Criminal Procedure

Question 1

Fourth Amendment Inquiry

Answer 1

1. Was the search executed by a gov’t agent ?
2. Is the area or item a protected item?
3. Was there physical intrusion / violation of the reasonable expectation of privacy?
4. Does the defendant have standing to challenge the search?

All four questions are part of the Fourth Amendment inquiry.

Question 2

Government Agent

Answer 2

For Fourth Amendment purposes, a government agent is any of:

1. Publicly paid police, on or off duty;
2. Private citizens acting at the direction of the police;
3. Private security guard, *only if *deputized with the power to arrest;
4. Public school administrators.

Question 3

Items/Things Protected by Fourth Amendment

Answer 3

**PERSONS **

i.e., bodies

**HOUSES **

i.e., home, hotel room, curtelage to home where home life extends

**PAPERS **

i.e., personal correspondence

**EFFECTS **

i.e., personal belongings, backpacks, purses, etc.

Question 6

Unprotected Items under the Fourth Amendment

Answer 6

“POGOFAP”

**P **HYSICAL CHARACTERISTICS

**O **DORS

**G **ARBAGE

**O **PEN FIELDS

**F **INANCIAL RECORDS

**A **IR SPACE

**P **EN REGISTERS

Question 7

Reasonable Expectation of Privacy

Answer 7

1. Actual or subjective expectation of privacy in the area searched or the items seized; and
2. Expectation is one that society recognizes as reasonable.

• **Note: presumptively unreasonable to use a device not in public use to explore the details of home that officers couldn’t otherwise have known about without physical intrusion (e.g., thermal imaging). **

Question 8

Standing to Challenge a Fourth Amendment Search

Answer 8

YES

• Owner of the premises;
• Resident of the premises;
• Overnight guests, as to place they can be expected to access

NO

• Uses of a residence solely for business purposes (not overnight guests);
• “Effect” (e.g. purse) owned by someone else;
• Passengers in a car
  
  • ***NY: passengers have standing in order to challenge the possession of weapons. **

Question 9

Valid Warrant Requirements

Answer 9

1. **Issuance by neutral and detached magistrate. **No bias in favor of prosecution.
   
   • **NY: may be obtained by phone/email and made into a written search warrant. **
2. **Supported by probable cause and particularity. **Fair probability that contraband or evidence will be found in the place search.
   
   • Hearsay admissible to support.
   • Anonymous tips OK as basis, *if *police corroborate enough detail to allow, on totality of circumstances, a common sense practical determination of probable cause. Descriptions of a person alone are insufficient.
   • NY: Rule on anonymous tips is the Aguilar-Spinelli test. Gov’t must establish (1) informant’s reliability and veracity; (2) basis of knowledge. If no basis of knowledge, police must use its own observations that confirm sufficient detail suggestive of or related to the criminal activity in question.
3. **Specifies ITEMS TO BE SEIZED AND PLACE TO BE SEARCHED. **

Question 10

Good Faith Exception to Defective Search Warrant

Answer 10

• **NY DOES NOT FOLLOW THIS RULE. **
• The good faith execution of a police officer will overcome a defective search warrant unless:

1. egregiously lacking in probable cause;
2. facially deficient in particularity;
3. knowing or reckless material falsehoods in supporting affidavits (not including falsehoods that were negligent or those that were not necessary to the probable cause determination); or
4. magistrate biased in favor of prosecution.

Question 11

PROPER EXECUTION OF SEARCH WARRANT

Answer 11

1. Compliance with terms and limitations (areas and items authorized)
   
   • Detention of occupants within or immediately outside the residence is okay but the warrant doesn’t by itself give the police the right to search such persons.
2. Knock and Announce Rule
   
   • Required unless there is a reasoanble belief that it is futile, dangerous, or would inhibit investigation.
   • Never causes the exclusionary rule to apply (NY hasn’t decided this yet).

