Criminal Procedure Flashcards
Constitutional Criminal Protections applicable to states
Through the 14th Amendment due process clause
Supreme Court has made a few rules: Miranda & Exclusionary
Fourth Amendment
Right to be free from unreasonable searches and seizures of person and property by the government
Applies when there has been a government intrusion in a constitutionally protected area or an area in which the defendant has a reasonable expectation of privacy
Government intrusion = police or citizens acting at request of police
A seizure is:
- Based on totality of the circumstances
- Reasonable person would not feel free to decline officer’s requests and terminate the encounter
Arrest
An arrest is a seizure
- must be based on probable cause; trustworthy facts/knowledge sufficient for reasonable person to believe suspect has committed or is committing a crime for which an arrest is authorized
Public arrest = no warrant requirement
Arrest at home = warrant is required
Probable Cause
Reasonable grounds to believe that a crime has been committed and that the arrestee has committed it
- Hunch is NOT probable cause
- If officer observes commission of crime = probable cause
- When police officer makes a non-emergency arrest of person in OWN home –> arrest warrant required
Terry Stops
If police have reasonable suspicion of criminal activity/involvement in a crime, supported by articulable facts they may detain a person in a reasonable manner for investigative purposes
Look for these magic words:
- Investigatory detention
- Reasonable suspicion
- Articulable facts
- Totality of circumstances
must be brief if goes longer, it will be an arrest
Roadblocks
- Cars must be stopped on a neutral, articulable standard; and
- Be designed to serve purposes clearly related to a particular problem relating to automobiles and their mobility
Automobile Stops
Must have at least reasonable suspicion to believe law has been violated (even if other basis)
- constitutes a seizure of any passengers as well
- passengers have standing to raise wrongful stop
Was search/seizure valid under 4th Amendment?
- Government conduct? - police and their agents
- Valid standing? - only if reasonable expectation of privacy
- Valid warrant?
- Any exceptions to warrant requirement?
Standing to raise 4th Amendment Violation
Reasonable expectation of privacy; determined by totality of circumstances
- Places owned by person
- Person’s home
- Place where they are staying as overnight guest
- Nonpublic areas in his place of business
No reasonable expectation of privacy in:
- things held out to public (voice/smell of luggage/car)
- open field
- garbage at curb
- someone else’s home/business/car/personal effects
*smells inside home are the only type of smell that is protected. by 4th amendment
Knock and Announce
Police generally must knock and announce authority
- No knock entry permissible if officer has reasonable suspicion that knocking and announcing would be dangerous/inhibit investigation
- Evidence not excluded based on violation of knock and announce
Valid Warrant
Based on probable cause AND particularity; must describe with particularity the place to be search and items to be seized
- Issued by neutral and detached magistrate
- Invalid if based on material false statement that was intentionally/recklessly included
- Police generally must knock and announce authority
- Police entitled to look anywhere that item they’re looking for could reasonably be found (fact specific)
Search of Persons Found On Premises
Warrant to search for contraband authorizes police to detain occupants of the premises during a search, but not to search persons who were not named in the warrant
Exceptions to the Warrant Requirement - If any of these, evidence admissible even if warrantless search:
If not within these, then warrantless search is unconstitutional.
- Search incident to lawful arrest (contemporaneous)
- Automobile exception
- Plain View
- Consent
- Stop and Frisk
- Hot pursuit of fleeing felon (police within 15 minutes of felon)
- Evanescent Evidence
- Emergency Aid Exception
- Inventory searches incident to arrest
- Public school searches by school officials
- Mandatory drug testing
- Border searches
*4th amendment is not violated by a statute authorizing a warrantless search of a parolee’s home- even absent probable cause - if a statute provides for such searches! Parolee’s have diminished expectation of privacy and government has heightened interest in searching parolees homes.
