Criminal Procedure Flashcards
Constitutional Rights Not Binding on States
Right to indictment by a grand jury for capital and infamous crimes is not binding on states
Seizure - General Definition
Any exercise of control by gov agent over a person (including arrests) or thing must be rx
What constitutes a seizure of a PERSON?
When under TOC, a rx person would feel they are not free to decline officer’s request or otherwise terminate encounter
When does an arrest occur?
When police take a person into custody against their will for purposes of criminal prosecution or interrogation
Probable Cause for Arrest
An arrest must be based on PC –
(1) Trustworthy facts or knowledge;
(2) Sufficient for a rx person to believe that the suspect has committed; or
(3) Is committing a crime for which arrest is authorized by law; and
(5) PC must be based on totality of circumstances (TOC)
Does an arrest require a warrant?
A warrant generally is NOT required before arresting a person in public place BUT police generally must have a warrant to effect a nonemergency arrest of a person in their home.
The officers executing the warrant may enter the suspect’s home only if there is a reason to believe suspect is within it.
Station House Detentions
Police must have full PC for arrest to bring a suspect to the station for questioning or fingerprinting against person’s will
What effect does an invalid arrest have on any subsequent prosecution?
Unlawful arrest by itself has NO impact on any subsequent criminal prosecution
Terry Stop - PC or RS?
Only require RS. Police have authority to briefly detain a person even if they lack PC to cause arrest.
-If police have RS of criminal activity or involvement in a completed crime supported by articulable facts (not hunch), they may detain a person for investigative purposes.
Frisk during Terry Stop - If police also have RS the detainee is armed and dangerous, they may frisk detainee for weapons.
Reasonable Suspicion (RS) Defined
More than just vague suspicion but less than PC. Whether police have RS depends on TOC
RS based on informants tip requires…
Indicia of reliability - including predictive info
Duration and Scope of Terry stop
- No time limit
- Police must act in a diligent and reasonable manner in confirming or dispelling their suspicions
- Police may ask detained person to identify themselves and may arrest the detainee for FAILURE to comply with such a request
Terry stop –> Arrest ?
Other PC for arrest arises during stop
Brief Property Seizures
valid if based on RS
Car stop requires…
RS to believe law has been violated
Is a dog sniff during a traffic stop a search?
No, so long as police do NOT extend the stop beyond the time needed to issue a ticket or conduct normal inquiries
Dog ‘alert’ to presence of drugs during traffic stop is basis of what?
PC for a search
Can police w/o PC use a drug sniffing dog outside the home of a suspected drug dealer?
NO
Police offers mistake of law & seizure
Does NOT invalidate a seizure so long as the mistake was reasonable
Seizure of all car occupants
Car stop is a seizure not only of driver but also of any passengers; thus, passengers have standing to raise wrongful stop as a reason to exclude evidence during stop
Informational checkpoints & roadblocks
- If police set up roadblock for purposes OTHER THAN SEEKING incriminating info about the drivers stopped, it is constitutional.
- If special law enforcement needs are involved, SCOTUS allows officers to set up roadblocks to stop cars w/o individual suspicion the driver violated some law; but roadblocks must:
(1) Stop cars on basis of some NEUTRAL, ARTICULABLE standard (every car); AND
(2) Designed to serve purposes closely related to a particular problem pertaining to cars and their mobility
Police may order occupants out
- After lawfully stopping a car, in interest of officer safety, officer may order occupants of car to get out.
- If officer rx believes detainees are armed, officer may frisk occupants and search passenger compartment for weapons even after officer has ordered occupants out
Pretextual Stops
If police have PC to believe driver violated traffic law, they may stop car even if their ULTERIOR motive is to investigate a crime that they lack sufficient cause to make a stop
Detention to obtain a warrant
If police have PC to believe a suspect has hidden drugs in home, they may, for rx time, prevent the suspect from going into home unaccompanied so that they can prevent suspect from destroying the drugs while they obtain a search warrant
Occupants of premises
A valid warrant to search for contraband allows police to detain occupants of premises during a proper search
Is Seizure of person by subpoena for a grand jury appearance within 4A protection?
NO!!!! Seizure of person by subpoena for a grand jury appearance is not within 4a protection
Deadly force
- 4A seizure exists when officer uses deadly force to apprehend a suspect
- Officer may not use deadly force UNLESS rx under circumstances
4A Analysis Steps
- Is there gov conduct?
- Is there standing?
- Is there valid warrant?
- If not, do exceptions to valid warrant apply?
What constitutes gov conduct? What does NOT?
4A protects only against gov conduct = officers, gov agents, private individuals acting at direction of public police
4A does not protect against searches by privately paid police UNELSS they are deputized as officers of the public police. Examples of private police are security guards, subdivision police, camp police
2 ways searches and seizures can implicate person’s 4A rights
1) Search/seizure by gov agent of a constitutionally protected area which individual has REP; OR
2) Physical intrusion by gov into constitutionally protected area to obtain info
Standing & REP
Person must have standing to object to gov search. To have 4A right, person must have their own REP w/ respect to PLACE searched or ITEM seized, determined by TOC.
Person has REP any time:
1) person owned or had right to possession of place searched
2) place searched was in fact their home, whether or not they owned or had right to possession OR
3) person was an overnight guest of the owner of place searched
“Sometimes” category of standing
Person owns the property seized has standing only if they have REP in item or area searched
Things held out to public & REP
No REP in objects held out to public, including info in hands of 3P, but REP in CSLI
Seizure of the following implicates NO right to privacy
- sound of your voice
- style of handwriting
- paint outside your car
- account records held by bank
- location of your car on public street or driveway
- anything that can be seen across open fields
- anything that can be seen from public airspace
- odors emanating from your luggage/car
- garbage SET OUT ON THE CURB FOR COLLECTION (not garbage set against your house)
GPS device on suspect’s car = search?
Yes! Need PC
Sense-enhancing technology = search?
If not in general public use, to obtain info from inside suspect’s home that could NOT otherwise be obtained w/o physical intrusion violates suspect’s expectation of privacy
Valid Warrant Requirements (2)
- PC
- Particularity
PC for Warrant
PC to believe that seizable evidence will be found on person or premises at the time the warrant is executed.
Officers must submit to magistrate an affidavit setting forth circumstances enabling magistrate to make determination of PC independent of officer’s conclusions
Use of Informers for Warrant
Affidavit based on informer’s tip must meet TOC, meaning informant’s RELIABILITY and CREDIBILITY on their basis of knowledge are relevant factors in making this determination. Identity not required.
3 requirements for defendant to establish the search warrant on the basis of an affidavit is invalid?
