Crim. Pro

Question 1

Constitutional Requirements Binding on the State

Answer 1

The first eight amendments to the US Constitution apply to the federal government. Most of these rights are applicable to the states through the Due Process Clause of the Fourteenth Amendment. The following rights are biniding on the states as well: (i) The Fourth Amendment prohibition against unreasonable searches and seizures, and the exclusionary rule, (ii) the Fifth Amendment privilege against compulsory self-incrimination; (iii) the Fifth Amendment prohibition against double jeopardy; (iv) the Sixth Amendment right to a speedy trial; (v) the Sixth Amendment right to a public trial (vi) the Sixth Amendment Right to trial by jury; (vii) the Sixth Amendment right to confront witnesses; (viii) the Sixth Amendment Right to compulsory process for obtaining witnesses; (ix) the Sixth Amendment right to assistance of counsel in felony cases and in misdemeanor cases in which imprisonment is imposed; and (x) Eighth Amendment prohibition on cruel and unusual pnsh

Question 2

Constitutional Rights not Binding on States

Answer 2

The right to indictment by a grand jury for capital and infamous crimes has been held not to be binding on the states. It has not yet been determine whether the Eighth Amendment prohibition against excessive bail creates a right to bail. However, most state constitutions create a right to bail and prohibit excessive bail.

Question 3

In General- Scope of Rule

Answer 3

The exclusionary rule is a judge-made doctrine that prohibits introduction of evidence obtained in violation of a defendant_s Fourth, Fifth, and Sixth Amendment rights. Under the rule, unconstitutionally obtained evidence is inadmissible at trial, and all fruit of the poisonous tree (i.e. evidence obtained from exploitation of the unconstitutionally obtained evidence) must also be excluded unless the costs of excluding the evidence outweigh the deterrent effect exclusion would have on police misconduct.

Question 4

Exceptions to Fruit of Poisonous Tree Doctrine

Answer 4

(i) The fruits derived from statements obtained in violation of Miranda; (ii) Evidence obtained from a source independent of the original illegality; (iii) An intervening act of free will by the defendant (attenuation _ e.g., defendant is illegally arrested but is released and later returns to the station to confess); (iv) Inevitable discovery _ i.e. the prosecution can show that the police would have discovered the evidence whether or not the police acted unconstitutionally; and (v) Violations of the knock and announce rule.

Question 5

Inapplicable to Grand Juries, Civil Proceedings, Violations of State Law, Internal Agency Rules, and Parole Revocation Proceedings

Answer 5

The exclusionary rule is inapplicable to grand juries unless evidence was obtained in violation of the federal wiretapping statute. The rule is also inapplicable at parole revocation proceedings, in civil proceedings, or where evidence was obtained contrary only to state law or agency rules.

Question 6

Good Faith Reliance on Law, Defective Search Warrant, or Clerical Error

Answer 6

The exclusionary rule does not apply when the police arrest someone erroneously but in good faith thinking that they ar eacting pursuant to a valid arrest warrant, search warrant, or law.

Question 7

Use of Excluded Evidence for Impeachment Purposes

Answer 7

Some illegally obtained evidence may be used to impeach defendant_s credibility if he takes the stand at trial. Specifically, an otherwise voluntary confession taken in violation of the Miranda requirements is admissible for impeachment purposes, and evidence obtained from an illegal search may be used by the prosecution to impeach defendant_s, but not others_, statements.

Question 8

Knock and Announce Rule Violations

Answer 8

Exclusion is not an available remedy for violations of the knock and announce rule pertaining to the execution of a warrant.

Question 9

Harmless Error Test

Answer 9

If illegal evidence is admitted, a resulting conviction should be overturned on appeal unless the government can show beyond reasonable doubt that the error was harmless. In a habeas proceeding where the petitioner claims constitutional error, he should be released if he can dhow that the error had a substantial and injurious effect or influence in determining the jury_s verdict; if the judge is in grave doubt as to the harm, the petition must be granted. [The harmless error standard never applies to the denial of the right to counsel at trial; i.e. this error is never harmless.]

