Criminal Procedure

Question 1

Attorney-Client Privilege & Hiring 3rd Party

Answer 1

If a 3rd party is hired by an attorney to gather information in preparation for a criminal case, they would be considered a rep of the attorney and therefore any communications b/w the defendant/client and 3rd party are privileged & cannot be disclosed w/o a valid waiver from the def

Question 2

How to Compel a Witness to testify if They Claim Self-Incrimination?

Answer 2

A witness may be compelled to answer questions if granted adequate immunity from prosecution. A criminal defendant may be compelled to produce documents that have testimonial significance if immunity is granted to the defendant.

Transactional immunity: broader form of immunity & completely protects the witness from future prosecution for crimes related to his/her testimony

Use and Derivative use immunity: This is narrower. It prevents the prosecution only from using the witness’s own testimony or any evidence derived from the testimony against the witness.
-SC has held that immunity from subsequent use of compelled testimony is sufficient to satisfy the privilege against self-incrimination.

ex: prosecutor can compel production of diary of criminal def only if the suspect is granted use & derivative use immunity from the act of production. Use & derivative use immunity sufficiently protects the suspect’s constitutional privilege against self-incrimination.

Question 3

Detainee’s Invocation of Miranda Rights

Answer 3

As a general rule, police officers must scrupulously honor a detainee’s invocation of Miranda rights. If the invocation is not scrupulously honored, statements made by the detainee are inadmissible.

Prohibition against questioning a detainee after invoking Miranda rights lasts the entire time the detainee is in custody for interrogation purposes, plus 14 more days after the detainee returns to his normal life (which can include his “normal life” in jail)

Question 4

To obtain Postconviction Relief for Ineffective Assistance of Counsel, claimant must show:

Answer 4

Claimant must show:
1) defense counsel’s performance was deficient AND
2) the Deficiency was prejudicial (that, but for the deficiency, the outcome of the trial would have been different).

-Def must point out specific deficiencies, not vague allegations of inexperience, that will not suffice: cannot base the claim on inexperience, lack of time to prepare, the gravity of the charges, the complexity of defenses, or accessibility of witnesses to counsel

BUT, if counsel admits their client’s guilt in the face of def’s clearly articulated desire to maintain their innocence during the sentencing phase of trial, this structural error mandates a new trial without any need to first show prejudice

Plea Bargain Cases – to make out a 6A ineffective assistance claim in a plea bargain case, the def must show deficient performance and a reasonable possibility that the outcome of the plea process would have been different with competent advice
-Atty’s failure to notify a def of a plea offer can constitute deficient performance if def can show that: 1) had the plea agreement been communicated, the def likely would have accepted; and 2) the plea likely would have been entered w/o the prosecutor’s canceling it
-Fact that the def subsequently has a fair trial (after turning down a pela offer) does not prevent the ineffective assistance claim

“that there is a reasonable probability the trial’s outcome would have been different if the atty ___”

Question 5

Jury

Answer 5

Must be at least 6 jurors to satisfy the right to a jury trial under 6A & 14A. But, SC has held that when jury is composed of 6 ppl, their verdict has to be unanimous.

No constitutional right to have the final jury be a fair cross-section of the community. Constitution only requires that the jury be drawn from a fair cross-section of the community

Striking potential jurors on basis of race is a clear violation of the Equal Protection Clause

Question 6

Burden in Criminal Trials

Answer 6

In all criminal trials, the gov’t has the burden to prove all the elements of a crime beyond a reasonable doubt.

Defendant has to prove all affirmative defenses by a preponderance of the evidence.

Question 7

4A

Answer 7

4A prohibits unreasonable searches and seizures.

Question 8

Warrantless Searches & Seizures

Answer 8

As a general rule, warrantless searches and seizures in constitutionally protected areas are per se unreasonable absent an exception to the warrant requirement.

Question 9

Exceptions to Warrant Rqmt

Answer 9

1) Search Incident to Lawful Arrest
2) Automobile Exception
3) Plain View
4) Consent
5) Stop & Frisk
6) Exigent Circumstances: Hot Pursuit, Imminent Destruction of Evidence, Need to Prevent Escape, Prevent Danger to Community Police, Emergency Aid/Wellness Check
7) Admin Exceptions

Question 10

Miranda Warnings

Answer 10

Includes: Right to remain silent, Anything said can be used against them in court, Right to atty, If person can’t afford atty, one will be appointed.