- Falsehood
- Intentionally/recklessly included
- Material to PC
* defendant is rarely successful in challenging affidavit
Police may reasonably rely on validity of warrant
Evidence obtained by police in rx reliance on a facially valid warrant may be used by prosecution despite an ultimate finding that the warrant was NOT supported by PC
Warrant must be precise on its face
must describe w/ particularly the PLACE to be searched and ITEMS to be seized. If it does NOT, the warrant is unconstitutional even if underlying affidavit gives such detail
Warrant may be anticipatory
Warrant can predict when illegal items may be in suspect’s home/office. Items need not be on the premises at the time the warrant is issued
Search of 3P premises permissible
warrant may be obtained to search premises belonging to non suspects if there is PC to believe that evidence will be found there
Neutral and detached magistrate requirement
magistrate who issues warrant must be neutral and detached - state attorney general is not neutral
Execution of warrant
- Only POLICE, not private citizens may execute a warrant and must be done w/o UNRX delay
- Police must knock, announce purpose, wait rx time for admittance - unless officer has RS, based on facts, announcing would be dangerous or futile or inhibit investigation
- Police may NOT be accompanied by 3P unless 3P present to aid identifying stolen property
- Scope of search is limited to what is rx necessary to discover items described in warrant
- Police may seize ANY CONTRABAND or FRUITS or INSTRUMENTALITIES of time that they discover, whether or not specified in warrant
Does violating knock and announce rule result in suppression of evidence?
No, exclusionary rule N/A
Search of person found on searched premises
- Warrant to search for CONTRABAND authorizes police to detain occupants of premises during search but search warrant DOES NOT authorize police to search persons found on premises who were NOT named in the warrant
- Neither does warrant give officers authority to follow, stop, detain and search persons who left premises shortly before warrant was executed
Detentions are limited to persons in the immediate vicinity of the premises when warrant is being executed - If police have reason to believe any person present is ARMED AND DANGEROUS, officer may conduct a Terry pay down for weapons
SILA
Search Incident to Lawful Arrest -
- Police may search person and areas into which they might reach to obtain weapons or destroy evidence
- Search must be contemporaneous in time and place w/ arrest, but w/ searches of cars, the term contemporaneous does not mean simultaneous; police may search interior of car AFTER securing occupant of car in a squad car if they have reason to believe the car contains evidence of crime for which the occupant was arrested
Protective sweep during SILA
Police may also make a protective sweep of the area if they believe accomplices are present
Geographic scope of SILA
person and areas within person’s wingspan
When can police search passenger compartment of car incident to arrest?
ONLY if at time of search:
(1) Arrestee is unsecured and still may gain access to interior of car OR
(2) Police rx believe evidence of offense for which the person was arrested may be found in the car
Technological Searches and SILA
Court balances degree to which the SILA intrudes upon person’s privacy against degree to which search is needed to promote gov interest
DUI Arrest - Breath & Blood Test
Justifies breath but not blood test
Violation of implied consent law
I.e., law that says by driving on roads, driver impliedly consents to blood test if stopped for intoxicated driving can be punished CIVILLY NOT criminally
What attributes of a cellphone can and cannot be searched upon arrest?
Officer can examine physical attribute of person’s cellphone upon arrest but not data w/o warrant
Search incident to incarceration or impoundment
At police station, police may make an inventory search of arrestee’s belongings pursuant to established dept procedure.
Police can make an inventory search of impounded vehicle - includes any containers
Automobile Exception
If police have PC to believe car contains:
(1) fruits
(2) instrumentalities or
(3) evidence
of a crime, they may search WHOLE vehicle and any container that might reasonably contain item for which they had PC to search
If warrantless search of car is valid, police may tow car to station to search later. BUT if car is parked within curtilage of suspect’s home, police may NOT search vehicle w/o warrant
If police have PC to believe a car itself is contraband, can they seize it from public place w/o a warrant?
YES
In car exception, can police search passenger’s (not just driver’s) belongings?
Yes. Search may extend to packages belonging to passenger; not limited to drivers.
PC to search only container in car
If police have PC only to search container in car, may search ONLY container, NOT other parts of car
Can PC to justify warrantless search of car under the car exception arise AFTER car is stopped?
Yes, but PC must arise BEFORE anything or anybody is searched.
Plain view doctrine
Police may make warrantless seizure when they:
(1) are legitimately on the premises
(2) discover evidence, fruits, or instrumentalities of crime/contraband
(3) see such evidence in plain view and
(4) have PC to believe – immediately apparent – that the item is evidence, contraband, or fruit or instrumentality of the crime
Consent search
Warrantless search is valid if police have a voluntary consent. Knowledge of right to withhold consent is not a prerequisite to establishing a voluntary consent. The scope of search may be limited to scope of consent. Generally extends to all areas which a rx person under rx circumstances would believe it extends
If the police lie that they have a warrant to search, and you “consent” – is this a consent search?
NO. It negates consent.
Authority to consent
Any person w/ apparent equal right to use/occupy property can consent to search and any evidence found may be used against the other owners or occupants
co-occupant OK’s search BUT present co-occupant objects to search that’s directed against him = consent search?
NOT a valid consent to search
co-occupant OK’s search BUT co-occupant has objected to search and is removed for a reason unrelated to the refusal = consent search?
police may act on consent of remaining occupant, even if removed co-occupant had refused consent
Terry stop versus frisk
Terry stop = brief detention for purpose of investigating suspicious conduct
Terry frisk = patdown of outer clothing and body to check for weapons
Standard to stop person w/o PC for arrest
if they have articulable and RS of criminal activity
May require detainee to state name and if officer reasonably believes person may be armed and presently dangerous, officer may conduct protective frisk
Is a stop an arrest?
No. Officer need not have PC for a stop. But needs to have reason to believe criminal activity afoot.
Scope of frisk
patdown of outer clothing unless officer has specific info that weapon is hidden in particular area of suspect’s clothing
Admissibility of evidence from frisk
during patdwon, officer may reach into suspect’s clothing and seize any item officer reasonably believes based on PLAIN FEEL is a weapon or contraband and such items are admissible evidence
Manipulated –> not plain feel
When can Terry stop –> Arrest?
If PC arises during stop. Then officer can conduct FULL SIA
Automobile Stops
If car properly stopped for traffic violation and officer reasonably believes that a driver or passenger may be armed and dangerous, officer may
(1) conduct a frisk of suspected person AND
(2) search car so long as it is limited to areas in which weapon may be placed
Evanescent Evidence
Evidence that might disappear quickly if police took time to get warrant (scrape under fingernails before washing hands)
Hot Pursuit
Police in hot pursuit of fleeing felon may make warrants search and seizure and may pursue suspect into private dwelling.
Can enter anyone’s home w/o warrant and any evidence they see in plain view = admissible
Warrantless entry - Fleeing person suspected of misdemeanor
Their flight does not always justify warrantless entry into home. Officer must consider all circumstances to determine whether there is a law enforcement emergency that justifies warrantless entry
Hot Pursuit - how many minutes?
