Crim Pro Flashcards
1
Q
Investigation
A
Commonly begins when a Police believes that a crime is occurring or has occurred
Elements:
-Search and seizure of persons and/or property (4th A)
-Interrogation (5th A.)
-Identification procedures (6th A., due process clause)
-Arrest and booking (5th A., due process, 4th A., 6th A.)
2
Q
Adjudication
A
Filing of a criminal complaint Elements: -Probable cause hearing (needed if no warrant for arrest) -Initial appearance -Prelim hearing or grand jury -Arraignment -Trial -Sentencing -Appeals
3
Q
Evolution of Criminal Pro
A
Two competing interests: liberty v security interests. Social relations (race); Tech changes
4
Q
Due Process Clause
A
14th A gave right to “due process”
-14th came into practical effect in the last 50 years. Words are vague and ambiguous:
-strength: they are general and can apply in different circumstances
-Weakness: vague and difficult to figure out how to apply
Crim Pro is anchored in bill of rights as const.L justification
5
Q
Incorporation
A
Theory that incorporates crim pro in the bill of rights against state actors. 14th A.
6
Q
Hurtado Rule
A
No DP right to a grand jury
-The only thing DP requires is general applicability
7
Q
Selective Incorporation Plus
A
Predominate theory of incorporation. Combines rights the court deems intrinsic to fundamental fairness and full incorporation of the bill of rights to the states.
Asks if any right is fundamental to our system of justice > if yes, then the right applies against the state.
8
Q
4th Amendment
A
Protects privacy and property interests. Two clauses: Reasonableness and Warrant
9
Q
Reasonableness Clause
A
One of the clauses in 4th A. “the right of the people to be secure in their persons, house, papers, and effects, against unreasonable searched and seizures shall not be violated”
4th A seeks to protect against illegal searches and seizures.
10
Q
Warrant Clause
A
One of the 4th A. clauses.
“and no warrants shall issue, but upon PC, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized”
11
Q
Relationship Between 4th A. Clauses
A
- Close relationship: any search or seizure (s/s) conducted w/o a valid warrant is therefore unreasonable
- [Dominant interpretation] two independent clauses: warrant clause tells us how warrants should issue but nothing about whether or when they must issue. No reasonableness in warrant clause, can have reasonable searches that are not supported by a warrant
12
Q
Exclusionary Rule
A
- Remedy to 4th A. violations.
- Def: The prosecution can’t introduce evidence in a criminal trial against a ∆ when the evidence was gathered by a search and/or seizure that violated the ∆s 4th A rights (i.e., the ∆ was unreasonably s/s).
- Ct created remedy.
- Designed to deter police from performing illegal/unreasonable s/s
13
Q
Policy: Exclusionary Rule
A
It causes a high cost to crim justice b/c of a mistake the police made > Doesn’t say anything about the guilt of ∆, evidence could get thrown out even if the ∆ is dangerous/guilty.
-Tension b/w liberty and security interests
Alternatives:
1. Criminal prosecution of police who violate > police wouldn’t take any risks
2. Seek damages for violations > could result in overdeterance
3. Injunctions > time to get an injunction would be problematic
4. More administrative procedures > overdeterance
14
Q
Exclusionary Rule Standing
A
Evidence can only be suppressed when the 4th A violation occurs against that ∆
15
Q
4th A. Preliminary Questions
A
- Was there a search or seizure?
- If yes > ask question #2 - Was the s/s reasonable?
- Did the search comply w/ const.L stds?
16
Q
Katz
A
“The 4th A. protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of 4th A. protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”
17
Q
Search under Katz
A
A violation of some type of privacy
18
Q
Katz Test
A
AND
- Subjective prong: person must have an ACTUAL expectation of privacy.
- Objective prong: this expectation of privacy must be REASONABLE (based on society’s expectations)
19
Q
Policy: Katz Subjective Prong
A
Problems w/ this prong: different expectations of privacy b/c of the invent of tech, we get used to a lack of privacy, should our rights of privacy hinge so loosely on our expectations of privacy even if we have no choice about the shaping of these expectations?
Contingent on factors we may not be able to control, get used to a lack of privacy but we don’t like it
20
Q
Policy: Katz Objective Prong
A
Problems w/ this prong: what is reasonable? Reasonableness can shift based on tech and we may have less privacy and not like it, maybe ct should ask if we think there should be privacy in X situation rather than if there is privacy in this situation
21
Q
Katz Clause Relationship
A
Relationship b/w warrant and reasonableness clause is very closely connected (narrow) > a reasonable search is a search backed up w/ a warrant
22
Q
Open Field Doctrine
A
The collection of evidence from areas not immediately adjacent to the house (not the curtilage) does not count as a search, there is no reasonable expectation of privacy for activities that occur outside in open fields
23
Q
FL v. Riley
A
- ∆ put up privacy fences on the property; police went up 40 ft in helicopter and saw the weed, got a warrant based on these observations
- Was there a search? Ct says there was not a search b/c there was exposure of the greenhouse to an outside observer so there were no expectations of privacy > motion to suppress was denied
- Greenhouse was “knowingly exposed” > failed on threshold question of if there was a search…there was not a search so no need to ask if it was reasonable
24
Q
Squeezing
A
Type of search. Squeezing a suitcase is a search. Physical inspection/touching = search.
