Crim Pro

Question 1

Exclusionary Rule - Definition

[exclusionary rule]

Answer 1

The Exclusionary Rule prohibits the prosecution from using in its case-in-chief evidence obtained in violation of the defendant’s Fourth, Fifth, or Sixth Amendment rights.

Question 2

General Exceptions to the Exclusionary Rule

[exclusionary rule]

Answer 2

The exclusionary rule does NOT apply:

1. To grand jury proceedings (i.e., the grand jury may base its indictment on illegally seized evidence)
2. In civil proceedings, including IRS civil proceedings and immigration hearings
3. When the accused claims that the search violated an agency’s internal policies or state law (i.e., the exclusionary rule applies only when the search violates either the U.S. Constitution or a federal statute)
4. To parole revocation proceedings
5. As a remedy for failure to “knock and announce”
6. Where use of the illegally obtained evidence was harmless error

Question 3

Good Faith Exceptions to the Exclusionary Rule

[exclusionary rule]

Answer 3

1. If the police relied in good faith on binding appellate precedent that is later overturned by a Supreme Court decision
2. If the police relied in good faith on a statute or ordinance that is later declared unconstitutional
3. If the police made a reasonable mistake in interpreting the law (e.g., police officer’s reasonable mistake that a vehicle must have two working brake lights—when only one was required—did not invalidate the stop and subsequent arrest)
4. If the police relied in objective good faith on computer information containing clerical errors (e.g., an arrest warrant that had been withdrawn but remained on the computer system due to an error by court personnel)
5. If the police relied in objective good faith on a search warrant that is defective

Question 4

Impeachment exceptions to the exclusionary rule

[exclusionary rule]

Answer 4

Impeachment Exceptions: Evidence excluded under the exclusionary rule may be used for impeachment purposes in the following situations:

1. An otherwise voluntary confession that violates Miranda or the Sixth Amendment (and thus would not be admissible in the prosecution’s case-in-chief) may be used to impeach the defendant as a witness, but a truly involuntary confession may not.
2. Evidence obtained in an illegal search may be used to impeach the credibility of the defendant as a witness (e.g., if he lies about possession of the evidence), but may not be used to impeach other witnesses

Question 5

Fruit of the Poisonous Tree Definition

[fruit of the poisonous tree]

Answer 5

A court will exclude not only illegally seized items, but also all evidence derived from exploiting illegally seized items. This doctrine expands the scope of the exclusionary rule.

Question 6

Fruit of the Poisonous Tree Exceptions

[fruit of the poisonous tree]

Answer 6

The evidence will not be excluded where the government can break the link between the unconstitutional act and the evidence, such as:

1. The police had an independent source for obtaining the evidence (e.g., court will not suppress evidence initially discovered during police officers’ illegal entry of private premises, where that evidence was rediscovered during later search pursuant to a valid warrant based on information totally unrelated to initial illegal entry)
2. Inevitable discovery (e.g., the police would have found the evidence because it was in a location they planned to search)
3. Intervening acts of free will on the part of defendant (e.g., defendant is illegally arrested, but then is released on his own recognizance; a couple of days later, the defendant returns voluntarily to the police station and confesses)
4. Attenuation doctrine: intervening circumstances between the unconstitutional police act and discovery of the evidence (e.g., officer lacked reasonable suspicion to initially stop defendant, but officer’s discovery of valid pre-existing arrest warrant attenuated the connection between the unlawful stop and drug-related evidence seized from defendant during search incident to arrest and thus the evidence was admissible)

Question 7

Locating witnesses as a result of an illegal search

[fruit of the poisonous tree]

Answer 7

If an illegal search enable the police to locate a witness, the witness’ testimony will rarely be excluded as fruit of the poisonous tree

Question 8

Admissibility of confessions obtained in violation of the 5th or 6th Amendments

[fruit of the poisonous tree]

Answer 8

Confessions obtained in violation of the Fifth or Sixth Amendment are inadmissible as evidence of guilt.

Question 9

Admissibility of confessions obtained in violation of the 4th Amendment

[fruit of the poisonous tree]

Answer 9

Confessions resulting from an illegal arrest are inadmissible, unless there is a weak link between the illegal police conduct and the challenged evidence.

Question 10

If a defendant (subject to custodial interrogation) confesses without receiving Miranda warnings and then confesses again after receiving Miranda warnings, is the second confessions tainted by the earlier unlawful confession?

[fruit of the poisonous tree]

Answer 10

1. If the “question first, warn later” nature of the questioning was a calculated technique to undermine Miranda, the second confession is probably inadmissible.
2. If the “question first, warn later” nature of the questioning was unplanned and inadvertent, the second confession is probably admissible.

Question 11

Guarantee of the 4th Amendment

[law of arrest]

Answer 11

The Fourth Amendment guarantees the right to be free from unreasonable arrests (i.e., seizures)

Question 12

Definition of arrest

[law of arrest]

Answer 12

An arrest occurs when a person is taken into custody against his or her will for purposes of criminal prosecution or interrogation. There must be an intentional physical application of force by the police or a submission to an officer’s show of force.

The test is: Would a reasonable person believe that he or she is free to leave?