If police are NOT within 15 minutes behind fleeing felon, not a hot pursuit that falls under exception
Emergency Aid Exception
Police may enter premises w/o warrant if officer faces an emergency that threatens health or safety of individual or public
Administrative inspections and searches
inspectors must have a warrant for searches of private residences and commercial buildings but PC required to obtain a warrant is more lenient than other searches = showing of general and neutral enforcement plan will justify issuance of a warrant
Not really tested
Exceptions permitting warrantless searches (long list)
- administrative searches to seize spoiled/contaminated food
- administrative searches of a business within a highly regulated area
- inventory searches of arrest or their vehicles pursuant to established dept procedure
- searches of prisoners before being admitted into general prison population
- searches of airline passengers before boarding
- searches of parolees and their homes even w.o reasonable grounds for the search as long as there is a statute authorizing it
- searches of gov employee’s desks and file cabinets where scope is rx and there is work-related need or rx suspicion of work-related misconduct
- drug tests of railroad employees involved in accident
- drug tests of person seeking customs employment in positions connected to drug interdiction
- drug test of public school students WHO PARTICIPATE IN EXTRACURRICULAR ACTIVITIES - even school dances!
Public school searches
Warrant/PC not required for public school officials to search public school students/possessions; only reasonable grounds for the search are necessary. School search is reasonable only if:
1) offers moderate chance of finding evidence of wrongdoing
2) measures adopted to carry out the search are reasonably related to the objectives of the search and
3) search is not excessively intrusive in light of age/sex of students and nature of infraction
Searches in foreign countries
4A n/a searches/seizures by US officials in foreign countries and involving aliens, at least where alien does not have substantial connection to US
Searches at border or equivalent
neither warrant, PC, RS needed to conduct search at US border due to national sovereignty interests
Roving patrols inside US border may stop a vehicle for questioning of occupants if an officer reasonably suspects that the vehicle contains undocumented aliens
Border officials may stop vehicle at fixed checkpoint inside border for questioning of occupants and may disassemble car w/o RS
Opening international mail
when postal authorities have rx cause to suspect that mail contains contraband
Immigration enforcement actions
immigration services may do factory survey of work force to determine citizenship of employees. even illegally obtained evidence may be used in CIVIL deportation hearings
Detentions
officials w/ RS that a traveler is smuggling contraband in their stomach may detain a travler
Wiretapping and Eavesdropping
Wiretapping constitutes a search and valid warrant for it can be issued if
(1) showing PC;
(2) suspected person involved convo to be overheard are named;
(3) warrant describes w/ particularity conversations that can be overheard
(4) wiretap is limited to short period of time
(5) wiretap is terminated when desired info has been obtained
(6) return is made to court, showing what convo has been intercepted
Exceptions - Unreliable Ear and Uninvited Ear
A speaker assumes risk that the person to whom they’re talking to consents to the gov monitoring the conversation OR is an informer wired for sound or taping conversation.
Speaker has NO 4A claim if they make NO attempt to keep a convo private
Pen Register
Device or process that traces outgoing signals from a specific phone or computer to their destination.
- Statute judicial approval required before it can be used.
Method of obtaining evidence that shocks conscience
evidence obtained in manner that shocks conscience – offends sense of justice – inadmissible under Due Process Clause.
If a crime is induced by official actions that shock conscience, any conviction stemming from those actions is unconstitutional
Defendant’s Confessions
The admissibility of a Defendant’s confessions, or other incriminating admission, involves analysis under the 4th, 5th, and 6th, and 14th Amendments.
14th Amendment - Voluntariness
For a self-incriminating statement to be admissible under the Due Process Clause, it must be voluntary, as determined by the totality of circumstances.
A statement will be involuntary only if there is some official compulsion (i.e. if the confession is a product of mental illness).
Harmless Error Test
If an involuntary confession is admitted into evidence, the harmless error test applies whereby the conviction need not be overturned if there is other overwhelming evidence of guilt.
6th Amendment Right to Counsel
Applies to all critical stages of prosecution after adversary judicial proceedings have begun.
Prohibits the police from deliberately eliciting an incriminating statement from a Defendant outside the presence of counsel after the Defendant has been charged unless the Defendant has waived their right to counsel.
Defendant who is arrested but not yet charged — triggers 5️⃣ or 6️⃣ Amendment right?
Does not have a 6th Amendment right to counsel but does have a 5th Amendment right to counsel under Miranda.
Stages When 6th Amendment Right to Counsel Applies
A Defendant has a right to be represented by privately retained counsel or to have counsel appointed for them by the state if the Defendant is indigent, at the following stages:
(1) Post-interrogation, whether or not custodial;
(2) Preliminary hearings to determine probable cause to prosecute;
(3) Arraignment;
(4) Post-charge lineups;
(5) Guilty plea and sentencing;
(6) Felony trials;
(7) Misdemeanor trials when imprisonment is actually imposed or when a suspended jail sentence is imposed;
(8) Overnight recesses during trial;
(9) Appeals as a matter of right’
(10) Appeals of guilty pleas
Stages When 6th Amendment Right to Counsel Does NOT Apply
(1) Blood sampling;
(2) Taking of handwriting or voice exemplars;
(3) Recharge or investigative lineups;
(4) Photo identifications;
(5) Preliminary hearings to determine probable cause to detain;
(6) Brief recess during Defendant’s testimony;
(7) Discretionary appeals;
(8) Parole and probate revocation proceedings;
(9) Post-conviction proceedings.
6th Amendment is Offense Specific
6th Amendment right to counsel is offense specific. Thus, even though a Defendant’s 6A rights have attached regarding the charge for which they are being held, the Defendant may be question regarding unrelated, uncharged offenses without violating 6A right to counsel.
Two offenses will be considered different if each requires proof of an additional element that the other crime does not require.
6th Amendment Right Can Be Waived
The waiver must be knowing and voluntary. However, the waiver does not necessarily require the presence of counsel, at least if counsel has not actually been requested by the defendant but rather was appointed by the court.
Remedy for 6A Violations
(1) At nontrivial proceedings, the harmless error rule applies to deprivations of counsel.
(2) But if the Defendant was entitled to a lawyer at trial, the failure to provide counsel results in automatic reversal of the conviction, even without a showing of specific unfairness in the proceedings.
(3) Erroneous disqualification of a privately retained counsel at trial results in automatic reversal.
Statement obtained in violation of a defendant’s 6A right to counsel = allowed for Impeachment? Limit?
YESSSS A statement obtained in violation of a defendant’s 6A right to counsel, while not admissible in the prosecution’s case-in-chief, may be used to impeach the defendant’s contrary trial testimony.
Miranda Warnings
Miranda warnings are required when a suspect is in custodial interrogation. For an admission or confession to be admissible under the 5A privilege against self-incrimination, a person in custody must, prior to interrogation, be informed, in substance, that:
Person must be told -
(1) Right to remain silent;
(2) Anything said can be used against them in court;
(3) Right to an attorney;
(4) If person cannot afford attorney, one will be appointed.