Question 10

Enforcing the Exclusionary Rule

Answer 10

A defendant is entitled to have the admissibility of evidence or a confession decided as a matter of law by a judge out of the hearing of the jury. The government bears the burden of establishing the admissibility by a preponderance of the evidence. The defendant has the right to testify at a suppression hearing without his testimony being admitted against him at trial on the issue of guilt.

Question 11

In General

Answer 11

The Fourth Amendment provides that people should be free from unreasonable searches and seizures.

Question 12

Arrests and Other Detentions

Answer 12

Governmental seizures of persons, including arrests, are seizures within the scope of the Fourth Amendment and so must be reasonable.

Question 13

What Constitutes a Seizure

Answer 13

A seizure occurs when, under the totality of the circumstances, a reasonable person would feel that he was not free to decline the officer_s request or otherwise terminate the encounter.

Question 14

Arrests

Answer 14

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

Question 15

Probably Cause Requirement

Answer 15

An arrest must be based on probable cause _ i.e. trustworthy facts or knowledge sufficient for a reasonable person to believe that the suspect has committed or is committing a crime.

Question 16

Warrant Generally Not Required Except for Home Arrests

Answer 16

A warrant generally is not required before arresting a person in a public place. However, police generally must have a warrant to effect a nonemergency arrest of a person in his home.

Question 17

Investigatory Detentions (Stop and Frisk)

Answer 17

If the police have a reasonable suspicion of criminal activity or involvement in a completed crime, supported by articulable facts (i.e. not merely a hunch), they may detain a person for investigative purposes. If the police also have reasonable suspcition that the detainee is armed and dangerous, they may frisk the detainee for weapons.

Question 18

Duration and Scope

Answer 18

Investigatory stops are not subject to a specific time limit. The police must act in a diligent and reasonable manner in confirming or dispelling their suspicions. The police may ask the detained person to identify himself (i.e. state his name) and generally may arrest the detainee for failure to comply with such a request. The detention will also turn into an arrest if during the detention other probable cause for arrest arises.

Question 19

Property Seizures

Answer 19

Brief property seizures are similarly valid if based on reasonable suspicion.

Question 20

Automobile Stops

Answer 20

Generally, police may not stopa car unless they have at least reasonable suspicion to believe that a law has been violated. However, if special law enforcement needs are involved, the Supreme Court allows police to set up roadblocks to stop cars without individualized suspicion whtat the driver violated some law. To be valid, the roadblock must: (i) stop cars on the basis of some neutral, articulable standard; and (ii) be designed to serve purposes closely related to a particular problem pertaining to automobiles and their mobility.

Question 21

Seizure of All Occupants

Answer 21

An automobile stop constitutes a seizure not only of the automobile_s driver, but also of any passenger as well. Thus, passengers have standing to raise a wrongful stop as a reason to exclude evidence found during the stop.

Question 22

Police May Order Occupants Out

Answer 22

After lawfully stopping a vehicle, in the interest of officer safety, the officer may order the occupants of the vehicle to get out. Moreover, if the officer reasonably believes the detainees to be armed, he may frisk the occupants and search the passenger compartment for weapons, even after he has ordered the occupants out.

Question 23

Pretextual Stops

Answer 23

If the police have probable cause to believe a driver violated a traffic law, they may stop the car, even if their ulterior motive is to investigate a crime for which they lack sufficient cause to make a stop.

Question 24

Detention to Obtain a Warrant

Answer 24

If the police have provable cause to believe that a suspect has hidden drugs in his home, they may, for a reasonable time, prevent him from going into the home unaccompanied so that they can prevent him from destroying the drugs while they obtain a search warrant.

Question 25

Occupants of the Premises

Answer 25

A valid warrant to search for contraband allows the police to detain occupants of the premises during a proper search.

Question 26

Station House Detentions

Answer 26

Police must have full probable cause for arrest to bring a suspect to the station for questioning or fingerprinting against the person_s will.

Question 27

Grand Jury Appearance

Answer 27

Seizure of a person (by subpoena) for a grand jury appearance is not within the Fourth Amendment_s protection.

Question 28

Deadly Force

Answer 28

There is a Fourth Amendment seizure when a police officer uses deadly force to apprehend a suspect. An officer may not use deadly force unless it is reasonable to do so under the circumstances (e.g. where the suspect poses a danger to his own life or the lives of others).