Question 12

Exceptions to the Warrant Requirement

General List

Answer 12

**“ESCAPIST” **

** E **xigent circumstances

** S **earch incident to arrest

• *C **onsent
• *A **utomobile
• *P **lain view
• *I **nventory
• *S **pecial needs
• *T **erry “stop and frisk”

Question 13

Warrant Exceptions

**Exigent Circumstances **

Answer 13

1. Evanescent Evidence. Evidence that would dissipate or disappear in the time it would take to get a warrant.
   
   • Blood alcohol is not automatically in this category;
   • NY: **no common law right to perform blood/chem tests except a NY vehicle and traffic law, in which operator of vehicle is presumed to have consented to such a test. **
2. Hot Pursuit of Fleeing Felon. Allows PO to enter home of a suspect or third party; and then any plain view evidence is admissible.
3. Emergency Aid. PO may enter residence where objectively reasonable basis to believe the person inside is in need of emergency aid in order to address/prevent injury; and then any plain view evidence is admissible.

Question 14

Warrant Exceptions

**Consent **

Answer 14

• Voluntary & intelligent (no need to inform of the right to refuse);
• Extends to all areas for whcih a reasonable officer wold believe permission to search was granted.
• Apparent authority, if reasonable, is valid consent.
• Shared premises: any resident can consent to search of common areas, but if co-tenants who are present disagree about search, objecting party prevails, as to areas over which they share dominion and control.

EX - Mom who regularly cleans son’s room and makes his bed can give consent to search the bed since she has access to it. Probably couldn’t give consent to open a locked box under the bed, however.

Question 15

Warrant Exceptions

Search Incident to Arrest

Answer 15

**Search of the person must be: **

• Incident to a lawful arrest;
• Contemporaneous in the time and place of arrest;
• Of the wingspan (body, clothing, containers within immediate control) (regardless of offense).
  
  • **NY: To search container within the wingspan, officer must suspect the arrestee is ARMED. **

**Automobile searched incident to lawful arrest: **

• Can search interior cabin, incuding closed containers, but not the trunk.
• Once arrestee is secured, the search is only okay if PO expects to find evidence relating to the crime for which arrest was made.
• **NY: once D is outside the car, PO can’t search containers in the car. **

Question 16

Warrant Exceptions

Automobile Exception

Answer 16

• Requires probable cause to believe contraband or evidence of a crime will be found in vehicle.
• Can search entire vehicle and open any package that may reasonable contain items for which there was probable cause to search.
• Justification - vehicles’ ready mobility and individuals’ lesser expectation of privacy in their vehicles as opposed to their houses.

(no need for probable cause to pull over – unrelated traffc infraction is okay, as long as cause is required before initiating search).

Question 17

Warrant Exceptions

Terry Stop and Frisk

(Procedure)

Answer 17

• TERRY STOP: A brief detention (seizure) for the purpose of investigating suspicious conduct. Seizure in the sense that a reasonable person would not feel free to leave.
  
  • *Police pursuit *= seizure only if the person submits to P.O.’s authority by stopping, or if he is physically restrained.
    
    • NY: Police pursuit itself is a seizure.
  • *Traffic stops *= driver + passengers are seized. P.O. can order persons out of the car; dog sniffs okay if not unreasonably prolonged).
• TERRY FRISK: Pat down of body & outer clothing for weapons, justified by the belief that the suspect is armed and dangerous.
  
  • Can seize a weapon or contraband, if can tell without manipulating the object. **NY - seizure only okay if it reasonably appears to be a weapon. **
  • Car frisk, if P.O. thinks suspect is armed, but only cabin where weapons can be hidden.
  • Protective sweep: in home arrest, sweep to look for criminal confederates.

Question 18

Warrant Exceptions

Terry Stop and Frisk

Answer 18

Requires reasonable suspicion (something less than probable cause)

*Tips with corroborating information to establish reliability are okay. Just description of a person insufficient.

1. **Terry Stops: **Reasonable, articulable facts that inform P.O.’s belief that criminal activity is afoot. Objective standard only; subjective intent irrelevant.
2. **Terry Frisks: **Specific, articulable facts that suspect is armed and dangerous. Not a search for criminal evidence; just about safety.
3. **Protective Sweeps: **No probable cause needed to look in areas adjoining place of arrest from which an atack could be launched, when making an in-home arrest.
   