Miranda warnings are required during custodial interrogation. Need 1) Custody + 2) Interrogation

Custody: 2-step determination
1) Freedom of movement test → whether a reasonable person would feel free to terminate interrogation and leave (totality of circumstances) and
2) Whether the environment presents the same inherently coercive pressures as station house questioning
-traffic stops are noncustodial given their brief nature!!

Interrogation Requirement
-Interrogation → any words or conduct by police that they should know would likely elicit an incriminating response
-Spontaneous statements → Miranda warnings not required before spontaneous statements, q has to say statement was “blurted out”

Question 11

Jury Selection

Answer 11

Jury selection is a critical stage of trial at which the defendant is entitled to be present.

Question 12

Valid Arrest Warrant & Entry into Home?

Answer 12

When police have a valid arrest warrant, they are not authorized to forcibly enter the home unless there is probable cause to believe the person named is on the premises.

Contrast with valid search warrant → Forced entry into a home, with a valid search warrant, is permissible when the person is believed to be inside and no response occurs.

Question 13

Pretextual Stops

Answer 13

Pretextual stops are constitutional (regardless of the officer’s subjective motivation) when there is probable cause to believe a traffic violation has occurred, such as speeding.

Question 14

Ordering Driver & Passenger out During a Lawful Traffic Stop

Answer 14

When a police officer has lawfully stopped a vehicle, in the interest of officer safety, the officer may order the occupants (driver and passengers out of the car)

Question 15

Guilty Plea

Answer 15

Court must establish that the guilty plea is voluntary and intelligent.

Judge must be sure that the defendant knows and understands:
1) the nature of the charges against him and the crucial elements of the crimes
2) the maximum possible penalty and any mandatory minimum
3) that he has the right to plead not guilty and that if he does plead guilty, he waives the right to trial.

If the defendant is not fully advised of each of his constitutional rights and/or does not knowingly and voluntarily waive each of those rights, the plea will be subject to a motion to set it aside.

Question 16

Emergency Aid Exception

Answer 16

Emergency aid exception to the warrant requirement allows officers to enter in order to render emergency assistance to an occupant (like preventing them from committing suicide or further injuring themselves) OR to protect an occupant from imminent injury.

Question 17

Cell-Site Data

Answer 17

Warrant (& with that probable cause) is required to collect extensive historical site-location data from a cell-phone provider

ex: 1 yr’s worth of site-location info → need a warrant or will be a violation of 4A

Question 18

Standing for 4A Claim

Answer 18

Only those whose 4A rights are violated by a search have standing to suppress illegally obtained evidence against them at trial.

1) Govt action involved in search or seizure
2) individual had a reasonable expectation of privacy w/ respect to the place searched or items seized
(Totality of circumstances)
3) Was there a valid warrant issued?
4) Does an exception to the warrant requirement apply?

Automatic categories of Standing:
1) Person owned or had right to possess place searched
2) Place searched is person’s home
(no matter whose conversation is recorded, as long as illegally overhead convo is happening in your property, regardless if you were a party to the convo)
3) Person is overnight guest of owner

Sometimes category of standing: if person owned property seized → have standing ONLY if they have a reasonable expectation of privacy in the item or area searched

Question 19

Stop & Frisk

Answer 19

Terry Stop – Officer can stop a person if he has a reasonable and articulable suspicion that the person is engaged in criminal activity or that criminal activity is afoot. Reasonable suspicion must be more than a hunch but is less than probable cause.

Reasonable suspicion is a totality of circumstances test!!

Frisk- if the officer also reasonably believes the person may be armed & presently dangerous, he may frisk the individual. Officer may conduct a protective frisk of the outer clothing of the individual. The officer may only reach into the persons clothing if he has probable cause to believe, based on plain feel, the object is a weapon or contraband. Officer may seize any item that officer reasonably believes, based on plain feel, is a weapon or contraband

If stop & frisk exception applies → evidence admitted at trial

If stop & frisk exception did not apply → evidence was obtained in violation of the 4A & is subject to the exclusionary rule.

Question 20

Exclusionary Rule

Answer 20

Any evidence obtained in violation of the 4A is inadmissible as well as any “fruit of the poisonous tree” which is any evidence that is derived from the illegal govt action unless an exception to the exclusionary rule applies.

EXCEPTIONS to Exclusionary Rule:

Independent Source Doctrine: if the evidence was discovered by an independent source unrelated to the taint, then it is admissible.