Question 29

Evidentiary Search and Seizure

Answer 29

Like arrests, evidentiary searches and seizures must be reasonable to be valid under the Fourth Amendment, but here reasonableness requires a warrant except in six circumstances. Evidentiary search and seizure issues should be approached using the following model: (i) Does defendant have a Fourth Amendment right (seizure by the government concerning a place or thing which defendant had a legitimate expectation of privacy)? (ii) Did the government have a valid warrant (issued by a neutral and detached magistrate on a showing of probable cause and reasonably precise as to the place to be searched and items to be seized)? (iii) If the police did not have a valid warrant, did they make a valid warrantless search and seizure?

Question 30

Governmental Conduct

Answer 30

The Fourth Amendment generally protects only against governmental conduct (i.e. police or other government agents), and not against searches by private persons _ including private security guards _ unless deputized as officers of the public police.

Question 31

Standing

Answer 31

To have a Fourth Amendment right, a person must have his own legitimate expectation of privacy with respect to the place searched or the item seized. The determination is made on the totality of the circumstances, but a person ahs a legitimate expectation of privacy any time: (i) he owned or had a right to possession of the place searched; (ii) the place searched was in fact his home, whether or not he owned or had a right to possession of it; or (iii) he was an overnight guest of the owner of the place searched.

Question 32

No Legitimate Expectation of Privacy

Answer 32

One has no legitimate expectation of privacy in: (1) The sound of one_s voice; (2) One_s handwriting; (3) Paint on the outside of one_s vehicle; (4) Account records held by a bank; (5) The location of one_s vehicle on public roads or its arrival at a private residence; (6) Areas outside the home and related buildings (curtilage), such as a barn; (7) Garbage left for collection; (8) Land visible from a public place, even from a plane or helicopter; (9) The smell of one_s care or luggage (sniff-test)

Question 33

Searches Conducted Pursuant to a Warrant

Answer 33

Generally, the police must have a warrant to conduct a search unless it falls within one of the six exceptions to the warrant requirement.

Question 34

Showing of Probable Cause

Answer 34

A warrant will be issued only if there is probable cause to believe that seizable evidence will be found on the person or premises at the time the warrant is executed. Officers must submit to a magistrate an affidavit setting forth circumstances enabling the magistrate to make a determination of probable cause independent of the officer_s conclusions.

Question 35

Use of a Informers

Answer 35

An affidavit based on an informer_s tip must meet the totality of the circumstances test. Under this test, the affidavit may be sufficient even though the reliability and credibility of the informer or his basis for knowledge are not established. Note that the informer_s identity generally need not be revealed.

Question 36

Going Behind the Face of the Affidavit

Answer 36

A search warrant issued on the basis of an affidavit will e held invalid if the defendant establishes all three of the following: (i) A false statement was included in the affidavit by the affiant (the officer applying for the warrant); (ii) The affiant intentionally or recklessly included the false statement; and (iii) the false statement was material to the finding of probable cause. [This test for invalidating the affidavit is very restrictive _ all three requirements for invalidity must be met. Therefore, a defendant is rarely successful in challenging the affidavit.]

Question 37

Police May Reasonably Rely on the Validity of a Warrant

Answer 37

Evidence obtained by the police in reasonable reliance on a facially valid warrant may be used by the prosecution, despite an ultimate finding that the warrant was not supported by probable cause. [This good faith exception applies only if the police obtained a warrant and it is invalid. The exception does not apply if the police failed to obtained a warrant.]

Question 38

Warrant Must Be Precise on Its Face

Answer 38

A warrant must describe with reasonable precision the place to be searched and items to be seized. If it does not, the warrant is unconstitutional, even if the underlying affidavit gives such detail.

Question 39

Search of Third-Party Premises Permissible

Answer 39

A warrant may be obtained to search premises belonging to nonsuspects, as long as there is probable cause to believe that evidence will be found there.

Question 40

Neutral and Detached Magistrate Requirement

Answer 40

The magistrate who issues the warrant must be neutral and detached.