   • To justify a weep of more remote areas, needs additional facts sufficient to conclude that an individual who may threaten safety is present in area swept.

Question 19

New York:

Non-Arrest Detentions

Answer 19

• Request for info: any reason except on “whim or caprice” (refusal to respond / running away is not probable cause to arrest).
• Common law right to inquire: founded suspicion the criminal activity is afoot. Detention short of seizure; can ask Qs; explanations by suspect require release.
• Forcible stop/dentention/frisk: reasonable suspicion that the suspect has/is committing a crime. “Plain feel” frisk for a weapon. May seize without warrant anything reasonably believed to be a weapon.
• Police pursuit = seizure of person. Must be based on reasonable suspicion of crime.

Question 20

Warrant Exceptions

Plain View

Answer 20

1. Lawful access to the place from which the item can be plainly seen;
2. Lawful access to the item itself; and
3. Criminality of the item is immediately apparent.

Question 21

Warrant Exception

Inventory Searches

Answer 21

• *Constitutional *provided that the regulations governing them are reasonable in scope; search complies with regulations; and search was conducted in good faith (motivated solely by need to safeguard the owner’s possessions and/or ensure officer safety).
  
  • Ex. arrestees when booked into jail; vehicles when impounded
• **NY: Warrantless impoundment and inspection of a person’s vehicle is valid as an administrative search under the highly regulated motor vehicle industry laws. **

Question 22

Warrant Exceptions

Special Needs

Answer 22

**Non-Law Enforcement Primary Purpose Test **

1. **Drug Testing **
   
   • ​​Railroad employees after crash;
   • Customs agents;
   • Public school children in extracurricular activities.
2. **Parolees **
   
   • ​​Warrantless, suspicionless searches of home OK as condition of parole.
   • **NY: P.O.’s conduct must have a reasonable/rational connection to duties. **
3. School Searches
   
   • ​​Warrantless searches of person and effects to investigate violations of school rules as long as reasonable at inception and not excessively intrusive in light of age/sex and nature of infraction).
4. **Border Searches **
   
   • ​​Where routine

Question 23

Exceptions to the Exclusionary Rule

Answer 23

1. OK to use evidence to impeach defendant’s testimony on cross-examination
2. Knock and announce violations **do not **apply
   
   • *NY has not decided about knock and announce rule *
3. Police error: to trigger rule, police conduct must be deliberate, reckless, or grossly negligent. Erroneously obtained when executing search warrant, if a reasonable mistake, does not trigger the exclusionary rule.
4. Fruit of the poisonous tree: may be admitted **if **causal link is broken by:
   
   • Independent source;
   • Inevitable discovery;
   • Attenuation (taint purged by time, intervening events)

Question 24

Eavesdropping

Answer 24

• No Fourth Amendment protection re speaking to someone wearing a wire. You assume the risk that the party won’t keep the conversation private.
• **New York: eavesdropping is a felony. **Evidence obtained from unauthorized eavesdropper without warrant is inadmissible except in a criminal or civil case against eavesdropper. BUT – any person may record his own conversation with another person without notice, or authorize a third party to record without notice. **

Question 25

Wiretapping

Answer 25

**“Screen Telephone Calls Carefully” **

Warrant must name:

1. Suspected persons;
2. Time period strictly limited (NY: expire after 30 days in NY)
3. Crime (probable cause)
4. Conversations (decribe which can be overheard)

**NY: If convo incriminates 3rd party, admissible if not party to the convo and premises or area of privacy not invaded. **

Question 26

Lawful Arrest

Answer 26

• Occurs when the police take someone into custody against her will for the purposes of prosecution or interrogation.
• De facto arrest where police compel someone to the station for questioning or finger-printing.
• **PROBABLE CAUSE NECESSARY. **
• Arrest can be made for any crime.
• **Warrants are not required in a public place. They are required in homes. If arresting in a third party’s home, requires search warrant for the third party’s home AND arrest warrant. **

SPECIAL NY RULE: A PRIVATE PERSON CAN ARREST WHEN FELONY HAS BEEN COMMITTED & REASONABLE BELIEF THAT ARRESTEE COMMITTED THIS CRIME, OR ANY CRIME WAS COMMITTED IN FRONT OF PERSON.

