Criminal Procedure

Question 1

4th amendment

Answer 1

No unreasonable searches and seizures

Most: Probable cause

Sometimes: Reasonable suspicion

(1) state actor search/seizure?
- Search: reasonable expectation of privacy/property interest
- Seizure: reasonable person wouldn’t feel free to leave

(2) search/arrest warrant required?
- Required: in D’s home

(3) Reasonable suspicion/probable cause?
- warrantless arrest: probable cause
- warrantless search: probable cause/reasonably suspicion
– objective standard

(4) suppressed?

Question 2

Arrest

Answer 2

In public: Requires probable cause

D’s home: (1) arrest warrant, (2) reasonably believe D at home

D at another’s home: (1) arrest warrant, (2) search warrant for home

Question 3

Lesser seizures/Detain

Answer 3

Requires reasonable suspicion (specific and articulable facts)

Terry-stop: (1) reasonable suspicion, (2) frisk for weapons (not other items)

NOTE ON TERRY STOPS:
- (1) need reasonably suspicion for the initial terry stop
(2) ALSO need SEPARATE reasonable suspicion to frisk that D may be armed/dangerous

Question 4

Roadblocks

Answer 4

Only public safety concerns: drunk drivers/impaired driving

NOT general crimes: drug traffickers

Question 5

Search

Answer 5

Government intrudes upon D’s privacy/property interest

Privacy interest when D has reasonable expectation of privacy

NOTE:
- House and “curtilage” all private, while open fields are not

Question 6

Seizure

Answer 6

reasonable person wouldn’t feel free to leave

Question 7

Warrant requirement exceptions

Answer 7

(a) plain-view,
(b) emergency circumstances,
(c) search-incident to arrest,
(e) working automobile probable cause
(d) automobile search incident to arrest (whole car if probable cause, but only passenger compartment not trunk if no probable cause) (inventory search whole care without probable cause after impound),
(e) special needs exceptions (search students if reasonable suspicion, no suspicion border searches, railroad employees after accident)
(f) consent if (1) voluntary, (2) no improper behavior (3rd party can consent if (a) actual authority, or (b) police reasonably believe they had authority)

Question 8

Exclusionary rule

Answer 8

(1) evidence obtained by violating constitution is suppressed (2) criminal proceeding

NOTE:
- standing: only challenged by party whose rights violated
- only applies to criminal cases, not civil or immigration cases

Question 9

Fruit of poisonous tree

Answer 9

Evidence obtained from source originating from constitutional violation is also suppressed

Question 10

Exclusionary rule exceptions

Answer 10

(a) inevitable discovery,
(b) independent source (illegal search but later warrant based on independent information)
(c) taint attenuation (sufficiently far removed from illegal search),
(d) impeachment (can’t be used in case-in-chief but can be used to impeach)
(e) objective good faith (i) warrant, (ii) computer system, (iii) then existing legal precedent
- (BUT NOT: (i) not neutral judge, (ii) facially lacking probably cause, (iii) knowing/reckless assertions in the warrant)

Question 11

5th amendment

Answer 11

Right against self-incrimination if (1) testimonial (communicative), (2) state compulsion, (3) self-incriminating

D’s statement to law enforcement suppressed if not voluntary ((1) D’s free will, and (2) not police coercion
- coercive: explicit promises of leniency, lying about consequences
- voluntary: vague statements that suspect would benefit if cooperate, lying about evidence, intoxicated or mentally ill person’s statement still voluntary

Note:
- Always have right to invoke 5th and in CRIMINAL cases silence can’t be used as evidence, BUT in CIVIL cases can be used as evidence against D

Question 12

Miranda

Answer 12

(1) right to remain silent, (2) statements can be used at trial, (3) right to attorney, (4) free attorney

Miranda only applies to statements in (1) “custody” and under (2) interrogation
- “custody”: Physical restraint on par with arrest
- “interrogation”: actions likely to elicit incriminating response
- Doesn’t apply to: (a) police lineup, (b) trying on clothing, (c) providing handwriting/voice samples, (d) pre-existing documents (but can invoke if producing documents themselves would be incriminating)

Waiver: (1) knowingly, (2) intelligently, (3) voluntarily
- can be implicit

Invoking Miranda must be “unequivocal” (clear not wishy washy)

If invoke silence, officers can re-open questioning after significant amount of time has passed

If invoke attorney, officers can’t re-open questioning without attorney

Exceptions: (a) routine booking questions, (b) ongoing public safety threat
- Unlike 4th amendment fruit of poisonous tree exclusionary rule, evidence later obtained as a result of a confession in violation of Miranda is NOT suppressed

Question 13

Miranda suppression exceptions

Answer 13

(a) derivative evidence, (b) impeachment

Question 14

Miranda Immunity and court orders to testify even if D invokes right to remain silent

Answer 14

(a) testimonial immunity (immunity only from statements)

(b) derivative-use immunity (immunity from statements and evidence derived from it)

(c) transactional immunity (immunity from all prosecution relating to topic testimony covers)

• NOTE: If prosecutions seeks court order for D to testify against their self-incrimination rights, court must grant at least derivate-use or transactional to constitutionally require D to testify despite 5th amendment invocation

Question 15

Right to counsel

Answer 15

“attaches” once formally charged

right to attorney at all “critical stages” (when D’s rights may be lost)

