Crj 123 Midterm Study

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Types of Identification Procedures

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Lineup: The police ask the witness to identify which one of persons in a group (live or photo) committed the crime.

Showup: The police has the witness observe only the suspect.

Voiceprints: The police has the witness identify the suspect by voice. When the accused's voice is used for identification purposes, the accused's voice is not testimonial (not used for content), and therefore the Fifth Amendment does not apply to voiceprints.

Framework for analyzing ID procedures: Did the accused have a right to counsel during the procedure? Was the procedure impermissibly suggestive? Even if it was unlawful can the reliability of the ID be established through an independent source?

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6th Amendment Right to Counsel:

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As with Massiah, the right to counsel is a trial right and applies only after the prosecutor files charges.

Right to counsel during identification procedure: Only post-charging. Pre-charging = no.

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14th Amendment and Eyewitness Identification:

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Eyewitness identification is inherently unreliable.

A suspect's right to due process will be violated by any "impermissibly suggestive" identification procedure since the reliability of the identification will be altered by the suggestion.

An impermissibly suggestive identification procedure is defined as any procedure that gives rise to a substantial likelihood of misidentification. Any impermissibly suggestive post-indictment identification will be excluded regarding lineup identification however it is admissible if the prosecution can prove the ability for the witness to make a positive identification came from a source independent of the lineup.

Factors to consider impermissibility:
The opportunity of view, degree of attention, accuracy of the description, witness' level of certainty, the time between the crime and the confrontation.

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Entrapment Defense

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There is no constitutional basis for the entrapment defense; therefore, the test for entrapment is determined by the jurisdiction.

A third party can unwittingly act as an agent of law enforcement. If they manipulate the third party to entrap the perpetrator, the government converts the third party into a government agent.

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The Subjective "Origin-of-Intent" Test:

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(Feds and most states):

The test focuses on the accused's intent or predisposition. The question is whether the accused was predisposed to commit the crime. Police misconduct is irrelevant except to show that the police created the disposition to commit the crime.

Factors to consider: The character or reputation of the defendant, including any prior criminal record; whether the government intially made the suggestion of criminal activity; whether the defendant angaged in the criminal activity for profit; whether the defendant evidenced reluctance to commit the offense that was overcome by repeated government inducement or persuasion; and the nature of the inducement or persuasion supplied by the government.

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The Objective Test:

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(Minority of states) Test for Entrapment Defense:

This test focuses on the conduct of law enforcement. The question is whether the conduct of the law enforceent i likely to induce a normally law-abiding person to commit the offense. The accused's intent or predisposition to commit the crime is irrelevant to the analysis.

California Two-Part Objective Test:

The law enforcement conduct would motivated a normally law-abiding person to commit a crime;

and the law enforcement conduct made commission of the crime unusually attractive to a normally law-abiding person: Pressuring the person to commit the crime by overbearing or outrageous conduct, appealing to the person to commit the crime for other than ordinary criminal purposes, guaranteeing that the offense will go undetected, or that it is legal, or by offering an exorbitant reward.

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Limitations of the entrapment defense:

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Police authorities may take reasonable steps to gain the confidence of suspects and to assure them that they are not being "set up."

The defense of entrapment applies when the police conduct is directed at the specific accused.

The defense does not apply when it is directed to the world at large.

Use of decoys: The mere creation of an opportunity to commit a crime is not entrapment. There is no entrapment as long as the decoy does not do anything to that would induce a normally law-abiding person to commit the crime.

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The exclusionary rule:

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The Exclusionary Rule is a rule of evidence that disallows the use in a court of law of unlawfully obtained evidence. It applies to states through the Due Process Clause of the Fourteenth Amendment.

The purpose: To deter future police misconduct ("Prophylactic rule"). The theory is that police will not conduct unlawful searches and seizure if they know the suspect would escape conviction because the evidence was suppressed.

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Fruit of the Poisonous Tree Doctrine:

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"Fruit of the Poisonous Tree" doctrine defines unlawfully obtained evidence as evidence discovered by the use of the prior police misconduct. If there is no future police misconduct to deter, the evidence even if unlawfully obtained will be admissible in court.

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Exceptions to the Fruit of the Poisonous Tree Doctrine:

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Independent Source Exception:
The purpose of the fruit of the poisonous tree doctrine is to deter police from using their misconduct to obtain evidence. Definition - if the evidence obtained after the illegal police activity but not as a result of the illegality (independent of), the exclusionary rule will not apply.

Inevitable Discovery Exception:
Police often will use more than one means to find evidence. Definition - evidence is admissible if the prosecution can prove that it ultimately or inevitably would have discovered the evidence through a lawful means currently being employed despite the constitutional violation.

Attenuation Exception:
Definition - if the police attempt to exploit its prior illegal search and/or seizure, the evidence obtained is admissible if the ability to exploit the prior illegality is dissipated by some intervening event. Unmirandized statement followed by a Mirandized statement is admissible.