Question 27

Constitutional Challenges to Confessions

Answer 27

1. Fourteenth Amendment due process
2. Sixth Amendment right to counsel
3. Fifth Amendment Miranda doctrine

Question 28

Due Process Basis for Excluding Confessions

Answer 28

**INVOLUNTARINESS: **

• **Confession is the product of police coercion that overbears the suspect’s will. **
• Note that where a D claims that his confession was involuntary, a co-D’s confession implicating D is admissible to rebut claim of involuntariness.
• NEW YORK
  
  • ​Length of interrogation, custody are relevant to voluntariness (Arthur-Hobsen Rule)
  • When confession refers to multiple crimes, ones not being there tried must be redacted.

Question 29

Admissibility of Co-Defendant’s Confessions

**Implicating Defendant **

Answer 29

**Where a defendant is implicated by the confession of a co-D, the co-D’s confession will be admitted IF **

• D’s name / participation is REDACTED;
• Co-D takes the stand and is subject to cross-examination by D; or
• D claims that his own confession was coerced –> and the co-D’s confession wholly admissible to disprove.

Question 30

Sixth Amendment Right to Counsel

• and suppresson of incriminating statements obtained in violation thereof -

Answer 30

*Sixth Amendment right is offense-specific (applies only to interrogations for the charged offense) *

• EXPRESS CONSTITUTIONAL GUARANTEE THAT ATTACHES WHEN D IS FORMALLY CHARGED.
• APPLIES AT ALL CRITICAL STAGES (ARRAIGNMENT, PROBABLE CAUSE HEARINGS, POLICE INTERROGATION, PLEA BARGAINING).

**Effect on Incriminating Statements Obtained: **

• Incriminating statements elicited by law enforcement violate the Sixth Amendment if statements are deliberately elicited and did not knowingly, intelligently, and voluntarily waive his rights to have his attorney present.

Question 31

New York’s Indelible Right to Counsel

Answer 31

GREATER PROTECTION THAN U.S. CONSTITUTION

• Attaches not only at formal charging but whenever there is significant judicial activity.
• **D must request counsel specifically; parent/guardian can request on behalf of child. **
• If police are aware that the D is represented by counsel, they may not question him about that charge or any other charge without the attorney present, or do an investigatory lineup, if D has requested the counsel or attorney has requested to see D.
  
  • Violation: Witness may not testify about that ID of the D in the lineup
• Waiver of that right must take place in front of counsel*. *

Question 32

*Miranda *

When are warnings necessary?

Answer 32

1. Suspect is in CUSTODY; and
   
   • ​​A reasonable person would not feel at liberty to end the interrogation and leave;
   • Inherently coercive pressure in environment;
   • Age may be relevant for minors.
2. There is an INTERROGATION.
   
   • ​​Police knew / should have known their conduct was likely to elicit an incriminating response. This does not apply to incriminating statements made spontaneously since these are not products of the interrogation.
   • Sobriety field test: asking D to walk in a straight line, stand on one leg (and refusal to do so) does not count as an interrogation/is not testimonial in nature/not likely to elicit an incriminating response bc not testimonial in nature.

**PUBLIC SAFETY EXCEPTION: **not necessary if prompted by immediate concern for public safety.

NOT APPLICABLE TO ANY PARTY EXCEPT NATURAL PERSONS

NY - photographs of tattoos to demonstrate hate-crime likelihood admissible; not miranda violations.

