Criminal Procedure

Question 1

Exclusionary Rule

Answer 1

V of illegal search or coerced confession can have resulting E excluded from subsequent criminal prosecution.

Limitations:

1) Does not apply to grand jury proceedings.
2) Not available in civil proceedings.
3) Not available in parole revocation proceedings.
4) Does not apply to use of E for impeachment of D’s trial testimony.
5) Not available for violations of knock & announce rule

Fruit of the Poisonous Tree Doctrine

Convictions not necessarily overturned b/c of improperly admitted E
- On appeal, court applies harmless error. Conviction upheld if it would have resulted despite improper E.

Question 2

Fruit of the Poisonous Tree Doctrine

Answer 2

Exclusionary rule also excludes all E obtained or derived from police illegality (not including Miranda violations, unless bad faith).

The 3 I’s to break chain

1) Gov’t shows Independent Source for E.
2) Inevitable Discovery of E regardless
3) Intervening Acts of free will on part of D

Question 3

Fourth Amendment

Answer 3

Protects from unreasonable searches and seizures

Arrests and detentions

Investigatory detentions

Question 4

4th: Arrests and detentions

Answer 4

Arrest must be based on probable cause.

Warrant not required in public place. Required in home (except in emergency)

Station house detention: need probable cause to arrest and compel you to come in for fingerprinting or interrogation

Question 5

Investigatory detentions (Terry stops)

Answer 5

Police can briefly detain even without probable cause.

Rule: Must have reasonable suspicion (Totality of Circumstances) supported by articuable facts of criminal activity. A hunch is never enough.

Exception: checkpoint road blocks are OK if neutrally applied

Traffic stops and police dogs:

• A sniff is not a search if not extended to stop beyond time needed for normal traffic stop inquiries.
• A dog alert –> probable cause
• Can’t use dog to sniff directly outside home

Question 6

Search and Seizure

Answer 6

1) Governmental conduct?
- Publicly paid police (on or off duty)
- Private individual acting at direction of public police
- Privately paid police if deputized with power to arrest

2) Reasonable expectation of privacy? (standing)
- Automatic: own the premises, live on the premises, overnight guests
- Sometimes: own the property seized if you have reasonable expectation in item or area searched
- No standing: Anything that you hold out to the public every day (sound of your voice, style of handwriting, paint outside car, bank account records, location of your car, seen across open fields, seen from public airspace, odors from luggage or car, garbage set out on the curb)

3) Valid search warrant?
- 2 P’s: Probable cause (fair probability of finding E) and particularity (place to be searched and things to be seized)

• Informants
  
  • sufficiency based on totality of circumstances
  • informants credibility and lack of knowledge are relevant
  • warrant can be based in part on anonymous informant’s tip
• “No knock” entry permitted if exigent circumstances:
  
  • If knocking and announcing would be dangerous, futile, or inhibit the investigation (e.g., destruction of evidence)

4) Good faith defense to save defective search warrant?
- Good faith reliance overcomes defects
- Exceptions
a) So lacking in probable cause that no reasonable officer would rely on it
b) So lacking in particularity . . .
c) Officer/Prosecutor lied to or misled magistrate to get warrant
d) Magistrate is biased, abandoned neutrality

5) Exceptions to warrant requirement.
a) Search incident to arrest
b) Automobile exception
c) Plain view
d) Consent
e) Stop and frisk
f) Evanescent Evidence, Hot Pursuit, and Special Needs searches

Question 7

Search Incident to Arrest

Answer 7

Elements

1) Arrest must be lawful.
2) Arrest and search must be contemporaneous in time and place.
3) The person and areas within wingspan only.

Can search the interior of auto IFF:
Arrestee is unsecured; OR
Police reasonably believe that E of arresting offense may be found
Community caretaker exception if officer faces emergency that threatens health/safety of public

Question 8

Automobile Exception

Answer 8

Must have probable cause –> can search entire car (including any container that could reasonable contain the time they had probable cause to look for).

Probable cause can arise after the car is stopped, but MUST arise before anything or anybody is searched.

Question 9

Plain view

Answer 9

Officer must be legitimately present at the location.

Must be immediately apparent that item is contraband or fruit of crime.

Question 10

Consent

Answer 10

Must be voluntary.

Police saying they have a warrant negates consent.

Third Party consent: where two or more people have equal right to use property, either can consent. However, if both are present, a single owner can bar consent.

Question 11

Stop and Frisk

Answer 11

Can briefly detain on reasonable suspicion (less than probable cause).

Can pat down outer clothing and body to check for weapons. Officer must reasonably believe based on “plain feel.”

Traffic stop: If O reasonably believes driver is armed/dangerous, can frisk and search car.

Question 12

Evanescent Evidence

Answer 12

Might disappear quickly. Blood sample is not a per se exigency.

Question 13

Hot pursuit

Answer 13

If police are not within 15 minutes behind felon –> not valid exception

Question 14

Inventory Searches

Answer 14

Before incarceration of an arrestee, police may search personal belongings and entire vehicle

Question 15

Public school searches

Answer 15

Extracurricular activities? Random drug testing is OK.

Searches of purses/backpacks is permissible to investigate violations of school rules.

Reasonable if:

a) Moderate chance of finding E
b) Measures used are reasonably related to objectives.
c) Search is not excessively intrusive

Question 16

Wiretappings/Eavesdropping

Answer 16

Require a warrant!

Unreliable Ear exception: Automatic assumption of risk that the person you’re talking to is wearing a wire.