The warning does not need to be verbatim as long as it conveys the essence of what the warnings are.
Miranda Warnings are Required
Must give Miranda warning to anyone in custody of the gov’t and accused of a crime prior to interrogation by the police.
Miranda warning needed for interrogation by informant? 🕵🏻♀️
NOO!!! ❌🙅🏻♀️Miranda warnings necessary only if detainee knows they are being interrogated by government agent. The warnings are not necessary when the detainee is being interrogated by an informant whom the defendant does not know is working for the police.
Miranda Rights Inapplicable at Grand Jury Hearing
Miranda requirements do not apply to an uncharged witness testifying before a grand jury, even if the witness was compelled by subpoena to be there.
Two-Step Process for Determining Custody
(1) Freedom of movement test - Requires the court to determine whether a reasonable person under the circumstances would feel that they were free to terminate the interrogation and leave;
(2) Whether environment presents same inherently coercive pressures as a station house questioning.
The more constrained the suspect feels, the more likely the court will consider it to be custody. Custody can arise anywhere.
Interrogation Requirement
Interrogations includes any words or conduct by the police that they should know would likely elicit an incriminating response from the detainee.
Routine booking questions do NOT constitute interrogation.
Spontaneous Statements from Detainee
Miranda warnings are NOT required before spontaneous statements are made by a detainee.
Detainee’s Rights to Waive or Terminate Interrogations
After receiving Miranda warnings, a Detainee can:
(1) Do Nothing;
(2) Waive Rights;
(3) Invoke Right to Remain Silent;
(4) Invoke Right to Counsel
Do Nothing
If Detainee does not respond to all Miranda warnings, the court will not presume waiver, but neither will the court presume that the detainee has asserted a right to remain silent or consult w/ an attorney. Police may continue to question the Detainee.
Waive Rights
To be valid, the gov’t must show by a preponderance of the evidence that the waiver was knowing and voluntary. Court will look to the totality of circumstances in determining whether this standard was met. Gov’t can simply show that Detainee received Miranda warnings and then chose to answer questions.
Invoke Right to Remain Silent
Detainee’s indication that they wish to remain silent must be explicit, unambiguous, and unequivocal.
Police must scrupulously honor this request by not badgering the Detainee.
Supreme Court ONLY opinion on point: Police may reinitiate questioning when the police waited a significant amount of time, the person was re-Mirandized, and the questions were limited to a crime that was not the subject of the earlier questioning. (Questioning for a DIFFERENT crime)
Invoke Right to Counsel
Must be unambiguous indicates that they wish to speak to counsel.
All questions must cease until counsel has been provided unless the Detainee:
(1) Later waives right to counsel; or
(2) Released back to normal life and 14-days have passed since release.
Effect of Miranda Violation
Evidence generally inadmissible at trial under the exclusionary rule.
However, statements may be used to impeach defendant’s trial testimony but not used as evidence of guilt.
Warnings After Q’s and Confession
If the 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 be inadmissible if the “question first, warn later nature” of the questioning was intentional.
However, subsequent valid confession may be admissible if the original unwarned questioned seemed unplanned and the failure to give Miranda warnings seemed inadvertent.
Non-testimonial Fruits of an Unwarned Confession
If the police fail to give Miranda warnings and during interrogation a Detainee gives the police information that leads non-testimonial evidence, the evidence will be suppressed if the failure was purposeful, but if the failure was NOT purposeful, the evidence probably will not be suppressed.
Public Safety Exception to Miranda warning
Interrogation without Miranda warnings when it was reasonably prompted by a concern for public safety.
i.e. to locate a hidden gun that could have caused an injury to an innocent person.
Pretrial Identification under 6A
- Suspect has a right to the presence of an attorney at any post-charge lineup or show.
- An accused does not have a right to counsel at photo identifications or when police take physical evidence, such as handwriting exemplars or fingerprints.
Due Process Standard
Defendant can attack an identification as denying due process if the identification is:
(1) Unnecessarily suggestive; and
(2) There is a substantial likelihood of misidentification.
i.e. suspect of the crime being a while male and in the line-up defendant is the only white mail. This is suggestive and there is substantial likelihood of misidentification. Defendant’s due process standard will be in violation.
Remedy for Unconstitutional Identification
Exclusion of the in-court identification.
Independent Source Exception to identification
In-court identification with an independent source is OK even if there was an unconstitutional pretrial identification
(i.e. witness in question viewed the defendant close up for several minutes during the crime)
Suppression Hearing for identification - gov has burden of proving (3)
Admissibility of identification evidence should be determine at a suppression hearing the absence of the jury.
The government bears the burden of proving that:
(1) Counsel was present;
(2) Accused waived Counsel; or
(3) There is an independent source for the in-court identification.
Defendant must prove an alleged Due Process violation. Defendant has the right to testify at suppression hearing without their testimony being admitted against them at trial on the issue of guilt.
Exclusionary Rule
Prohibits introduction of evidence obtained in violation of a Defendant’s 4th, 5th, and 6th Amendment rights. Unconstitutionally obtained evidence is inadmissible at trial, and all “fruit of the poisonous tree” must also be excluded unless the costs of excluding the evidence outweigh the deterrent effect exclusion would have on police misconduct.
Fruit of the Poisonous Tree (FoPT)
Evidence obtained from exploitation of unconstitutionally obtained evidence.
Exceptions to FoPT
(1) Fruits derived from statements obtained in violation of Miranda;
(2) Evidence obtained from a source independent of the original illegality;
(3) Attenuation - Causal link between police misconduct and evidence is broken;
(4) Defendant’s intervening act of free will;
(5) Inevitable discovery - prosecution must show that the police would have discovered the evidence whether or not the police acted unconstitutionally;
(6) Violations of the knock and announce rule.
(3) INs Breaking the Chain
(1) Independent source;
(2) Intervening act of free will; or
(3) Inevitable discovery.
Live Witness Testimony
Difficult to have live witness testimony excluded on exclusionary rule grounds.
i.e. if a witness was identified through FoPT, court will likely still allow live witness testimony.
Can D exclude In-Court Identification based on fruit of unlawful detention?
NO! Defendant may not exclude a witness’s in-court identification on the ground that it is the fruit of an unlawful detention.
Out-of-Court Identifications
Unduly suggestive out-of-court identifications that create a substantial likelihood of misidentification can violate the Due Process Clause of the 14A.
Judged on a case-by-case basis under the totality of the circumstances. However, the Court will not consider applying the exclusionary rule unless the unnecessarily suggestive circumstances were arranged by the police.
Limitations to Exclusionary Rule
(1) Inapplicable to Grand Juries;
(2) Inapplicable to Parole Revocation Proceedings;
(3) Inapplicable to Good Faith Reliance on Law, Deffective Search Warrant, or Clerical Error.