Automobile Exception
- Probable cause to believe vehicle contains contraband or fruits, instrumentalities, or evidence of a crime
- May search anywhere in/on car where item that is subject of search may be found
- Contemporaneous not required
-can take and search later
*can arise after car is stopped, but MUST arise before arrest
*watch out for differences w/ “search incident to lawful arrest”
Consent Entitles Warrantless Seizure when:
Someone with apparent right to use or occupy property consents
- If suspect is present, can overrule
- Parent usually has authority to consent to search of child’s room if parent has access to it
- Consent can come from anyone with an apparent equal right to use/occupy the property
- If co-occupant denies entry then police cannot come in
Examples:
Fraternity/Sorority House Example
- anyone who lives there can consent to areas they are entitled (not other person’s bedroom, unless has access)
Overnight Visitor
- consent is valid if it comes from anyone with APPARENT authority to give consent
Plain View Entitles Police to Make Warantless Seizure when:
- Police legitimately on premises
- Discover evidence, fruits, instrumentalities of contraband
- See evidence in plain view;
- Have probable cause to believe that the item is evidence, contraband, or a fruit/instrumentality of the crime
*Immediately Apparent Requirement: - police cannot manipulate item to determine if it’s contraband;
- has to be obvious upon immediately looking at it
Example: can’t turn over computer to verify serial #
Stop and Frisk
During valid Terry stop, if police have reasonable belief that detainee is armed and dangerous; may pat down outer clothing for weapons and may seize anything that by plain feel is weapon/contraband
Public school searches by school officials are valid if reasonable:
- offers moderate chance of finding evidence of wrongdoing;
- Implemented through means reasonably related to objectives of the search;
- Search not excessively intrusive
Emergency Aid Exception
Police officer may enter premises without warrant if officer faces an emergency that threatens health/safety of individual or public
Mandatory Drug Testing
Upheld when serves a special need beyond the needs of law enforcement
- High school students in extracurriculars
- Government employees with access to drugs
Valid warrant may be authorized for wiretapping if:
- Probable cause
- Suspected persons in conversations to be heard are named
- Warrant describes with particularity conversations that can be overheard
- Wiretap limited to short period of time
- Wiretap terminated when desired information obtained
- Return made to court, showing what conversations have been intercepted
Uninvited/Unreliable Ear
Speaker has NO fourth amendment claim if they make no attempt to keep convo private
Violations of Sixth Amendment Right to Counsel
6th Amendment guarantees right to assistance of counsel in ALL criminal proceedings; all critical stages of prosecution after judicial proceedings have begun
*not applicable at pre-charge or investigative lineup
- Offense specific: pertains to only one crime and defendant must ask again if charged with separate, unrelated crime
- Waivable
- Statement made in violation of 6th Amendment not admissible to prove guilt, but can be used to impeach
Involuntary Confession / Violation of 14th Amendment
For self-incriminating statement to be admissible under due process clause –> must be voluntary
- Involuntary = official government compulsion
- harmless error test applies if involuntary confession erroneously admitted into evidence
- Totality of circumstances: age, education, setting, duration, abuse, etc.
- Torture of any kind makes confession involuntary
*lying to the defendant “I want to help you” –> does NOT make the confession involuntary
*If confession is involuntary, cannot be used to impeach!
5th Amendment Privilege Against Compelled Self-Incrimination = Miranda Warnings
- Right to remain silent
- Anything that is said may be used in court
- Right to an attorney
- If cannot afford attorney, will be appointed one
- must be given prior to custodial interrogation by police (doesn’t apply to informant or probation officer)
Custody Requirement for Miranda Warnings
- Whether a reasonable person under the circumstances would feel they were free to terminate the interrogation and leave?
- Whether environment presents the same inherently coercive pressures as type of station house questioning?
Two Common Ways Police Violate Miranda
- Failing to give appropriate warnings at the appropriate time
(before a custodial interrogation by police officer) - Failing to follow applicable rules after warnings have been given
Interrogation
Any police words or conduct designed to elicit an incriminating response
Waiver of Miranda
Rights must be EXPLICITLY invoked
- Right to remain silent
- Right to counsel
Waiving Right to Remain Silent
- Must be knowing and voluntary
- Judged under totality test
- If warnings given and defendant talked, then valid waiver
- If right claimed, request must be honored (cannot ask anything more)
- explicit, unambiguous, unequivocal
- allows police to reinitiate questioning when police wait significant amount of time and questions limited to a crime that was not subject to earlier questioning
Can continue questioning later for different reasons
Waiving Right to Counsel
- Detainee unambiguously states wishes to speak to counsel
- All questioning must cease
- Defendant may voluntary reinitiate questioning
Duration against questioning = 14 days after defendant returns to normal life (normal life can mean life behind bars if Defendant is in prison)
