION

Back 27

1) lineup which occurs BEFORE the defendant has been formally charged. No violation of the sixth amendment. Note contrast with Miranda.
2) only entitled to a lawyer POST CHARGE if the defendant is personally confronted by the witness against him.
"Lineup or show up"?

LOOK FOR if the defendant has been formally charged -- there isn't had the serial judicial proceeding -- defendant is entitled to have a lawyer present during lineup; remedy for violation is to exclude resulting identification.

Front 28

STANDING CHALLENGES
(Hypo)

Back 28

Police search premises owned by Alfred, during the lawful presence of friend Cathie. Search turns up two things -- an illegal gun and also -- as a result of an unlawful tape recording -- a phone conversation. The phone conversation consists of Cathi who is at the house and another friend David, 1000 miles away in another state. 2 pieces of evidence, the gun, and the taped phone conversation. Who has standing to challenge these?

Front 29

STANDING CHALLENGES
(Hypo Answers)

Back 29

1. Alfred (owner of the house those parent, has standing to challenge the admissibility of both pieces of evidence.
2. Cathie who is lawfully on the premises but is not the owner, has standing to challenge the admissibility of the phone conversation.
3. Everyone engaged in the conversation has a sufficient privacy interest in it, each has standing to raise the claim.

Front 30

STANDING CHALLENGES
(Hypo Differences)

Back 30

does Cathi, the friend who is lawfully on the premises at standing to challenge the admissibility of the gun which was found there? DEPENDS.
Former Law: persons lawfully on the premises automatically had standing because they were there.
Current Law: defendant must show that she has suffered a privacy interest which was invaded by the search. Simply being present isn't enough. If that's all that Cathi can show, no standing, and the gun is admissible against her, even though it's not admissible against the owner, Alfred.

Cathi can demonstrate sufficient privacy interest to get standing as being uninvited dinner guest, having spent the night, (and invitee) but not just by being present.

Front 31

FRUIT OF THE POISONOUS TREE

Back 31

If evidence is too far removed from a legal police action, it is not tainted; it will not be excluded.
BEWARE STANDING: many items of evidence admissible because of standing rule, not because the fruit of the poisonous tree doctrine.

Front 32

FRUIT OF THE POISONOUS TREE

Back 32

"Tainted" = not a "but for" test. Is the ultimate piece of evidence still tainted by the initial illegality or has the taint been attenuated? Voluntary statement of a third party will remove taint, and break the chain.

Front 33

RIGHT TO A SPEEDY TRIAL

Back 33

under the Six Amendment right to a fair trial, only have a speedy trial problem if the delay is AFTER the person has been arrested in formally charged, not before.

Front 34

RIGHT TO A SPEEDY TRIAL

Back 34

FOUR FACTORS that the judge looks at on a case-by-case basis.
1) length of delay? No fixed term.
2) the reasons for the delay? Were they innocent or was it intentional delay by the government?
3) did the defendant make a demand for a speedy trial? Who caused the delay?
4) prejudice. What will the impact be on the trial?

Front 35

PUBLICITY ISSUES as to TRIAL

Back 35

Due Process: defendant is entitled in all criminal cases to have an impartial trier of fact. Judges options for publicity problems:
1) delay the trial (right to speedy trial...)
2) sequestered the jury; (expensive, angry jury)
3) change of venue (USUAL)

Front 36

PUBLICITY ISSUES
(Can the judge close at trial?)

Back 36

Not Likely. First Amendment means judge must leave open unless there is a compelling interest and no less restrictive alternative. "Strict scrutiny"

Cameras? It is not per se unconstitutional to have cameras in the courthouse over the objection of the parties. The question is, will the trial be adversely affected by the cameras in the courtroom?

Front 37

RIGHT TO A JURY TRIAL

Back 37

Right depends on punishment scheme:
1) if sentencing law has no statutory maximum, entitled to a jury trial if the actual sentence imposed is more than six months, an after-the-fact determination.
2) sentencing law with a statutory maximum. If the statutory maximum is more than six months, right to jury.