Grand Juries - Exclusionary Rule
Exclusionary rule is inapplicable to grand juries unless evidence was obtained in violation of the federal wiretapping statute.
Parole Revocation Proceedings - Exclusionary Rule
Inapplicable to parole revocation proceedings, in civil proceedings, or where evidence was obtained contrary only to state law or agency rules.
Good Faith Reliance - Exclusionary Rule
Inapplicable when the police arrest someone erroneously but in good faith thinking that they were acting pursuant to valid arrest, warrant, search warrant, or law.
Good Faith Reliance - Exclusionary Rule EXCEPTIONS
(4) Exceptions to a good faith reliance on a defective warrant:
(1) Affidavit underlying that warrant is so lacking in probable cause that no rx police officer would have relied on it;
(2) Affidavit underlying the warrant is so lacking in particularity that no rx officer would have relied on it;
(3) Police officer or prosecutor lied to or misled the magistrate when seeking the warrant;
(4) Magistrate is biased and therefore has wholly abandoned their neutrality.
Use of Excluded Evidence for Impeachment
Some illegally obtained evidence may still be used to impeach the Defendant’s credibility if they take the stand at trial.
This includes:
(1) Voluntary confession taken in violation of Miranda admissible for impeachment;
(2) Evidence obtained from an illegal search may be used by the prosecution to impeach the defendant’s but not other’s statements.
Knock and Announce Rule Violations
Exclusion is NOT an available remedy for violations of K&A rule pertaining to the execution of a warrant. Evidence can be admitted.
Harmless Error Test
If illegal evidence admitted, conviction should be overturned on appeal unless gov’t can show beyond a reasonable doubt that error was harmless.
Enforcing the Exclusionary Rule
Defendant is entitled to have the admissibility of evidence or confession decided as a matter of law by a judge out of the hearing of the just.
Gov’t bears the burden of establishing the admissibility by preponderance of the evidence.
Preliminary Hearing to Determine PC
If probable cause (PC) has not already been determined and there are significant constraints on an arrestee’s liberty, a preliminary hearing to determine PC must be held within a reasonable time (usually within 48 hours).
Hearing is informal, nonadversarial proceeding.
Pretrial Detention - Bail
Bail can be set no higher than is necessary to assume the Defendant’s appearance at trial. Refusal to grant bail or the setting of excessive bail may be appealed immediately.
NOTE: However the Supreme Court has upheld portions of the federal Bail Reform Act that allow arrestees to be held without bail if they pose a danger or would fail to appear at trial.
Defendant Incompetent to Stand Trial
Standards for commitment and subsequent release of Defendants incompetent to stand trial must be essentially identical w/ those for commitment of persons not charged w/ a crime; otherwise is a denial of equal protection.
Use of Grand Jury Proceeding
5A right to indictment by Grand Jury has not been incorporated in the 14A but some state constitutions require grand jury indictment.
(1) Conducted in secret;
(2) Defendant has no right to notice;
(3) No right to Counsel, so no right to Miranda warnings;
(4) No right to have evidence excluded;
(5) No right to challenge subpoena on 4A grounds;
(6) Conviction from indictment issued by grand jury from which minority group excluded will be reversed without regard to the Harmless Error Doctrine.
Speedy Trial
Whether a 6A right to speedy trial has been violated is made by an evaluation of the totality of the circumstances. Factors considered are:
(1) Length of delay;
(2) Reason for delay;
(3) Whether Defendant asserted their right; and
(4) Prejudice to Defendant.
Remedy for a violation of the right to a speedy trial is dismissal w/ prejudice.
Right to Speedy Trial
Right to speedy trial does not attach until Defendant has been arrested or charged. If the Defendant is charged and is incarcerated in another jx, reasonable efforts must be used to obtain the presence of the Defendant.
Also, it’s a violation of the right to a speedy trial to permit the prosecution to indefinitely suspend charges.
Duty to Disclose Exculpatory Evidence
Gov’t has a duty to disclose material, exculpatory evidence to the Defendant if:
(1) Evidence is favorable to Defendant (because it either impeaches or is exculpatory); and
(2) Prejudice has resulted (reasonable probability that the result of the case would’ve been different if the undisclosed evidence had been presented at trial).
Notice of Alibi and Intent to Present Insanity Defense
If Defendant is going to use an alibi or insanity defense, they must notify the prosecution. If an alibi is to be used, the Defendant must give the prosecution a list of their witnesses.
Prosecution must give the Defendant a list of the witnesses it will use to rebut the defense. The prosecutor may not comment at trial on the Defendant’s failure to produce a witness named as supporting the alibi or on failure to present the alibi itself.
Insanity Defense
Insanity is a defense to a criminal charge based on the Defendant’s mental condition at the time they committed the charged crime.
A Defendant acquitted by reason of insanity may not be retried and convicted, although they may be hospitalized under some circumstances.
Insanity - Detention of Defendant
A Defendant who has successfully asserted the insanity defense may be confined to a mental hospital for a term longer than the maximum period of incarceration for the offense.
However, the Defendant cannot be indefinitely committed after regaining sanity merely because the Defendant is unable to prove thyself not dangerous to others.
Incompetency Defense
Incompetency to stand trial is NOT a defense to the charge, but rather is a bar to trial. It is based on the Defendant’s mental condition at the time of trial. If the Defendant later regains competency, they can then be tried and convicted.
Defendant is incompetent to stand trial if they:
(1) Lack a rational as well as factual understanding of the charges and proceedings; or
(2) Lack sufficient present ability to consult w/ their lawyer w/ a reasonable degree of understanding.
State may require Defendant to prove preponderance of the evidence, but cannot require to show clear and convincing evidence.
Pretrial Publicity
Excessive pretrial publicity prejudicial to the Defendant may require change of venue or retrial.
Right to Public Trial
6A and 14A guarantee the right to a public trial, but the right varies with the stage of the proceeding
Pretrial Proceedings
Preliminary probable cause hearings are presumptively open to the public and press, as are pretrial suppression hearings, although the latter may be closed to the public under limited circumstances.
Trial
Press and public have First Amendment right to attend the trial itself, even when the defense and prosecution agree to close it. The state may constitutionally permit televising criminal proceedings over the Defendant’s objection.
Right to Unbiased Judge
Due process is violated if Judge is shown to have:
(1) Actual malice against the Defendant; or
(2) Have a financial interest in having the trial result in a guilty verdict.
Impermissible bias also is present when a Judge earlier had significant, personal involvement as a prosecutor in a critical decision regarding the Defendant’s case.
NOT actual malice if the Judge states “I will give you maximum sentencing if you come back to my Court” and the Defendant is back in front of the same Judge.
Must Judge be Lawyer?
