Criminal Procedure Flashcards
Rights binding on the states
4th Am - searches and seizures and exclusionary rule
5th Am - self-incrimination and double jeopardy
6th Am - speedy trial, public trial, trial by jury, confront witnesses, compulsory process for confronting witnesses, effective assistance of counsel
8th Am - cruel and unusual punishment and excessive fines
Rights not binding on the states
Right to indictment by grand jury for capital and infamous crimes
Right to bail
4th Am Seizure
exercise of control by a government agent over the person or thing
When a seizure occurs and applicable test
Reasonable person would not feel free to terminate the encounter with police (“tough cookie”)
totality of the circumstances test
Arrest
Occurs when police take a person into custody against their will for criminal prosecution or interrogation
Probable Cause
trustworthy facts or knowledge sufficient for reasonable person to believe that crime has occurred
Requirements for arrest
in public, probable cause based on TOC
nonemergency arrest in a person’s home, warrant required
station house detentions, full PC for arrest
Effect of invalid arrest
arrest with no PC (unlawful arrest) has no impact on prosecution on it’s own
- later PC evidence = no problems
Terry stops
investigatory detentions or stop and frisks
police can briefly detain a person or property if there is reasonable suspicion of criminal activity supported by articulable facts (not just a hunch)
may conduct a pat-down (frisk) for weapons if there is RS that the detainee is armed and dangerous
Reasonable suspicion
more than vague suspicion but less than probable cause
TOC test
Reasonable suspicion based on informant’s tip
Must be an indicia of reliability, including predictive information, to be sufficient for RS
Duration and scope of Terry stops
not subject to specific time limit
police have enough time to diligently and reasonably confirm or dispel their suspicions
can ask for identification and arrest for failure to comply
may turn into an arrest if PC arises during stop
Automobile stops
police may stop a car if there is RS that a traffic law has been violated
Drug dog sniffs
Not a search during a traffic stop, as long as the police do not extend the stop beyond the time needed for the purpose of the stop
An alert from the dog during the traffic stop can give rise to PC for a search of the car
NO sniffs outside of the home of a suspected drug dealer without PC
Officer’s mistake of law
does not invalidate a search as long as the mistake was reasonable
E.g., believing that a vehicle must have two working brake lights when that is not the law
Seizure during an automobile stop and standing to challenge
Cops may order passengers out of the car during a stop
If cops reasonably believe there are weapons, they may frisk occupants and search passenger compartment for weapons
all passengers are considered seized during a car stop
all passengers have standing to raise a wrongful stop as a reason to exclude evidence found during the stop
Informational checkpoints and roadblocks
stopping cars without individualized suspicion
purposes other than seeking incriminating information about drivers stopped = constitutional
for law enforcement purposes = constitutional, as long as
1) cars are stopped based on a neutral, articulable standard (e.g., every other car) AND
2) purpose is closely related to problem pertaining to cars and their mobility (e.g., DUI checkpoint on NYE)
Pretextual stops
If there is PC that a driver violated a traffic law, police can stop the car, even if the ulterior motive is to investigate a crime for which they lack sufficient cause to make a stop
“hidden agenda” allowed if car stop was lawful
Other detentions
Preventing destruction of evidence inside the home until a warrant is obtained = must have PC
Search of the premises pursuant to a valid warrant
Seizure of a person by subpoena for a grand jury appearance = not protected by 4th Am
Deadly force to apprehend a suspect = 4th Am seizure
- no deadly force unless reasonable to do so under circumstances
Framework for analyzing search and seizure
- Is there governmental conduct? (Does the 4th Am right apply?)
- Is there standing?
(Does the person have a REP or was there physical intrusion into constitutionally protected area?) - Is there a valid warrant?
(Neutral magistrate, PC and reasonably precise?) - If no valid warrant, does one of the six exceptions apply?