Note:
- police may not put undercover officer in jail when D is represented
- Ineffective assistance of counsel: (1) performed deficiently, (2) prejudice, BUT presumed if (i) state interfered with counsel right, or (ii) D attorney had conflict of interest due to representing co-defendants

Question 16

Right to present a defense

Answer 16

testify or remain silent

Question 17

Right to be present at all “critical stages”

Answer 17

Can be waived through misconduct or voluntarily not appearing

Question 18

Burden of proof rules

Answer 18

• guilty beyond reasonable doubt by state
• affirmative defense burdens can be placed on D
• any fact that increases maximum sentence must be found by the jury
• permissive presumptions jury instructions are constitutional, but not mandatory ones (“you may presume D knew property was stolen” v “you must presume D knew property was stolen”

Question 19

Prosecutor duties

Answer 19

• P burden to disclose material exculpatory evidence
• D burden of proving reasonable probability result of trial would have been different with the evidence

Question 20

Speedy and public trial right

Answer 20

Speed: no brightline time rule but factors: (a) length of delay, (b) reason for delay, (c) when D asserted speedy trial right, (d) prejudice delay caused

Public trial: Closed trial only if “overriding interest and no lesser alternative”

Question 21

Confrontation clause

Answer 21

Right to confront witnesses who made “testimonial statements” (1) primary purpose to prove guilt, (2) not primary purpose to respond to ongoing emergency
- UNLESS: prior opportunity to cross-examine witness under oath

Question 22

Right to jury trial

Answer 22

all crimes with at least 6 months jail

minimum 6 members

decisions must be unanimous

jurors from fair-cross section of community

Any fact that enhances penalty beyond maximum must be found beyond reasonable doubt

Can only strike jurors for displaying actual bias, batson challenge (1) prima facie discrimination, (2) nondiscriminatory reason, (3) court decides if”mere pretext”

Question 23

Double Jeopardy Clause

Answer 23

(a) Cannot be tried twice for same “offense” (lesser offense consists of some same elements and no additional elements, or (b) collateral estoppel: same factual ground if conviction would be inconsistent with prior factual finding (ex: acquitted of manufacturing meth, sole defense had been it wasn’t meth, then indicted for possession with intent to distribute where same issue would be whether the drug was actually meth)

((NOTE: BOTH CRIMES NEED TO HAVE ONE UNIQUE ELEMENT FROM THE OTHER, NOT JUST 1 OF THEM) (permissible: crime 1 ABCD, crime 2 BCDE valid (A/E unique))
(not permissible: crime 1 ABCDE crime 2 BCDE (no unique for 2nd crime))

“jeopardy” attaches when (a) jury is sworn in, or (b) when first witness is sworn

• BUT: “duel-sovereignty doctrine”: D CAN be prosecuted for same offense by (a) 2 different states, or (b) state and fed government

If jeapordy had attached and then mistrial, only retried due to “manifest necessity”
- If D moved for mistrial, mistrial allowed UNLESS prosecution misconduct”goaded” mistrial
- If P moved for mistrial, D misconduct is “manifest necessity”, but forgetting to subpoena witnesses or locate evidence not manifest necessity

Question 24

Appeals

Answer 24

Double Jeopardy: State can’t appeal acquittal but can appeal pretrial rulings
- BUT: (1) jury convicts, (2) JNOV, THEN state can appeal

No constitutional right to appeal, except death penalty cases

But if granted right to appeal:
- (a) right to APPELLATE counsel at first level of appeal, but not subsequent hearings
- (b) right to effective APPELLATE counsel (1) deficient performance, and (2) reasonable probability conviction reversed

Preservation of issues: Must object at time of trial court ruling to preserve appeal
- EXCEPTIONS: (a) “plain-error” that clearly prejudiced, (b) non-compliance with procedural rule forgiven if rule newly announced without fair warning or applied inconsistently, (c) federal habeas appeal good cause for procedural default such as IAC

Standards of appeal
- harmless error: beyond reasonable doubt error didn’t contribute to conviction
- structural error: automatic reversal without proof of prejudice (exs: denial of public trial, denial of D representing themself, racial discrim in jury selection)

Retroactivity:
- new rule only applies to D’s whose convictions not yet final on direct appeal, BUT: (i) “fundamental” rules apply to all, (ii) “substantive” rules (ex: no execution of juveniles) applies to all

Question 25

Guilty pleas

Answer 25

(1) knowing, (2) intelligent, (3) voluntary
- court must tell D what constitutional rights they give up: confront witnesses, jury trial, right to remain silent etc.

Question 26

8th amendment Cruel and Unusual punishment

Answer 26

No grossly disproportionate punishments

NO DEATH PENALTY ALLOWED:
- Juveniles (under 18)
- intellectual disabled
- adults convicted of NON-HOMICIDE

NON-death penalty cases:
- no life without parole for juveniles convicted of NON-HOMICIDE
- no MANDATORY life without parole for juveniles convicted of homicide

Question 27

Pre-trial identifications

Answer 27

(1) impermissibly suggestive, (2) totality of circumstances

Question 28

Prosecutorial misconduct

Answer 28

(a) brady failure to disclose MATERIAL exculpatory evidence, (b) KNOWING presentation of perjured testimony
- material: reasonable probability result of trial different
- brady reversal: new trial if reasonable probability that but-for nondisclosure result of trial would have been different