A Defendant in a minor misdemeanor prosecution has no right to have the trial judge be a lawyer if upon conviction the Defendant has a right to trial de novo in a Court with a lawyer-judge, but for serious crimes, the judge probably must be law-trained.
Due Process is Violated if:
(1) Trial is conducted in a manner making it unlikely that the jury gave the evidence reasonable consideration;
(2) State compels Defendant to take trial in prison clothing;
(3) State compels Defendant to stand trial or appear at penalty proceedings visibly shackled;
(4) Jury is exposed to influence favorable to the prosecution.
Items Used as Evidence at Trial
Due process does not require the police to preserve all items that might be used as exculpatory evidence at trial, but does prohibit bad faith destruction.
Right to a Jury Trial Only for Serious Offenses
There is no constitutional right to jury trial for petty offenses, but only for serious offenses. An offense is serious if imprisonment for more than 6-months is authorized.
There is not right to jury trial in juvenile delinquency proceedings.
Contempt Proceeding
There is no right to jury trial for civil contempt proceedings. For criminal contempt proceedings, more than 6-months cannot be imposed without affording the Defendant right to jury trial.
Probation
Judge may place a condemner on probation for up to 5 years without affording them the right to a jury trial as long as revocation of probation would not result in imprisonment for more than 6-months.
Number and Unanimity of Jurors
*There must be at least 6 jurors to satisfy the right to a jury trial, does not have to be 12;
* Just verdicts must be unanimous
Right to Venire Selected from Represented Cross-Section of Community
Defendant has a right to have the jury selected from a representative cross-section of the community. The Defendant need only show the underrepresentation of a distinct and numerical significant group in the venire to show their jury trial was violated.
Defendant does NOT have the right to proportional representation of all groups on their particular jury.
Preemptory Challenges
Generally, a prosecutor may exercise preemptory challenges for any reason, the Equal Protection Clause forbids the use of preemptory challenges to exclude potential jurors solely on account of their race or gender.
Equal Protection-based Attack on Preemptory
Defendant must show:
(1) Facts or circumstances that raise an inference that the exclusion was based on race or gender;
(2) Upon such showing, the prosecutor must come forward w/ race-neutral explanation for the strike;
(3) The judge then determines whether the prosecutor’s explanation was the genuine reason for striking the juror, or merely a pretext for purposeful discrimination.
If the Judge believes that the prosecutor was sincere, the strike may be upheld.
Challenges for Cause - Jury
Standard for determining when a prospective juror should be excluded for cause is whether the juror’s views would precent or substantially impair the performance of their duties in accordance w/ their instructions and oath.
Right to Questioning on Racial Bias
A Defendant is entitled to questioning on voir dire specifically directed to racial prejudice whenever race is bound up in the case or the Defendant is accused of an interracial capital crime.
Juror Opposition to Death Penalty
In capital punishment cases, a state may not automatically exclude for cause all those who express a doubt or scruple about the death penalty; it must be determined whether the juror’s views would prevent or substantially impair performance of their duties in accordance w/ their instructions and oath.
Juror Favoring Death Penalty
Defendant must be allowed to ask potential jurors if they’d automatically give the death penalty upon a guilty verdict. A juror who answers affirmatively must be excluded for cause because such a juror cannot perform their duties in accordance w/ instructions as to mitigating circumstances.
Right to Counsel
A Defendant has a right to counsel. Violation of this right at trial, including erroneous disqualification of the Defendant’s privately retained counsel, requires reversal. For nontrivial denials, the harmless error test is applied.
Right to counsel only applies in misdemeanor cases only if imprisonment is actually imposed.
Waiver of Right to Counsel at Trial and Right to Defend Oneself
A defendant has a right to defend themself at trial if, in the judgment of the judge, their waiver is:
(1) Knowing and intelligent; and
(2) Based on the trial judge’s consideration of the defendant’s emotion and psychological state, the Defendant is competent to proceed pro se.
Defendant does NOT have right to self-representation on appeal.
Effective Assistance of Counsel
6A right to counsel includes the right to effective counsel. This right extend to the first appeal. Effective assistance of counsel is generally presumed.
Ineffective Assistance of Counsel
An ineffective assistance claimant must show:
(1) Deficient performance by counsel;
(2) But for the deficiency, the result of proceeding would have been different.
Defendant must point out specific deficiencies and cannot base the claim on: Inexperience, lack of time to prepare, and gravity of the charges complexity of defenses, or accessibility of witnesses to counsel.
Plea Bargain - Ineffective Assistance Claim
Defendant must show deficient performance and reasonable possibility that the outcome of the plea process would’ve been different w/ competent advice. An attorney’s failure to notify a Defendant of a plea offer can constitute deficient performance if Defendant shows:
(1) Had the plea agreement been commented, the D likely would have accepted; and
(2) Plea likely would have been entered without the prosecutor’s canceling it.
Conflicts of Interest
Joint representation is not per se invalid. However, if an attorney advises the trial court of a resulting conflict of interest at or before trial, and the court refuses to appoint separate counsel, the Defendant is entitled to automatic reversal.
Conflict w/ Attorney
Defendant’s conflict of interest w/ their attorney is rarely a ground for relief.
No Right to Joint Representation
A Defendant has no right to be jointly represented w/ their co-defendants if the gov’t can show a potential conflict of interest.
Right to Support Services
If Defendant has made a showing to use the insanity defense, the state must provide a psychiatrist for the preparation of the defense.
Right Limited while Testifying
Defendant has no right to consult w/ their attorney while testifying and may be sequestered from their attorney during short breaks.
Defendant’s Choice Not To Testify at Trial
Prosecution is NOT allowed to comment on the Defendant’s failure to testify at trial, because the Defendant is privileged under the 5A to remain silent.
NOTE: Right to remain silent does NOT include the right to protect others from incrimination.
Right to Confront Witness
6A grants to a Defendant in a criminal prosecution the right to confront adverse witnesses.
The right is NOT absolute, so face-to-face confrontation is not required when preventing such confrontation serves an important public purpose. i.e. protecting child witnesses from trauma.
Judge may remove a disruptive defendant, and a defendant may voluntarily leave the courtroom during trial.
Introduction of Co-Defendant’s Confession
If (2) persons are tried together and one has given a confession that implicates the other, the right of confrontation prohibits use of that statement, even where the confession interlocks w/ the Defendant’s own confession, which is admitted.
However, such statement may be admitted if:
(1) All portions referring to the other defendant can be eliminated;
(2) Confessing defendant takes the stand and subjects themself to cross-examination w/ respect to the trust or falsity of what the statement asserts; or
(3) Confession of the non testifying co-defendant is being used to rebut the defendant’s claim that their confession was obtain coercively.
Confrontation Clause
Prior testimonial evidence may not be admitted unless:
(1) Declarant is unavailable; and
(2) Defendant had an opportunity to cross-examine the declarant at the time the statement was made.
What is Considered Testimonial?