Question 33

Respecting / Invoking / Waiving Miranda

Answer 33

1. **Respecting Miranda: **reasonable conveyance of the rights and obtaining of valid waiver.
2. **Invoking Miranda: **must be done clearly and unambiguously. Police must scrupulously honor; if D asks for counsel, interrogation must stop (unless initiated by suspect). This right is not offense-specific.
   
   • Miranda invocation expires after 14 days. Then police can start again.
3. **Waiving Miranda: **
   
   • Must be knowing and intelligent (understands nature of rights, consequences of abandonment);
   • Must be voluntary (not the product of police coercion).
   • Implied waiver: D’s conduct indicates a desire to speak with police during an interrogation.
   • Prosecution bears burden of showing waiver.
   • NY Parent/Child Rule: deception or concealment of child –> invalid waiver.

Question 34

*Miranda *and the Exclusionary Rule

Answer 34

• Admissible to impeach on cross-examination
• Failure to Mirandize does not require suppression of the physical fruits of incriminating statements where statements were voluntary.
• Statements made *after *Miranda violation obtained after valid waiver, admissible as long as the non-Mirandized statement was not inherently coercive/offensive to due process.
  
  • So for example: PO performs warrantless home arrest on Joe and Joe immediate blurts out, “I did it!” PO then reads rights and is interrogated, where Joe again confesses. Both confessions are inadmissible because (1) the first confession was prompted by a warrantless arrest of Joe, and the statement was acquired as a direct result of an illegal search and seizure. The fact that Joe blurted out the confession has no impact on its supression. (2) the second one was merely a reptition of the first; having made the first statement, there was little incentive to refrain from repeating it, and no intervening circumstance outbalanced the violation of Joe’s Fourth Amendment rights.
• Harmless error analysis on appeal.

Question 35

Pre-Trial Identification Processes

Answer 35

• No Fifth Amendment right to counsel under Miranda
• After formal charges, Sixth Amendment right to counsel applies to LINEUPS BUT NOT PHOTO ARRAYS.
  
  • NY: right to atty at lineup before formal charges if police are aware that you are represented by counsel on another charge and you request that counsel be present.
• IDs that violate due process: unnecessarily suggestive (subst. likelihood of mis-identification). Courts weigh reliability and corrupting effect.
  
  • Remedy if witness had opportunity to view D at crime; gave specific desription to police at that time; certainty.

Question 36

Excessive Bail

Answer 36

• Prohibited to federal government (by U.S. Constitution)
• Applied in NY
• But not required; hasn’t attached through 14th Am. yet

Question 37

Grand Juries

Answer 37

• Issue indictments
• These are secret proceedings
• Not required for state (but they have them in NY for all felonies where there is reasonable cause to believe the accused committed the offense and there is evidence as to every element of the offense).
• Characteristics of proceedings:
  
  • No judge, lead by prosecutor
  • Defendant has no right to be present or informed of proceeding
  • Witnesses not subject to cross-examination
  • Records are usually sealed
  • The Jencks Act, 18 U.S.C. § 3500, requires the government to disclose to the defense any statements made by the accused to the grand jury, and, with respect to non-party witnesses, that after a witness has testified on direct examination at trial, any statement made to the grand jury by such witness be disclosed to the defense.

Question 38

New York Right to Indictment

Answer 38

• NY gives the right to grand jury indictment, but waivable by D with prosecution’s consent **if **the crime is not punishable by death or life in prison (then not waivable).
• Witnesses who may be videotaped in lieu of testmony:
  
  • Child 12 years old or younger;
  • The physically ill or incapacitated;
  • Serious mental stress if required to testify in person concerning incest.

Question 39

NY Speedy Trial Rights

Answer 39

• Felony: 6 months (but if homicide, dismissal not be granted for violation)
• A misdemeanor: 90 days
• B misdemeanor: 60 days
• Violation: 30 days

Exclusions from the time period:

• Reasonable delay from other proceedings;
• Continuance;
• Absence of D causing delay;
• Joinder of co-D, if reasonable;
• D’s detention in another jur;
• Exceptional circumstances;
• Adjournment contemplating dismissal.