25
Sniffing
- Dogs sniffing luggage is not a search, b/c no physical touching
- Sniffing car as part of a traffic stop to search is not a search > contraband has no privacy rights
- dog sniffing for drugs at front door is a search b/c this was a trespass since purpose was in search of info
26
Bugged Informant
Not a search. Declarant bears the risk of telling someone D's criminal plans. ∆ knowingly exposed the information to the public (i.e. the gov) and privacy requires secrecy
27
Trash on the Curb
Not a search b/c of the 3rd party doctrine > conveyed the trash to trash co. so there was knowing exposure and there can't be an expectation of privacy.
Counterarg: gov requires the putting of trash on curb; the line from Katz “what a person seeks to preserve as private, even in an area accessible to the public, may be const.Ly protected.” Concern w/ modern tech and phones.
28
Thermal Images
Search. It involves a house which is very protected under 4th A.
Rule: “Obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained w/out physical intrusion…constitutes a search – at least where…the technology in question is not in general public use.”
- The last sentence is problematic b/c tech proliferates > as it becomes more widespread then our expectation of privacy changes
29
Electronic Tracking Devices
When placed on a car it is a physical trespass and thus a search
30
Jones Case
Privacy + Property
Facts: When ∆s car was in a public parking lot, police attached a GPS tracker to the car and tracked it for 28 days
Ct: this was a trespass and therefore a search, Katz never replaced protections from trespass on physical effects = this car is a physical effect and thus property
31
Seizures
Def: occurs when the gov exercises control over a person’s property by destroying it, or by removing it from that person’s actual or constructive possession.
Requires “some meaningful interference with an individual’s possessory interests in that property.”
32
Seizure of House
If police seize a house, they also seize everything in it
33
Seizure of Person
- Arrests are always seizures. ---Being closely surrounded by police is a seizure.
- A seizure does not occur until some physical constraint of the suspect is actually achieved, whether through application of physical force OR the suspect’s submission to a show of authority
34
Consent Search
Always reasonable and adheres to 4th A.
Exception to s/s, warrant and PC.
std of proof: no individualized suspicion = can ask for consent to search even if cops have no suspicion of wrongdoing.
Consent must be voluntary > totality of the circumstances
35
Police on Bus
RULE/TEST: “Whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.” AKA the Mendenhall Test
a. If yes > no seizure
b. If no > yes seizure
Ex.'s of not a seizure by police on bus:
- no weapons, no intimidating movements, aisle was clear, spoke to passengers one by one, polite
36
Policy: Why police don't have to tell people they have the right to say no to a s/s?
B/c the info police get from these s/s is very valuable.
Balance of liberty and security
37
Warrant Requirement
Procedural Std for determining whether the sub. std is satisfied.
Def: Advance authorization from a neutral third party, namely the judiciary, to conduct a search (search warrant) or seizure (arrest warrant)
38
Arg. for Warrants
- provides an independent check on police
- balance of power
- helps ensure the rights aren’t violated in the first place -> prevent rather than redress violations of rights
39
Arg. Against Warrants
- from a practical standpoint, it can take more time to obtain,
- more cumbersome,
- one-sided and ex-parte,
- too easy to get one
- person whose rights are being violated doesn’t get a say
40
Warrant Req.s
1. Probable cause (PC)
2. Oath or affirmation (ex. Sworn affidavit)
3. A particualirzed description: want to constrain discretion
a. There must be two things in description:
1. The place to be searched: specific address, description of automobile
2. Persons or things to be seized: allows for more discretion, there needs to be some description of what’s being looked for (ex. “medical records” “drug paraphnelia”)
EXCEPTION to this requirement: Plain View Doctrine
4. A neutral and detached magistrate: has to be issued by the judiciary;
a.Can't be issued by the AG but can be issued by a ct employee
41
Plain View Doctrine
Applies to seizures w/o a warrant as long as there is PC, does not apply to searches.
42
Warrant Execution
Must be reasonable
43
Knock and Announce Rule
To execute a warrant at someone’s house, the police must knock, identify themselves, state their purpose for entering, request admittance, and only after being refused admittance/unable to enter can they use force to enter
- Should wait 15-20 seconds to entering would be deemed reasonable
44
Exception to Knock and Announce Rule
Police must have a reasonable suspicion that such knocking and announcing would be dangerous, futile, or would inhibit effective investigation.
