Criminal Procedure Flashcards
Generally: The 4A, 5A, and 6A
4A- Protects the people and their papers, houses, and effects from unreasonable searches and seizures.
–> Also requires particularized (as opposed to general) warrants that are supported by PC.
5A- Requires that no person be denied life, liberty, or property without due process of law.
–> Also grants each person a privilege against self incrimination.
6A- Requires that in all criminal prosecutions, the accused has a RTC to assist in his defense.
Search/Seizure –> Govt Action Req
4A applies only to govt (not private) conduct.
- -> When a private party acting on his own acquires evidence that the govt later seeks to introduce in a criminal pros, neither the 4A nor excl rule applies.
- —–> However, when a private party acts at the direction of the govt agent or pursuant to an official policy, any search conducted and evidence seized is subject to 4A scrutiny.
Search/Seizure –> Reasonable Expectation of Privacy: Standing
A person may assert 4A rights where there is standing:
(1) there is a govt intrusion into his REP, or
(2) when the govt’s investigatory conduct results in a physical TRESPASS against his person, home, papers, or effects.
When govt action qualifies as search under either test, a D may seek remedy of EXCLUSION of evidence discovered during search (but only if the D has estd standing to object to the govt conduct).
Search/Seizure –> Reasonable Expectation of Privacy: Application (Held Out to the Public)
A D has a REP when the objects identified by the govt investigation are NOT held out to the public.
- -> Further, a D does NOT have a REP in the following items (even if not held out to public):
(1) HANDWRITING exemplars
(2) VOICE exemplars
(3) BANK records
(4) PEN registers, which record telephone numbers dialed; and
(5) PRIVATE CONVOS, including eavesdropping
Note: A D loses any privacy right that may have existed w/ discarded property, such as commingled garbage and abandoned rental premises.
Search/Seizure –> Warrants: Y/N General Rule
A search conducted by a govt authority w/o a warrant is PRESUMPTIVELY INVALID unless it falls w/in an EXCEPTION.
–> Thus, reasonable search under 4A must be conducted EITHER pursuant to a warrant OR under exception to warrant req.
Search/Seizure –> Warrants: If Yes, Valid? - Requirements for Validity
Warrant
–> A judicial authorization for police action (either to search a particular place- search warrant- or arrest a particular person- arrest warrant).
Search Warrant
–> Must be (1) issued by a neutral and detached magistrate (2) after an adequate showing of PC, and (3) must describe w/ particularity the place to be search and items to be seized.
Search/Seizure –> Warrants: If Valid, Properly Executed? - Announce Presence
A search warrant need not specify the precise manner for its execution, yet limitations do apply as follows:
(1) ONLY POs, not private citizens, may execute a warrant;
(2) a search warrant must be executed PROMPTLY while PC still exists; and
(3) absent exigent circumstances, a PO must KNOCK AND ANNOUNCE his presence before attempting a forced entry
- -> A violation of the knock and announce rule does not req the automatic suppression of all evidence found in the subsequent search.
Unless an exception to warrant req applies, a search/arrest conducted pursuant to an invalid warrant will constitute a 4A violation.
–> Warrantless searches are generally unconstitutional unless they fall w/in a warrant exception.
Search/Seizure –> Warrants: If Valid, Properly Executed? - Unreasonable Delay
Cannot be an unreasonable delay after executing the warrant.
Search/Seizure –> Warrants: If Valid, Properly Executed? - Search W/In Scope of Warrant
The scope of the search is limited to premises DESCRIBED in the warrant. (but see plain view doctrine)
Search/Seizure –> Warrants: If Not Valid, Good Faith in Validity? (Good Faith Exception)
Evidence obtained pursuant to an invalid warrant will not be excluded if a REASONABLY WELL-TRAINED officer would have believed that the warrant was valid.
Aspects for considering the good faith exception include:
(1) whether the police were acting on good faith reliance of a FACIALLY VALID warrant;
(2) whether the police were acting in reliance of a VALID STATUTE; and
(3) whether the police were acting in reliance of a CT OFFICIAL rather than a PO
Good faith exception to exclusionary rule does NOT (!) apply when:
(1) the police LIE/MISLEAD the ct in attaining a warrant
(2) the MAGISTRATE is NOT neutral or detached, and
(3) NO REASONABLE PO would have believed the warrant was valid
Search/Seizure –> Warrants: If No/Invalid Warrant - Exceptions to Warrant Requirement (List)
(1) Searches incident to lawful arrest
(2) Automobile exception
(3) Plain view
(4) Consent
(5) Searches pursuant to a stop
(6) Hot pursuit
(7) Exigent circumstances
Search/Seizure –> Warrants: If No/Invalid Warrant - Exceptions to Warrant Requirement (SILA)
SILA (Generally)
–> A SILA must be CONTEMPORANEOUS w/ arrest or preceding it.
