Crim Pro Flashcards
Sixth Amendment - Speedy Trial
Sixth Amendment guarantees a speedy trial post-accusation. Factors to consider include:
(1) length of delay;
(i) measured from time of arrest or formal charge
(2) reason for delay;
(3) whether defendant asserted his/her right to speedy trial; and
(i) If D requests delay, cannot claim denial of speedy trial right;
(4) prejudice to D
(i) 8 months or more “presumptively prejudicial”
(ii) 5 months or less not “presumptively prejudicial”
Remedy - Motion to dismiss the unconstitutionally delayed charges.
4th Amendment - Katz Test
(If D contests a search or seizure, the search or seizure must pass the Katz test to be held constitutional).
Under the Katz test, a D can contest a search or seizure as an unconstitutional search or seizure if:
(1) Subjective expectation of privacy (D’s actual expectation)
(2) Society objectively considers there to be an expectation of privacy in the place or thing to be searched
4th Amendment - Terry Stop
(If D contests a stop and frisk, the stop and frisk must meet the requirements of a Terry stop to be held constitutional).
A Terry stop requires:
(1) reasonable suspicion (lower standard than probable cause)
(2) supported by articulable facts
(3) of criminal activity
(4) limited to patdown to determine if suspect is carrying weapon.
(*) Any contraband discovered during the frisk which is readily identifiable by its contour/feel, may be seized.
4th Amendment - Police Checkpoints for Car Traffic
Police may set up roadblocks to stop cars without individualized suspicion that the drier has violated the law if:
(1) Cars are stopped on a neutral, articulable standard (every nth car); and
(2) The roadblock is designed to serve purposes closely related to problems related to automobiles (checking sobriety or that all occupants are legally authorized to be present in the U.S.)
4th - General Rule Regarding Warrants
All searches and seizures which do not pass the Katz test require a valid warrant, and the search and seizure must be within the scope of the warrant to uphold the search and seizure as constitutional.
A warrant is valid if:
(1) On its face, describes facts supporting probable cause
(2) Is issued by a neutral and detached magistrate
(3) Describes the place to be searched and item(s) to be seized with particularity
4th - Exceptions to the Warrant Requirement
(Comes up if no warrant, or if what is seized is not sufficiently described in warrant or obtained outside of scope of warrant)
(1) Consent - Knowing, valid, INTELLIGENT consent by person with AUTHORITY.
(2) Automobile Exception - Probable cause that there are seizable items or contraband in the automobile -> police may search anywhere in the car
(3) Search Incident to Lawful Arrest–To be incident:
(i) search must be in connection with arrest;
(ii) made immediately thereafter arrest;
(iii) area search is within wingspan of arrestee.
(4) Plain View (Horton test)
(i) Officer is lawfully present
(ii) Officer has lawful right of access to object (i.e., can’t bash in a car window to get it)
(iii) Incriminating character of object “immediately apparent”
(5) Exigent Circumstances
If there is a threat that, if time is taken to obtain warrant, either (i) evidence will be lost or destroyed, OR (ii) person or property will be damaged, officer can act without a warrant.
4th Amendment - Lawful Arrest
Lawful Arrest in Public
(1) Officer sees felony, or probable cause that D is committing or has committed felony, OR
(2) Officer SEES D commit misdemeanor
In D’s Home
Warrant Required
3rd Party Home
Need an “arrest & search” warrant
4th Amendment - Remedy for Violation
Evidence will be excluded, UNLESS:
(i) Police acted under good faith belief that they were acting lawfully, and
(ii) D testifies falsely; the excluded evidence will be admissible to impeach D.
Confessions (14th, 6th, and 5th Amendment)
14th Amendment Inquiry
Confession must be voluntary and not coerced, looking at the totality of the circumstances.
6th Amendment Right to Counsel
Attaches post-charge and provides D a right to counsel at all critical stages once adversary judicial proceedings have begun.
5th Amendment - Miranda Warning
For any confession made during a custodial interrogation to be valid, D must have been given his Miranda warnings before the start of the investigation.
(i) Custody = Seizure of other situation where D is not free to leave, or reasonably doesn’t feel free to leave.
(ii) Interrogation = any statement or conduct reasonably likely to elicit an incriminating response.
* Even if given Miranda warning, D can waive his right to counsel and resume the questioning. Or D can break silence and begin talking on his own, which also resumes the questioning.
Remedy
Evidence (confessions) obtained in violation of the above is excluded.
*EXCEPT: Statements taken in violation of 5th Amendment rights (i.e., even with failure to give Miranda) may be used to impeach as a prior inconsistent statement.
Pretrial Identifications - 6th Amendment Clauses
Confrontation Clause
D has the right to confront all witnesses who testify against him.
Thus, when a co-defendant’s confession implicates D, the confession admissible only if:
(1) statements concerning D are redacted, or
(2) co-D is subject to cross.
Right to Counsel
D has the right to counsel at all critical stages once adversary judicial proceedings have begun (i.e., post-charge proceedings).
(A) D has right to counsel at post-charge lineup.
(B) No right to counsel when victim is looking at photos to make a photo ID.
(C) No right to counsel at fingerprinting stage.
Pre-trial Identifications - 14th Amendment
Under the Due Process Clause, ID can’t
(1) be unreasonably suggestive, or
(2) have a substantial likelihood of misidentification.
- (2) often comes up when D stands out in the lineup because he is dressed differently or looks distinct from the other potential criminals.
Subsequent Identifications (e.g., “poisoned” identifications)
If a prior identification violates the 5th, 6th, or 14th Amendments, any subsequent identification based on the prior is excluded.
EXCEPTION
(A) Witness recognized the suspected person from observations INDEPENDENT from former line-up, in-court ID is based on independent source and not excluded.
Informants - 5th Amendment Issues
Interrogation by Informant
No Miranda warnings need to be given by informant who D DOES NOT KNOW is working for the police (even if informant is in fact working for the police).
Informants - 6th Amendment Issues
Actions by Post-Charge Informants
Evidence obtained by informants who act post-charge must be excluded if:
(i) Informant is paid (i.e., makes it state action)
(ii) D must have been charged before the informant obtained info
(iii) Informant must have actively asked questions to elicit statements regarding the crime.
*If D talks on his own, that does not violate 6th Amendment
Bail - 8th Amendment
If it s a non-capital case, D is entitled to:
(1) bail
(2) in an appropriate amount designed to make it unlikely that D will flee.