Six exceptions to warrant requirement
- Search incident to arrest
- Automobile search
- Plain view
- Consent
- Stop and frisk
- Hot pursuit and exigent circumstances
Governmental conduct
police officers, government agents, private individuals acting at the direction of police
privately paid police ≠ government
4th Am protection against unreasonable search and seizure implicated when:
- there was a REP
- physical intrusion into constitutionally protected area
Standing to challenge a search
must have REP in object seized or place searched
Reasonable expectation of privacy
TOC standard
- person owned or had right to possess the place searched
- place searched is person’s home
- person is overnight guest of owner of place searched
Sometimes standing = owner of property seized, only if REP in item or area searched
Things with no REP (third parties)
Things held out to the public:
- sound of your voice
- style of your handwriting
- paint on outside of your car
- account records held by a bank
- location of your car on a public street or driveway
- anything seen across open fields
- anything seen from flying over public airspace
- odors from luggage or car
- garbage set out on curb for collection
Exceptions to third party rule and things out held to public
cell-site location information = search requiring warrant
GPS device = search requiring warrant
sense-enhancing technology not in general use to obtain information inside the home = search requiring warrant
Core requirements for a facially valid search warrant
- probable cause to believe that seizable evidence will be found at time of execution
- describe with particularity the place to be searched and items to be seized
- warrant MUST contain these details (can’t just be in underlying affidavit)
Affidavit based on informant’s tip
TOC test
- credibility and reliability of informant
- basis of knowledge
- can be anonymous
Test for invalidating affidavit:
- false statement was included by affiant
- affiant intentionally or recklessly included the false statement AND
- false statement was material to finding of PC
all three must be present - difficult rare for D to prove
Facially valid warrant not supported by PC
officers’ reasonable reliance on facially valid warrant = evidence can be used even if PC later found to be lacking
Anticipatory warrant
warrant that predicts when illegal items may be in a suspect’s home or office
items don’t need to be on premises at time warrant is ISSUED
Warrant execution
- only police may execute warrant
- no third parties allowed to accompany police unless they are there to ID stolen property
- violation of knock and announce rule ≠ suppression of evidence
- Persons in area can be detained during search of the area, but cannot be searched themselves unless they are NAMED in the warrant or if there is reason to believe they are armed and dangerous - then a Terry pat down for weapons is okay
Search incident to constitutional arrest
- police can search after a valid arrest
- any search incident to an invalid arrest is also invalid - police can make a protective sweep of the area
- to search for hidden weapons or evidence in person’s wingspan or any hidden accomplices - search must be contemporaneous in time and place with the arrest
Search of automobile incident to arrest
Gant rule = Police can search passenger compartment of a car incident to arrest IF at the time of the search:
1) arrestee is unsecured and may gain access to interior of car OR
2) police reasonably believe evidence of arrestable offense may be found in car
Does NOT include trunk of the car for SITA exception!
Technological searches
1) warrantless breath test permitted during DUI arrest but not blood test
2) violation of implied consent law (ie, by driving you consent to a blood test if stopped while drunk) can be punished CIVILLY but not criminally
3) physical attributes of cell phone may be searched but not data
Search incident to incarceration or impoundment
Inventory search during booking = police may search belongings pursuant to department procedure
Inventory search of an impounded car = includes searching vehicle and any containers within
Automobile exception
With PC that a vehicle contains evidence of a crime, police may search the entire vehicle and any container within that may reasonably contain evidence
- includes the trunk (unlike Gant rule)
- car parked on curtilage of a home requires a warrant
- PC that car itself is contraband = may seize from public place without a warrant
- if PC only to search a container (e.g., luggage inside the car), they may only search that container, not the whole car
PC for automobile exception
May arise after the car is stopped BUT BEFORE anything or anyone is searched
Plain view exception
Warrantless seizure allowed when police:
1) are legitimately (constitutionally) on premises
2) discover evidence or contraband
3) see such evidence in plain view
AND
4) have PC to believe the item is evidence or contraband
- must be IMMEDIATELY APPARENT that it is evidence
Consent exception
A warrantless search is valid if police have voluntary consent
Knowledge of right to withhold consent is not required for voluntariness
Scope of search limited by scope of consent
Never proper consent when police say they have a warrant (whether valid or not)!