SILA (DIGITAL)
The warrantless search and seizure of digital contents of a cell phone during an arrest is unconstitutional.
SILA (HOME)
To protect arresting POs and prevent destruction of evidence, the D’s person (as well as the area w/in his immediate control - his WINGSPAN) may be SILA’d.
–> May include a cursory scan (PROTECTIVE SWEEP) of adjoining rooms; the entire domicile may be scanned provided there is RS of an armed accomplice.
SILA (CAR)
If a custodial arrest is effected while the D is in a car, POs may search the passenger compartment of the vehicle only if it is reasonable to believe that the D might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest.
Search/Seizure –> Warrants: If No/Invalid Warrant - Exceptions to Warrant Requirement (Automobiles)
SCOTUS: once the POs have PC to search the moving/temporarily stopped car, they may seize the car and search it later (even if could obtain warrant between seizure and subsequent search).
POs may inspect a container w/in a car if they have PC to believe the container has contraband or evidence (even where POs do not have PC to search the entire car).
Where PC exists, the POs may search the entire vehicle including closed containers/luggage to find objects for which PC existed.
Warrantless search and seizure of items from a car may be justified under several scenarios:
(1) SILA
(2) PLAIN VIEW
(3) an INVENTORY search following a lawful impounding
(4) a BORDER search
Search/Seizure –> Warrants: If No/Invalid Warrant - Exceptions to Warrant Requirement (Plain View)
POs may seize property that is CLEARLY VISIBLE in plain view w/o a warrant if:
(1) POs are LAWFULLY PRESENT at the place where the object can be seen;
(2) POs have a lawful right of ACCESS to the object; and
(3) it is immediately APPARENT that the object is incriminating.
HOT PURSUIT
A PO may follow an arrestee into his house and then lawfully seize any contraband evidence in plain view.
SCOPE
A PO may NOT move objects to get a better view.
Search/Seizure –> Warrants: If No/Invalid Warrant - Exceptions to Warrant Requirement (Consent - General)
Consent is a warrantless intrusion reqing no justification; an individual may simply waive his 4A rights as long as the waiver is VOLUNTARY.
To justify search based on consent, POs must est 3 elements:
(1) VOLUNTARINESS
- —> To be effective, the D’s consent must be a voluntary and intelligent decision made w/o coercion.
- —> Totality of the circumstances
(2) PROPER SCOPE; and
(3) 3RD PARTY consent
Search/Seizure –> Warrants: If No/Invalid Warrant - Exceptions to Warrant Requirement (3rd Party Consent)
Person consenting must have either ACTUAL or APPARENT authority to consent, such as a person who:
(1) truly may consent (such as the owner or occupant of the particular premises); or
(2) has apparent authority to consent, such a having a key or knowing where things are on the premises (even if it later turns out that the person lacked actual authority to consent)
ACTUAL 3RD PARTY CONSENT
Any person who has joint control or use of shared premises may consent to a valid search.
–> A present co-T who is silent (and does not object) does not have standing to object to the reasonableness of the search.
–> An absent co-T does not have any standing to object to the search (even where POs are responsible for co-T’s absence - detention or arrest).
Search/Seizure –> Warrants: If No/Invalid Warrant - Exceptions to Warrant Requirement (Hot Pursuit)
A warrantless search is lawful when POs are in ACTUAL hot pursuit of a FLEEING SUSPECT to apprehend him; POs may seize mere evidence as well as any contraband found.
Search/Seizure –> Warrants: If No/Invalid Warrant - Exceptions to Warrant Requirement (Exigent Circumstances)
In certain emergency situations where evidence may be LOST/DESTROYED before warrant can be obtained, a warrantless search/seizure may be permitted.
POs may conduct warrantless search and seizure of evidence in or on a suspect’s body provided that:
(1) there is PC to believe that nature of evidence renders it EASILY DESTROYED or likely to disappear before a warrant can be obtained; and
(2) the procedure for seizing the evidence is REASONABLE.
Search/Seizure –> Warrants: If No/Invalid Warrant - Exceptions to Warrant Requirement (Regulatory Search - Checkpoint Stop)
POs, operating at a checkpoint, may stop traffic to check the vehicle registration and DLs of drivers, as long as the stops:
(1) are random
(2) are based on some fixed formula, such as every vehicle or every 5th vehicle
Special Needs Doctrine
An exception to the general req of individualized suspicion of searches: warrantless, suspicion-less search may be justified when special needs (beyond the normal need for law enforcement) make the warrant and PC req impracticable.
