Criminal Procedure Flashcards
Plea Agreements**
A guilty plea waives certain constitutional rights. Therefore, a plea must be made voluntarily and knowingly.
A judge may become involved in the plea process before conviction. However, sentence bargaining (after conviction) cannot involve the judge. It is coercive and casts doubt on the neutrality of the judge (but responding to counsel’s questions is okay).
A plea agreement is a bargain - the defendant is giving up trial rights in exchange for a benefit. An illusory benefit in this bargain (e.g. promising not to file enhancement when the defendant is ineligible for enhancement) is improper.
A plea agreement can also be challenged if the defendant thought it had a higher benefit, and it in fact had a lower benefit.
Defects in the plea agreement allow the defendant to challenge the plea agreement.
Derivative-Use Immunity
Derivative-Use immunity is granted to a witness who testifies. The immunity provides that the witness’s own testimony or any evidence derived from that testimony cannot be used against the witness in a subsequent prosecution.
However, derivative-use does not protect against future civil litigation.
Peremptory Challenges
A peremptory challenge can be used in any manner that the attorney sees fit unless its use would violate the Equal Protection Clause.
The Equal Protection Clause prevents the use of peremptory challenges for racially or gender motivated reasons. Any other reason is permissible. Batson v. Kentucky.
Batson Challenge Process:
A prima facie showing (burden on challenger) of discrimination in violation of the Equal Protection Clause requires 3 elements:
1. defendant is a member of a cognizable racial group (need not be a minority group)
2. peremptory challenges are being exercised to exclude members of a certain racial group
3. the circumstances raise an inference that the exclusion was based on race
In response, the party that excused the jurors must be able to articulate a race-neutral or gender-neutral basis for the use of his peremptory challenges. The explanation must be related to the case being tried and have some level of specificity.
The court then decides whether the explanations are credible. If they are a mere pretext, the peremptory challenges are vacated. If they are credible, then they are affirmed.
Seizure
A seizure takes place when, in view of the totality of the circumstances, a reasonable person would conclude that he or she is not free to leave. (Objective, not subjective).
Any seizure requires probable cause.
Fifth Amendment Privilege**
The Fifth Amendment privilege allows an individual to refuse to testify against himself. That is limited to testimonial evidence, and does not include physical or real evidence. An answer to a question ABOUT real evidence may be considered testimonial evidence and thus, protected by the Fifth Amendment.
An individual can invoke the privilege in civil proceedings if the testimony could be used against him in a future criminal proceeding.
In Michigan, The Fifth Amendment privilege is not self-executing. This means that failure to raise the privilege means that it is waived.
In Michigan, the Fifth Amendment privilege extends to sentencing hearings, but it does not extend to degree hearings (E.g. determining whether it is first degree or second degree as a separate matter).
Knock And Announce Rule
Knock and Announce is an exception to the exclusionary rule. Knock and Announce means that, while police are required to knock on the door and announce their lawful presence when executing a warrant, failure to do so does not invoke the exclusionary rule.
E.g. O has a search warrant for A’s house. O does not wait for A to answer the door before O enters the home to execute the warrant. O finds drugs not described in the warrant in plain view. Those drugs are not excluded because, despite not knocking and announcing, the warrant and search are valid.
Eighth Amendment Right against Cruel and Unusual Punishment
The prohibition on cruel and unusual punishment means that some sentences that are grossly disproportionate to the crime may be unconstitutional. Life sentences, even for non-violent crimes, do not violate the Eighth Amendment.
Deplorable prison conditions and or treatment while incarcerated may also be unconstitutional.
Warrantless Arrests
Arrest warrants are not needed to arrest an individual in a public place for a felony or misdemeanor in done in the officer’s presence.
An invalid warrantless arrest may suppress evidence seized unless an exception applies.
Reasonable Expectation of Privacy
A reasonable expectation of privacy exists in the home, a private room, or an office. It extends to the curtilage. It may also include motel rooms.
There is no expectation of privacy in anything that can be detected with the five senses (including odors). Technology cannot be used to reveal what the five senses might not otherwise reveal (e.g. thermo vision).
There is no expectation of privacy in areas beyond the curtilage, especially if they are open (e.g. open field).
The use of a drug-sniffing dog is a search if the dog enters the property that is entitled to privacy.
Luggage is reasonably private against intrusive searches but not to drug-sniffing dogs.
There are lowered expectations of privacy in an automobile. Only reasonable suspicion, rather than probable cause, is required to conduct a valid traffic stop.
Pre-textual stops are prohibited unless there is probable cause for the pre-textual crime.
Sobriety checkpoints are federally constitutional but prohibited under the Michigan constitution.