Front 38

RIGHT TO JURY TRIAL

Back 38

1) no constitutional right to a unanimous verdict.
2) no constitutional right to a 12 member jury
Can be as few as six, but if it has six jurors, then the verdict must be unanimous.

Front 39

JURY CHALLENGES
(TWO TYPES)

Back 39

1) Challenge for Cause: no limits.
2) Preemptory Challenge: is not a challenge for cause, no reason need be given, statute limits the number for each side.

NEITHER SIDE can exclude jurors on the basis of race or gender, even with a preemptory challenge.

Front 40

SENTENCING AND JURORS

Back 40

if facts necessary to increase sentence must be found, it is a jury -- not a judge -- that must find these facts.

Front 41

SIX AMENDMENT RIGHT TO COUNSEL

Back 41

The defendant Requested a lawyer at the trial in a SERIOUS CRIMINAL case.
1) if defendant does not ask for a lawyer, she does not waive her right to counsel.
2) NO CONDITIONS if it is necessary for a fair trial and the defendant requests a lawyer.
3) A right to a lawyer and non-trial settings, both before and after the trial.

Front 42

SIX AMENDMENT
(Pretrial Defendant)

Back 42

If the defendant is charged with robbery and out on bail, an undercover agent may not ask questions of the defendant that are specific to that crime, but can ask questions about crimes other than the robbery.

Front 43

SIX AMENDMENT
(Post Trial)

Back 43

ISSUES:
Right to a lawyer at Sentencing; and on automatic appeal.
Ineffective Assistance of Counsel; but Defendant must show attorney was not reasonably competent, and the lack of competency affected the outcome of the trial.
The Nature of the Trial, judges cannot sentence to any time of imprisonment, actual or suspended, and Leslie or is offered to the defendant.

Front 44

JURY INSTRUCTIONS
(Criminal law & Criminal Procedure combined)

Back 44

the defendant is charged with murder. Defense claim is provocation, heat of passion, reduce it to voluntary manslaughter. The jury is instructed that the government has to prove the intentional killing beyond a reasonable doubt. But in order to make it voluntary manslaughter the defendant has to prove, by a preponderance, heat of passion. UNCONSTITUTIONAL!

Front 45

GUILTY PLEAS

Back 45

1. The prosecutor promises 10 years in prison. Judge sentences to 15 years. Defendant can withdraw the plea of guilty and go to trial.
2. The prosecutor promises to recommend no more than 10 years in prison, and does so. Judge sentences to 15 years. Motion to withdraw plea denied.

Front 46

GUILTY PLEAS

Back 46

A contract with offer, acceptance, and consideration.
Breach: if the government does not fulfill its deal, that is breach and the defendant can rescind, can withdraw plea.

Front 47

DOUBLE JEOPARDY

Back 47

Jury Trials: Double Jeopardy claims in jury trials do not arise, do not attach, UNTIL the jury is SWORN!
Bench Trials: double Jeopardy problem until the first Witness is Sworn in.
LIMITATION on DOUBLE JEOPARDY. "Manifest Necessary" if it is necessary to have a new trial and it was not the governments fault, no double jeopardy problem; Judge drops dead, witness disappears, a hung jury.

Front 48

NO DOUBLE JEOPARDY PROBLEMS

Back 48

1. Same Offense, in different states in which the offense requires additional elements.
2. Conspiracy -- Hypo
a. Conspiracy requires an agreement which distribution does not
b. Distribution require sale or transfer of drugs which conspiracy does not.
3. Waiver -- that the defendant appeals her conviction, she has waived her double jeopardy claim.

Front 49

ONE TRICKY ISSUE AGAINST INCRIMINATION

Back 49

if the government offers immunity and it is granted to testify against a codefendant, the person must testify. Identification of oneself -- it is against the law to keep quiet unless fruit of the poisonous tree. Cannot be used to prove guilt as to crime.

Front 50

EIGHTH AMENDMENT
(Cruel and Unusual Punishment)

Back 50

1. Intent Punishment itself does not necessarily mean it is cruel and unusual
2. Contents Punishment may be valid but it must not be done inhumanely.
3. Capital Punishment itself is not per se violative of the Constitution. So long as it is done in a humane way. Most recently, there is a debate over lethal injections.