–> POs are permitted to use checkpoints to conduct brief seizures and/or limited searches w/ no individualized suspicion/warrant in response to a public safety danger that cannot be addressed by complying with the normal individualized suspicion/warrant reqs.
–> Sobriety or drunk driving checkpoints are permissible
Search/Seizure –> Warrants: If No/Invalid Warrant - Exceptions to Warrant Requirement (Regulatory Search - Border Crossings/Checkpoints)
As an incident of national sovereignty, customs and immigrations searches, when conducted by govt agents in ROUTINE manner and NOT PARTICULARIZED for a specific person/specific property, are not an invasion of privacy and do not req PC.
- -> Govt officials may make routine searches of items/people crossing the border and at fixed checkpoints near the border (reasonable, do not require PC or RS).
- -> However, RS reqd for unusually intrusive search (ie body cavity search or destruction of property).
Search/Seizure –> Warrants: If No/Invalid Warrant + No Exception Applies
Apply exclusionary rule and exceptions.
Stops/Frisks –> Terry Standard
In order to frisk a stopped individual, the PO must articulate RS that the suspect is armed and dangerous.
RS: If a PO reasonably believes (more than a mere hunch), based on PO’s own observations or those of an informant, that criminal activity may be afoot, then the PO may stop and briefly question a criminal suspect.
- -> The reqd belief or RS must be supported by objective evidence that the suspect is engaged/about to become engaged in criminal activity, or is a wanted criminal.
- -> The PO may do a limited pat down of suspect’s outer garments (a “frisk”) for weapons if they have a reasonable and articulable suspicion that person detained may be armed and dangerous (despite lack of PC or warrant).
- -> A Terry stop based on less than full PC is permitted when the detainee is suspected of involvement in a past crime constituting a felony or a threat to public safety.
Improper Subjective PO Basis
–> Fact that a PO had some improper subjective basis for stop will not result in finding that stop was illegal, as long as the stop was supported by an objectively reasonable belief that the suspect was engaged or about to engage in criminal activity.
Anonymous Tips
–> An anonymous tip alone is inadequate; however, under the totality of circumstances, an anonymous tip coupled w/ PO corroboration of some info contained in the tip shows suff indicia of reliability to justify investigative stop
Flight
–> Not enough for PC but is enough for RS
Stops –> Traffic Stops
SCOTUS: Drug sniffing dogs are allowed during traffic stops, as long as prolongation of stop for inspection is brief.
–> POs may not prolong traffic stops to wait for drug-sniffing dogs to inspect vehicles; a PO stop exceeding the time needed to handle the matter for which the stop was made violates the 4A.
Stops –> Searches Pursuant to a Stop (see also warrant exception)
A stop is the momentary detention (often accompanied by very limited questioning) of a criminal suspect.
- -> May take place in the suspect’s home or car or on the street.
- -> A stop is a seizure w/in meaning of 4A; thus, seizure must be reasonable (depends on type of stop).
Types of Stops
- -> PC not required for short, investigatory stop (satisfied by RS)
- -> RS: cts must look at totality of circumstances to see whether PO had particularized and objective basis for suspecting legal wrongdoing
Arrests –> Arrest Warrants
Arrest warrants generally not required when arresting someone in a public place.
—> When they are obtained, they must be issued by a neutral and detached magistrate after an adequate showing of PC.
A valid arrest may occur either w/ or w/o a warrant; generally, no warrant reqd for an arrest (police need only PC).
- -> POs may come into possession of requisite fact/circumstances for PC from their own observations of the suspect OR through information obtained by third parties.
- -> PC defined as that quantity of facts and circumstances w/in the PO’s knowledge that would warrant a reasonable person to conclude that the individual in question has committed a crime (for an arrest) or that specific items related to criminal activity can be found at a particular location (for a search).
- -> Evaluated in terms of what was known at the moment of the govt intrusion; a PO may est PC by considering events leading up to the moment of arrest.
Informants
PC to arrest may be obtained indirectly through an informant; tip may serve as basis for PC arrest if reliability estd by:
(1) the informant’s tip containing specific details; and
(2) the reliability of both the details and the informant being confirmed prior to the moment of arrest.
Arrests –> Custody
When a person is taken into custody for the purpose of commencing a criminal action, an arrest has occurred.
Whether a person is in custody is determined based on the objective circumstances surrounding the interrogation, particularly:
(1) person did not feel that he was at liberty to terminate the interrogation and leave; and
(2) person was in an environment that presented inherently coercive pressures.
Arrests –> In-Home Arrests
An arrest warrant is reqd before POs can arrest a person in his own home, absent exigent circumstances or consent.