Question 13

Requirements for a lawful arrest

[law of arrest]

Answer 13

1. A warrant or

2. Probable cause

Question 14

When warrants are required for arrests

[law of arrest]

Answer 14

Warrant: Arrests are generally not required for felony arrests in public places, but

1. Arrest warrants are required for non-emergency arrests (felonies and misdemeanors) of a person in the person’s own home.
   - Police may arrest a person in his home (or another person’s home) without a warrant if the police are in hot pursuit of the person or enter the home for emergency assistance.
   - An arrest of a person just outside his home (or even in the threshold of the front door of his home) is a “public” arrest that does not require a warrant.
   - The police may forcibly enter a person’s home to enforce an arrest warrant only if the police have reason to believe the person is at home at the time of entry.
2. Arrest warrants are generally required for misdemeanor arrests, unless the misdemeanor was committed in the officer’s “presence.”
3. If the police intend to execute an arrest warrant in the home of a third party, the police must have a separate search warrant to search for the subject of the arrest warrant (although the arrestee may lack standing to challenge a warrantless search).

Question 15

Probable cause

[law of arrest]

Answer 15

The officer must have probable cause to make an arrest. For probable cause to exist, there must be a sufficient likelihood that a crime has occurred and that the arrestee has committed or is committing that crime.

Question 16

Effect of an illegal arrest

[law of arrest]

Answer 16

An unlawful arrest has no effect on a future prosecution, but evidence that is the fruit of unlawful arrest may be excluded under the exclusionary rule.

An unlawful arrest may also lead to civil liability.

Question 17

General protection of the 4th Amendment

[law of search and seizure]

Answer 17

The Fourth Amendment guarantees the right to be free from unreasonable searches and seizures.

Question 18

What must be shown to challenge a search under the 4th Amendment?

[law of search and seizure]

Answer 18

1. the search must be the result of state action;
2. the person challenging the search (i.e., the criminal defendant) must have standing to challenge the search; and
3. ## the person searched must have had a reasonable expectation of privacy in the place searched or the government physically intruded into a constitutionally protected area (of the defendant) for evidence-gathering purposes.If these three elements are present, the search is unconstitutional unless the police had a valid search warrant (or in good faith relied on a defective search warrant) or there is an applicable exception to the warrant requirement

Question 19

Things included as state action under the 4th Amendment

[law of search and seizure]

Answer 19

The Fourth Amendment applies only to government conduct, which includes searches by:
1. Publicly paid police at all times
2. A private individual acting at the direction of the police
3. Public school officials
—
But does not include private persons (e.g., mom or landlord) or privately paid police (e.g., a store security guard) acting on their own initiative

Question 20

Standing

[law of search and seizure]

Answer 20

As a general rule, a person may assert the exclusionary rule only for violations of his own constitutional rights. In other words, a person must have “standing” to object to the illegality of a search; standing exists where

1. The person owns or has a right to possession of the premises searched (including his or her own body)
2. The person lives on premises searched (e.g., roommate, tenant)
3. The person is an overnight guest on the premises searched
4. The person is in lawful possession and control of a rental car even if he is not listed on the rental agreement

Question 21

Instances in which standing does not exist

[law of search and seizure]

Answer 21

1. Passengers in a car that do not own the car and deny ownership of the property taken from it
   - This assumes the car was lawfully stopped—e.g., for a traffic violation; if the stop is unlawful, all occupants have standing to challenge the stop
2. Persons who do not own or live on the premises searched and who are not overnight guests on the premises
3. An individual briefly (not overnight) on the premises

Question 22

Two types of searches under the 4th Amendment

[law of search and seizure]

Answer 22

To violate the Fourth Amendment

(a) the defendant must have had a reasonable expectation of privacy in the place searched or
(b) the government must have physically intruded into a constitutionally protected area (of the defendant) for evidence-gathering purposes.

Question 23

Reasonable Expectation of Privacy - where a person has it and 16 instances where a person has no REP

[law of search and seizure]

Answer 23

A person generally has a REP in his or her body (including wallets, purses, etc.), home, the curtilage of the home (i.e., attached garage and a small yard adjacent to the home), and private business premises (e.g., an office locker). But a person has no REP if the item or place searched is public in nature or is held out to the public, such as:

1. Sound of a person’s voice (voice exemplar) or look of a person’s face
2. Style of a person’s handwriting (handwriting exemplar)
3. Items of property the defendant has transferred (sold or given) to a third party
4. Telephone numbers dialed (pen register)
5. Paint on the outside of a car (scrapings)
6. Account records held by a bank or other business (but a person has a REP in cell phone site location information held by a commercial vendor)
7. VIN numbers in cars (even if the police must move items to see the number)
8. Anything that can be seen across open fields (i.e., outside the curtilage of her home)
9. DNA swabs (upon arrest for a serious crime)
10. Anything that can be seen or photographed from a fly-over in public airspace (except for thermal imaging of the inside of a house)
11. Odors coming from luggage (but not squeezing luggage)
12. Odors coming from a vehicle (dog sniffing), as long as the vehicle was lawfully stopped and not held beyond the time necessary to issue a ticket
13. Garbage set out to the curb or alley for collection
14. Movement of a person or a person’s automobile (including with the use of electronic beepers if placed in the vehicle without committing a trespass)
15. Material held out for sale to the public
16. Parolees generally waive their REP as a condition of parole and the homes of persons on probation may generally be searched without a warrant.