Question 40

Pre-Trial Proceedings

Answer 40

• Hearing after arrest: magistrate must advise of rights; set bail; appoint counsel.
• Gov’t needs probable cause to detain defendant before trial, unless the grant jury has issued an indictment or magistrate has issued arrest warrant.

Question 41

Brady Rule

Answer 41

**Prosecutor must disclose material, exclupatory information to the defense **

*NY Exculpatory Evidence Rule entitles D to: *

• His and co-D’s statements, including grand jury testimony;
• Tapes/bugged conversations, to be used at trial;
• Photos/drawings by police;
• Reports of physical, mental, and scientific experiments/tests;
• Property obtained from D;
• Date/time/place of charged offense;
• All federally required disclosures;
• Instances of D’s conduct prosecutor will use to impeach.
• D IS NOT ENTITLED TO COPY OF GRAND JURY MINUTES ARISING OUT OF OFFENSE

Question 42

Rosario Rule

(New York Only)

Answer 42

**Before opening arguments, prosecutor must make available to the defense any prior recorded or written statements of a person to be called as witnesses that relate to the subject matter of witness testimony. **

Question 43

**NY: Notice of Alibi; Insanity **

Answer 43

• D must notify prosecutor within 30 days of not guilty plea, if raiisng an insanity defense.

Within 20 days of arraignment, prosecutor may serve an alibi demand, and D must reply within 8 days.

Question 44

Competence

Answer 44

Must be established by a preponderance of the evidence.

Question 45

NY - Defendant’s Duty of Disclosure

Answer 45

**NEW YORK RULE **

• Before D’s direct case, defense must make available any relevant prior written or recorded statements by defense witness, and if the prosecution demands, any physical, mental, or scientific reports the defendant intends to introduce at trial.

Question 46

Juries

Answer 46

• **Federal Standards: **
  
  • ​Right to a jury trial only if **maximum authorized sentence exceeds six months. **
  • Minimum number of jurors is six.
  • Unanimity required only if the number of jurors is six.
  • Must be a cross-section of the community (but there must be a specific challenge at voir dire).
• **New York Rule: **
  
  • ​12 jurors for felonies
  • Can proceed to verdict with 11 jurors in deliberation
  • Waivable right, if signed in open court in front of judge with judge approval, except first degree murder.
  • Crimes less than felonies charged by information: if punishment is > 6 months, 6 jurors with up to 2 alternates. If punishment < 6 months, no jury.

Question 47

Effective Assistance of Counsel

Answer 47

**Federal: **

Deficiency (below objective standard of reasonableness)

+

Prejudice

**New York: **

Greater protection. D must demonstrate failure to provide meaningful representation; a single error, if sufficiently egregious, can satisfy; absence of strategic explanation; if re failure to make motion, D must show that the motion may have succeeded (reasonably).

Question 48

New York

Jury Verdict

Answer 48

• Giving supplemental instructions to deadlocked jury, judge must make it clear the duty is to decide the case only if they can conscientiously do so.

Question 49

Guilty Pleas

Answer 49

Must be **voluntary **and intelligent

• Plea-taking colloquy (understands nature of the charges and consequences of the plea).
• Withdrawal only allowed if:
  
  • Involuntary b/c defect in plea-taking colloquy;
  • D prevails on IATC claim
  • Prosecution doesn’t fulfill its side of the bargain
  • If counsel did not inform of risk of deportation, must show he would have reasonably plead not guilty.
• **New York: withdrawl any time before sentencing at court’s discretion. Also, court must inform defendant of the risk of deportation for pleading guilty. **

Question 50

New York

Right to Appeal Pre-Trial Proceedings

Answer 50

• Unlike most states and the federal rules, New York allows appeal of pre-trial orders for D who plead guilty, for orders denying suppression of:
  
  • Confession
  • Evidence from Illegal Search and Seizure
  • ID Testimony

Question 51

New York:

Conditional Pleas and Waivers

Answer 51

• In New York, by pleading guilty, D waives right to appeal the merits of a plea bargain. Prosecution can condition the bargain on D’s waiver of right to appeal sentence or pre-trial proceedings. **Waiver does not prevent withdrawal, however. **