MUST STOP ALL QUESTIONING
Pretrial Identifications
- 6th Amendment right to counsel applies at any post-charge lineup or showup (not at photo identifications/fingerprints)
- Due process standard: unnecessarily suggestive identification procedures that give rise to a likelihood of misidentification violate due process
- Improper identifications excluded at trial
- If out of court identification excluded; in court identification allowed if from a source independent of the exlcuded identification
Fruit of the Poisonous Tree Doctrine
All evidence derived from the excluded evidence will also be excluded
Balancing Test for Excluding Evidence under Fruit of Poisonous Tree:
no exclusion if deterrent effect on police misconduct is outweighed by the costs of excluding probative evidence
Exclusionary Rule
Evidence obtained in violation of the defendants 4th, 5th, or 6th Amendment rights generally will be excluded to deter government violation of constitutional rights
Exceptions to Fruit of Poisonous Tree Doctrine / Where Illegally Obtained Evidence Will NOT Be Excluded Under Exclusionary Rule
- Evidence admitted from independent source
- Attenuation - intervening act/circumstance (act of free will)
Example: suspect returns to police station - Inevitable discovery by police
- Live witness testimony
- In-court identification
- Violation of no knock
- Good faith reliance on defective search warrant
- Impeachment - illegally obtained evidence will apply to be able to show person is not telling the truth
Court IS HOLDING:
- Even if there was a 4th amendment violation, the defendant is not getting the benefit of excluding the evidence
Exclusionary Rule Does NOT apply to:
- Grand juries
- Civil proceedings
- Violations of state law
- Violations of internal agency rules
- Proceedings to revoke parole
Harmless Error Test Applies to Exclusionary Rule
If it would have resulted despite improper evidence –> conviction upheld
If error had substantial and injurious effect or influence –> petitioner should be released
Preliminary Hearing
- Determines probable cause
- Not required if probable cause already found (grand jury/arrest warrant)
- Hearing must be within reasonable time - 48 hrs
Initial Appearance
- Happens soon after arrest
- Defendant told of charges, bail set, appointment of counsel if need
Bail
Most states: right to be released on bail unless capital charge
Can’t be set any higher than what is necessary to assure defendants appearance at trial
Excessive bail could be 8th amendment violation
Grand Juries
5th Amendment right to grand jury trial is not incorporated into 14th amendment; some states require
Grand juries have:
- secret proceedings;
- broad subpoena power;
- no right to counsel/miranda warnings
- no right to warning that witness could be a potential defendant
- can include evidence that would be inadmissible at trial
- no right to challenge subpoena for lack of probable cause
6th Amendment Right to Speedy Trial - Determining if it’s been violated
Judged under totality of circumstances:
- length of delay;
- reason for delay;
- whether defendant asserted rights;
- prejudice to defendant
Remedy: dismissal w/ prejudice
Right attaches on arrest/charging
Prosecutorial Duty to Disclose Exculpatory Information/Defenses
- Govt. must disclose exculpatory evidence
- Failure = due process violation if reasonable probability trial result would have been different if undisclosed evidence had been presented at trial
Competency to Stand Trial
At time of trial, D is not competent if:
1. Lacks rational and factual understanding of the charges and proceedings
2. Defendant lacks ability reasonably to consult with lawyer
*Trial judge has duty to raise if no one else does
*Burden to prove incompetency can be placed on defendant
*If D later regains competency –> can be tried/convicted
Excessive Pretrial Publicity
May require change of venue/retrial
Right to Trial by Jury
6th Amendment right to jury for serious offenses (imprisonment for more than 6 months)
- Must be at least 6 (no constitutional right to 12)
- Verdict must be unanimous
- D has right to representative cross-section
Representative cross-section
D only needs to show that the underrepresentation of distinct/numerically significant group in the venire (not petit jury) to show right to jury trial was violated
Right to Public Trial
- 6th/14th Amendments provide right to public trial
- Probable cause hearings presumably open to public
- Suppression hearings open unless:
- Party seeking closure has overriding interest
- Closure is no broader than necessary
- Other reasonable alternatives were considered
- Court makes findings to support closure
Peremptory Challenges
- Cannot be used in discriminatory manner;
- If D shoes facts/circumstanes raising inference of prejudice;
- Judge must determine prosecutor’s sincerity;
- Defendant similarly limited
Right to Impartial Jury
- Right to question on racial prejudice if race inextricably bound up or D accused of interracial capital crime
- Allowed to ask jurors if they would automatically give death penalty upon guilty verdict;
If answers affirmatively –> must be excluded if view would prevent/substanially impair duty
Confrontation Clause: Right to Confront Witnesses
6th Amendment grants the defendant in a criminal prosecution the right to confront adverse witnesses
*right not absolute
*face to face not required
Right to Counsel
- In misdemeanor cases, only available if imprisonment is actually imposed
- Waiver valid (can proceed pro se) if knowing and intelligent and D is competent
- Voluntary/intelligent if D has a rational and factual understanding of the proceeding