Consent/exigent circumstances estd when:
(1) an arrest attempt outside the home is thwarted because suspect retreats into the home
(2) there is insuff time to secure a warrant because the delay would allow the suspect to evade arrest or destroy evidence; or
(3) the arresting PO is in hot pursuit and has PC to effect a valid arrest of the suspect
Third Party Home Arrests
–>POs generally may not legally search for the subject of an arrest warrant in the home of a 3rd party absent exigent circumstances or consent w/o first obtaining a search warrant for those premises.
Knock and Announce
- -> Unless exigent circumstances exist, POs must knock and announce their identity before entering to make the arrest.
- -> Violation of the knock and announce rule does not automatically trigger the exclusion of evidence seized after the violation.
Arrests –> Warrantless Arrests at CL
Both POs and private citizens may make arrests for felonies committed in their presence.
–> A PO may arrest a person for a felony not committed in his presence when he has reasonable grounds to believe a person did, in fact, commit the felony.
POs and private citizens may make arrests for misdemeanors when:
(1) the crime is committed in their presence; and
(2) the misdemeanor amounts to a breach of the peace.
- -> A warrant is reqd for a misdemeanor that the PO did not personally observe, regardless of whether arrest takes place inside/outside the suspect’s home.
Statements/Confessions –> Voluntariness
The voluntariness standard is based on the trustworthiness and reliability of the proffered evidence, and is used to determine admissibility of a confession based on totality of circumstances.
- -> POs have broad reign to trick and deceive Ds during interrogations; however, cannot make FALSE PROMISES of dropping charges to elicit a confession.
- -> COERCION may take form of physical abuse, threats, or promises of leniency.
Factors include D’s:
(1) age
(2) sex
(3) education; and
(4) mental and physical health
Admission of involuntary confession NO LONGER reqs automatic reversal; rather, HARMLESS ERROR rule is applied to admission.
Involuntary Statements
A statement is generally considered involuntary when the PO subjected the suspect to coercive conduct, and that conduct (under totality of circumstances) was suff to OVERCOME THE WILL of the suspect (given his particular vulnerabilities and the conditions of the interrogation).
Statements/Confessions –> Four Bases to Exclude Statements and Confessions
Voluntariness Approach
- -> To be admissible, statement must be voluntarily made based on totality of circumstances.
- -> DPC 5A and 14A
RTC Approach
- -> Statements made during any critical stage of a criminal proceeding are inadmissible unless the D is afforded the RTC.
- -> 6A RTC
Miranda Standard
- -> Statements made during custodial interrogation are inadmissible in the absence of Miranda warnings.
- -> 5A privilege against Self-Incrim
Fruits of Illegal Conduct
- -> Even voluntary statements obtained as fruits of prior illegal searches and seizures are inadmissible.
- -> 4A Exclusionary Rule
Statements/Confessions –> Right to Counsel
Under the 6A, suspect has RTC during questioning by POs.
- -> Accused must make the request unambiguously to interrogator, at which time questioning must cease.
- -> Offense specific
- -> Counsel must be present at all questioning until the accused waives the right.
- -> Absent effective waiver once formal charges are filed, deliberate eliciting of any incriminating statements from a D w/o assistance of counsel violates 6A RTC
- -> Police agents’ secret recording of a suspect’s conversations while out on bail violates RTC
Statements/Confessions –> Miranda Issues: Privilege Against Self-Incrimination
5A: No person shall be compelled in a criminal case to be a witness against himself.
- -> Applies only to natural persons
- -> Must be asserted to be effective
When witness has a reason to fear that answers to possible questions might tend to incriminate him/subject him to other prosecution w/in the US, he has a valid 5A privilege against self-incrim.
- -> Privilege may be asserted in any criminal, civil, or admin proceeding where incrim testimony can be used in subsequent prosecution (such as grand jury proceeding where trial may result).
- -> Privilege protects against admission of evidence that is testimonial in nature, but not against admission of real/physical evidence (blood, hair, etc)
Accused has right to waive privilege and give testimony.
–> When the govt questions an individual outside the trial setting, the purpose of the questioning determines whether the individual’s failure to affirmatively invoke the privilege constitutes a valid waiver.
Statements/Confessions –> Miranda Rule: Definition
Miranda rule states that no statement made by D will be admitted into evidence unless (prior to custodial interrogation) the D is given certain warnings.
—–> Statements obtained in violation of Miranda may not be used in the prosecution’s case in chief.
Statements/Confessions –> Miranda Rule: Warning
Miranda warnings need not be given verbatim, provided the D is suff informed of his rights; Miranda reqs that suspect be given 4 warnings:
(1) he has right to remain silent;
(2) anything he says can be used against him in ct;
(3) he has right to presence of attorney; and
(4) if he cannot afford an attorney, one will be provided
Statements/Confessions –> Miranda Rule: Interrogation
Miranda only applies when an interrogation occurs (where police know or should reasonably know that their actions/inquiries are reaonsably likely to elicit an incriminating response).