Question 24

Examples of physical intrusion searches

[law of search and seizure]

Answer 24

A Fourth Amendment search also occurs if the government physically intrudes into defendant’s constitutionally protected areas (e.g., body, home, curtilage of the home, vehicle) for evidence-gathering purposes, such as

1. A dog sniff on the porch of defendant’s home
2. A GPS device attached to defendant’s vehicle
   - Long-term tracking of a vehicle with a GPS device would also violate defendant’s reasonable expectation of privacy
3. A satellite-based tracking device worn on defendant’s body
4. In addition, wiretapping/eavesdropping requires a warrant, unless one party to the conversation consents to a government monitoring or the conversations are conducted in a reckless fashion so that they are overheard by others.

Question 25

What the state must show if there is state action, standing, and a REP (or physical intrusion) of privacy

[law of search and seizure]

Answer 25

If there is state action and the person has standing and REP (or there was a physical intrusion), the police must have either:

1. A valid search warrant or
2. In good faith relied on a defective search warrant or
3. There is an applicable exception to the warrant requirement.

Question 26

3 elements of a valid search warrant

[law of search and seizure]

Answer 26

1. Probable Cause
2. Precision
3. Magistrate

Question 27

Probable cause standard - how it is measured and what it allows

[law of search and seizure]

Answer 27

Probable cause is required for the issuance of a search warrant; probable cause is measured by the “Totality of the Circumstances.” For probable cause to exist, there must be a sufficient likelihood that contraband or evidence of a crime is (or will be) in the place to be searched.

1. Hearsay may be used
2. Affidavit supporting warrant must state facts, not conclusions
   - An assertion in the affidavit may be consented only if the affiant (i.e., the police officer) knowingly or recklessly included a material false statement
3. Valid warrant may be based in part on an anonymous informer’s tip and/or the defendant’s criminal record or criminal reputation

Question 28

Warrant precision

[law of search and seizure]

Answer 28

Warrant must be precise on its fact; it must state with particularity the place to be searched and things to be seized.
1. The “particularity” mandate is designed to prevent officers from using generally worded warrants to engage in broad-based fishing expeditions

Example of particularity required: If a search is conducted in an apartment building, the warrant must specify the unit to be searched.

Question 29

Magistrate

[law of search and seizure]

Answer 29

Magistrate: Warrant must be issued by neutral and detached judicial officer (including court clerks for minor offenses)

Persons not neutral: state attorney general, U.S. Attorney General, person paid only when a warrant is issued, or a person who accompanies police on the search

Properly and Promptly Executed: When police have a valid search warrant, they may detain persons found within or immediately outside the premises while they execute the warrant, but may not search such persons unless there is probable cause to arrest them.

Question 30

Good faith defense with warrants

[law of search and seizure]

Answer 30

If the warrant is valid, the search is constitutional. But if the warrant is defective, the search is illegal, unless the executing officer’s reliance on the defective warrant was objectively reasonable and made in good faith.

Question 31

x

[law of search and seizure]

Answer 31

i. But the good faith exception does not apply: (1) when the issuing magistrate was misled by information in an affidavit that the affiant knew or reasonably should have known was false; (2) when the issuing magistrate wholly abandoned his or her judicial role; (3) when the warrant affidavit is so lacking in probable cause as to render official belief in its existence unreasonable; (4) when the warrant is so facially deficient in failing to particularize the place to be searched or the things to be seized that executing officers cannot reasonably presume it to be valid.
ii. The GFD also does not apply if
1. The officers executing the warrant knew or should have known that the affiant was deliberately or recklessly lying, or
2. There was no warrant.

Question 32

x

[law of search and seizure]

Answer 32

g. (4)(c) If there as a Fourth Amendment search and the police did not have a search warrant, the search is illegal unless one of the following exceptions apply:
i. Search Incident to a Lawful Arrest
ii. Automobile Exception
iii. Plain View
iv. Consent
v. Terry Stop and Frisk
vi. Exigency
vii. Routine Administrative Search
viii. Community Caretaker
ix. Warrantless Vehicle Searches

Question 33

x

[law of search and seizure]

Answer 33

i. Search Incident to a Lawful Arrest
1. If a person is lawfully arrested (probable cause and, in some cases, a warrant), the police may search the person and the area in his or her immediate control (i.e., a broad wingspan).
b. If a person is allowed to move, the wingspan “floats” with the person.
c. The police may also make a protective sweep of any area beyond the accused’s wingspan if they believe accomplices may be present.

f. If the arrest is unlawful, the search is unlawful and any evidence found would be Fruit of the Poisonous Tree.

Question 34

x

[law of search and seizure]

Answer 34

a. In a car, a person’s wingspan includes the entire passenger compartment (including a locked glove box) and every item in the passenger compartment, but does not include the trunk. A search of the passenger compartment of a car may take place even if the person is outside the car, as long as the person is not secured (e.g., not handcuffed) and is within reaching distance of the passenger compartment or the police reasonably believe evidence of the offense for which the person was arrested may be found in the vehicle.
- –
e. A traffic citation is not an arrest for purposes of this exception.

Question 35

x

[law of search and seizure]

Answer 35

i. The police may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.