Effective Assistance of Counsel
Part of 6th Amendment Right to Counsel
- Effective assistance is presumed
- Ineffective if:
1. deficient performance;
2. but for deficiency, result of proceeding would have been different
*trial tactics are not ineffective assistance
*cannot be based on lack of time, lack of experience, gravity of charges, complexity of defenses, access to witnesses
*conflict of interest may be basis for removal / no joint representation
Co-defendants confession as part of Confrontation Clause
Confession implicating co-defendant is prohibited UNLESS:
- All portions referring to other D can be eliminated; or
- Confessing D takes stand and subjects himself to cross-examination;
- Confession of non-testifying co-defendant is being used to rebut the D’s claim that their confession was obtained coercively
Prior Testimonial Statement of Unavailable Witness
Inadmissible unless:
- Declarant is unavailable;
- Defendant had opportunity to cross-examine declarant at time statement was made
Testimonial Statements
- statements from preliminary hearing
- grand jury proceeding
- former trial
- police interrogation (unless police responding to ongoing emergency then not testimonial)
- results from forensic labs (unless the person who did testing is available for cross-examination)
Burden of Proof
Prosecution MUST prove beyond a reasonable doubt
- mandatory presumption shifting burden to defendant violates 14th amendment due process
**affirmative defenses (insanity) allows state to place the burden of proof on D
Taking a Guilty Plea
- Taking plea waives right to jury
- Judge must determine that plea is voluntary and intelligent
- Judge must address defendant personally on the record to ensure D knows:
- Nature of charge and crucial elements
- maximum possible charge and mandatory minimum
- right not to plead guilty
- by pleading guilty, D waives right to trial
*unfairly informed D not bound by the plea
*If Plea found to be intelligent choice –> D is NOT permitted to withdraw
Bases for Collateral Attack on Guilty Plea
- Plea involuntary
- Court lacked jurisdiction to take plea
- Ineffective assistance of counsel
- Failure of prosecutor to keep plea bargain
Right to Counsel Availability
Right to counsel during sentencing
NO constitutional right to appeal
8th Amendment
Prohibits punishment that is cruel/unusual; punishment is grossly disporportionate to offense
Death Penalty - Constitutional Rights
- Statutory scheme must give fact finder reasonable discretion, full information, and guidance in decision making
- Statute cannot be vague
- Application of death penalty:
- For murder –> valid
- For accomplice to felony murder –> valid if accomplice participated in a major way/acted with reckless disregard to value of human life
- For rape –> disproportionate/invalid
- If insane –> invalid
- If intellectually disabled –> invalid
- If younger than 18 when committed –> invalid
- Unconstitutional to make a status a crime
- Unconstitutional to sentence minor to life w/out parole for non-homicide crime
- Unconstitutional to provide harsher penalties than those demanding at trial
- Imprisonment of indigent for failure to pay fine violates equal protection
Appeals
- No right to Appeal
- If right to appeal granted by state law, then right to counsel applies at first appeal
- No right of self-representation
- New rules announced on direct appeal must be applied to all other cases on direct appeal
Habeus Corpus
- Civil action challenging lawfulness of detention
- Petitioner has burden to show unlawful detention by preponderance of evidence (burden shifts here)
- D must be “in custody” (bail/probation/parole)
Double Jeapordy
5th Amendment Right Applicable to States Through 14th Amendment
- D cannot be retried fro the same offense
When does jeopardy attach
- Jury trial - when jury empaneled/sworn in
- Bench trial - when first witness sworn in
- Juvenile proceedings - at commencement of proceeding
Exceptions permitting retrial
- Hung jury
- Mistrial for manifest necessity to abort original trial
- Retrial after successful appeal
- cannot be for more serious crime than crime convicted in first trial
Same Offense Requirement for Double Jeapordy
Blockburger Test: two crimes are NOT the same if each crime requires proof of an element the other does not require
- charges by separate sovereigns are not prohibited
*states municipalities are considered the same sovereign
Privilege Against Self-Incrimination - 5th Amendment
Applies to states through 14th Amendment
- Right for natural persons only (not corporations/partnerships)
- Applies only to testimony;
(not to physical evidence/documents)
Defendant can refuse to take stand altogether
- Prosecutor cannot comment on D’s silence after receiving Miranda warnings
UNLESS it’s a response to a claim of “no opportunity to explain”
*Witness other than D must take stand and invoke privilege question by question
If Defendant Takes Stand
Waives 5th Amendment Privilege against self-incrimination to the extent necessary to subject them to cross examination
- waives ONLY if they disclose incriminating information
Search Incident to Lawful Arrest (Exception to Warrant Requirement)
- Limited to D’s wingspan/area
- Wingspan/area travels with the D
- If police have reason to believe accomplice is present in the home, they can conduct a protective sweep of the home to look for accomplice
- When arrestee was recently sitting in car –> police entitled to search passenger car if they reasonably believe evidence of the offense may be found in the vehicle
@ Common Law: police could arrest someone for “disorderly conduct”
