Crim Pro Basics - Aug. 24 Flashcards
May the states provide persons accused or suspected of a crime greater protection than what the U.S. Constitution affords? (Q)
Yes. The states may provide persons accused or suspected of a crime greater protection than what the U.S. Constitution affords. The U.S. Constitution establishes the minimum criminal-procedure protections. States must provide the federal minimum, but they may exceed that minimum if they see fit.
Do the constitutional criminal-procedure protections apply against purely private action? (Q)
No. The constitutional criminal-procedure protections do not apply against purely private action. Rather, those protections apply only against government action. Thus, without some government action, the constitutional criminal-procedure protections do not apply.
Will an action be deemed government action simply because a government official or employee performed the action? (Q)
No. An action will not be deemed government action simply because a government official or employee performed the action. Usually, an action is government action if performed by a government official or employee acting in his or her official capacity (e.g., a police officer arresting someone). By contrast, an action is generally not government action if performed by a government official or employee acting merely as a private citizen and not relying on official authority or discretion.
What is required for a private person’s action to be deemed government action? (Q)
For a private person’s action to be deemed government action, the private person must act as an agent or instrument of the government. In general, a private person acts as an agent or instrument of the government if:
the private person acts under governmental compulsion;
the private person acts without compulsion, but under a government employee’s direction (e.g., confidential informant);
the private person acts with the primary motive to comply with some binding law or regulation; or
the government actively solicits, encourages, or facilitates the conduct, and the private person is motivated at least in part by a desire to serve the government–even if only as a means to achieve some other end (e.g., revenge or spite).
Is there generally government action if the government merely passively receives the fruits of unilateral action by a private person? (Q)
No. There is generally not government action if the government merely passively receives the fruits of unilateral action by a private person. Put differently, if a private person acts on his or her own initiative, and the government did not actively encourage, solicit, or facilitate the conduct, there is usually no government action. However, having received the fruits of purely private action, the government must not take additional steps that independently violate the Constitution.