Question 36

x

[law of search and seizure]

Answer 36

d. To be valid, the search must be contemporaneous with the time and place of arrest.
i. But an inventory search may be conducted of an arrestee at the police station or of an impounded vehicle if such search is conducted pursuant to an established procedure. A suspicionless strip search of an arrestee is permitted before placing him in the general prison population.

Question 37

x

[law of search and seizure]

Answer 37

ii. Automobile Exception
1. For this exception to apply, the police need probable cause (i.e., the same probable cause needed for a warrant) to believe the car contains illegal items, contraband, or evidence of a crime. The probable cause to search for an item may arise after a car is legally stopped (e.g., a dog alerts the officer to the presence of drugs during a routine traffic stop), but it must arise before anything or anyone is searched.

Question 38

x

[law of search and seizure]

Answer 38

a. If probable cause exists, the police may search the entire car (including the trunk) and any package or container that could reasonably contain such item.
b. The police may search items (e.g., luggage, backpacks, purses) in the car that are owned by the driver or passenger if the item might contain the object of the search.
i. Absent probable cause to search or arrest a passenger, the police may not search a passenger’s body or items worn by the passenger, especially if the passenger has left the vehicle before the vehicle is stopped.

Question 39

x

[law of search and seizure]

Answer 39

c. Contemporaneousness is not required (e.g., the car may be impounded and searched).

Question 40

x

[law of search and seizure]

Answer 40

d. This exception applies to all vehicles, including RVs, but does not apply if the vehicle is obviously inoperative (e.g., a car on blocks).
e. The police may not enter a home or its curtilage to access a vehicle under the automobile exception; due to the heightened privacy interests attached to the home and its curtilage, a warrant is required.

Question 41

x

[law of search and seizure]

Answer 41

iii. Plain View
1. Anything in the plain view (or smell) of a police officer legitimately present where he or she does the viewing may be seized
a. The illegality of the evidence must be immediately apparent to the officer. For example, if the officer must manipulate an item to determine whether it is stolen, this is not plain view.

Question 42

x

[law of search and seizure]

Answer 42

iv. Consent
1. A person may voluntarily and intelligently consent to a search. The person giving consent must have authority (i.e., an interest in the property), but if the police reasonably believe the person has such authority, the search is valid.

Question 43

x

[law of search and seizure]

Answer 43

a. If the police say they have a warrant, this negates consent, but the police do not have a duty to warn a person that he or she has the right to withhold consent.

Question 44

x

[law of search and seizure]

Answer 44

b. Where two or more people have equal rights to use the property searched, one co-occupant usually may consent to a warrantless search and the evidence may be used against the other co-occupants. However, one co-occupant’s consent is not sufficient if the other co-occupant is present and objects to the search.
i. But police may conduct a search based on a co-occupant’s consent, even though the defendant had previously objected to the search if, due to his valid arrest, the defendant is absent at the time the co-occupant gives consent.
ii. Landlords and hotel clerks generally lack authority to consent to the search of the room of a tenant or guest.

Question 45

x

[law of search and seizure]

Answer 45

c. One co-occupant (e.g., a parent) may generally consent to a search of another co-occupant’s (e.g., an adult child) room, but not to areas completely under the control of the non-consenting co-occupant (e.g., a locked closet or foot locker).

Question 46

x

[law of search and seizure]

Answer 46

d. The person granting consent may revoke it; in such event, the search must stop.

Question 47

x

[law of search and seizure]

Answer 47

v. Terry Stop and Frisk
1. The police need only reasonable and articulable suspicion (less than probable cause) of criminal activity or a completed crime to briefly detain a person. Reasonable suspicion may arise from the officer’s personal knowledge or a police bulletin. It may also arise from an informer’s tip if the tip is accompanied by an indicia of reliability, such as information predicting the future behavior of the suspect. A suspect’s flight and the level of crime in the area may, in part, create reasonable suspicion.
a. If the Terry stop is valid, the suspect is required to disclose his or her identity upon request
b. A Terry stop must be brief (i.e., a few minutes). If a suspect is required to come to the police station, this is a custodial arrest (which requires probable cause), not a Terry stop

Question 48

x

[law of search and seizure]

Answer 48

2. If the police also have reasonable suspicion to believe that the suspect has a weapon, the police may frisk (i.e., pat-down) the suspect. Weapons and contraband found are admissible if, based on the officer’s “plain feel” with no manipulation, the officer believes that it is a weapon or contraband. The police may reach directly into a suspect’s clothing when they have information that a weapon is hidden there.

Question 49

x

[law of search and seizure]

Answer 49

3. If the officer develops probable cause during the Terry stop, the officer may arrest the suspect and make a full search incident to arrest.

Question 50

x

[law of search and seizure]

Answer 50

4. Vehicle Frisk: If, in the course of a lawful traffic stop, an officer has reasonable and articulable belief that the occupants of a vehicle are dangerous, the officer may order the occupants out of the vehicle and may frisk the occupants and the passenger compartment (including a locked or unlocked glove box) of the vehicle for weapons. The vehicle frisk must take place during the temporary duration of the investigatory stop.
   a. Moreover, the police may order the driver and passengers out of a vehicle during a routine, lawful traffic stop.

Question 51

x

[law of search and seizure]

Answer 51

5. Police may also use roadblocks to stop vehicles if the police have a neutral, articulable standard for stopping each car and the purpose of the stop is closely related to automobiles.
   a. Under this standard, DUI checkpoints and roadblocks near the border to search for undocumented aliens have been upheld; roadblocks to search for illegal drugs do not satisfy this test.

