Criminal Procedure Flashcards
Right to Counsel
The sixth amendment is applicable to the states through the 14th amendment. It guarantees the person the right to counsel attaches after formal charges brought when an attorney as requested. There is no right to counsel at the precharge lineup. In New York, there is an exception when police are aware that the suspect has counsel. If the defendant asks for attorney, the police must inform the suspect’s attorney of the lineup. Under New York’s criminal procedure Law, the right account to counsel attaches: (1) when police activity is overwhelming to a layperson and the defendant requests council; (2) after formal judicial process; (3) at arraignment; and (4) if there is significant additional delay.
Unreasonable Search & Seizure
The fourth amendment protects against unreasonable searches and seizures. A person may assert his fourth amendment rights only when he has a reasonable expectation of privacy. An individual has a reasonable expectation of privacy in an item searched or in property owned and possessed.
Because the warrant requirement essential to the fourth amendment protection against unreasonable searches and seizures, warrantless searches are unconstitutional unless they fall within an exception.
Absent an exception, police cannot search or see is with out a warrant from a detached, neutral magistrate showing probable cause. One exception to the warrant requirement is for evanescent evidence that might be destroyed if police wait to obtain a warrant. Another exception is for a vegan circumstances where an emergency exists to justify not procuring a warrant. The third exception exists for fully public locations where police can proceed to arrest with only probable cause without a warrant.
Self Incrimination > Right to Counsel > Waiver
The Fifth Amendment is applicable to the states through the 14th amendment. It guarantees a person freedom from providing testimonial evidence that may self-incrimination. These rights attachment a person is in custody or where reasonable person feels that he is not free to leave. Silence is not considered a Miranda waiver. Waiver of Miranda rights must be knowing and voluntary. Under New York’s criminal procedure Law, a valid waiver by a person not be represented by counsel may not be obtained outside the council’s presence.
Search & Seizure > Warrant Exception > Automobile Exception
Automobile exception is based on the idea that a lesser expectation of privacy exists in an automobile, boat, or airplane van in one’s home or personal property. A warrantless search and seizure of items from an automobile may be justified under several scenarios. Two situations include a search incident to lawful arrest and items found in Plain-view.
Generally police do not need a warrant for arrest if it is based on probable cause. Police may come into possession of the requisite facts and circumstances for probable cause from their own observations of the suspect or through information obtained by third parties.
Right to Confrontation
The defendant has a fundamental right of confrontation under the sixth amendment. This can only be asserted against a testimonial statement. Statements made during a crime or for the purpose of enabling police to assess whether an emergency exists are considered non-testimonial. Admission of certain hearsay exceptions, such as present sense impression, does not violate the right of confrontation.