Question 41

Execution of Warrant

Answer 41

Only the police (and not private citizens) may execute a warrant, and it must be executed without unreasonable delay. Police must knock, announce their purpose, and wait a reasonable time for admittance (unless the officer has reasonable suspicion, based on facts, that announcing would be dangerous or futile or would inhibit the investigation.) The scope of the search is limited to what is reasonably necessary to discover the items described in the warrant. Police may seize any contraband or fruits or instrumentalities of crime that they discover, whether or not specified in the warrant. In any case, remember that violations of the knock and announce rule will not result in the suppression of evidence otherwise properly obtained _ the exclusionary rule does not apply here.

Question 42

Search of Persons Found on Searched Premises

Answer 42

A warrant founded on probable cause to search for contraband authorizes the police to detain occupants of the premises during a proper search, but a search warrant does not authorize the police to search persons found on the premises who were not named in the warrant.

Question 43

Search Incident to Constitutional Arrest

Answer 43

Incident to a constitutional arrest (i.e. one based on probable cause to believe a law has been violated and that meets other constitutional requirements), the police may search the person and areas into which he might reach to obtain weapons or destroy evidence. The police may also make a protective sweep of the area if they believe accomplices may be present. The search must be contemporaneous in time and place with the arrest, but, at least with respect to searches of automobiles, the term contemporaneous does not necessarily mean simultaneous. Thus, e.g., the police may search the interior of an automobile after securing a recent occupant of the automobile in a squad car if they have reason to believe that the vehicle contains evidence of the crime for which the recent occupant was arrested.

Question 44

Constitutional Arrest Requirement

Answer 44

If an arrest is unconstitutional, any search incident to that arrest is also unconstitutional.

Question 45

Automobiles

Answer 45

The police may conduct a search of the passenger compartment of an automobile incident to arrest only if at the time of the search: (a) The arrestee is unsecured and still may gain access to the interior of the vehicle; or (b) The police reasonably believe that evidence of the offense for which the person was arrested may be found in the vehicle.

Question 46

Search Incident to Incarceration or Impoundment

Answer 46

At the police station, the police may make an inventory search of the arrestee_s belongings pursuant to established department procedure. Similarly, the police may make an inventory search of an impounded vehicle.

Question 47

Automobile Exception

Answer 47

If the police have probable cause to believe that a vehicle contains fruits, instrumentalities, or evidence of a crime, they may search the whole vehicle and any container that might reasonably contain the item for which they had probable cause to search. If a warrantless search of a vehicle is valid, the police may tow the vehicle to the station and search it later. Note: If the police have probable cause to believe that an automobile itself is contraband, they may seize it form a public place without a warrant.

Question 48

Passenger_s Belongings

Answer 48

The search may extend to packages belonging to a passenger; it is not limited to the driver_s belongings.

Question 49

Containers Placed in Vehicle

Answer 49

If the police have probable cause only to search a container in a vehicle, they may search only the container, not other parts of the vehicle.

Question 50

Plain View

Answer 50

The police may make a warrantless seizure when they: (i) Are legitimately on the premises; (ii) Discover evidence, fruits or instrumentalities of crime, or contraband; (iii) See such evidence in plain view; and (iv) Have probable cause to believe (i.e. it must be immediately apparent) that the item is evidence, contraband, or a fruit or instrumentality of crime. [For this exception, be sure the police officer is legitimately on the premises, such as on a public sidewalk or in a home executing a warrant. If she is, anything the officer sees (or smells, hears, etc.) in plain view is admissible.]

Question 51

Consent

Answer 51

A warrantless search is valid if the police have a voluntary consent. Knowledge of the right to withhold consent is not a prerequisite to establishing a voluntary consent. The scope of the search may be limited by the scope of the consent, but generally extends to all areas to which a reasonable person under the circumstances would believe it extends.

Question 52

Authority to Consent

Answer 52

Any person with an apparent equal right to use or occupy the property may consent to a search, and any evidence found may be used against the other owners or occupants. However, an occupant cannot give valid consent to a search when a co-occupant is present and objects to the search and the search is directed against the co-occupant.

Question 53

Stop and Frisk

Answer 53

A police officer may stop a person without probable cause for arrest if she has an articulable and reasonable suspicion of criminal activity. The officer may require the detainee to state his name, and if the officer also reasonably believes that the person may be armed and presently dangerous, she may conduct a protective frisk. [Remember that a stop is not an arrest, and thus an officer need not have probable cause. However, he must have a reason to believe that criminal activity is afoot. Thus, seeing a person pace in front of a jewelry store might justify a stop. A frisk will be justified only if the officer reasonably thinks that the suspect has a weapon.]