Question 52

x

[law of search and seizure]

Answer 52

vi. Exigency
1. This exception to the warrant requirement has three distinct subparts:
a. (1) Evanescent Evidence: Exigent circumstances justifying a warrantless search exist when there is a compelling need for official action and no time to secure a warrant. Exigency includes scrapings under fingernails and other things that inherently dissipate.
i. Police ordinarily must obtain a search warrant to administer a blood alcohol test incident to a lawful DWI arrest; no warrant is needed for a breath test.
1. A warrant is generally not required to take a blood test of a driver suspected of drunk driving who is unconscious and therefore cannot be given a breath test.
2. A state may impose civil penalties (e.g., loss of a driver’s license) for failure to submit to a blood alcohol test but may not impose criminal penalties; a state may impose criminal or civil penalties for failure to submit to a breath test.

Question 53

x

[law of search and seizure]

Answer 53

b. (2) Hot Pursuit: For hot pursuit searches, police must be within a few minutes of the felon; once police enter a house or other building in hot pursuit, they may search anywhere necessary to respond to the exigency. In a hot pursuit search, the police may enter and search any house or building when following a fleeing felon.

Question 54

x

[law of search and seizure]

Answer 54

c. (3) Emergency Aid: Police officers may enter a home without a warrant if they have an objectively reasonable basis for believing that an occupant has been (or is about to be) seriously injured or that an occupant is destroying evidence. This exception applies even if the police create the exigency (e.g., the occupants begin destroying evidence when the police knock and announce their presence). Some jurisdictions treat Emergency Aid as part of the Community Caretaker Exception.

Question 55

x

[law of search and seizure]

Answer 55

vii. Routine Administrative Search
1. Administrative Warrant: Administrative searches and inspections for health, fire, and safety purposes require a warrant, but the traditional probable cause standard is not utilized; the warrant will be issued upon a showing of a general and neutral enforcement plan.
a. A probable-cause warrant is required to search a fire-damaged residence by officials seeking to determine the origin of the fire.

Question 56

x

[law of search and seizure]

Answer 56

2. Closely-Regulated Businesses: A warrant is not required for searches of highly regulated industries, such as automobile junkyards, and businesses involved in liquor, banks, and underground and strip mining.
   a. The search must be part of regular inspection program and conducted according to standard procedure.

Question 57

x

[law of search and seizure]

Answer 57

3. Public School Searches: Public school officials may conduct a warrantless search of a student based on their “reasonable suspicion” that the search will turn up evidence of a violation of school rules or any law.
   a. But the Supreme Court has held that a strip search of an eighth grader to find ibuprofen was unreasonable.

Question 58

x

[law of search and seizure]

Answer 58

4. Drug Testing: Public schools may drug test students participating in extracurricular activities. Warrantless drug testing has also been approved for railroad employees involved in accidents and U.S. Customs agents, but not for pregnant women and candidates for elective office.

Question 59

x

[law of search and seizure]

Answer 59

viii. Community Caretaker
1. The community caretaker exception permits the police to take action in any situation where a reasonable officer would perceive the need to act for the public good or in order to come to the aid of a citizen in peril.
2. Although some jurisdictions broadly construe the community caretaker exception to include entry and search of homes, in a majority of jurisdictions the exception is limited to automobile searches (and probably only abandoned or wrecked automobiles).

Question 60

x

[law of search and seizure]

Answer 60

ix. Warrantless Vehicle Searches
1. Which Exceptions may apply to a warrantless search of a vehicle?
a. Search incident to a lawful arrest
b. Automobile exception
c. Plain view
d. Consent
e. Vehicle frisk
f. Inventory search
g. Community caretaker

Question 61

x

[confessions - Miranda]

Answer 61

V. Confessions – Miranda
a. The police must give Miranda warnings to any person in custody and subject to interrogation by government officials, no matter how minor the crime.

Question 62

x

[confessions - Miranda]

Answer 62

i. Custody: a reasonable person would conclude that he or she is not free to terminate the interrogation and the relevant environment present the same inherently coercive pressures as station-house questioning (i.e., police car, handcuffs)
1. Routine traffic stops, Terry stops, general questions at the scene of a crime, voluntary appearances at the police station, and probation officer interviews are usually not considered “custody”

Question 63

x

[confessions - Miranda]

Answer 63

ii. Interrogation: any conduct (e.g., questions, statements, actions) by police officers for the purpose of eliciting damaging statements

Question 64

x

[confessions - Miranda]

Answer 64

b. In addition, all confessions must be voluntary under the Due Process Clause. Voluntariness is judged on a subjective basis considering the totality of the circumstances, including (1) the defendant’s personal characteristics (e.g., age, intelligence); (2) the nature of the detention; (3) the manner of interrogation; and (4) the use of force, threats, promises, or deceptions. A confession is involuntary only if it is the result of police coercion (as opposed to mental illness of the defendant or coercion by private parties).
i. The hearing to determine the admissibility of a confession must be done outside the presence of the jury.

Question 65

x

[confessions - Miranda]

Answer 65

c. Miranda warnings are not required before spontaneous statements (i.e., when a person “blurts out” information) or in case of public safety emergency (e.g., the defendant, who is in police custody at the scene of a crime, is asked, “where did you toss the gun?”). A witness subpoenaed to testify before a grand jury also has no right to Miranda warnings.

