Criminal Procedure Flashcards
Exclusionary Rule
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.
Fruit of the Poisonous Tree Doctrine
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
Fourth Amendment
Protects from unreasonable searches and seizures
Arrests and detentions
Investigatory detentions
4th: Arrests and detentions
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
Investigatory detentions (Terry stops)
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
Search and Seizure
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
Search Incident to Arrest
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
Automobile Exception
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.
Plain view
Officer must be legitimately present at the location.
Must be immediately apparent that item is contraband or fruit of crime.
Consent
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.
Stop and Frisk
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.
Evanescent Evidence
Might disappear quickly. Blood sample is not a per se exigency.
Hot pursuit
If police are not within 15 minutes behind felon –> not valid exception
Inventory Searches
Before incarceration of an arrestee, police may search personal belongings and entire vehicle
Public school searches
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
Wiretappings/Eavesdropping
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.
Confessions
Miranda Warnings
Right to Counsel (5th and 6th Ams.)
Miranda Warnings
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.
Right to Counsel (5th and 6th Ams.)
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.
Pretrial Identification
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.
Pre-trial procedures
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.
Prosecutorial Duty to Disclose Exculpatory Info
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.
Right to an Unbiased Judge
Financial interest in the outcome, or some actual malice against D.
Right to Jury Trial
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.
Right to Counsel (at trial)
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.
Right to confront witnesses
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.
Guilty Pleas and Plea Bargaining
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
Death Penalty
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
Double Jeopardy
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).
Privilege Against Compelled Testimony (5th)
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
Aerial Surveillance
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
