Criminal Procedure Flashcards
4th, 5th and 8th Amendment Constitutional Protections - Application
Only apply to actions by the government. Individuals generally cannot violate these amendments.
Exceptions:
- Private persons acting as government agents;
- Defense counsel with respect to effective assitance of counsel.
Police powers - questioning people in public place
Police can approach anyone in public place and unless that encounter escalates into a seizure, there is no limit to what the police can do (can tail a subject, ask questions) - not required to have any basis.
Seizure - Basic test
Seizure is where officer uses physical force or authority to intentionally terminate person’s ability to move. Test is whether the reasonable innocent person would feel free to disregard the officer and go his or her own way.
Only really occurs if behaviour stops someone’s movement or if reasonable person would not feel comfortable to walk away.
Seizure - Terry stop/stop + frisk
When officer stops individual about whom they have a reasonable suspicion based on articulable facts to believe suspect is or is about to be engaged in criminal behavior. Reasonable suspicion can be based on mistake if the mistakes are reasonable.
Officer can:
- Pat down for weapons, but cannot frisk for evidence
- If pat down reveals objects where shape makes it obvious what they arem can seize those objects
If initial stop is unlawful but officer develops basis for lawful arrest during that stop, then the evidence can be used at trial BUT not if no basis developed during discussion.
Seizure - Traffic stops
Officers that stop a car must have reasonable suspicion to believe that the driver is engaged in some violation of the law. Once there is a stop, officer may pat down occupant for weapons if reasonable suspicion that the occupant is armed.
NO reasonable suspicion requried to stop drivers at checkpoints.
Seizure - Arrests
Need probable cause to believe that arrested individual has committed a crime (to an objective standard). Whether a reasonable officer knowing the factrs would think it is more likely than not that a person has committed the crime.
Can be made with or withourt a warrant. If crime was not committed in officer’s presence, officer can only arrest for felony, but can arrest for misdemeanour if it was in their presence.
Arrest Warrant
Piece of paper/telephonic authorisation which allows officer to arrest specific person - issued by neutral and detached magistrate, based on probable cause that named individual has committed a crime and identify the person and the offence.
Once issued the officer can enter person’s home, but cannot enter third party’s home or business unless there is a search warrant.
Searches
Occurs when government conducts activities that violate a reasonable expectation of privacy. Places where you have a reasonable expectation of privacy is house, hotel room, offices, luggage, backyard of home, but not public, open fields, abandoned property, garbage on street.
Wire tapping constitutes a search
Exceptions to search warrant requirements
- Exigent circumstances: Officers are entitled to secure premises once they have obtained warrant, but sometimes need to look urgently e.g. dangerous circumstances.
- Search incident to arrest: Protective sweep of immediately adjacent spaces is permitted - limited to immediate area of person being arrested, and cannot search contents of cell phone.
- Consent: D can consent to a search, which means that no warrant is required. If one occupant of apartment lets officer in and one does not, police cannot use anything they find against person who has affirmatively objected.
- Automobiles: if police have probable cause to believe a car contains contraband, they can search parts of the vehicle where that contraband might be present.
- Plain view - police can see anything that is in plain view, even if that item was not named in the warrant.
- Evidence obtained from admin searches: police do not need search, warrants for administrative searches (airplane boarding seats, international borders, students in public schools)
- Stop and frisk - Limited kind of frisk to make sure person isn’t armed and dangerous
Fifth Amendment privilege against interrogations - when does it apply?
- applies only to natural persons, not corps
- Applies to testimonial evidence, not physical evidence, and applies to any testimony that would be a link in teh chain leading to prosecution or conviction
- Once someone is given immunity of prosecution for statements, privilege no longer applies
Miranda rights
Only apply to custodial interrogation. If someone is not in custody, police do not have to give them any warnings. Even if person is in prison, they are not in custody for Miranda purposes so long as they can go back to their cell
-Right to remain silent
- Statements may be used in court of law
- Right to counsel during questioning
- attorney may be appointed
What happens if someone invokes Miranda rights?
-If suspect wants to remain silent, interrogation has to stop. Person has to affirmatively say this - cannot simply remain silent. Officers can return after a certain time to try again but have to give rights again.
- If person invokes right to counsel, police have to stop questioning until lawyer shows up or D goes back to police and initiates contact.
Public safety exception to Miranda warnings
When public safety is immediately at risk, police do not have to give Miranda warnings before questioning.
Confessions
Confessions have to be voluntary - statements obtained by threats are inadmissible even after someone has received Miranda warnings. Confessions can be the product of deceit
Sixth amendment right to counsel
Provide criminal defendants with assistance of counsel for defense. 6th Amendment attaches to individuals once there has been an indictment or other criminal charges, where 5th amendment has to be affirmatively invoked by D and applies only during period of custodial interrogation
Identification: Photo arrays v lineups
Photo arrays = Neither D or lawyer has right to be present, but have to be given to D and lawyer after
Lineup= Living humans are put in front of the witness. Prior to indictment, Ds have no right to counsel at lineup, but do have right to counsel present after lineup. If this right is violated, evidence of witness identified at lineup is not admissible
Evidence - Exclusionary Rule
Basic rule: Evidence which is obtained illegally is inadmissible at criminal trial of person whose rights were violated (does not apply to pre-trial proceedings).
Standing - applies to violation of D’s right s only.
Exceptions:
- knock and announce: Officers executing an arrest warrant are required to knock and announce that they are police - even if they fail, this does not lead to evidence being inadmissible
- Inevitable discovery - if evidence would have been discovered anyway through lawful means, its admissible
- Independent source - evidence discovered on basis of an indepedent source.
-Attenuation in causal chain - intervening events and passage of time can remove taint of unconstitutional conduct
- good faith - if officers have a good faith reason to believe their conduct was constitutional
- Negligence - isolated negligence by law enforcement personnel does not necessary trigger exclusionary rule
Exclusionary rule - fruit of poisonous tree
Exclusionary rule does not only apply to evidence obtained directly, but evidence obtained as a result of the initial violation – but for test
Initiation of charges - pre-trial procedures
Different rules for federal and state governments.
Federal: all felony charges have to be initiated by grand jury indictment (unless D waives right or there has been a plea deal negotiation) and requires probable cause to believe D committed crimes.
States: States can proceed by indictment or by information. If state does proceed by information, there needs to be preliminary hearing in front of neutral judge to determine probable cause.
Proceedings before grand jury
Everything in the grand jury is secret, and not governed by teh same rules that govern trials - can consider evidence which has been obtained illegally and rely on hearsay evidence.
D does not have aright to testify or call witnesses, or the right to counsel in jury room.
Does not have to be unanimous to indict someone - just needs to be majority vote
Guilty pleas
When D pleads guilty, D waives various trial rights, such as right to trial by jury, right to appeal convictions. Judge has to question D and make sure D understands this and the possible sentences, immigration consequences etc - but not required to talk about every consequence
Alfred plea
If you don’t think you did it, but agree that there is enough evidence that it makes sense for D to pea guilty. If D later challenges plea agreement and succeeds in re-opening case, prosecution can bring charges again and reinstate charges that were previously dropped in return of guilty plea.
Bail
8th Amendment prohibits setting of excessive bail. Generally offered to D unless D poses risk of flight or is a danger to the community. In addition to money bail, courts can also impose pre-trial release conditions on Ds, such as reporting every week.
Trial process - Jury Number
D has right to jury under 6th amendment for all serious offenses (punishable more than 6 months).
In federal cases, jury in criminal case has to have 12 members and they have to decide unanimously. States not required to use 12 person juries - unanamious verdict required but can be as little as 6 people.