Good Faith Reliance Exception:
The exclusionary rule is designed to deter misconduct, not the errors of other people in the criminal justice system such as judges and magistrates. Definition - Evidence obtained in good faith reliance on defective information from non-aw enforcement sources is admissible. If the defective information came from law enforcement, it will still be admissible unless the mistake was due to a systematic error or a reckless disregard of constitutional protections.

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Unmirandized statement followed by a Mirandized statement:

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The Mirandized statement resulting from an unMirandized statement will be admissible. Once Miranda warnings are given, the suspect can choose to remain silent and invoke the right to an attorney, therefore, the unMirandized statement is excluded, but the Mirandized statement is admissible since the warnings "cured" the unMirandized interrogation.

Exception: "Question-first" technique:
If police use this technique, both the unMirandized and Miranized statement will be excluded.

Features of question-first technique: The completeness and detail of the questions and answer in the first round of interrogation. The overlapping content of the two statements. The timing and setting of the first and second questioning. The continuity of the police personnel. The degree in which the interrogator's questions treated the second round as continuous with the first.

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6th Amendment: The Massiah Rule

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Once formal charges are brought against the accused, they enjoy the right to counsel during questioning.
Any statements by a charged accused are inadmissible if deliberately elicited by law enforcement in the absence of accused's counsel or a waiver of the right to counsel.

Lineups: An accused has the right to counsel during post-indictment lineups.

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Fourteenth Amendment:

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A confession obtained in violation of the Fourteenth Amendment will be excluded, there are no exceptions to inadmissibility.

Due process means to treat people fairly, and to do so, the government may not use "unreliable" evidence against the accused. A confession is considered unreliable if "involuntary" since the confession was coerced. The purpose of excluding evidence is to deter police misconduct, so when the police apply no pressure even upon a mentally ill suspect, the confession will not be found involuntary.

Physical deprivation: Confessions obtained through physical torture are inherently unreliable because an accused will admit to anything to end the pain, therefore, any confession obtained through physical torture is involuntary.

Psychological influence: All interrogations involve some sort of psychological influence, therefore every one involves some form of psychological coercion. The question is: "When looking at the totality of the circumstances, is the psychological influence the type that would make an innocent person admit to a crime he or she did not commit?"

Framework for analysis: Was the confession involuntary? (Was the accused physically abused, or psychologically coerced?)

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Miranda rule

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The prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the accused unless it demonstrates that procedural safeguards were used. Before questioning an accused who is in custody, the police must give the accused certain warnings:

The right to remain silent, any statement may be used as evidence against the accused, has a right to the presence of an attorney, if they cannot afford an attorney, one will be appointed at public expense.

A Miranda violation occurs if an officer makes a mistake on the warnings.

The interrogation must cease if the accused indicate in any manner that: they want to remain silent or the accuse wants an attorney.

The remedy for Miranda is to exclude the statement from evidence. Under certain circumstances, the statement will still be admissible despite a violation of Miranda: Impeaching the accused, exigent circumstances.

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Immunity and the Two Types of:

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Immunity is a guarantee that the government will not use the accused's incriminating statements against them. A person who is granted immunity has no right to refuse to testify because they are not being compelled to b a witness against him or herself. If the person refuses to testify, the person will be subject to contempt of court and can be punished.

Transactional immunity: A broad form of use immunity that protects the witness from any prosecution brought about relating to transactions to which they gave testimony.

Use and derivative use immunity: Neither the statements of the witness nor an evidence derived from the making of those statements may be used in the prosecution of the witness.

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Impeaching the accused:

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Impeachment evidence is evidence that reflects negatively on the credibility of a witness. Credibility of a witness is always relevant during a trial. As such, when a witness testifies during trial, the counsel may present evidence to impeach the witness.

An accused's right to testify under the Fifth does not confer the right to commit perjury, so a statement obtained in violation of Miranda can be used to impeach the accused who decides to testify an presents a story different from his confession or admission. However, an involuntary statement violating the 14th Amendment cannot be used under any circumstances including impeachment.

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Exigent circumstances

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An exigent circumstances is a condition or emergency that dispenses with Miranda until the condition or emergency dissipates. Public Safety Doctrine and Rescue Doctrine excuse a Miranda violation.

Public Safety Doctrine: Miranda does not apply to every situation where an accused is questioned while in custody, if public safety outweighs the accused privilege against self incrimination, the police may ask question necessary to secure public's safety.

Officer Safety: Officers may ask questions related to their own protection without violating Miranda.

Rescue Doctrine: Permits police to ask questions concerned with rescuing a victim.

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Standing:

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Standing is the legal right to challenge the lawfulness of a search and/or seizure.

The aggrieved as standing only when their personal right to be free from unreasonable searches and seizures has been violated. The question is whether they had a reasonable expectation of privacy in the place or object searched or whether their personal freedom to leave was intruded upon by the government.

A visitor has standing to challenge the search of a home if the visit is more than casual, or if they are an overnight guest; as the temporary residence is essentially their home.