Applies where there is: a threat of physical violence, hot pursuit (when someone flees into a home), evidence is likely to be destroyed if advance notice of entering is given
45
Probable Cause Std (PC)
Substantive Std.
Exists when the facts and circumstances w/I an officer’s personal knowledge, and of which s/he has reasonably trustworthy information, are sufficient in themselves to warrant a reasonable belief that:
1. In the case of an arrest, an offense has been committed and the person to be arrested committed it; and
2. In the case of a search, a specifically described item subject to seizure will be found in the place to be searched
46
PC Std
Totality of the circumstances
47
Particularized PC
RULE: Belief of guilt necessary for PC “must be particularized w/ respect to the person to be s/s.” “Mere proximity” to people independently suspected of criminal activity does not create PC.
48
PC in a Car
People in the same car can be searched b/c they are involved in a common enterprise and that gives police PC to arrest everyone in the car
49
Exigent Circumstances
4th A. Exception to Search, Seizure, Warrant. Need PC.
Elements:
a. Where delay could endanger the lives of officers or others
b. Hot pursuit of a fleeing felon into a home
c. Where evidence would be destroyed
d. Where police are performing a “community caretaking” function
50
Where delay could endanger the lives of officers or others
Type of Exigent Circumstance.
| Ex. bomb in suitcase
51
Hot pusuit of a fleeing felon into a home
Type of Exigent Circumstance.
| Does not apply to people committing misdemeanors.
52
Where evidence would be destroyed
Type of Exigent Circumstance.
i. Minor offenses in the context of home entry should not be sanctioned
ii. If they have to take time to get warrant then the evidence could get destroyed
iii. No per se exception for cases of intoxication > there are many ways you can quickly get a warrant.
Police can't create their own exigent circumstance: "open up or we will come in" = violates 4th A.
53
Where police are performing a “community caretaking” function
Type of Exigent Circumstance.
i. While inside for an exigent circumstance (fight inside house) anything officers can plainly see is fair game
ii. Objectively reasonable std which is slightly lower than PC > don’t look to officers intent
iii. Public policy rng: want to encourage police to go in and help people
54
Plain View Doctrine Test
AND
An article is in “plain view” and subject to warrantless seizure by a police if:
i. The officer observes the article from a lawful vantage point;
1. Like an exigent circumstance, officer cannot have violated the 4th A at arriving at the place from which the evidence could be plainly viewed
ii. The officer has a right of physical access to it; and
1. Difference b/w first and second element: officer walks by house and sees weed growing in the window, needs to have a reason to go in w/o a warrant
iii. The criminal nature of the article is “immediately apparent” to the officer (i.e. PC to believe the item is evidence of a crime, w/o knowledge obtained from an unlawful search).
1. There has to be PC to believe something is evidence of a crime
55
Automobile Searches
Less expectation of privacy in cars.
RULE: the police can conduct a warrantless search of an automobile when two criteria are satisfied:
1. The car either stopped on the highway or is otherwise found stationary in a place not regularly used by the person for residential purposes
2. The search is limited to those areas supported by PC
Ex. Can't look in glove compartment if looking for a violin. Can extend to whole car if info is not particularized.
56
Consent: Third Party Doctrine
The police may search based on the consent of someone other than the suspect, provided that this third person has common authority over the area searched
> Roommates have authority over common areas
> There’s an assumption of the risk > when you have a co-occupant then it is reasonable to think that person would let the police in
57
Consent: Apparent Authority Doctrine
If police reasonably believe that the person who gave consent had authority to do so, then the police were reasonable to search and the search is permissible.
Party that is refusing consent must be doing so actively > if non-consenting party is asleep or not there or arrested after not consenting (arrested for an unrelated, legit reason) then the police can still reasonably search w/ consent of the other party
58
Scope of Consent Search
The scope of a consent search is measured by “objective reasonableness”: a consent search extends to everything a typical reasonable perons would understand the consent offered to cover.
> ∆ can say “you can search my car but not my trunk” or “you can search the lower level of my house but not the rest of the house.”
> The scope of a search is generally defined by its express object, only search areas where the item could fit/might be > only places that have been given consent
59
Arrests
Always need PC.
A person is arrested when she is taken into custody by lawful authority, typically for an indefinite period of time, for the purpose of holding her to answer for a criminal charge.
Seizure.
Can be restrained through physical force or show of authority.
Remedy: challenge arrest to get SILA thrown out.
60
Arrest in a Public Place
RULE: a warrantless arrest for a felony in a public place based on PC is reasonable under the 4th A. Public is any place other than a private residence like a home.
In C.L.:
>Felonies: permissable w/ PC
>Misdeamnors: permissible w/ PC and committed in officer's presence
61
Policy: Arrests
Court requires PC b/c the court is concerned w/ their being too much litigation if only exigent circumstances are required.