Question 54

Scope of Intrusion

Answer 54

The scope of the frisk is generally limited to a patdown of outer clothing, unless the officer has specific information that a weapon is hidden in a particular area of the suspect_s clothing. An officer may also order occupants out of a stopped vehicle and frisk them and search the passenger compartment of the vehicle if the officer has a reasonable belief that an occupant is dangerous.

Question 55

Admissibility of Evidence

Answer 55

During a patdown, an officer may reach into the suspect_s clothing and seize any item that the officer reasonably believes, based on its plain feel, is a weapon or contraband, and such items are admissible as evidence.

Question 56

Hot Pursuit, Evanescent Evidence, and Emergency Aid Exceptions

Answer 56

Police in hot pursuit of a fleeing felon may make a warrantless search and seizure and may even pursue the suspect into a private dwelling. Police may also seize without a warrant if evidence is likely to disappear before a warrant can be obtained. Police may also enter the premises without a warrant to address emergencies that could affect health or safety.

Question 57

Administrative Inspections and Searches

Answer 57

Inspectors must have a warrant for searches of private residences and commercial buildings, but the probable cause required to obtain a warrant is more lenient than for other searches: A showing of a general and neutral enforcement plan will justify issuance of a warrant.

Question 58

Exceptions Permitting Administrative Warrantless Searches

Answer 58

(i) Administrative searches to seize spoiled or contaminated food; (ii) Administrative searches of a business within a highly regulated industry; (iii) inventory searches of arrestees or their vehicles pursuant to established department procedure; (iv) searches of airline passengers prior to boarding; (v) searches of parolees and their homes _ even without reasonable grounds for the search, at least as long as there is a statute authorizing such searches; (vi) searches of government employees_ desks and file cabinets where the scope is reasonable and there is a work-related need or reasonable suspicion of work-related misconduct; (vii) drug tests of railroad employees involved in an accident; (viii) drug tests of persons seeking customs employment in positions connected to drug interdiction; and (ix) drug tests of public school students who participate in extracurricular activities.

Question 59

Public School Searches

Answer 59

A warrant or probable cause is not required for public school officials to search public school students or their possessions; only reasonable grounds for the search are necessary. A school search will be held to be reasonable only if: (i) it offers a moderate chance of finding evidence of wrongdoing; (ii) the measures adopted to carry out the search are reasonably related to the objectives of the search; and (iii) the search is not excessively intrusive in light of the age and sex of the student and the nature of the infraction.

Question 60

Searches in Foreign Countries

Answer 60

The Fourth Amendment does not apply to searches and seizures by United States Officials in foreign countries and involving an alien, at least where the alien does not have a substantial connection to the United States.

Question 61

Searches at the Border or Its Equivalent

Answer 61

No warrant is necessary for border searches. Neither citizens nor noncitizens have any Fourth Amendment rights at the border. Roving patrols inside the US border may stop a vehicle for questioning of occupants if an officer reasonably suspects that the vehicle contains illegal aliens. Border officials may stop a vehicle at a fixed checkpoint inside the border for questioning of occupants and may disassemble the vehicle, even without reasonable suspicion.

Question 62

Opening International Mail

Answer 62

Permissible border searches include opening of international mail when postal authorities have reasonable cause to suspect that the mail contains contraband.

Question 63

Immigration Enforcement Actions

Answer 63

The Immigration Services Division may do a factory survey of the work force in a factory to determine citizenship of each employee. Moreover, even illegally obtained evidence (i.e. evidence obtained in violation of the Fourth Amendment) may be used in a civil deportation hearing.

Question 64

Detentions

Answer 64

Officials with reasonable suspicion that a traveler is smuggling contraband in her stomach may detain the traveler.

Question 65

Wiretapping and Eavesdropping

Answer 65

Wiretapping (and other forms of electronic surveillance violating a reasonable expectation of privacy) constitutes a search under the Fourth Amendment. A valid warrant authorizing a wiretap may be issued if (i) there is showing of probable cause, (ii) the suspected persons involved in the conversations to be overheard are named, (iii) the warrant describes with particularity the conversations that can be overheard, (iv) the wiretap is limited to a short period of time, (v) the wiretap is terminated when the desired information has been obtained, and (vi) return is made to the court, showing what conversations have been intercepted.