Uninvited Ear exception: No right if speaker doesn’t attempt to keep conversation private.

Question 17

Confessions

Answer 17

Miranda Warnings

Right to Counsel (5th and 6th Ams.)

Question 18

Miranda Warnings

Answer 18

Trigger: Custodial Interrogation

Custody: Would a reasonable person feel free to leave?

• Does the questioning present inherently cohersive pressures like station house?
• Does not include probation interviews or routine traffic stops.

Interrogation: Any conduct where police should have known they might elicit an incriminating response.
- Does not include spontaneous statements.

Waiver: Knowing and voluntary (TOC test)

Invocation:

• Silence: Must be unambiguous. Police can reinitiate if they a) wait a significant amount of time, D is re-Mirandized, and questions are about a different crime.
• Counsel: Must be unambiguous. Questions must cease until D is given an attorney, or D initiates questioning. If there’s a break in custody, police can ask D to waive after 14 days.

Question 19

Right to Counsel (5th and 6th Ams.)

Answer 19

Fifth

• Arises upon invocation of Miranda rights.
• Not offense specific, applies to entire custodial interrogation

Sixth
- Offense specific.

If D doesn’t request counsel, but has it appointed, police can ask D to waive 6th Am. right.

Question 20

Pretrial Identification

Answer 20

Denial of Right to Counsel

• Post-charge lineups and show-ups have a right to counsel. But no right when V looks at photographs.
• No right: blood, handwriting, pre-charge lineups, recess during D’s testimony, probation revocation proceedings, fingerprints.

Denial of Due Process
- Some techniques are unnecessarily suggestive and substantially likely to produce misidentification

Remedy: Exclude unless State can show adequate independent source.

Question 21

Pre-trial procedures

Answer 21

Bail: Immediately appealable. Preventative detention is OKAY.

Grand juries: Grand juries can look at all E, even illegally seized. Proceedings are secret, D has no right to appear or send in witnesses.

Question 22

Prosecutorial Duty to Disclose Exculpatory Info

Answer 22

Failure to disclose E (willful or inadvertent) violates DPC.

Grounds for reversal if: E is favorable to D; and Prejudice (reasonable probability that result would have been different otherwise.

Question 23

Right to an Unbiased Judge

Answer 23

Financial interest in the outcome, or some actual malice against D.

Question 24

Right to Jury Trial

Answer 24

Attaches when tried for offense with max sentence exceeding 6 months.

Must have at least 6 jurors (unanimous). 10-2 or 9-3 can convict.

Right to fair cross-section in jury pool, but not actual jury.

Peremptory challenges can be used for anything, except race/gender.

Question 25

Right to Counsel (at trial)

Answer 25

Attaches to all critical stages of prosecution (including trial).

Ineffectiveness Assistance of Counsel:

• Deficient performance, but for cause of reasonable probability that result would have been different.
• Must specify particular errors.

D can represent self so long as D is knowing and intelligent, and confident to proceed pro se.

Question 26

Right to confront witnesses

Answer 26

Face-to-face confrontation is unnecessary if it serves an important public purpose, and reliability of testimony can be assured some other way.

D can be asked to leave courthouse if disruptive.

Question 27

Guilty Pleas and Plea Bargaining

Answer 27

Court won’t disturb guilty plea after sentencing.

Judge has to discuss certain things with D on the record after guilty plea

• Nature of the charge
• Max authorized penalty, mandatory min. penalty
• Right to plead not guilty, right to demand a trial

Bases for withdrawing guilty plea after sentencing

1) Plea was involuntary.
2) Lack of jurisdiction
3) Ineffective assistance of counsel
4) Failure of prosecutor to keep an agreed upon plea bargain

Question 28

Death Penalty

Answer 28

D must be able to present mitigating facts. Can be any type of E.

Can’t be an automatic category for death penalty

Must be a jury determining aggravating factors justifying death penalty

Question 29

Double Jeopardy

Answer 29

Bars retrial for the same offense by the same sovereign.

Not the same offense if each crime requires proof of an additional element

Jeopardy attaches when jury is sworn in, or when first witness is sworn in (bench trial), in criminal proceedings.

Exceptions permitting retrial:

• Hung jury
• Mistrials for manifest necessity (medical emergency)
• Retrial after a successful appeal (but D can’t be retried for more serious offense)
• Breach of agreed upon plea bargain by D

Jeopardy for a greater offense bars retrial for lesser included offense. (Exception: battery that leads to murder).

Question 30

Privilege Against Compelled Testimony (5th)

Answer 30

Can be asserted by anyone in any type of case, if response might incriminate.
- Must assert first time Q is asked (including in a civil proceeding).

Protects from compelled testimony, not physical evidence. Does not protect non-testimonial evidence (blood, handwriting, voice, hair, etc.)

Prosecutorial Misconduct:

• Can’t make negative comment on D’s failure to testify or choosing to remain silent after Miranda.
• But can comment if D claims he wasn’t allowed to tell his side of the story.
• Silence before Miranda can be used against D
• If prosecutor violates this, harmless error test applies

Can be eliminated:

1) Under grant of immunity
2) No possibility of incrimination (e.g., SOL)
3) Waiver

Question 31

Aerial Surveillance

Answer 31

Residence

• Highest expectation of privacy, 4th Am. protection
• Peer down as far as the naked eye can see

Business/Factory

• Lesser expectation of privacy
• Special lenses, advanced photographic equipment is OKAY

Open Field
- No 4th Am. protection, no probable cause needed to search