Anomaly: arrest is more invasive than a search, but there are more protections for searches
62
Arrest inside the Home
RULE: An arrest of a person in that person’s private dwelling, including a temporary dwelling (i.e. motel room), requires a warrant supported by probable cause (subject to the exceptions permitting a warrantless search) and reason to believe the person subject to arrest is inside the home.
If in a home for other permissible reason and sees a crime = don't need an arrest warrant
63
Inside the Home of a Third Person
RULE: An arrest warrant does not allow the police to search some third-party’s house for the person subject to arrest; rather, the police must in addition have a separate search warrant to search the third-party’s house.
Ex. Police had an arrest warrant for a 3rd party and arrested the home owner when they found cocaine = violates 4th A.
64
Executing an Arrest Warrant
- Police must have reason to believe that a person is home at the time they are there
- Knock and announce rule applies, entrance must be reasonable but can use reasonable force
65
Arrest: Use of Deadly Force
Intended or likely to kill or cause grievous bodily harm.
Unreasonable even w/ PC for arrest, unless two conditions are met (AND):
1. PC to believe suspect poses a significant threat of death or serious injury to others or police; AND
2. Reasonable belief such force is necessary to the arrest or prevent escape
66
Arrest: Use of Non-Deadly Force
All claims of excessive force (deadly or not) in an arrest are subject to the 4th A.s reasonableness std.
Relevant factors to consider:
- Seriousness of the crime
- Whether immediate threat of safety to others
- Whether suspect is resisting or attempting to escape
67
Arrest: Severity of the Offense
RULE: “If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, w/o violating the 4th A., arrest the offender.”
Reasonable no matter how minor the offense.
68
Search Incident To Arrest (SILA)
Exception to search, warrant, and sometimes PC.
General RULE: An officer, without a warrant, can seize any article discovered during a SILA, even if un-related to the crime for which the person is arrested, as long as the officer has PC to believe the article is const.Ly seizable – i.e. contraband or is the instrumentality, fruit, or evidence of a crime.
Need to actually arrest person to search them.
69
SILAs and Houses
Gen. RULE: Police can conduct a contemporaneous warrantless search incident to a lawful arrest according to the following:
1. Keep police safe? search person for weapons, grabable area for weapons, places immediately adjoining place of arrest for weapons/humans, places not immediately adjoining place of arrest for weapons/humans if have Reasonable Suspicion (search must be cursory)
2. Prevent destruction/concealment of evidence? arrestees person, grabble area
70
Policy: SILA
Policy arg.:
- Officers don’t need any std to be able to search someone to ensure the officers safety,
- Want to allow officers to always be able to search someone for weapons w/o causing the officer to second guess if they have PC or reasonable suspicion.
- Want to protect officer and public’s safety
71
SILA in Car
Gant test: AND
1. “Possibility of access cases”: threat to officer safety/ destruction of evidence
> no substantive std needed
2. Reasonable belief of discovering offense-related evidence
RULE: Anywhere in vehicle but need "Reasonable to believe" (basically reasonable suspicion) substantive std
72
Inventory Searches on Cars
Searches that happen during inventory of an impounded car are admissible but police must have followed the proper procedures for impounding and performing the inventory search
73
Digital Evidence/Cell Phones
RULE: the police cannot search a cell phone (or presumably, similar digital device) under the SILA exception; rather, the police must either obtain a warrant or justify the search under some other exception (i.e., exigent circumstances).
This rule only applies to searches > police can seize a phone
74
Policy: Searching Cell Phones
Very significant privacy interests in whats on a phone > Storage, pervasive amounts of info, history of stuff you’ve done, cloud computing
75
Stop and Frisk
Exception to search, seizure, warrant and PC
“Stop” = seizure;
“Frisk” = search > different rationales for search and seizure
76
Terry v. Ohio
-Detective approaches Terry and his two friends and identifies himself as a police officer and asks for their names
> No search or seizure yet
-The men mumble a response and detective grabs Terry and spins him around
> This is seizure, officer physically touches Terry
-Detective “pats down” Terry’s pocekts, feels an object that seems to be an gun, and reches inside to get the gun
> This is a search
77
Stop
Seizure (stop): police can make a brief and limited seizure for investigatory purposes where reasonable suspicion of criminal activity
78
Frisk
- Search (frisk): police can make a brief and limited search for purposes of safety where there is reasonable suspicion that target is armed and dangerous/threat to officer safety
- Substantive Std: "reasonable suspicion" based on specific and articulable facts
- Rationale: officer safety
- Scope: a limited pat-down of the outer clothing of a person for weapons
79
Reactive Policing
Responding to a crime that has already been committed
80
Proactive Policing
Police are trying to prevent a crime before it happens
Policy: We want police to do this but this type of police activity poses certain risks to our liberty interests > when police act in a preventive capacity, its up to police discretion to determine who the targets are, which could be problematic (race and class)
81
Substantive Std: Reasonable Suspicion
Less than PC but more than nothing. Evolved from the totality of the circumstances argument. Needs particularized suspicion w/ specific facts supporting THIS person is committing a crime.