Question 66

Exceptions to Wiretapping

Answer 66

A speaker assumes the risk that the person to whom he is talking is an informer wired for sound or taping the conversation. A speaker has no Fourth Amendment claim if he makes no attempt to keep a conversation private.

Question 67

Pen Registers

Answer 67

Although pen registers (devices that record only phone numbers that are dialed from a phone) are not controlled by the Fourth Amendment, by statute judicial approval is required before a pen register may be used.

Question 68

Method of Obtaining Evidence That Shocks the Conscience

Answer 68

Evidence obtained in a manner offending a sense of justice is inadmissible under the Due Process Clause. The reasonableness of searches within a person_s body is determined by balancing society_s need against the magnitude of the intrusion. Taking of a blood sample is usually upheld, but surgery requires great need.

Question 69

Intro

Answer 69

The admissibility of a defendant_s confession (or other incriminating admission) involves analysis under the Fourth, Fifth, Sixth, and Fourteenth Amendments.

Question 70

Fourteenth Amendment _ Voluntariness

Answer 70

For a self-incriminating statement to be admissible under the Due Process Clause, it must be voluntary, as determined by the totality of the circumstances. A statement will be involuntary only if there is some official compulsion (e.g., a confession is not involuntary merely because it is a product of mental illness). If an involuntary confession is admitted into evidence, the harmless error test applies; i.e. the conviction need not be overturned if there is other overwhelming evidence of guilt.

Question 71

Sixth Amendment Right to Counsel

Answer 71

The Sixth Amendment guarantees the right to the assistance of counsel in all criminal proceedings, which include all critical stages of a prosecution after judicial proceedings have begun. It prohibits the police from deliberately eliciting an incriminating statement from a defendant outside the presence of counsel after the defendant has been charged unless he has waived his right to counsel. [Note that there can be no violation of the Sixth Amendment right to counsel before formal proceedings have begun. Thus, a defendant who is arrested but not yet charged does not have a Sixth Amendment right to counsel but does have a Fifth Amendment right to counsel under Miranda.

Question 72

Stages at Which Applicable

Answer 72

A defendant has a right to be represented by privately retained counsel, or to have counsel appointed for him by the state if he is indigent, at the following stages: (i) post-indictment interrogation, whether or not custodial; (ii) preliminary hearings to determine probable cause to prosecute; (iii) arraignment; (iv) post-charge lineups; (v) guilty plea and sentencing; (vi) felony trials; (vii) misdemeanor trials when imprisonment is actually imposed or when a suspended jail sentence is imposed; (viii) overnight recesses during trial; (ix) appeals as a matter of right; and (x) appeals of guilty pleas. There is also a Fifth Amendment right to counsel at any custodial police interrogation.

Question 73

Stages at Which Not Applicable

Answer 73

(i) Blood sampling; (ii) taking of handwriting or voice exemplars; (iii) precharge or investigative lineups; (iv) photo identifications; (v) preliminary hearings to determine probable cause to detain; (vi) brief recesses during the defendant_s testimony at trial; (vii) discretionary appeals; (viii) parole and probation revocation proceedings; and (ix) post-conviction proceedings.

Question 74

Offense Specific

Answer 74

The Sixth Amendment is offense specific. Thus, even though a defendant_s Sixth Amendment rights have attached regarding the charge for which he is being held, he may be questioned regarding unrelated, uncharged offenses without violating the Sixth Amendment right to counsel (although the interrogation might violate the defendant_s Fifth Amendment right to counsel under Miranda). Two offenses will be considered different if each requires proof of an additional element that the other crime does not require.

Question 75

Waiver

Answer 75

The Sixth Amendment right to counsel may be waived. The waiver must be knowing, voluntary, and intelligent. However, the waiver does not necessarily require the presence of counsel, at least if counsel has not actually been requested by the defendant but rather was appointed by the court.

Question 76

Remedy

Answer 76

At nontribal proceedings (such as post-indictment interrogations), the harmless error rule applies to deprivations of counsel. But if the defendant was entitled to a lawyer at trial, the failure to provide counsel results in automatic reversal of the conviction, even without a showing of specific unfairness in the proceedings. Similarly, erroneous disqualification of privately retained counsel at trial results in automatic reversal.