- -> Volunteered, spontaneous, or unsolicited statements are not considered the product of an interrogation and thus are admissible.
- -> Miranda bars only official interrogation; thus, informant questioning in jail does not require giving Miranda warnings (nor does private security guard questioning).
Statements/Confessions –> Miranda Rule: Custody
Miranda applies only to statements made during custodial interrogation where the suspect experiences significant deprivation of freedom of movement and may not leave.
–> Exception: does not apply to questions by POs regarding age, DOB, height, weight, and the like; and when questioned by a parole officer when the D was free to leave the police station.
Factors for determining whether suspect was in custody for Miranda purposes (subjective factors not considered):
(1) when and where it occurred
(2) how long it lasted
(3) how many POs were present
(4) what the POs and D said and did
(5) the presence of physical restraint or the equivalent (such as drawn weapon or a guard stationed at the door)
(6) whether the D was being questioned as a suspect or a witness
Statements/Confessions –> Miranda Rule: Waiver
A knowing and intelligent waiver of one’s Miranda rights is permitted, but the prosecution has a heavy burden to prove that there was compliance w/ the warnings req and that the waiver was voluntary, knowing, and intelligent.
- -> Waiver need not be in writing
- -> Waiver can be express or implied, but ordinarily cannot be presumed from D’s silence
Statements/Confessions –> Miranda Rule: Invocation and Repetition of Warnings
If a D either requests an attorney or states that he wishes to remain silent, all interrogation must stop; can be made at any point during the interrogation.
- -> Invocation of the right reqs (at a min) some statement that can reasonably be construed to be an expression of a desire for assistance of an attorney (suff clear that a reasonable PO in the circumstances would understand the statement to be a request for an attorney).
- -> To resume questioning anew, POs must allow a significant period of time to elapse and must provide new Miranda warnings.
- -> D requesting counsel may not be questioned further until either counsel is furnished or D voluntarily initiates a discussion beyond a necessary inquiry arising out of incidents of custodial relationship
- -> Admissions obtained after giving Miranda warnings are admissible (even if prior admissions on the same matter were obtained in violation of Miranda); however, POs may not give Miranda warnings in the middle of questioning and ask the D to repeat the statements made before Miranda was given.
Lineup/Pre-Trial IDs –> 5A Due Process Standard
Any lineup, show up, or photo ID will be inadmissible as violation of DPC when the ID is UNNECESSARILY SUGGESTIVE and likely to produce an irreparable mistaken identification.
- -> Totality of the circumstances: where an ID is both suggestive and unnecessary, it can still be admissible if it is reliable based on TOFC; factors:
(1) the opportunity to view the criminal act at the scene
(2) the witness’s degree of attention
(3) the accuracy of the witness’s description
(4) the degree of certainty of the witness
(5) the time interval between the crime and the ID
Lineup/Pre-Trial IDs –> The 6A RTC in Post-Indictment Lineups
RTC attaches upon start of adversary proceedings, to which indictment would qualify.
- -> After formal charges are filed, D has RTC present at lineup.
- -> No RTC exists at police lineups conducted before the accused is indicted.
- -> Inadmissibility of OOC ID made at lineup (based on violation of D’s RTC) does not bar witness from making in-ct ID at trial when the prosecution clearly and convincingly shows that the subsequent ID stemmed from independent, purging source.
Exclusionary Rule –> Purpose and Application
Procedural rule of fed con law used to deter unlawful police conduct.
- -> Evidence seized in violation of the 4A (including physical evidence and statements) is INADMISSIBLE in a criminal proceeding.
- -> Exc Rule also applies to violations of 5A and 6A; however, not (usually) applicable to Miranda violations.
Exclusionary Rule –> Fruit of the Poisonous Tree (3 Exceptions)
In addition to illegally obtained evidence, any additional evidence, including oral statements and physical objects acquired directly or indirectly from the illegal arrest/search/seizure must also be EXCLUDED.
Exception- may still be admitted if taint dissipated by:
(1) Independent Evidence- evidence obtained from source independent of original illegality.
(2) Inevitable Discovery- evidence that would have been discovered regardless of illegality; or
(3) Attenuation- confession or consent to illegal search distant enough from initial illegality that it is considered voluntary and not 4A violation.
- —-> Factors: (1) whether Miranda warnings were given; (2) temporal proximity of arrest and confession/consent; (3) presence of intervening circumstances; and (4) purpose and flagrancy of official misconduct.
Exclusionary Rule –> Balancing Approach
Exclusionary rule precludes only the use of suppressed evidence in the prosecution’s case-in-chief and does not apply to the use of evidence for impeachment.