Authority to consent to a search
- person with apparent equal right to use or occupy property may properly consent
- occupant can’t give valid consent when co-occupant is present and objects
- if objecting co-occupant is removed for unrelated reason, police may act on consent of remaining occupant
- parent with general access to their child’s room can give valid consent to search of the room (even if adult child)
Stop and frisk exception
brief detention for purpose of investigating suspicious conduct
Only requires articulable and reasonable suspicion for the stop
Pat down of outer clothing and body to check for weapons = must be plain feel
Plain feel = “flat hand” pat down
“manipulation” of object ≠ plain feel
Stop and frisk may give rise to PC leading to an arrest –> then SITA applies
Automobile stops
If car is properly stopped for a traffic violation and cop reasonably believes occupants may be armed and dangerous, the cop can:
1) conduct a frisk of suspected person and
2) search the vehicle in limited areas where weapon may be placed
Evanescent evidence exception
“fleeting” evidence that might disappear quickly if time is taken to obtain a warrant
Warrant still needed for a blood test, absent an exigent circumstance
Hot pursuit exception
Police in hot pursuit of a fleeing felon may make a warrantless search and seizure and may purse suspect into a home
- must be a FELON (not misdemeanant)
Hot pursuit = within 15 minutes behind fleeing felon
Emergency aid exception
Police may enter premises without a warrant if there is an emergency that threatens health or safety
Administrative searches and inspections
Inspectors must have warrant for searches of private residences and commercial buildings
Showing of general and neutral enforcement plan justifies issuing a warrant
2 key examples:
1) search of airline passengers before boarding a plane
2) drug tests of public school children involved in EC activities (including a school dance)
Public school searches
Public school officials may search students and/or their possessions if there are reasonable grounds for the search:
1) moderate chance of finding evidence
2) measures of searching are reasonably related to objectives of search and
3) search is not excessively intrusive in light of age and sex of student and nature of infraction
Searches at the border
No warrant, PC or RS is required for a search at the border
Vehicles inside the US border may be stopped:
1) for RS of carrying undocumented people and/or
2) at a fixed checkpoint for questioning/disassembling of vehicle, even without RS
Wiretapping
Search requiring a warrant, will be issued if:
1) showing of PC
2) suspected persons in conversations are named
3) conversations described in particularity
4) limited to short period
5) terminated once info obtained
6) intercepted conversations shown to the court
Exceptions to wiretapping warrant requirement
1) unreliable ear = speaker assumes risk that other person has consented to wiretap or is an informant
2) uninvited ear = no 4th am claim if no attempt to keep conversation private
Constitutional requirements for admissibility of a D’s confession
14th Am = voluntariness
6th Am = right to counsel
5th Am = privilege against self-incrimination and right to counsel
Voluntary confession
14th Am requires that a confession by voluntary (TOC test)
Official compulsion = involuntary confession
Admission of involuntary confession into evidence
Harmless error test applies = conviction not overturned if there is other overwhelming evidence of guilty
6th Amendment right to counsel
Attaches AFTER judicial proceedings have begun (e.g., charges filed)
Includes all critical stages of a prosecution
Offense specific = D may be questioned regarding unrelated, uncharged offenses
Critical states of prosecution
- post-indictment interrogation
- preliminary hearings for PC to prosecute (NOT to detain)
- arraignment
- post-charge lineups (NOT photo identifications)
- guilty plea and sentencing
- felony trials
- misdemeanor trials when imprisonment (or suspended jail sentence) actually imposed
- overnight recesses during trial (NOT brief recesses)
- appeals as a matter of right (NOT discretionary appeals)
- appeals of guilty pleas (NOT post-conviction proceedings)
Waiver of 6th Am right to counsel
May be waived
Must be knowing and voluntary
Does not require presence of counsel
Remedy for 6th Am RTC violations
Nontrial proceedings = harmless error
At trial = automatic reversal of conviction
- includes erroneous disqualification of privately retained counsel at trial
Violation of the 6th Am and impeachment
Statement obtained in violation of 6th Am RTC is not admissible in prosecution’s case in chief
BUT may be used to impeach D’s contrary trial testimony (if D takes stand)
5th Am privilege against compelled self-incrimination
Miranda warnings required PRIOR to custodial interrogation:
1) right to remain silent
2) anything said can be used against them in court
3) right to an attorney (NOT the 6th Am RTC)
4) if can’t afford attorney, one will be appointed
When Miranda warnings are required
1) governmental conduct = detainee KNOWS they are being interrogated by a government agent
- not required when an undercover informant
- not required for an uncharged witness at a grand jury hearing
2) custody = two-step process:
1 - freedom of movement test = reasonable person would feel free to terminate the encounter (TOC)
2 - environment presents same inherently coercive pressures as station house questioning
3) interrogation = any words or conduct by police that are reasonably calculated to elicit an incriminating response
- NOT spontaneous statements by detainee
- NOT routine booking questions
Right to waive Miranda rights or terminate interrogation
1) do nothing ≠ waiver BUT also not assertion of rights
2) waive rights = must be knowing and voluntary under TOC test
- age, IQ, length of detention, etc.
- burden of proof on govt by preponderance of the evidence
3) invocation of right to remain silent = must be explicit and unambiguous
- NO MORE QUESTIONING about ANYTHING after D invokes right (different from 6th Am right!)