Just a tip is not enough for RS. Need predictive behaviors or more police surveillance to confirm tip.
RULE: mere description + accusation does not rise to the level of reasonable suspicion
82
Scope of S/S Under Terry
1. Limits on extent: confirm/dispel reasonable suspicion, ask questions
2. Limits on time allowed to stop: based on several factors (Sharpe) – length of time, law enforcement purpose for the stop, amount of time needed to effectuate that purpose; less time than PC
3. Limits on place: generally cant move suspect to abother place, typically can only happen at the place of the stop
83
Terry and Autos
Seizure (Stop): order a driver/passenger to exit for a brief time. Rationale: officer safety. No sub. std.
Search (Frisk): search the passenger compartment for weapons. Rationale: officer safety. Sub. Std.: reasonable suspicion that driver/passenger might gain possession
84
Racial Profiling
Def: stopping a person on the basis of race/ethnicity from a general belief that such persons are more likely to commit the crime the police are investigating.
Not: : focusing an investigation on persons of a certain race/ethnicity based on a description of the perpetrator by the victim.
Ct won't review police motivation, only question is there is an objectively legit reason to stop someone based on procedural and sub. std.s
85
Special Needs Search and Seizure
Exception to search, seizure, PC and warrant > does not require individualized suspicion.
Gov. conducts a s/s with a primary goal other than investigating a crime but the search can turn up evidence of criminal activity.
Must be reasonable: balance liberty v. gov interests >don't need individualized suspicion, can conduct suspicionless s/s.
ASK: what is the primary purpose?
86
Examples of Special Needs Searches
- Sobriety check-points > keep drivers safe on the road
- Border inspections > prevent the spread of disease, drugs
- Fire/health/safety inspections > general public safety
- Searches for weapons at a school > student safety
- Drug tests for public employees > effective completion of work; safety for other workers, etc
- National security search for foreign intelligence > homeland security
- Airport security > safety of passengers
87
Search and Seizure Balancing Test
Balance: AND
- Importance of public goals (security etc)
- Degree to which s/s advances such goals
- Liberty interests at stake
88
Roadblocks
Shows the ct recognizing special needs s/s where there is some restraint on police discretion and a sufficient nexus b/w the nature of the stop and the non-criminal law enforcement goal. Don't want police to have a lot of discretion. It is not enough to have procedures for who and when to stop.
89
Good Faith Exception to the Exclusionary Rule
Judicially created rule. RULE: Evidence obtained pursuant to a search warrant later declared to be invalid b/c not supported by PC may be introduced at a ∆s criminal trial if a reasonable well-trailed officer would have believed the warrant was valid. Can't deter negligence.
90
Situations Where Good Faith Exception Does Not Apply
- If the magistrate issued a warrant based on information supplied by a police officer, and that police officer knew that stmts were false or recklessly disregarded the truth
- If the magistrate does not act as a neutral arbiter, but a rubber stamp for the police
- Where a warrant so lacks the indicia of PC that no reasonable person could believe such PC exists
- When a warrant is so facially deficient (i.e. lacing any particularizing stmts), that no reasonable officer would rely on it
91
Good Faith and Computers
If there is a computer error then the good faith exception applies
92
Standing
Whether this D has the right to suppress the evidence.
RULE: a ∆ has standing to seek exclusion only if s/s violated THAT ∆s own reasonable expectation of privacy – not someone else’s. No reasonable expectation of privacy in someone else's house if only there for a few hours, there is a reasonable expectation of privacy if an overnight guest in someone else's house
93
Fruit of Poisonous Tree (FPT)
Evidence as a result of an illegal search is suppressed. Any evidence that the police obtained as a result of an illegal s/s (w/ some exceptions). Both oral and physical evidence are excluded equally.
94
Difference b/w Standing and FPT
1. Standing: WHO gets to raise the 4th A. claim
| 2. FPT: WHAT evidence gets suppressed?
95
Exceptions to FPT
1. Actual Cause (but-for)
> Independent Source Rule : If the evidence was obtained by some independent source, other than as the fruit of an illegal s/s, then the evidence is admissible
> Inevitable Discovery Rule : If the evidence would have been inevitably discovered, then the evidence is admissible (a corollary of the independent source rule).
2. Proximate Cause
> Attenuation Rule: the causal chain b/w an illegal s/s and the evidence subject to suppression may be broken, taking into account factors such as temporal proximity, intervening events, and free acts of the will
96
Impeachment
RULE: A prosecutor may introduce evidence, which the ∆ could otherwise exclude because FPT, for the limited purpose of impeaching the ∆s (1) direct testimony or (2) answers to legitimate questions asked of the ∆ during cross-examination
Ex. ∆ testifies that he’s never seen weed before, however they found weed on him, so the π can use his stmt to then introduce the weed they found on ∆
97
4th A. Initial Questions
1. Did gov conduct search or seizure?
>Katz test:
-Subjective: did the target have an actual expectation of privacy?