Question 66

x

[confessions - Miranda]

Answer 66

d. The prosecutor may not “comment” to the jury about a person’s exercise of his or her Miranda rights or the defendant’s refusal to testify at trial.

Question 67

x

[confessions - Miranda]

Answer 67

e. Waivers of Miranda must be knowing, voluntary, and intelligent; waivers will not be presumed. The failure of the police to inform a suspect that his family has retained an attorney for him (and that the attorney has been in contact with the police) does not invalidate the suspect’s waiver of his Miranda rights.

Question 68

x

[fifth amendment privileges]

Answer 68

VI. Fifth Amendment Privileges
a. An accused may terminate interrogation prior to or during the interrogation by invoking the right to remain silent or the right to counsel.

Question 69

x

[fifth amendment privileges]

Answer 69

i. If an accused unambiguously invokes the right to remain silent, the police must cease questioning (“scrupulously honor” the request), but later questioning may occur after a delay and with new Miranda warnings (at least with regard to a different crime).
1. The detainee’s silence does not constitute an invocation of the right to remain silent.

Question 70

x

[fifth amendment privileges]

Answer 70

ii. Until the accused makes an unambiguous request for counsel, the police may continue to interrogate the accused. Once the accused makes an unambiguous request for counsel to assist with custodial interrogation, questioning must cease and cannot be restarted by the police, unless (1) the attorney is actually present for the future interrogation or (2) the accused initiates further communication, exchanges, or conversations about the investigation (e.g., by asking “What is going to happen to me now?”). The request for counsel stays in effect for the entire time that the accused is in custody and for 14 days thereafter.
1. This is the only use of the Fifth Amendment right to counsel, which is not offense-specific; this mean that police are precluded from restarting questioning about the same crime or unrelated crimes, unless counsel is present.

Question 71

x

[fifth amendment privileges]

Answer 71

iii. It is not a violation of the Fifth Amendment to place an informer (or undercover officer) in the accused’s cell to elicit statements from the accused, as Miranda is inapplicable to interrogation by someone the accused does not know is a police officer. If the accused has been charged, the Sixth Amendment would apply.

Question 72

x

[sixth amendment privilege]

Answer 72

VII. Sixth Amendment Privilege
a. Under the Sixth Amendment, there is a right to counsel after the accused has been charged or indicted. The accused’s lawyer must be present for any further interrogation at this point.

Question 73

x

[sixth amendment privilege]

Answer 73

b. The accused may waive his Sixth Amendment right to counsel and this waiver does not require the approval or presence of court-appointed counsel—at least where the accused did not request such appointment.

Question 74

x

[sixth amendment privilege]

Answer 74

c. The Sixth Amendment is offense-specific, so the police may interrogate the accused about different crimes (under the Blockburger test, two crimes are considered different if each requires proof of an additional element that the other crime does not require). The different crime may be related or unrelated to the charged crime.

Question 75

x

[sixth amendment privilege]

Answer 75

d. Once the defendant is charged (or indicted), the police may not place an informer in his or her cell to elicit statements (i.e., initiate a confession) from the accused about the crime for which he or she has been charged. However, it is not a violation of the Sixth Amendment:
i. To place an informer in the accused’s cell merely to listen to the accused.
ii. To place an informer or undercover officer in the accused’s cell to elicit statements about a different crime.

Question 76

x

[sixth amendment privilege]

Answer 76

e. Statements obtained in violation of the Sixth Amendment may not be used in the prosecutor’s case-in-chief, but may be used to impeach the defendant’s contrary trial testimony.

Question 77

x

[pretrial identification]

Answer 77

VIII. Pretrial Identification
a. The purpose of the rules concerning pretrial identification is to ensure that when a witness identifies a person at trial, she is identifying the person who committed the crime and not merely the person she saw at the police station.

Question 78

x

[pretrial identification]

Answer 78

b. There are two ways to challenge a pretrial identification:
i. Denial of right to counsel (Sixth Amendment); however, this applies only to post-charge line-ups and show ups (but not photo identifications)
ii. Denial of due process: the police used techniques that are unnecessarily suggestive and substantively likely to produce misidentification (e.g., the perpetrator is an African-American, but the line-up contained all whites except the accused)

Question 79

x

[pretrial identification]

Answer 79

c. Remedies:
i. If the pretrial identification violates the defendant’s Sixth Amendment or Due Process rights, the pre-trial identification is inadmissible at trial.
ii. In addition, the witness will be precluded from making an in-court identification, unless the government can show by clear and convincing evidence an independent source for the in-court identification, such as where the witness had a good view of the accused at the time of the crime or where the witness’s initial description was precise and later corroborated.

Question 80

x

[pretrial and trial procedures]

Answer 80

IX. Pretrial and Trial Procedures
a. If two defendants are tried jointly and a confession given by one of them implicating the other is admitted into evidence, this violates the confrontation clause, because the person implicated has no right to compel the other defendant to testify so that he may be cross-examined about the confession. This is true even if both defendants have given interlocking confessions. The confession of one may be used, however, if all references to the other defendant are removed (including any redactions that implicitly refer to the other defendant) or if the confessing defendant testifies.