4) invocation of RTC = must be unambiguous and all questioning must cease UNLESS:
1 - D then waives RTC (e.g., by reinitiating questioning on his own) or
2 - D is released from custodial interrogation and 14 days have passed
Invoking right to remain silent vs right to counsel
Right to remain silent = questioning MAY continue after enough time has passed and fresh warnings are given
Right to counsel = questioning must cease until RTC is then waived or counsel is obtained
Effect of violation of 5th Am
Evidence obtained in violation of Miranda is inadmissible under exclusionary rule UNLESS:
1) statements are used to impeach and not as evidence of guilt
2) failure to give warnings until after questioning and confession was unplanned and inadvertent = admissible as evidence
Public safety exception to Miranda
Interrogation without Miranda warnings allowed when it is reasonably prompted by a concern for public safety
- e.g., locating a hidden gun
Pretrial identification and 6th Am RTC
RTC for a post-charge lineup
NO RTC for photo identifications, fingerprints or handwriting samples
Due process standard for line-ups
DP denied if line-up is:
1) unnecessarily suggestive and
2) there is a substantial likelihood of misidentification
Remedy for unconstitutional line-up
Exclusion of in-court identification UNLESS
1) there is an independent source 9one that had the opportunity to observe D at time of the crime) OR
2) there is hearing on admissibility of evidence in which govt has burden of proving:
1- counsel was present
2- accused waived counsel OR
3 - independent source for in-court identification
Exclusionary rule
Judge-made doctrine that prohibits introduction of evidence obtained in violation of a D’s 4th, 5th, and 6th Am rights
Fruit of the poisonous tree = All evidence illegally obtained, and any evidence obtained in exploitation of the illegally obtained evidence, must be excluded
Exceptions to exclusionary rule
1) evidence derived from statements in violation of Miranda (if non-purposeful violation)
2) Evidence obtained from an independent source
3) Evidence is attenuated from illegality = causal link between police misconduct and evidence is broken
- includes intervening acts of free will by D
4) inevitable discovery = police would have discovered evidence regardless of misconduct
5) violations of knock and announce rule
6) live witness testimony
7) in-court identification
Limitations on exclusionary rule
inapplicable to:
1) grand juries
2) parole revocation
3) civil proceedings
4) evidence obtained in a manner contrary to state law only
5) good faith reliance on law, a defective search warrant or clerical error
6) evidence used for impeachment purposes only
7) otherwise voluntary confession taken in violation of Miranda
standard for wrongfully admitted evidence
Harmless error test applies
Conviction should be overturned on appeal unless govt can show BRD that the error was harmless
- overwhelming evidence of guilt = conviction would have results even without improper evidence
Does NOT apply to denial of RTC at trial - that error is never harmless
Enforcing exclusionary rule
D is entitled to have admissibility of evidence or confession decided by judge outside presence of jury
Govt bears burden of establishing admissibility be a preponderance of the evidence
Pretrial detention
If PC has not already been determined (e.g., arrest with a warrant) a preliminary hearing must be held within a reasonable time (e.g., 48 hours) of an arrest for D to be detained
Evidence discovered as a result of unlawful detention = excluded
Pre-trial detention and bail
Most states = right to be released on bail unless capital offense
federal Bail Reform Act = allows arrestees to be held without bail if they pose a danger or are a flight risk
8th Am ≠ right to bail in states
BUT a state’s arbitrary denial of bail if it provides for it violates due process
Grand juries: rights and proceedings
No right to indictment by grand jury in the states (not incorporated)
Proceedings:
1) conducted in secret - no right to notice, presence, confrontation
2) no right to counsel
3) no Miranda warnings
4) no exclusionary rule
5) no right to challenge subpoena
6) conviction resulting from indictment issued by GJ from which minorities were excluded = automatically reversed
- no harmless error rule
- only defect sufficient to squash GJ indictment
6th Am Right to speedy trial
Determination of violation based on TOC test
Factors:
1) length of delay
2) reason for delay
3) whether D asserted right
4) prejudice to D
Remedy for violation of speedy trial right
dismissal with prejudice
Attachment of right to speedy trial
Attaches once D is arrested or charged
Prosecution indefinitely suspending charges = violation of right
Duty to disclose exculpatory evidence
Affirmative duty on prosecution
Brady evidence:
1) evidence is favorable to D because it impeaches or is exculpatory AND
2) prejudice has resulted = reasonable probability that result of proceeding would have been different if evidence had been disclosed
Failure to disclose (whether willful or inadvertent) = violation of DPC and grounds for reversing conviction
Incompetency vs insanity