-Objective: was the expectation reasonable?
2. Was the s/s reasonable?
>Const.Ly reasonable when supported by PC (substantive std) and a warrant (procedural std) unless an exception applies
98
4th A. Property Theory
A physical intrusion by the gov. to gather information. Does not apply to open fields.
Search.
99
4th A. Privacy Theory
Two Prong Katz test.
| Search
100
4th A. Default Rule
If conducting a s/s you need PC (substantive std) and a warrant (procedural std)
101
Stds of Proof
(listed from strictest to least strict):
i. Beyond a reasonable doubt: criminal cases
ii. Preponderance of the evidence: civil cases
iii. Probable cause: warrants, any arrests, many s/s
iv. Reasonable suspicion: stop and frisk
v. No individualized suspicion: special needs searches/ administrative searches
102
5th A.
"No person shall be compelled in any criminal case to be a witness against himself."
Applies anywhere the testimony might take place
103
Purpose of 5th A.
Don't want to force people to incriminate themselves. Don't care about saving people from embarrassment, hence immunity.
104
Derivative Evidence
The privilege protects someone from saying something that could lead to a chain of evidence that could result in something else being prosecuted
105
Who decides whether D has to answer?
1. Could this answer incriminate?
>judges decision
2. Up to the witness to claim the privilege
106
Transactional Immunity
> Provides the witness immunity from prosecution for any offense related to the subject of the testimony (i.e. amnesty)
> Broadest type, blanket immunity
107
Use Immunity
> Protects the witness against the government’s use of his or her immunized testimony in a prosecution of that witness
> More limited type, covers what you say on the stand and anything derived from it, can still be prosecuted for a crime that you testify about if the gov has other evidence against you - burden on gov to prove an independent source of evidence to charge the witness who is immune
> Should protect against Derivative Evidence
108
Minimum Amount of Immunity Needed
Use immunity with a ban on derivative evidence
109
Elements of 5th A.
-Compulsion
-Incrimination
-Testimony
Limited to natural persons > companies and people working in custodial capacity can't claim privilege
110
Compulsion
5th A. Element.
"no person...shall be compelled"
Usually concerns police/custodial interrogations.
Spectrum from torture to no pressure
111
Incrimination
5th A. element.
"in any criminal case"
-applies to any setting in which the evidence could be used against a witness; a severe civil penalty could count but ct usually defers to the label in the statute
-danger must be real and appreciable
-refers to testimony used in current situation or in any possible criminal case
-Can invoke during congress, police interrogations, trial or civil trials
112
Determining "Criminal" Test
AND
1. Did congress expressly or implicitly indicate a preference for criminal or civil?
2. In case of Civil > is the penalty so punitive as to negate that intention?
113
Testimony
```
5th A. Element.
Privilege protects testimonial (communicative evidence); it does not protect real (physical) evidence (even if extracted from a witness).
Rationale: physical evidence does not reveal the "contents of one's mind."
Body language (like nodding head) is communicative and subject to protection
```
114
Testimonial/Communicative TEST
Testimonial must relate a factual assertion or disclose information
115
Miranda
5th A. = compulsion
Goal: make it easier to determine if something was voluntary or not
Police must give warnings prior to any questioning.
-Disclosure based rule.
-Concern over the inherently coercive nature of custodial interrogations
-Procedural
-Does not apply in Terry stops or everyday traffic stops
116
Miranda Warnings
1. The person must be warned that he has a right to remain silent
2. The perons must be told that any stmt he does make may be used as evidence against him
3. The person must be told he has a right to the presence of an attny
4. The person must be told that it they cannot afford a lawyer, the state will appoint one
Rights can be claimed at any point
117
Miranda Rights Waiver
TEST: the waiver must be VOLUNTARY, KNOWING, AND INTELLIGENT. Person must understand what is at stake.
Problem: D is still in a coercive environment so was the waiver really voluntary?
118
Custody
If an atmosphere is inherently coercive, no stmt can be freely and voluntarily given.
Person does not feel free to leave.
Functional, not formalistic def
-Take age into account for whether kids felt free to leave
-Look for a police dominated atmosphere
119
Interrogation
RULE: whenever a person in custody is subjected to either express questioning and/or its functional equivalent aka 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
> objective and focuses on how a reasonable suspect would respond – not on the intent of the police
> Custodial questions (during booking etc.) don’t count
> Police ploys will almost always be a practice reasonably likely to elecit an incriminating response
> Rule is super broad and very ∆ friendly
120
Undercover Informant (5th A.)
Don't need Miranda warnings when the suspect is unaware that he is speaking to a gov agent and gives voluntary stmts. No inherent coercion if D doesn't know he is being interrogated.