Question 81

x

[pretrial and trial procedures]

Answer 81

b. The state must prove all elements of the crime beyond a reasonable doubt.
i. Other than prior convictions of the crime beyond the prescribed statutory maximum must be submitted to the jury and proved beyond a reasonable doubt.
ii. Moreover, any fact that increases the mandatory minimum sentence also must be submitted to the jury and proved beyond a reasonable doubt.

Question 82

x

[pretrial and trial procedures]

Answer 82

c. The state may impose the burden of proof upon the defendant with regard to affirmative defenses, such as insanity or self-defense.
i. Alibi is not an affirmative defense but rather negates an essential element of the crime. Thus, the state may not impose the burden of proving alibi on the defendant, but the state may require the defendant to give advance notice of his intent to claim alibi

Question 83

x

[pretrial and trial procedures]

Answer 83

d. A defendant is entitled to have access to a psychiatrist and a psychiatric exam when raising an insanity defense.

Question 84

x

[right to a jury trial]

Answer 84

X. Right to a Jury Trial
a. The accused has a right to a jury trial whenever he or she is tried for an offense if the maximum authorized sentence for this offense exceeds six months

Question 85

x

[right to a jury trial]

Answer 85

i. A right to a jury trial is judged on an offense-by-offense basis rather than an aggregate basis. Thus, a aright to a jury does not arise when, in a single proceeding, sentences for multiple petty offenses (each with a maximum sentence not exceeding six months) result in an aggregate prison term of more than six months.

Question 86

x

[right to a jury trial]

Answer 86

ii. Peremptory challenges for racial or gender bias are unconstitutional

Question 87

x

[right to a jury trial]

Answer 87

iii. Federal court juries must contain 12 members and reach a unanimous verdict; state court juries may be as small as six members; however, a six-member jury requires unanimity; a twelve-member jury does not require unanimity (an 11-1, 10-2, or 9-3 vote to convict is constitutional)

Question 88

x

[right to a jury trial]

Answer 88

iv. There is no right to a jury in juvenile delinquency proceedings.

Question 89

x

[right to a jury trial]

Answer 89

v. A defendant may waive the right to a jury trial if the waiver is voluntary, knowing, and intelligent. In most jurisdictions, the prosecutor may veto the defendant’s waiver and insist upon a jury trial.

Question 90

x

[right to counsel]

Answer 90

XI. Right to Counsel
a. The accused has a right to counsel in all felony cases, but in misdemeanor cases only if imprisonment is actually imposed (including suspended sentences with probation); there is no right to counsel if the punishment is probation, fines, or community service.

Question 91

x

[right to counsel]

Answer 91

b. The right to counsel exists at all important stages of the case from custodial police interrogation (5th Amendment) to an appeal as a matter of right. It also includes the plea bargaining process.

Question 92

x

[right to counsel]

Answer 92

c. There is no right to counsel at:
i. A grand jury proceeding
ii. The taking of physical evidence, such as handwriting exemplars or fingerprints
iii. A pre-indictment (or pre-charge) lineup
iv. A pre- or post-indictment photo display
v. The initial appearance to determine probable cause to detain the defendant (Gerstein hearing)
vi. Discretionary appeals
vii. State post-conviction proceedings

Question 93

x

[right to counsel]

Answer 93

d. Denial of the right to counsel at trial is reversible error per se; the harmless error rule applies to non-trial deprivations of counsel

Question 94

x

[right to counsel]

Answer 94

e. An accused has a right to proceed pro se at trial as long as his waiver of the right to counsel is knowing and intelligent and he is competent (i.e., this requires a mental state somewhat greater than that required to stand trial). There is no right to proceed pro se on appeal.

Question 95

x

[right to counsel]

Answer 95

f. The government’s pretrial freeze of a defendant’s legitimate, untainted assets which she needed to retain counsel violates the Sixth Amendment. Forfeiture of “tainted” assets is not a violation of the Sixth Amendment.

Question 96

x

[right to counsel]

Answer 96

g. If an accused has a right to counsel, she has a right to “effective counsel.” Ineffective assistance of counsel is a violation of the Sixth Amendment. To prevail on an ineffective assistance claim, the accused must show (1) that counsel’s performance was deficient (well below that of a competent lawyer) and (2) but for the deficiencies, the result of the proceeding would have been different.

Question 97

x

[sentencing and retrial]

Answer 97

XII. Sentencing and Retrial

a. Resentencing after a successful appeal may not be harsher than the initial sentence.
i. Exceptions: A harsher sentence is permissible if
1. The defendant’s conduct after the first conviction merits additional punishment; or
2. The second sentence is determined by a jury (and not a judge).

Question 98

x

[sentencing and retrial]

Answer 98

ii. “Advisory” sentencing guidelines are valid, but “mandatory” sentencing guidelines are generally unconstitutional.

Question 99

x

[sentencing and retrial]

Answer 99

iii. A defendant may not be prosecuted for a more serious crime in the second trial than the one for which he was convicted in the first trial.

Question 100

x

[double jeopardy]

Answer 100

XIII. Double Jeopardy

a. Double Jeopardy bars retrial by the same government for the same offense.
i. For Double Jeopardy to apply, the accused must have been in jeopardy in an earlier proceeding. Jeopardy does not require that the first trial end with an acquittal or conviction. Rather, jeopardy attaches at a jury trial when jury is sworn and at bench trial when the first witness is sworn.