Statements from a preliminary hearing, grand jury hearing, a former trial, or police interrogation conducted to establish or prove past acts.
Call to 911 or ongoing emergecy are not testimonial.
Results of Forensic Lab Testing
Forensic lab tests are testimonial so the person who did the testing must be available for cross-examination.
However, if the lab test results are not offered to prove the validity of the test results. I.e. to show that the private lab matched results from the state lab - showing the results match rather than validity of the results.
Burden of Proof
Due Process Clause requires in all criminal cases that the State prove guilt beyond a reasonable doubt. The presumption of innocence is a basic component of a fair trial.
(1) State must provide guilt beyond a reasonable doubt;
(2) Burden may be on defendant to prove affirmative defenses;
(3) Mandatory presumption or a presumption that shifts burden of proof to defendant violated 14A.
Taking the Guilty Plea
Judge must determine that the plea is:
(1) Voluntary and intelligent;
(2) Must be done by addressing the Defendant personally in open court on the record;
(3) Judge must be sure that the Defendant knows and understand things such as:
- Nature of the charge to which the plea is offered and the crucial elements of the crime charged;
- Maximum possible penalty and any mandatory minimum; and
- Defendant has right NOT to plead guilty and that if they do plead guilty, they waive the right to trial.
Attorney May Inform Defendant re: Taking Plea
Sufficient if the records indicate that the attorney, rather than the Judge, explained the nature of the charge and the elements of the crime to the Defendant rather than the Judge.
Remedy for Failure to meet standard for taking plea
Remedy for a failure to meet the standards for taking a plea is:
(1) Withdrawal of the plea; and
(2) Pleading anew.
Collateral Attack on Guilty Pleas - Reasons to Set Aside Plea
Pleas deemed as an intelligent choice among a defendant’s alternatives are immune from collateral attack. But a plea can be set aside if there is:
(1) Involuntariness;
(2) Lack of jx;
(3) Ineffective assistance of counsel;
(4) Failure to keep plea bargain.
Plea Bargaining
Plea bargain will be enforced against the prosecutor and defendant, but NOT against the judge, who does NOT have to accept plea.
A guilty plea is not involuntary merely because it was entered in response to the prosecution’s threat to charge the defendant with a more serious crime if they don’t plead guilty. There’s no prosecutorial vindictiveness in charging a more serious offense when defendant demands a jury trial.
Collateral Effects of Guilty Pleas
Guilty plea conviction may be used as conviction in other proceedings when relevant ie. basis for sentence enhancement. However, a guilty plea neither admits the legality of incriminating evidence nor waives 4A claims in a subsequent civil damages action.
Procedural Rights in Sentencing
Defendant has a right to counsel during sentencing.
Death Penalty
(1) Must be imposed under statutory scheme that gives jury reasonable discretion, full information, and guidance;
(2) No death penalty for rape if the rape was neither intended to result in nor did result in death;
(3) Cannot execute prisoner who is insane at the time of execution (even if the prisoner was sane at the time the crime was committed);
(4) No death penalty for person who is intellectually disabled;
(5) Execution of persons who were under 18 years old at the time they committed their offense violate the 8th Amendment.
No Right to Appeal
There is no federal constitutional right to an appeal.
Collateral Attack upon Conviction
After appeal is no longer available or has proven unsuccessful, defendants may generally still attack their convictions collaterally through Habeas Corpus proceeding
Habeas Corpus Proceeding
*An indigent has no right to appointed counsel;
*Petitioner has burden of proof to show unlawful detention by preponderance of evidence;
*State may appeal the grant of a writ of habeas corpus;
*Defendant generally may bring a have as petition only if the Defendant is in custody;
*This includes anyone who has not fully served the dented about which they wish to complain.
Right to Counsel at Parole and Probation Revocation
If revocation of probation also involves imposition of a NEW sentence, the Defendant is entitled to representation by counsel in all cases in which they are entitled to counsel lat trial.
Prisoner’s Rights - Due Process
Prison regulations impinge on due process rights only if it imposes:
(1) Atypical and significant hardship;
(2) In relation to the ordinary incidents of prison life.
No 4A Protection in Prison Cells
Prisoners have no reasonable expectation of privacy in their cells so no 4A protection w/ respect to searches of their cells.
Prisoners Right of Access to Courts
Prisoners must be given reasonable access to courts.
When does double jeopardy attach?
- In a jury trial at the empaneling and swearing of jury
- In a bench trial, when first witness is sworn
- Commencement of juvenile proceeding bars subsequent criminal trial for the same offense
- jeopardy does not attach in civil proceedings other than juvenile proceedings
5 Exceptions to Permitting Retrial Even if Jeopardy Has Attached
- State may retry D whose 1st trial ends in HUNG JURY
- A trial may be discontinued and D reprosecuted for same offense when there is MANIFEST NECESSITY to abort original trial / termination occurs at behest of D on any ground not constituting acquittal on merits
- A state may retry D who has successfully appealed conviction UNLESS the ground for reversal was insufficient to support a guilty verdict. Retrial is permitted when reversal is based on the weight (not sufficiency) of the evidence. But on retrial, D cannot be tried for a GREATER offense than the one for which they were convicted. A harsher offense may be imposed for reasons other than vindictiveness for taking an appeal. If jury found that the death penalty was not appropriate in 1st trial, death sentence may not be imposed at 2nd trial.
- Charges may be reinstated after D breaches their plea bargain
- If D could have been charged for multiple charges in a single trial but D elects to have offenses tried separately, jeopardy does NOT attach to 1sst trial for other charges.
When are 2 crimes the same offense for double jeopardy purposes?
2 crimes are same offense UNLESS each crime requires proof of additional element that the other does NOT require, even though some of the same facts may be necessary to prove both crimes
Cumulative punishments for offenses constituting same crime
Even if 2 crimes constitute same offense, multiple punishments are permissible if there was a LEGISLATIVE INTENT to have cumulative punishments
Lesser Included Offenses
- Attachment of jeopardy for a greater offense bars retrial for lesser included offenses
- Attachment of jeopardy for a lesser included offense bars retrial for a greater offense
New Trial Exception to Double Jeopardy Bar
An exception to the double jeopardy bar exists if unlawful conduct that is subsequently used to prove the greater offense
(1) Has not occurred at the time of prosecution for the lesser offense OR
(2) Has NOT been discovered despite due diligence
Similarly, retrial for murder is permitted if the victim dies after attachment of double jeopardy for battery
Effect of Plea on Related Offense
State may continue to prosecute charged offense despite D’s guilty plea to a lesser included or allied offense stemming from same incident
Conduct Used as a Sentence Enhancer
Double Jeopardy is NOT violated wen person is indicted fora crime the conduct of which was already used to enhance D’s sentence for another crime
Does double jeopardy prohibit civil actions against D even if D has already been criminally tried for the conduct out of which civil action arises?