Inevitable Discovery Exception: if the evidence would have been discovered through a legal means despite the illegal action, the evidence would be admissible. Govt has to prove by a preponderance of the evidence that the evidence would have been discovered (Ex: police could have obtained a warrant)

Attenuation: Connection b/w illegal police conduct and a relevant piece of evidence can become so attenuated as to dissipate the taint & such evidence may be admitted. (Wong Sun) Intervening independent act of free will, several days before came back to station, had opportunity to get counsel, and was read Miranda before made confession at station.

-Factors Used to Determine Whether Attenuated to Dissipate the Taint:
1) Length of time – time elapsed b/w initial illegality & seizure of fruit in question
2) Flagrancy of initial misconduct – more deliberate/flagrant the violations, the more courts are likely to exclude evidence. bad-faith violations, violations that involve more poison, take longer to dissipate than good-faith violations
3) Existence or Absence of intervening causes of the seizure of the fruit,
4) Presence or Absence of an act of free will by defendant resulting in seizure of fruit

Question 21

Proper Remedy for Invalid Arrest

Answer 21

Dismissing the indictment is an improper remedy.

If police had no warrant that may indeed constitute a violation of their 4A rights. But, pay close attention to what the question is asking: dismissing the indictment would be an improper remedy. However, evidence collected as a fruit of an unlawful arrest may be inadmissible at trial.

Question 22

Peremptory Challenge

Answer 22

Can exclude juror on basis of any reason.

Cannot exclude juror solely on basis of race or gender.

Question 23

Challenges for Cause

Answer 23

Juror should be excluded for cause if juror’s view would prevent or substantially impair performance of duties

Question 24

6A Right to Counsel

Answer 24

6A provides def w/ right to counsel, kicks in ONLY after indictment (after suspect has been charged w/ a crime)

Look for facts where indictment has been issued, information filed, or some initiation of judicial proceedings against the person.

Person who is arrested but not yet charged does NOT have a 6A right to counsel, but might have a 5A right to counsel under Miranda.

6A Right to counsel does exist for:
1) post-charge lineups
2) arraignment

6A Right to counsel does NOT exist at an initial appearance

6A right to counsel is offense specific, so only attaches for the charge on which def is being held

6A issue usually comes up in jail cell interrogations. Unlike Miranda, 6A protections apply regardless of whether person realizes he is talking to the police.
Ex: “Hey what happened dude why are you here?” Since the perp doesn’t know his cellmate is working for the police, no Miranda warnings are required if the person is questioned in his cell. BUT, if the person has been charged, his 6A right to an atty might have been violated

If def claims his right to counsel was violated under 6A, prosecution must show there was a valid waiver of the right.

Question 25

Right to Waiver or Terminate Interrogation

Answer 25

Does Nothing: If detainee does nothing, Court will not presume a waiver, but neither will they presume the def has asserted a right to remain silent or consult w/ atty

Waiver: Detainee may waive rights under Miranda. To be valid, gov’t must show by a preponderance of evidence that the waiver was knowing and voluntary. Courts will look at totality of circumstances in determining if this standard was met (age of person, how long they’ve been there, low iq, have they not slept in a while).

Invocation of Right to Remain Silent: Must be explicit, unambiguous and unequivocal. “I invoke my right to silence.” Police must scrupulously honor request by not badgering detainee.
BIG DIFFERENCE b/w right to remain silence & invoking right to counsel. When invoking right to silence, can wait some time, re-Mirandize & ask questions unrelated to the crime. But cannot do that when invoked right to counsel.

Invocation of Right to Counsel: Must be unambiguous. “I want my attorney.” ALL questioning must cease until accused is provided with attorney unless accused:
a) initiates further questioning himself (essentially waiving right to counsel) OR
b) is released back to normal life & 14 days have passed since release

Question 26

Miranda Warnings After Questioning & Confession

Answer 26

Warnings After Questioning & Confession – if police obtain a confession from a detainee without giving them Miranda warnings and then give the detainee Miranda warnings and obtain a subsequent confession, the subsequent confession will NOT be admissible if the “question first, warn later” nature of the questioning was intentional (aka police were trying to get around the Miranda requirements).

But, a subsequent valid confession may be admissible if the original unwarned questioning seemed unplanned and the failure to give Miranda warnings seemed inadvertent

Question 27

5A Right to Counsel

Answer 27

Before formal charges have been filed against you.

5A right to counsel under Miranda applies only to custodial interrogations by police or one known to be an agent of the police.