Question 101

x

[double jeopardy]

Answer 101

There are four situations, however, where the accused may be tried twice:

1. The jury at the first trial was unable to agree on a verdict (i.e., a hung jury)
   a. On retrial, the prosecutor can re-try all charges in the prior trial, even if the former jury reached agreement (but did not return a verdict) on some of the charges
2. The first trial ended in a mistrial because of
   a. A manifest necessity (e.g., the death or disability of the judge or a juror),
   b. A motion raised or supported by the defendant, or
   c. The defendant’s misconduct.
3. The defendant may be retried after a successful appeal, unless the ground for reversal is that the evidence was insufficient to support a guilty verdict (i.e., the appellate court finds that no reasonable jury could have found the defendant guilty on the evidence presented).
4. The defendant breached a plea bargain agreement (e.g., the defendant agreed to testify against his confederates in exchange for a lesser sentence, but later refused to so testify).

Question 102

x

[double jeopardy]

Answer 102

ii. Double Jeopardy applies only if the accused is being tried a second time for the same offense:
1. Two crimes are not the same offense if each crime requires proof of an independent element (e.g., manslaughter and reckless driving are separate offenses; reckless driving and drunk driving are separate offenses).
2. Trial for a lesser included offense is barred if defendant was put in jeopardy for a greater offense (e.g., a defendant acquitted of robbery cannot be retried for larceny or assault).
3. Likewise, if the defendant is tried for the lesser offense (e.g., assault), he or she may not be retried for the greater offense (e.g., robbery), except that an accused who was put in jeopardy for battery (or assault) may be tried for murder if the victim later dies.

Question 103

x

[double jeopardy]

Answer 103

iii. Double Jeopardy applies only if the second trial is by the same sovereign (e.g., federal government or state government); a state and its municipalities are the same sovereign.

Question 104

x

[privilege against compelled testimony]

Answer 104

XIV. Privilege Against Compelled Testimony
a. This privilege only protects compelled, “testimonial” evidence; it does not protect real or physical evidence, such as pre-existing documents, journals, hand-writing samples, blood samples, etc.; it also does not protect a person from disclosing his or her identity (except in rare cases), standing in a line-up, or from signing an authorization for the prosecutor to receive records from a third party (e.g., foreign bank).

Question 105

x

[privilege against compelled testimony]

Answer 105

i. However, compelling a person (by subpoena) to produce documents (e.g., diaries, tax returns) invokes the protections of the Fifth Amendment privilege against self-incrimination when the act of producing the documents has testimonial significance. The act of production has testimonial significance. The act of production has testimonial significance when it:
1. Proves the existence of the document, or
2. Demonstrates possession and control over the document, or
3. Authenticates the document.

Question 106

x

[privilege against compelled testimony]

Answer 106

ii. Only humans can raise the privilege, not corporations, etc.

Question 107

x

[privilege against compelled testimony]

Answer 107

b. There are three instances where the privilege does not apply even to testimonial evidence:
i. The witness has received a grant of immunity. There are two types of immunity: transactional & use and derivative use.
ii. There is no possibility of incrimination (e.g., the statute of limitations has expired) or the defendant has been acquitted (and may not be retried).
1. In criminal cases, the statute of limitations usually begins to run on the date the crime is committed; for manslaughter (and other homicides—assuming there is a statute of limitations for such crimes), the statute of limitations starts to run on the date of the victim’s death (subject, of courts, to the year-and-a-day rule).
iii. The witness has waived the privilege (e.g., if a criminal defendant takes the witness stand and testifies on direct, he waives the privilege as to all legitimate cross-examination subjects). The defendant does not waive the privilege by testifying at a suppression hearing.

Question 108

x

[privilege against compelled testimony]

Answer 108

1. Use and Derivative Use Immunity. This guarantees that the testimony obtained and the evidence located by this testimony will not be used against the witness by the jurisdiction and other U.S. jurisdictions as substantive evidence or for impeachment. However, such testimony may be used in a prosecution for perjury. This type of immunity is sufficient to extinguish the privilege against compelled self-incrimination.

Question 109

x

[privilege against compelled testimony]

Answer 109

2. Transactional Immunity. This immunity—which is broader than the Use and Derivative Use Immunity—guarantees immunity from prosecution for any crimes related to the transaction about which the witness testifies.

Question 110

x

[privilege against compelled testimony]

Answer 110

c. The defendant’s silence after receiving Miranda warnings and his decision not to testify may not be used against him in court
i. However, the prosecutor may comment on defendant’s pre-arrest silence (e.g., D claims self-defense in a murder case; on cross-examination, the prosecutor brought out the fact that D had left the scene of the crime and, during the two weeks between the crime and his arrest, did not go to the police to tell his story).

Question 111

x

[duty to disclose exculpatory information]

Answer 111

XV. Duty to Disclose Exculpatory Information

a. The government has a duty to timely disclose material, exculpatory evidence to the defendant. Failure to do so—whether willful or inadvertent—constitutes a violation of the Due Process Clause and is grounds for reversal if:
i. The evidence is favorable to the defendant because it impeaches or is exculpatory; and
ii. There is a reasonable probability that the result of the case would have been different if the undisclosed evidence had been presented at trial.