–> However, confessions which have been coerced or immunized are inadmissible for any purpose.
Exclusionary Rule –> Balancing Approach: Good Faith Exception
Evidence obtained pursuant to an invalid warrant will not be excluded if a reasonably well-trained officer would have believed that the warrant was valid.
Aspects for considering the good faith exception include:
(1) whether the police were acting on good faith reliance of a facially valid warrant;
(2) whether the police were acting in reliance of a valid statute; and
(3) whether the police were acting in reliance of a ct official rather than a PO
Good faith exception to exclusionary rule does not apply when:
(1) the police lie or mislead the ct in attaining a warrant
(2) the magistrate is not neutral or detached, and
(3) no reasonable PO would have believed the warrant was valid
Exclusionary Rule –> Limitations
(1) The Excl rule had not been extended to GRAND JURY proceedings, and evidence at issue may be considered in granting an indictment.
(2) Evidence obtained under the REASONABLE RELIANCE of the validity of a search warrant issued by a detached and neutral magistrate is not subject to the excl rule.
(3) Evidence excluded by the rule from use by one SOVEREIGN may be used in the civil proceedings of another sovereign.
(4) Evidence excluded by the rule for violating the 4A 5A or 6A may be used to impeach testimony given on either direct examination or cross.
(5) A confession obtained w/o giving MIRANDA warnings may be used to impeach a D’s testimony, unless it is coerced or immunized.
Exclusionary Rule –> Trial Procedures and Enforcement After Appeal
A D has a right to a suppression hearing, at which time the judge (as a matter of law) determines the admissibility of the evidence out of the jury’s presence.
Admission of illegally obtained evidence constitutes reversible error unless the error is “harmless.”
–> Under this standard, the govt must prove beyond a reas doubt that the error did not contribute to a conviction.
Exclusionary Rule –> Standing
A criminal D must have standing to raise a 4A violation claim.
–> D must be personally the victim of police’s unreasonable conduct.
Test: Ct must determine whether the person who claims the protection of the 4A has a legitimate expectation of privacy in the invaded place.
Trial –> Bail Issues
D entitled to individualized hearing to determine whether bail should be granted or denied.
- -> Not yet considered a critical stage where D has RTC (but counsel usually present)
- -> Purpose: to assure presence of D at trial
- -> 8A prohibits excessive bail, but no explicit constitutional right to bail (however, most states grant right to bail in state constitutions)
Trial –> RTC: Arraignment
During arraignment, D given formal notice of charges against him and advised of rights by ct.
- -> D has RTC at this stage
- -> D called on to answer indictment, elect jury trial or trial by judge, and enter plea (in felony cases, indigent Ds usually appointed counsel at this time).
Trial –> RTC: During Trial
6A: provides that the accused shall enjoy the right to have the assistance of counsel for his defense (applied to states through 14A).
- -> Includes right to be provided w/ free counsel when accused is indigent
- -> Indigent must be informed of right to free counsel before valid waiver can arise
- -> Failure to provide adequate counsel at trial results in automatic reversal; however, the harmless error rule applies to the denial of counsel at criminal proceedings other than trial.
- -> RTC attaches at all critical stages of proceeding.
RTC = right to effective counsel
- -> Law presumes legal counsel is effective and D must demonstrate otherwise by proving both:
(1) that counsel was ineffective (ex: deviated from reasonably prevailing norms); and
(2) there is a reasonable probability that the verdict would have been not guilty had counsel been effective, - -> 2 analagous situations where test not used:
(1) if there is an actual conflict that adversely affects the attorney’s performance, reversal is proper.
(2) if the defense attorney indicates to the ct that such conflict exists, defense must be severed.
Trial –> RTC: Pro Se
D has the right to represent himself.
–> Although an intelligent waiver of RTC will be generally recognized and approved, there is no absolute right to waive counsel at appellate level.
Trial –> Right to a Speedy Trial
6A: guarantees criminal D right to a speedy trial in both fed ct and state ct (through 14A).
- -> Violation of this right results in complete dismissal of charges against D
- -> Attaches once D is accused (such as upon arrest or filing of charges)
- -> Long interval between arrest and indictment raises inference of violation (even if D was released after arrest)
The Speedy Trial Act of 1974
–> Reqs federal indictment w/in 30 days of arrest and trial w/in 70 days of indictment.
Ct judges violations of speedy trial right w/ balancing test of following factors:
(1) length of delay;
(2) reason for delay;
(3) D’s assertion of right to speedy trial; and
(4) prejudice to the D (may include oppressive incarceration, memory loss by witnesses, loss of evidence, and anxiety of D).