Incompetency = mental condition at the time of trial renders D unable to stand trial
- not a defense, but bar to trial
- trial may commence if D regains competency
Insanity = mental condition at time D committed the charged crime
- provides a defense for which D should be acquitted
- no retrial if acquitted
Standard for incompetency
Due process standard
D is incompetent to stand trial if:
1) lacks a rational and factual understanding of charges and proceedings OR
2) lacks sufficient present ability to consult with lawyer with reasonable degree of understanding
D may have to prove incompetence by preponderance of the evidence
- BUT imposing a clear and convincing standard is unconstitutional
Order of arguments in a trial
1) government argues
2) defense argues
3) government rebuts
Right to public trial
pretrial proceedings = presumptively open to public and press
pretrial suppression hearings = may be closed to public if party seeking closure has an overriding interest likely to be prejudiced by disclosure and no reasonable alternative besides closure
Trial = press and public have 1st Am right to attend trial, even when D and prosecution agree to close it
Right to unbiased judge
DP violated if judge has:
1) actual malice against D OR
2) financial interest in trial result
Right to trial by jury
Right only exists for offenses that could be punished by imprisonment for more than 6 months
No right to jury trial for misdemeanors, civil contempt proceedings, or in juvenile proceedings
Number of jurors
Constitution requires at least 6 jurors
Verdicts must be unanimous
Venire
D has right to have jury selected from a representative cross-section of the community
- cross-section rule applies to venire, but not final selected jury
Peremptory challenges
Generally may be used for any reason BUT EPC prevents challenges based solely on race or gender
Proving an unconstitutional peremptory strike
1) D must show facts or circumstances that raise an inference of exclusion based on race or gender
2) prosecutor must give ANY race-neutral explanation for the strike
3) judge determines if P’s reason was genuine or a pretext for discrimination –> if sincere, strike may be upheld
Challenges for cause
standard = whether juror’s views would prevent or substantially impair the performance of their duties in accordance with their instructions and oath
Right to impartial jury
- racial bias questions allowed if race is bound up in the case or D is accused on an interracial capital crime
- opposition to death penalty ≠ automatic exclusion
- proponent of death penalty if guilty verdict = excluded for cause
Sentence enhancement and the jury
If law provides that sentence may be increased beyond maximum with existence of certain facts, proof of those facts must be submitted to jury
Waiver of RTC at trial
D can waive RTC at trial if:
1) waiver is knowing and intelligent
2) D is competent to proceed pro se
Effective assistance of counsel
6th Am RTC includes right to effective counsel –> this right extends to the first appeal
Effective assistance presumed –> to prove IAC, D must show:
1) deficient performance by counsel AND
2) but for the deficient, result of proceeding would have been different
D must point out specific deficiencies NOT:
- inexperience
- lack of time to prepare
- gravity of charges
- complexity of defenses
- accessibility of witnesses to counsel
IAC and plea bargains/immigration cases
Plea bargains = attorney’s failure to notify D of a plea offer is deficient performance if:
1) had the plea offer been communicated
2) D would have accepted offer
3) plea likely would have been entered by prosecution
Immigration cases = deficient performance for attorney not to inform client whether their plea carries a risk of deportation
Right to confront witnesses
6th Am right to confront adverse witnesses
NOT an absolute right –> face-to-face confrontation is not required under certain public policy circumstances:
- e.g., protecting child witnesses from trauma
Introduction of Co-Defendant’s confession
A co-defendant’s confession implicating the D cannot be used, unless:
1) all portions referring to other D can be eliminated
2) confessing D takes the stand for cross-examination or
3) statement is being used to rebut D’s claim that confession was obtained coercively
Confrontation clause
Prior testimonial statements cannot be admitted UNLESS
1) declarant is unavailable AND
2) D had an opportunity to cross-examine declarant at the time the statement was made
Testimonial statements vs emergency statements
Testimonial = statement made with the purpose of future prosecution
Emergency = statements made to aid in an ongoing emergency
- NOT testimonial
Results of forensic lab testing and confrontation
Test results offered for the truth of the matter asserted = testimonial
Inadmissible unless person who did the testing is made available for cross-examination
Burden of proof in criminal trial
state must prove D’s guilt beyond a reasonable doubt –> any presumption shifting the burden to D violates 14th Am = govt must prove every element of the crime
D may have burden to prove affirmative defenses
Guilty plea