Trickery and deception that do not rise to the level of compulsion or coercion does not require Miranda
Policy Problem: Miranda wants ∆ to be informed and this ∆ was not informed and did not understand the consequences of his actions or what he was doing
121
Outcomes After Warnings
1. Invocation of silence or counsel > questioning must cease
2. No invocation of rights and no waiver > questioning is allowed (exception rule for admissibility if suspect subsequently makes a stmt)
3. No invocation but there is a waiver > questions are allowed, stmts admissible
122
Unclear Invocation of Rights: No Waiver
Suspect must clearly request counsel, police can go on questioning if its unclear
123
No Invocation: Express Waiver
Express waiver: person who expressly waives their rights voluntarily and knowingly/intelligently > any stmts made after that are admissible
124
Policy: Lying About Attny Wanting to See Client
What is Miranda trying to accomplish?
a. Miranda is about non-coercion, protecting a person from coercion - ∆ here was not coerced
b. Miranda is about making sure ∆s make fully informed decisions - ∆ here was not fully informed of attny wanting to see client
125
No Invocation: Implied Waiver
RULE for invocation: an ambiguous invocation of the right to remain silent – or just not saying anything at all – is not an invocation of the right, which must be unambiguous and express
RULE for waiver: waiver can be implied through “the ∆’s silence, coupled w/ an understanding of his rights and a course of conduct indicating waiver."
> making incriminating stmts can be considered course of conduct indicating waiver
126
Invocation: Police Re-Intiates Contact
Rule – Invocation of Right to Remain Silent: The police can resume questioning a suspect who has invoked the right to remain silent if the later questioning occurs after some lapse in time and is about a different crime. [Undecided whether both conditions need to occur.]
Rule – Invocation of Right to Counsel: When a suspect has invoked his right to counsel, he is not subject to further interrogation until counsel is made available, unless the accused himself initiates further communication with the police. The police, however, may resume questioning if the suspect has experienced at least a 14 day break in custody.
127
Invocation: Suspect Re-Intiates Contact
RULE: A suspect who re-initiates contact regarding routine incidents of the custodial relationship is not subject to further questioning. However, a suspect who “open[s] up a more generalized discussion relating directly or indirectly to the investigation” may be questioned.
Ex. of routine incidents of custodial relationship: “can I use the phone” “can I have some water”
Remember: making incriminating stmts can act as an implied waiver
128
Remedies to Violating Miranda
FPT: when D is compelled and makes involuntary stmts then the stmts and fruits have to be excluded, same exceptions apply.
The FPT doctrine does not apply to a ∆’s voluntary stmts made in the context of custodial interrogation when the police fail to give Miranda warnings.
129
Public Safety Exception (Miranda)
Police do not have to give warnings when confronted w/ the immediate necessity of protecting the public or officers from harm, and providing warnings might undermine that effort
130
Good Faith (Miranda)
RULE: A stmt obtained by the police after Miranda warnings have been provided, but as a result of an earlier confession prior to the giving of Miranda warnings, is admissbale if both stmts are voluntary. If police act in Bad Faith, then the police must disclose to ∆ that anything else he had previously said cannot be used against him and he's basically starting over now
131
5th A. Exclusionary Rule
Involuntary (compelled) stmts > excluded
a. Fruits of the same > excluded
Voluntary (non-compelled) stmts, when gov violates Miranda > excluded (except for impeachment)
a. Fruits of the same > NOT excluded
> Later-Mirandized stmts from suspect unless the police designed to deceive then inadmissible
> Stmts from another witness
> Physical fruits
132
Answering Miranda Questions
1. Was there a custodial interrogation?
If yes > question 2
If no > no Miranda needed
2. Did the suspect invoke their rights, if not were those rights actually waived?
133
Constitutionality of Miranda
- Miranda applied to the states and the only way to apply to the states is if it is const.L therefore it must be const.L
- Miranda said that it was const.L
- Miranda court invited states to come up w/ alternatives but those alternatives had to be at least as effective as Miranda which sets a const.L minimum
- Stare decsis: Miranda is part of our national culture, we aren’t going to undo it; this argument is doing all the work > it was already decided so we aren’t going to touch it
134
6th A.
"In all criminal prosecutions, the accused shall enjoy the right...to have the assistance of counsel for his defense."
Right to counsel for cases that result in actual imprisonment
135
Policy: 6th A.
- Makes criminal system very expensive,
- Helps result in a system of pleas instead of a system of trials > when cts have to appoint defense attnys then it gets very expensive so trials become a rare exception in the criminal justice system.
- Switch to a mostly plea system is both good and bad
136
6th A.: Suspended Sentences
RULE: a suspended sentence that could end up in jail/prison time, then the person is entitled to counsel when they have the first sentencing where the suspension is imposed
137
Types of Cases Where 6th A Right to Counsel Applies
No Incarceration > Felonies-yes, Mis-no
Possible Incarceration > Felonies-yes, Mis-no
Actual Incarceration > Felonies-yes, Mis-yes
Suspended Incarceration > Felonies-yes, Mis-yes
Offense specific > formal proceedings have to have commenced for this particular crime at issue
138
Awkward Part of 6th A.