Trial –> Right to a Jury Trial: Generally
The right to a jury trial attaches in any criminal proceeding where the D faces potential sentence of longer than 6 months.
- -> Was extended to criminal contempt cases in which punishment imposed exceeded 6 months in jail; in civil contempt cases, no right to jury trial exists.
- -> D can expressly and intelligently waive right to jury trial
6 member jury upheld in noncapital cases in state cts as long as jury functions as representative cross-section of community (unanimous verdict reqd).
- -> 5 person juries unconstitutional DPC violation
- -> Federal trials req unanimous verdicts of 12 member juries (where fed ct would req unanimous verdict, 6A reqs state cts also convict by unanimous verdict).
Trial –> Right to a Jury Trial: Makeup of the Jury
D has right to jury selected from cross section of community (however, need not include members of all minority groups).
Exclusion of prospective jurors based on race, ethnicity, or gender violates the EPC.
- -> A prima facie showing of purposeful racial discrimination in jury selection can be est’d solely on the prosecutor’s exercise of peremptory challenges at the D’s trial, placing the burden on the state to prove otherwise.
- -> A pretextual reason for exercising peremptory challenge given by prosecution gives rise to inference of discriminatory intent
- -> To rebut charge of racial discrim, state must show it followed racially neutral selection procedures
- -> D has standing to challenge jury selection even if he is not a member of the excluded group
Trial –> Confrontation Rights: Right of Severance
When 2 Ds are tried together, if either co-D is unfairly prejudiced at any stage of a joint trial, a right of severance may be granted.
In a joint trial where a co-D’s confession implicates the other D, the right to confrontation prohibits the use of such confession and dictates that the Ds are entitled to separate trials.
- -> Traditional approach of giving jury instructions to consider confession only against confessing D is constitutionally inadequate, unless:
(1) incriminating portions of the confession can be adequately deleted;
(2) co-D takes the stand after making a confession and is subject to cross; or
(3) the co-D’s statement is subject to the harmless error rule
Trial –> Confrontation Rights: Generally
The D has a fundamental right of confrontation (meaning he may confront all witnesses against him in any criminal proceeding - federal or state).
- -> Primary purpsoe: give the D an opp to cross examine witnesses at trial (does not apply to GJ)
- -> Right is not absolute and may be waived
- -> TJ may bind and gag the D, cite him for contempt, or remove him from the ct room for disruptive behavior
OOC Statements
–> Confrontation Clause does not automatically exclude all hearsay evidence; prosecution must demonstrate that the witness is unavailable after good-faith efforts have been made AND the hearsay statement is trustworthy.
Trial –> Confrontation Rights: Testimonial v. Non-testimonial
OOC statements that are testimonial in nature (such as statements made to POs or 911 after an emergency has ceased) are inadmissible under the CC even if such statements would be considered excited utterances.
OOC statements are non-testimonial and admissible when made in the course of police investigation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.
Trial –> Privilege Against Self-Incrimination
5A: No person shall be compelled in a criminal case to be a witness against himself.
- -> Applies only to natural persons
- -> Must be asserted to be effective
When witness has a reason to fear that answers to possible questions might tend to incriminate him/subject him to other prosecution w/in the US, he has a valid 5A privilege against self-incrim.
- -> Privilege may be asserted in any criminal, civil, or admin proceeding where incrim testimony can be used in subsequent prosecution (such as grand jury proceeding where trial may result).
- -> Privilege protects against admission of evidence that is testimonial in nature, but not against admission of real/physical evidence (blood, hair, etc)
Accused has right to waive privilege and give testimony.
–> When the govt questions an individual outside the trial setting, the purpose of the questioning determines whether the individual’s failure to affirmatively invoke the privilege constitutes a valid waiver.
Trial –> Privilege Against Self-Incrimination: Exceptions
Testimony for which the individual has been granted use or transactional immunity is not self-incriminating.
Use immunity
–> ensures that testimony of the witness will not be used against that witness
Transactional immunity
–> extremely broad and ensures that the witness will not be prosecuted for any crimes related to the entire transaction
Trial –> Double Jeopardy: In General
DJC is intended to prevent undue harassment and expense by eliminating risk of a D being punished twice for the same offense.
–> Applies to all crimes (even those punishable by fine only).
Same Offense
Crimes constitute the same offense for DJC purposes if one set of facts proves them both.
Lesser-Included Offenses
When a second offense contains all of the elements of a first offense (plus additional elements) then the first offense is a lesser-included offense of the second.
–> once DJ attached for the lesser-included offense, retrial is barred for the greater offense
–> likewise, once DJ has attached for greater offense, retrial barred for lesser included offense.
Exceptions to Lesser-Included Offenses
When at the time DJC attaches for the first offense all the elements of the second offense have not occurred, a later trial for the greater offense is permitted.