No, only prohibits repetitive criminal prosecutions
Separate Sovereigns
A person may be tried for the same conduct by both state and federal gov or by 2 states but not by a state and its municipalities
Attachment does not matter if there are 2 separate sovereigns
Appeals by Prosecution
Even after jeopardy has attached, prosecution may appeal nay dismissal on D’s motion that does not constitute an acquittal on merits
Double Jeopardy Clause does not bar appeals by the prosecution if a successful appeal would not require a retrial
There is no bar to a government appeal of a
sentence pursuant to statute permitting such review.
However, if the jury fails to impose the death penalty, the prosecution may not seek the death penalty on retrial after successful appeal.
Who may assert privilege against self-incrimination?
any person in any type of case. Only natural persons may assert the privilege, not corporations or partnerships. The privilege is personal and so may be asserted by a defendant, witness, or party only if the answer to the question might tend to incriminate them
When can you assert privilege against self-incrimination?
A person may refuse to answer a question whenever their response might furnish a link in the chain of evidence needed to prosecute them.
The privilege must be claimed in civil proceedings to prevent the privilege from being waived for a later criminal prosecution
Method for invoking privilege against self-incrimination?
Criminal defendant has a right not to take the witness stand at trial and not to be asked to do so.
In any other situation, the privilege does not permit a person to avoid being sworn as a witness or being asked questions. Rather, the person must listen to the questions and specifically invoke the privilege rather than answer the questions
Merely being required to furnish one’s name after a Terry stop generally does not violate the Fifth Amendment because disclosure of one’s name generally poses no danger of incrimination
What is protected under self-incrimination privilege ?
ONLY testimonial or communicative evidence and not real or physical evidence
Testimonial = must relate a factual assertion or disclose information
Non-testimonial evidence
samples of a person’s blood, handwriting, voice, and hair, cheek swab after serious crime
Compulsory production of docs
A person served with a subpoena requiring production of documents tending to incriminate them generally has no basis in the privilege to refuse to comply, because the act of producing the documents does not involve testimonial self-incrimination
Seizure of Incriminating Documents
5A does not prohibit law enforcement officers from searching for and seizing documents tending to incriminate a person. The privilege protects against being compelled to communicate information, not against disclosure of communication made in the past
When does violation of self-incrimination privilege occur?
A violation of the Self-Incrimination Clause does not occur until a person’s compelled statements are used against them in a criminal case
2 Important Things About Self-Incrimination
- Only testimonial evidence is protected
- Only compelled testimonial evidence is privileged
Comments on Defendant’s Silence
A prosecutor may not comment on a defendant’s silence after being arrested and receiving Miranda warnings.
Neither may the prosecutor comment on a defendant’s failure to testify at trial.
However, a defendant, upon timely motion, is entitled to have the judge instruct the jury that they may not draw an adverse inference from the defendant’s failure to testify.
Moreover, the judge may offer this instruction sua sponte, even over the defendant’s objection
Can a prosecutor comment on a defendant’s failure to take the stand when the comment is in response to defense counsel’s assertion that the defendant was not allowed to explain their side of the story?
Yes
Silence Before Miranda Warnings
If a suspect chooses to remain silent before police read them their Miranda rights, that silence can be used against the suspect in court.
When a prosecutor impermissibly comments on a defendant’s silence, what test applies?
Harmless error test applies.
Penalties for failure to testify
The state may not chill exercise of the Fifth Amendment privilege against compelled self-incrimination by imposing penalties for failure to testify
May a witness be compelled to answer questions if granted adequate immunity from prosecution?
Yes
“Use and Derivative Use” Immunity
“Use and derivative use” immunity guarantees that the witness’s testimony and evidence located by means of the testimony will not be used against the witness.
However, the witness may still be prosecuted if the prosecutor shows that the evidence to be used against the witness was derived from a source independent of the immunized testimony.
Immunized Testimony Involuntary
Testimony obtained by a promise of immunity is coerced ==> involuntary.
Thus, immunized testimony may not be used for impeachment of a defendant’s testimony at trial. However, any immunized statements, whether true or untrue, can be used in a trial for perjury
Use of Testimony by Another Sovereign Prohibited
Federal prosecutors may not use evidence obtained as a result of a state grant of immunity, and vice versa
No Possibility of Incrimination
A person has no privilege against compelled self-incrimination if there is no possibility of incrimination (for example, SOL has run)
Immunity Scope
Immunity extends only to the offenses to which the question relates and does not protect against perjury committed during the immunized testimony
Waiver of Privilege
A criminal defendant, by taking the witness stand, waives the privilege to the extent necessary to subject them to any cross-examination. A witness waives the privilege only if they disclose incriminating information.
Delinquency proceeding requirements
The following rights must be given to a child during trial of a delinquency proceeding:
(1) written notice of charges,
(2) assistance of counsel,
(3) opportunity to confront and cross-examine witnesses,
(4) the right not to testify, and
(5) the right to have “guilt” established by proof beyond reasonable doubt
Is there a right to jury trial in delinquency proceedings
no right to trial by jury in delinquency proceedings.
When is pretrial detention of juvenile allowed?
Pretrial detention of a juvenile is allowed where it is found that the juvenile is a “serious risk” to society, as long as the detention is for a strictly limited time before trial may be held
Double Jeopardy - juvenile court
If the juvenile court adjudicates a child a delinquent, jeopardy has attached and the prohibition against double jeopardy prevents the child from being tried as an adult for the same behavior
Right to Pre-Seizure Notice and Hearing
The owner of personal property (and others with an interest in it) is not constitutionally entitled to notice and a hearing before the property is seized for purposes of a forfeiture proceeding.
A hearing is, however, required before final forfeiture of the property.
Where real property is seized, notice and an opportunity to be heard is required before the seizure of the real property unless the gov can prove that exigent circumstances justify immediate seizure
8A Excessive Fines Clause Scope?
Excessive Fines Clause of the 8A applies only to fines imposed as punishment; it does not apply to civil fines. Thus, penal forfeitures are subject to the Clause, but civil forfeitures are not
Penal Forfeiture
If a forfeiture is penal and the Clause applies, the forfeiture will not be “excessive” unless grossly disproportionate to the gravity of the offense
Civil In Rem Forfeitures
Civil in rem forfeitures generally are not subject to the Excessive Fines Clause. However, forfeitures made under the federal drug forfeiture statute are penal and therefore are subject to the Clause
Monetary Forfeitures - 8A?
Monetary forfeitures (for example, forfeiture of twice the value of illegally imported goods) brought in civil actions generally are not subject to the Eighth Amendment
Protection for innocent owner not required
The Due Process Clause does not require forfeiture statutes to provide an “innocent owner” defense (for example, a defense that the owner took all reasonable steps to avoid having the property used by another for illegal purposes), at least where the innocent owner voluntarily entrusted the property to the wrongdoer