Question 52

New York

Right to Appeal

Answer 52

• D: Appeal as of right, from:
  
  • Judgment not based solely on grounds of excessive sentence, where made on a guilty plea and the sentence complied with the bargain;
  • Sentence invalid as a matter of law or unduly harsh;
  • Sentence includes order of criminal forfeiture;
  • Order setting aside non-death sentence upon motion of prosecution.
• Prosecution: appeal as of right from:
  
  • Dismissal of indictment/information;
  • Trial order of dismissal;
  • Order setting aside verdict;
  • Motion to set aside verdict before sentencing;
  • Sentence other than death as invalid/illegal;
  • Motion by D to suppress.

Question 53

Federal Double Jeopardy

Answer 53

• Attaches (in a jury trial) once the jury is empaneled and sworn; (in a bench trial) when the first witness is sworn; (guilty plea) once plea is accepted unconditionally.
• Does not apply to civil cases.
• Two offenses are not the same if each contains a distinct element.
  
  • Greater + lesser offenses –> jeopardy
  • States and federal gov’t can independently try (but state and municipality cannot).
• Exceptions
  
  • Hung jury
  • Manifest necessity mistrial
  • Successful appeal other than insufficient evidence
  • Breach of plea agreement by D

Question 54

Double Jeopardy in New York

Answer 54

• In NY, a person cannot be prosecuted twice for the same offense or separately prosecuted for two offenses based on the same transaction/act. Prosecuted =
  
  • charged by indictment/information in NY or other US jur; and the action either terminates the conviction on guilty plea, or proeedings to trial and jury is impaneled and sworn/bench trial - witness is sworn.
  • BUT RETRIAL FOR CONDUCT IN SAME TRANSACTION PERMITTED IF:
    
    • Offenses have substantially different elements;
    • Each contains an element not in the other and is designed to prevent *different *harms;
    • One is criminal possession and the other is criminal sale
    • Each involves injury/death/loss to different victim;
    • One charge was commenced in different jur and dismissed due to lack of evidence of an element not present in the NY offense;
    • One is NY RICO and the other is Fed RICO; or
    • One tax evasion is federal and the other NY.

No prsoecution occurs when:

• Court lacked jur over D
• Prosecution was for lesser offenseand was procured by D for purpose of avoiding the greater offense.

Question 56

Taking the Fifth

Answer 56

• Any witness can take the Fifth when testifying under oath protect against future criminal liability, in any proceeding.
  
  • NY: **can’t be asserted in grant jury b/c immunity attaches **
• Failure to assert in one proceeding can later waive the defense.
• Testimonial privilege only (not bodies, documents)
  
  • NY specifically held no Fifth for tattoo as evidence of hate crime.
• Prosecution cannot comment on silence/not testify except to rebut the argument that D couldn’t explain his side of the story.

Question 57

Eliminating the Fifth Amendment Privilege

Answer 57

1. Immunity, if applies to state AND federal proceedings (using testimony, not immunity from the transaction entirely);
   
   • **NY: Transactional immunity. Grand jury witnesses receive this automatically. **
2. **D takes the stand **(limited to scope of direct); or
3. **Statute of limitations on underlying crime passes. **

Question 58

STRIP SEARCH OF ARRESTEE / OTHER PERSON

Answer 58

**REQUIRES **warrant or exigent circumstances/emergency. Where there is no evidence that despite available means of incapaciting the defendant and keeping him under full surveillance a body cavity search is necessay to prevent access to weapon or disposal of drugs, then the search is unreasonable.

Question 59

Unconstitutionally Coercive Jury Instruction

Answer 59

NY Court of Appeals found the following instruction unconstitutionally coercive:

“in the event that the jury fails to each a unanimous agreement with respect to the death penalty or life imprisonment without parole, the court will sentence the defendant to a term of imprisonment with a minimum term of between 20 and 25 years and a maximum term of life.”