–> If pros wants to try closely related charges together, D may make motion for separate trials; however, if granted, D has waived any claim to DJ.
Constituting separate offenses:
(1) burglary and conspiracy to commit burglary
(2) driving while intox and invol mansla; and
(3) murder of more than one victim
Trial –> Double Jeopardy: When Jeopardy Attaches
Nonjury trial: when the first witness is sworn and the ct begins to hear evidence.
Jury trial: when the jury is impaneled and sworn
Civil fine: where truly a punishment, DJC triggered
GJ: when GJ fails to indict D (or hands down a no bill or no true bill) that D may again be indicted for the same offense (DJC does not attach).
Trial –> Double Jeopardy: Separate Sovereigns Doctrine
DJC prohibition does not prevent dual pros by separate sovereigns; therefore D may be prosecuted for the same crim conduct by:
(1) a fed ct and then by a state ct (or vice versa); or
(2) state cts in two separate states
However, local conviction does bar state conviction for same offense (same sovereign).
Trial –> Double Jeopardy: Retrial after DJ Attaches
Despite rule against DJ, retrial permitted if:
(1) D successfully appeals conviction because of error at trial; or
(2) the appeal was granted because of amount of evidence supporting conviction
Retrial following reversal of conviction
–> Where due to insuff evidence, retrial prohibited by DJC; however, retrial following reversal due to conviction being against weight of evidence not barred.
Retrial following mistrial
–> Retrial permitted where mistrial has been granted on D’s motion.
Retrial after acquittal
–> Not permitted
Sentencing –> D’s Rights
D has RTC during sentencing hearing.
D has right to remain silent (5A) at sentencing and no adverse inference may be drawn from that right.
During sentencing, ct may use hearsay evidence and testimony not subject to cross, OR evidence obtained in violation of the 4A.
- -> Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory max must be submitted to the jury and proved beyond a reasonable doubt
- -> However, D’s 6A rights violated when sentencing judge enhances sentence based on facts neither admitted by the D nor found by a jury
Sentencing –> Proportionality Requirement
In order to comply w/ the 8A, the sentence must be proportional to the crime committed and the sentences of other similarly situated criminals having conducted similar crimes.
–> Mandatory capital punishment for specified crimes, such as shooting a PO, is unconstitutional because it precludes consideration of mitigating factors.
Sentencing –> The Death Penalty
Not considered CAU punishment, nor grossly disproportionate to the crime, provided the ct’s review procedure affords procedural safeguards to prevent arbitrary/discriminatory sentencing:
(1) a bifurcated trial
(2) evidence concerning aggravating circumstances must be presented before imposing death penalty
(3) ct must review mitigating factors
(4) jury may not impose death sentence unless also permitted to return a verdict of guilty to a lesser-included offense supported by the evidence
(5) when capital D’s dangerousness at issue, and other option is LWOP, D entitled to tell jury he is ineligible for parole; and
(6) there must be a review procedure to prevent imposition of death penalty for arbitrary/discriminatory reasons
–> Execution of individuals under 18 at time of crime & mentally retarded individuals prohibited by 8A and 14A.
Sentencing –> The Jury’s Role in Punishment
No right to have jury determine sentence; even death penalty may be imposed by judge acting alone or w/ jury advisement as to sentence.
State statute may not exclude from a jury all individuals who express some opposition to the death penalty, but may exclude those who indicate they would never (under any circumstances) impose the death penalty.
Pleas –> Arraignment: Guilty Plea
If D pleads guilty and waives jury trial, the judge then determines if plea was voluntarily and intelligently made; judge must be personally certain the D understands:
(1) the nature of the charge against him
(2) the max possible sentence and any mandatory minimums
(3) the fact that he has a right not to plead guilty; and
(4) that by pleading guilty, the right to jury trial is waived.
A D may withdraw guilty plea and plead again when any form of error occurs during taking of the plea.
Pleas –> Arraignment: Plea Bargaining
A D may agree to plead guilty to an offense in return for the prosecutor’s recommendation of a lesser sentence or dismissal of a charge.
- -> D has right to enforce his plea bargain once the ct accepts the plea.
- -> Prosecutor need not reveal info about the impeachment of witnesses or affirmative defenses before the D enters into binding plea agreement.
Pleas –> Arraignment: Collateral Attacks on Guilty Pleas After Sentencing
On the theory that the D knew the risks involved before choosing to waive jury trial, the D does not have a right to collaterally attack a guilty plea for prior constitutional violations.
However, the D who pleads guilty is allowed to file a collateral attack:
(1) when the prosecutor fails to keep his promise;
(2) when the ct lacks jdx; or
(3) when ineffective assistance of counsel occurs