Search and Seizure
Both the federal and state constitutions guarantee the right to be safe from unreasonable searches and seizures. Because this is a constitutional right, it limits state action and in most cases the actions of state agents.
A search is defined as an invasion of a reasonably held expectation of privacy.
Therefore, there are 3 elements for an illegal search and seizure:
- The government or a government actor
- invades a reasonable (objective) expectation of privacy
- unreasonably (objective)
If evidence is obtained in violation of this constitutional provision, then the evidence is to be suppressed under the exclusionary rule, unless an exception applies.
Michigan will not apply the exclusionary rule if the law is not explicitly clear as to what government conduct it prohibits.
Exclusionary Rule Exceptions
- Inevitable Discovery (through other lawful means)
- Independent source (untainted source)
- Attenuation (chain of causation from taint to evidence is too attenuated to warrant exclusion)
- Good-Faith (Officer was acting in good faith AND had a facially valid warrant)
- Isolated Police Negligence
- Knock and Announce
- In-Court Identification (but other testimony may be excluded if it is linked to impermissible police conduct)
Warrant Requirement
A warrant is required for a government to conduct a lawful search.
A warrant must be:
- issued by a neutral magistrate
- based on probable cause
- supported by oath or affidavit
The warrant must describe the places to be searched and the items to be seized with some specificity.
However, there are MANY exceptions to the warrant requirement.
Warrant Requirement Exceptions**
CAFE ASP (coffee snake)
C - Consent (Voluntary but not knowing - e.g. police officer does not have to say he is a police officer) (Cannot give consent for another person unless authorized to do so)
A - Automobile (Remember that traffic stops are based on reasonable suspicion of a traffic violation. The traffic stop likely does not supply a need to search the automobile. If PROBABLE CAUSE there is contraband or evidence within the car or within the container arsises, then the car can be searched.)
F - Stop and Frisk (Reasonable suspicion based on ARTICULABLE facts that there is criminal activity permits a brief stop and frisk. The frisk is a pat down only to ensure the officer’s safety. Anything confiscated can only be confiscated under the plain feel/plain smell exception. A stop and frisk can extend to a passenger compartment of the vehicle if there is a belief of immediate access to weapons, so the officer can only search where weapons may fit and be reached).
E - Exigent Circumstances (If, under the totality of the circumstances there is exigent circumstance + probable cause, then a warrant is not required. Exigent circumstances include hot pursuit or emergency that would make the delay of a warrant inappropriate e.g. public safety or evidence readily destroyable. Seizure is limited only to mere evidence - not the fruits and instrumentalities - of a crime).
A - Search incident to lawful arrest (the reaching distance of the arrestee may be searched for weapons or destructible evidence. In a car, search may extend to wherever there is a reasonable belief that evidence of the ARRESTED offense might be located (e.g. can’t look in wallet for firearm felony))
S - Special (Admin/Inventory) - (Administrative search warrants are required for nonconsensual searches of residential or commercial (private) property or to routine/highly regulated places if the search is regulated and does not require any discretion, like impounding vehicles or liquor stores)
P - Plain View Doctrine (plain view includes any of the five senses of an officer wherever he may lawfully be standing e.g. seeing contraband in a window or smelling marijuana through a door)
Miranda v. Arizona
Miranda rights are not found in the Fifth Amendment. Instead, Miranda rights were created to safeguard the rights of the Fifth Amendment, including the right not to incriminate yourself, by requiring that police officer inform you of your rights before any custodial interrogation.
If there is custodial interrogation (custody + interrogation) then anything said during that interrogation cannot be used if you were not Mirandized or if you attempted to invoke your rights to a lawyer/remained silent.
Custody - when, based on the totality of the circumstances, the defendant reasonably (objective) believes that she is not free to leave
Interrogation - any words OR actions that are reasonably likely to elicit a confession or other incriminating statement.
Confrontation Clause
The Sixth Amendment gives a criminal defendant the right to confront witnesses against him. This right means that the defendant has a right to cross-examine that witness.
Evidence may be inadmissible as unconstitutional per the confrontational clause if:
- There is a witness against the defendant
- The witness is providing TESTIMONIAL evidence
- The witness is not present at the trial
- The defendant had no prior opportunity to cross that witness
Testimonial evidence is evidence made in any formal report setting, such as but not limited to, interrogations, affidavits, depositions, laboratory, and other scientific report incidents.
Non-testimonial evidence is casual statements, like conversations with friends.
Note that if a statement is made to police for the purpose of helping resolve an EMERGENCY, then the statement will not be testimonial, despite the fact that almost any comment to police is testimonial.
This often looks like a hearsay problem, because hearsay often cannot be admitted per the confrontation clause. Note that while the statement may qualify under a hearsay exception, it is still unconstitutional if the above elements are met.