B/c the right is only available for punishments of actual imprisonment, judges have to decide before a trial if they want to hold open the possibility of imprisoning this person (for something less than a felony). This invites judges to reach a conclusion before trying a case.
139
6th A. Test for Getting Counsel
AND
1. Has the right attached?
2. Was this a critical stage?
140
Attachment
RULE: The right to counsel “attaches” when the “judicial proceeding has been initiated” which is at the first appearance.
Gov uses judicial machinery to signal a commitment to prosecute
141
Critical Stage
RULE: Even after the right to counsel attaches, a ∆ is not actually entitled to have counsel present, unless it’s for a “critical stage” of the proceedings
-There has to be some connection to the prosecution itself > no right to an attny in everyday prison activities
DEF: those pretrial procedures that would impair defense on the merits if the accused is required to proceed w/o counsel; any stage of the prosecution, formal or informal, in court or out, where counsel’s absence might derogate from the accused’s right to a fair trial
142
Timing of Appointment of Counsel
RULE: counsel has to be appointed w/I a reasonable time after attachment to allow for adequate representation at any critical stage before trial, as well as the trial itself
143
Length of Time 6th A. Applies
From first adjudication until sentencing. No right at PC hearing or bail hearing b/c neither are adjudicating D's guilt
144
Pre-Trial Witness Id
6th A.
Critical stage and D has a right to counsel (assuming right has attached)
Justification: ∆ should have an attny at this proceeding to ensure fairness and attack witness credibility/perform an effective cross-examination at trial
Violation of right = inadmissible
Exception: Harmless Error Doctrine > no reversal of conviction if gov can prove violation was a harmless error beyond a reasonable doubt
145
In-Ct Id
6th A.
A pretrial Id obtained in violation of the right to counsel is admissable only if:
> The gov carries the burden of showing by clear and convincing evidence that there is an independent basis for the in-court id (other than the pre-trial line up)
Exception: Harmless Error Doctrine > no reversal of conviction if gov can prove violation was a harmless error beyond a reasonable doubt
146
Harmless Error Doctrine
The error didn’t make a difference and the outcome would have been the same w/ or w/o the error
147
Pre-Attachment Line-Ups
No right to have an attny present b/c formal proceedings have not started
> 5th A doesn’t apply b/c this is physical, not testimonial
148
Policy: Pre-Attachment Line-Ups
Requiring attnys would hamper police work and it would hinder quick Id’s/process
149
6th A. Right Ends
- Applies through sentencing.
- Aplies at probation revocation hearing if new sentence imposed
- Does not apply to direct appeals to appellate ct or higher or to collateral review which is appeal by statute or hab corp.
150
Police Interrogation: 5th v. 6th
-5th A gets counsel during custodial interrogations v. -6th A. gets counsel after attachement and during critical stages
151
Messiah Rule
RULE: Warnings are required, but waiver stds for Miranda and Massiah are so similar that Miranda warnings suffice for Massiah rights
RULE: Waiver must be voluntary, knowing, & intelligent like in 5th A
152
"Deliberate Elicitation" v. "Interrogation"
RULE: Interrogation is objective and looks to whether a practice is reasonably likely to evoke an incriminating response; deliberate elicitation is subjective and looks the intent of the officer
153
When Right Applies: Comparing 5th and 6th
Miranda only applies when a suspect is in custody (or its functional equivalent). The 6th A. right to counsel applies after the commencement of judicial proceedings.
> Miranda may apply earlier in time when a suspect is in custody but no judicial proceeding has begun, still need custody
> 6th A. applies regardless of if ∆ is in custody > 6th A right may have attached and apply even when ∆ is no longer in custody
154
Interrogation: Comparing 5th and 6th
Interrogation is always a critical stage.
5th: covers interrogation, which is objective and looks to how a reasonable suspect would respond,
6th: A right to counsel covers deliberate elicitation, which is subjective and looks to the officer’s intent
155
Undercover Officer: Comparing 5th and 6th
- 5th doesn’t apply
- 6th A does apply
> Exception: a purely passive undercover agent that only listens and doesn’t elicit responses is not covered by 6th A right to counsel
156
6th A. Waiver
5th: police must cease interrogation of a custodial suspect who requests a lawyer until the lawyer is present (and waiver is obtained), unless suspect initiates communication;
6th: police can seek waiver regardless of whether ∆ has claimed right
> Only practically applies if a person is not in custody, otherwise Miranda applies
157
6th A. Exclusionary Rule
5th: Has only very limited FPT,
6th: A right to counsel has nearly the same FPT doctrine as applies under the 4th A.
158
Interrogation
A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect amounts to interrogation
