Criminal Procedure Flashcards
6th Amendment Fair Trial
6th amendment guarantees the right to a fair trial but NOT a perfect one
New Trial
Ordered if D demonstrates by CLEAR AND CONVINCING evidence that a substantial right has been prejudiced, e.g., improper conduct by a juror, an improper site visit may affect a substantial right of D, if D cannot demonstrate a substantial rights violation the error will be deemed harmless
When the right to counsel attaches:
- When a suspect is in custody and clearly and unambiguously asks for the assistance for counsel
- Regardless of whether D has requested counsel the right automatically and indelibly attaches under the 6th amendment following the commencement of “formal judicial proceedings”
- ** NY ONLY: Prior to the commencement of formal judicial proceedings, counsel and not just a family member unless D is a minor, may notify the police that D is represented by counsel and may no longer be questioned
Line Ups
D does not have a 5th or 6th right to refuse to stand in a lineup
- Before formal judicial proceedings have commenced, counsel is not constitutionally required at a lineup, BUT in NY if:
1. The police are aware that D has counsel on this matter and counsel has requested to be present or;
2. D has counsel on any matter and D requests that counsel be present and counsel must be given notice and a reasonable opportunity to attend
** NY: absent exigent circumstances an identification from a station house show up arranged by the police is inadmissible
Evidence of a lineup is inadmissible if:
- Made without the presence of a required attorney
- It was the fruit of an unlawful arrest and D was placed in a lineup, however, if probable cause existed but the means of effecting the arrest were unlawful the identification won’t be suppressed
- The lineup procedures were “UNDULY SUGGESTIVE” thus creating a substantial likelihood that D would be signaled out for identification
4 PRIORS (not deemed hearsay and are admissible for the truth of their content provided out of court declarant testifies and is subject to cross):
- A witnesses prior INCONSISTENT JUDICIAL STATEMENT that was previously given under oath at a former trial, hearing or deposition is admissible for both impeaching a testifying witness and is also admissible for the truth of its content
- A witnesses prior CONSISTENT STATEMENT and that statement need not be made under oath at a formal hearing when it is offered to rehabilitate a witness but only if the prior statement was made before their was any motive to falsify
- A witnesses prior RECORDED RECOLLECTION
- A witnesses prior OUT OF COURT IDENTIFICATION of a criminal defendant (line up) this out of court statement being offered for the truth of its content is not hearsay provided the person who made the out of court statement takes the stand to testify and is subject to cross examination at the trial
Public Trial
6th amendment guarantees a criminal D the right to a public trial
Fundamental and not absolute right and thus the court has discretion to close the court room to the public for a “compelling reason” (protect safety of witnesses)
Brady Material
Prosecutor must turn over to defense counsel any admissible evidence materially favorable to the accused (based on due process of “fairness”)
If the state willfully or inadvertently withholds it and D can show prejudice, a new trial will be ordered
prejudice exists if there is a reasonable probability that had the material been turned over the result would have been different
Types of Brady requests:
- Specific requests
- General requests (any and all exculpatory evidence)
** NY DA fails to disclose Brady material that was specifically requested reversal is required where there exists a possibility that non disclosure contributed to the guilty verdict
Shackling
Visibly shackling or handcuffing D, denies D a fair trial because it leads the jury to believe that D is violent an exception to this rule arises where safety and security have become an issue
Fourth Amendment
Prohibits unreasonable government searches and seizures
An unreasonable search or seizure is unconstitutional if:
- It is not authorized by a warrant (probable cause, more probable than not) or
- Conducted under circumstances giving rise to an exception of the warrant requirement (BACHS PIE)
Warrant Exceptions:
Border searches
Automobile searches
Consent searches
Hot pursuit
School searches
Plain view searches
Incident to arrest
Emergency searches
Proper Stop and/or seizure
Border searches
Routine warrantless searches may be made of persons or property crossing the US border
Elements of a border search are:
a. Conducted at the border or its functional equivalent
b. Reasonable certainty that the border has been crossed
Limited to some form of inspection of the person and their luggage, anything more intrusive than a frisk is non routine and requires a heightened articulable level of suspicion
Automobile searches
Diminished expectation of privacy in an automobile because its:
- Interior is highly visible and
- Operated on public streets, serviced in public places,
- Subject to extensive regulation and inspection and easily movable
STOP a vehicle:
- Probable cause of traffic violation
- Reasonable suspicion of criminal activity **NY founded suspicion to ask about weapons
SEARCH:
- Probable cause of contraband = WHOLE car search and containers
- Within reaching distance of compartment
Impound search follow protocol, no PC needed
NEED STANDING, if possession on D than NY gives auto. standing to challenge the legality of the search
Consent Searches
Voluntary consent of a person in control of that area
*NY, PO must have founded consent to ask to search
Silence is NOT consent
Once consent to search an area or room is granted, police may search anywhere in the room where contraband may be secreted
Hot Pursuit
Warrantless entry into a building is permitted in the immediate continuous pursuit of a suspect if there is probable cause to believe that the suspect may be dangerous to the safety of the public
Factors:
a. Clear showing of Probable cause
b. Whether the suspect was Armed
c. The Gravity of the offense
d. The likelihood that the suspect will Escape or the evanescent evidence will be destroyed
School Searches
School authorities do not need a warrant or probable cause to search students or their lockers if there are reasonable grounds for believing that the search will yield evidence that a penal law or school rule has been violated
Plain View
No expectation of privacy for incriminating items left in plain view, the police may seize items in plain view that they immediately recognize as contraband or the evidence fruit of a crime, the officer may not violate the fourth amendment to obtain the plain view vantage point
** Dog sniff outside vehicle and may not prolong the stop
Search Incident to arrest
The police may make a warrantless search incident to an arrest and may search containers within the suspect’s immediate control (wingspan or Grabbable area)
In NY, to search a closed container incident to an arrest, the police must demonstrate a reasonable belief that the suspect was in a position to gain control of a weapon or destroy evidence located in the container at the time of the arrest.
Protective sweep
Emergency search
Not prevent a police officer from aiding someone in imminent danger thus under the emergency doctrine the police may constitutionally enter protected areas without a search warrant provided:
- The police have an objective reasonable belief that there is an emergency and an immediate need for police aid to protect life or property
- The is a reasonable connection between the emergency and the area searched
- May not be motivated JUST to obtain evidence
Exigent circumstances exception, the police may enter a home without a warrant if they have probable cause to believe that a crime is being committed inside
Proper Stop and/or Seizure
Four types of stops where a FAIR seizure is constitutional:
- Stop & Frisk requiring reasonable suspicion (level 3):
- Reasonable suspicion to believe the suspect is engaged in criminal activity, reasonable suspicion requires some minimal level of objective fact that D was involved in criminal activity - Stop & Arrest requiring probable cause (level 4)
- Requires facts and circumstances that would lead an RPP to conclude that it was more probable than not that a crime has been or is being committed and the person arrested is the perpetrator - Stop & Inquire (NY only also called a common law inquiry) requiring founded suspicion (level 2)
- Accusatory questioning that would lead an RPP to believe that he is suspected of wrong doing or has become the focus of a police investigation - Stop & Request information requiring an articulable basis (level 1)
- General non threatening questioning such as asking for identification or D’s destination