Question 77

Impeachment

Answer 77

A statement obtained in violation of a defendant_s Sixth Amendment right to counsel, while not admissible in the prosecution_s case-in-chief, may be used to impeach the defendant_s contrary trial testimony. This rule is similar to the rule that applies to Miranda violations.

Question 78

Miranda Warnings

Answer 78

For an admission or confession to be admissible under the Fifth Amendment privilege against self-incrimination, a person in custody must, prior to interrogation, be informed in substance, that: (i) he has the right to remain silent; (ii) anything he says can be used against him in court; (iii) he has the right to the presence of an attorney; and (iv) if he cannot afford an attorney, one will be appointed for him if he so desires. [Despite the fact that the Miranda warnings mention a right to counsel, the failure to give the warnings violates a defendant_s Fifth Amendment right to be free from compelled self-incrimination, not his Sixth Amendment right to counsel.]

Question 79

When Required

Answer 79

Anyone in the custody of the government and accused of a crime must be given Miranda warnings prior to interrogation by the police.

Question 80

Governmental Conduct

Answer 80

Generally, Miranda warnings are necessary only if the detainee knows that he is being interrogated by a government agent. The Miranda requirements do not apply to an uncharged witness testifying before a grand jury, even if the witness was compelled by subpoena to be there.

Question 81

Custody Requirement

Answer 81

Whether a person is in custody depends on whether the person_s freedom of action is limited in a significant way based on the objective circumstances.

Question 82

Interrogation Requirement

Answer 82

Interrogation includes any words or conduct by the police that they should know would likely elicit a response from the detainee. Thus, Miranda warnings are not required before spontaneous statements are made by a detainee. Note that routine booking questions do not constitute an interrogation.

Question 83

Right to Waive or Terminate Interrogation

Answer 83

After receiving Miranda warnings, a detainee has several options: do nothing, waive his Miranda rights, assert the right to remain silent, or assert the right to consult with an attorney.

Question 84

Do Nothing

Answer 84

If the detainee does not respond at all to Miranda warnings, the Court will not presume a waiver, but neither will the Court presume that the detainee has asserted a right to remain silent or to consult with an attorney. Therefore, the police may continue to question the detainee.

Question 85

Waive Rights

Answer 85

The detainee may waive his rights under Miranda. To be valid, the government must show by a preponderance of the evidence that the waiver was knowing and voluntary. The court will look to the totality of the circumstances in determining whether this standard was met. But it appears that if the government can show that the detainee received Miranda warnings and then chose to answer questions, that is probably sufficient.

Question 86

Invocation of Right to Remain Silent

Answer 86

If the detainee indicates that he wishes to remain silent, the police must scrupulously honor this request by not badgering the detainee. To be effective, the detainee_s indication must be explicit, unambiguous, and unequivocal. In any case, the Supreme Court has allowed later questioning to occur on an unrelated crime.

Question 87

Invocation of Right to Counsel

Answer 87

If the detainee unambiguously indicates that he wishes to speak to counsel, all questioning must cease until counsel has been provided unless the detainee: (i) then waives his right to counsel or (ii) is released form the custodial interrogation and 14 days have passed since release. A request for counsel must be specific (i.e. indicate that the detainee desires assistance in dealing with the interrogation). Allowing the detainee to consult with counsel and then resuming interrogation after counsel has left generally does not satisfy the right to counsel _ counsel must be present during the interrogation unless the detainee has waived the right. [Note the difference here depending on what the detainee asks: If the detainee indicates that he wishes to remain silent, the police probably may requestion him about a different crime after a break if fresh warnings are administered. If the detainee requests counsel, the police may not resume interrogating detainee until counsel is provided]

Question 88

Effect of Violation

Answer 88

Generally, evidence obtained in violation of the Miranda rules may be used to impeach the defendant_s trial testimony, but may not be used as evidence of guilt.