Must be voluntary and intelligent
Judge must address D personally, in open court, on the record and ensure D knows and understands:
1) nature of the charge and crucial elements of the crime charged
2) maximum possible penalty and any mandatory minimum
3) right not to plead guilty and that pleading waves the right to trial
Remedy for failure to do above = withdrawal of plea and pleading anew
P’s threat to charge with D more serious crime if they don’t plead guilty ≠ involuntary
Charging a more serious crime when D demands jury trial ≠ prosecutorial vindictiveness
Reasons to set aside plea bargain
1) involuntariness = failure to meet standards for taking a plea
2) lack of jurisdiction
3) ineffective assistance of counsel
4) failure to keep plea bargain
Enforcement of plea bargaining
Enforced against both prosecution and defense but NOT judge
Judge does not have to accept the plea
Constitutional rights in sentencing
1) right to counsel
2) NO right to confrontation or cross-examination
3) BUT more confrontation required in death penalty cases
Double jeopardy
5th Am right = person cannot be retried for same offense once jeopardy has attached
Jeopardy attaches when:
- jury trial = empaneling and swearing in of jury
- bench trial = when first witness is sworn
Exceptions to double jeopardy
1) first trial ends in hung jury
2) manifest necessity to abort first trial (e.g., medical emergency)
3) D successfully appeal conviction UNLESS ground for reversal was insufficient evidence
- BUT cannot be tried for more serious offense than conviction in second trial
4) D breached plea bargain
5) D could have been tried for multiple charges in a single trial, but chose to have offenses tried separately (jeopardy doesn’t attached to untried offenses)
Same offense for DJ purposes
Two crimes are the same offense UNLESS each crime requires proof of an additional element that the other does not require
Cumulative punishments for same offense
Multiple punishments for the same offense are permissible if there was legislative intent to have cumulative punishments
- e.g., D can be sentenced both for robbery and using a weapon during the commission of a crime if a statute provides
Lesser included offense
All elements of lesser offense are included within the crime of greater offense
Attachment of jeopardy for a greater offense bars retrial for lesser included offenses and vice versa
Exception = new evidence has been discovered that either:
1) had not occurred at time of prosecution of lesser offense OR
2) had not been discovered despite due diligence
Separate sovereigns and double jeopardy
DJ does not apply to trials by separate sovereigns:
1) state court and federal court = separate
2) two different states = separate
3) state and its municipalities = SAME
Appeals by prosecution
After jeopardy has attached, prosecution may appeal any dismissal that is not an acquittal on the merits
No bar is appeal would not require a retrial
No bar to govt appeal of a sentence pursuant to a statute permitting such review
Collateral estoppel
D cannot be tried or convicted of a crime if a proper prosecution by that sovereignty resulted in a factual determination inconsistent with one required for conviction
5th Am privilege against self-incrimination
May be asserted by any person in any type of case to avoid incrimination
Must be claimed in a civil proceeding to avoid being waived in a later criminal prosecution
How to invoke 5th Am privilege
Criminal D = right not to take witness stand at trial and not to be asked to do so
Anyone else = can still sworn in as witness and asked question –> must specifically invoke privilege rather than answer questions
Being asked to give one’s name during a Terry stop does NOT violate 5th Am (no danger of incrimination)
Scope of 5th Am protection
Protects TESTIMONIAL evidence, not physical evidence
Testimonial = relates a factual assertion or discloses information
Non-testimonial = samples of blood, handwriting, voice and hair
Compulsory production of documents = non-testimonial
Seizure of incrimination documents = non-testimonial
When does violation of 5th Am occur?
When a person’s compelled statements are used against them in a criminal case
Comments on D’s silence
Prosecution can NOT comment on D’s silence AFTER Miranda warnings OR D’s failure to testify at trial
- silence BEFORE Miranda warnings given can be commented on
Exception = prosecution may comment on D’s failure to take the stand IF D asserts that D was not allowed to explain their side of the story
Harmless error test applies if P impermissibly comments on D’s silence
Elimination of privilege
1) Grant of immunity = witness may be compelled to answer questions if granted adequate immunity from prosecution
- Use and derivative use immunity = sufficient
- W’s testimony and evidence located by means of testimony will not be used against W
- immunized testimony can NOT be used as impeachment of D’s testimony at trial
2) no possibility of incrimination = no privilege if they can’t be incriminated
- e.g., SOL has run
Waiver of 5th Am privilege
By taking witness stand, D waives privilege to extent necessary to subject them to cross-examination