Question 89

Warnings After Questioning and Confession

Answer 89

If the police obtain a confession from a detainee without giving him Miranda warnings and then give the detainee Miranda warnings and obtain a subsequent confession, the subsequent confession will be inadmissible if the question first, warn later nature of the questioning was intentional (i.e. the facts make it seem like the police used this as a scheme to get around the Miranda requirements). However, a subsequent valid confession may be admissible if the original unwarned questioning seemed unplanned and the failure to give Miranda warnings seemed inadvertent.

Question 90

Nontestimonial Fruits of an Unwarned Confession

Answer 90

If the police fail to give Miranda warnings and during interrogation, a detainee gives the police information that leads to nontestimonial evidence, the evidence will be suppressed if the failure was purposeful, but if failure was not purposeful, the evidence probably will not be suppressed.

Question 91

Public Safety Exception

Answer 91

The Supreme Court has allowed interrogation without Miranda warnings where it was reasonably prompted by a concern for public safety.

Question 92

Sixth Amendment Right to Counsel

Answer 92

A suspect has a right to the presence of an attorney at any post-charge lineup or showup. An accused does not have a right to counsel at photo identifications or when police take physical evidence, such as handwriting exemplars or fingerprints, from him. [Recall that the right to counsel before trial is very limited and does not cover procedures where defendant is not personally confronted by the witness against him.]

Question 93

Due Process Standard

Answer 93

A defendant can attack an identification as denying due process if the identification is unnecessarily suggestive and there is a substantial likelihood of misidentification. [Because a lineup does not involve compulsion to give testimonial evidence, a suspect_s Fifth Amendment right against compelled self-incrimination does not apply. Thus, the defendant may not refuse to participate in a lineup on this bases.]

Question 94

Independent Source

Answer 94

A witness may make an in-court identification despite the existence of an unconstitutional pretrial identification if the in-court identification has an independent source. The most common independent source is opportunity to observe at the time of the crime.

Question 95

Hearing

Answer 95

Admissibility of identification evidence should be determined at a suppression hearing in the absence of the jury, but exclusion of the jury is not constitutionally required. The government bears the burden of proving that: (i) counsel was present; (ii) the accused waived counsel; or (iii) there is an independent source for the in-court identification. The defendant must prove an alleged due process violation.

Question 96

Preliminary Hearing to Determine Probable Cause to Detain

Answer 96

A defendant_s liberty can be restricted only on a finding of probable cause. If probable cause has already been determined, no preliminary hearing to determine probable cause need be held. If probable cause has not already been determined and there are significant constraints on an arrestee_s liberty, a preliminary hearing to determine probable cause must be held within a reasonable time. The hearing is an informal, nonadversarial proceeding. There is no real remedy for a denial of the hearing, but evidence discovered as a result of the unlawful detention can be excluded under the exclusionary rule.

Question 97

Pretrial Detention _ Bail

Answer 97

Most state constitutions create a right to be released on bail unless the charge is a capital one. Generally, bail can be set no higher than is necessary to assure the defendant_s appearance at trial. Refusal to grant bail or the setting of excessive bail may be appealed immediately; however, the Supreme Court has upheld portions of the federal Bail Reform Act that allow arrestees to be held without bail if they pose a danger or would fail to appear at trial. [Since the Supreme Court has never held that the Eighth Amendment provision for bail applies to the state, the Eight Amendment is not a very strong argument against a state_s denial of bail. If, however, a state provides for bail (and most states do), arbitrary denials of bail will violate due process _ detainees must be given the opportunity to prove eligibility.]

Question 98

Defendant Incompetent to Stand Trial

Answer 98

Standards for commitment and subsequent release of defendants incompetent to stand trial must be essentially identical with those for commitment of persons not charged with a crime; otherwise there is a denial of equal protection.

Question 99

Use of a Grand Jury

Answer 99

The Fifth Amendment right to indictment by grand jury has not been incorporated into the Fourteenth Amendment, but some state constitutions require grand jury indictment. Most states east of the Mississippi and the federal system use the grand jury as a regular part of the charging process. Western states generally charge by filing an information _ a written accusation of the crime prepared and presented by the prosecutor.

Question 100

Secrecy and Defendant_s Lack of Access

Answer 100

Grand jury proceedings are conducted in secret. The defendant has no right to notice that the grand jury is considering an indictment against him, to be present and confront witnesses at the proceeding, or to introduce evidence before the grand jury.