Criminal Procedure Flashcards
Crim Pro Essay Analysis
1) Was the arrest or stop proper?
2) is any evidence seized inadmissible?
3) Were any statements or confessions made?
4) When does the right to counsel attach?
5) Has double jeopardy attached?
Essay Analysis Question 1 (pt 1): Was the arrest or stop proper?
issue: Gov’s right to seize person–if improper evidence inadmissible
1) Was D detained? Police do not need reasonable suspicion rather just need legit gov purpose:
- If yes look at form of detention:
* Airport, bus train station: officer may stop and question someone fitting “drug courier profile” or other law enforce promulgated standard for the identification of potential suspects. Profile only gives right to stop and question
* Boat: unlike prohibition of random stops of cars can stop boat for registration and licensing check
* Border search: may be made at border or inland if there has been constant surveillance since the time of the border crossing, ensuring that whatever is found in the search can be said to be an object that crossed the border
* Auto checkpoint: req legitimate gov purpose; stop are done according to a plan. Random stopping is not permitted except for drunk driving roadblocks.
* Administrative serches: there are times when a search may only be conducted at certain times, and it would be impossible and administratively impractical to get a warrant. The only condition upon these serches is that gov agent must have REASONABLE grounds that search is necessary.
EXs of Admin searches:
- School searches – standard to search student: must be reasonable suspicion that the student is carrying a weapon/contraband
- Gov employee workspaces
- Inventory searches of Arestee’s Personal Belongings
Essay Analysis Question 1 (pt 2): Was the arrest or stop proper?
2) Was D (on foot or in car) forcibly stopped? forcible stop where reasonable person believes not free to leave.
- if yes then did gov agent have reasonable suspicion supported by articulate facts? IF yes stop proper, if no evidence inadmissible.
3) was D placed under arrest?
- IF yes did arresting officer have PC that an offense by the arrestee is underway, imminent, or has already taken place?
* if yes proper if no arrest improper.
Essay Analysis Question 2 (pt 1)–Is seized evidence admissible?
1) Was search by Gov agent?
- if no not changeable, if yes go to 2
2) Does search violate D’s reasonable expectation of privacy?
- -if no search not changeable/if yes go to 3
3) Did the Gov have a search warrant
- if no go to 5
- if yes there are two sub-issues (a) was the warrant PROPER on its face, issued by a neutral magistrate and based on PC or (b) was the agent’s reliance on a DEFECTIVE warrant in good faith? If yes go to 4
Probable Cause–if the showing of PC is based upon info from an informer (pure heresay can be used to support PC) one must look at the totality of the circumstances.
-following the “two-prong” test was replaced by Tot of Cir test and is used as a factor in determining Tot of Cir
- two prong test
(1) credible info as to the evidence of crime sought
(2) reliable informant - previously used informant (proven providing fresh personal knowledge).
NY: has not adopted the two prong test and still relies on the two-prong Aguilar-Spinelli test
If warrant was DEFECTIVE and officer relied in good faith on it exclusionary rule does not apply
BUT the good faith exception n/a (evidence excluded) if:
- Misleading affidavits to issuing magistrate
- Inadequate affidavits–conclusory stmt w/o facts
- Factually deficient warrant–fails to state w certainty where/what is to be searched
- Rubber stamping magistrate–“wholly abandoned his judicial role” in conducting inquiry
NY: good faith exception NOT RECOGNIZED
4) Was warrant properly executed? ie there was no unreasonable delay, police knocked and announced (unless would endanger cops or inhibit investigaiton) and person seized/place searched was within the scope of the warrant.
-If no search/seizure is invalid–STOP
If yes then search/seizure is valid and evidence admissible–STOP
Essay Analysis Question 2 (pt w)–Is seized evidence admissible?
5) Was search within warrantless search exception?
a) Incident to lawful arrest–wingspan search for contraband and weapons.
- There is no justification for this search needed beyond the valid arrest.
- SILA must be contemporaneous to arrest. Packages may be opened.
- If person in car arrested search of passenger compartment ok only if the arrestee is unsecured and within reaching distance of passenger compartment OR when there is a reasonable suspicion that evidence relevant to crime of arrest might be found in car.
NY: packages within wingspant CAN’T be searched unless there is reasonable suspicion or PC that D may be armed.
-even if there is PC or suspicion container might have weapon it cannot be searched if (1) package is securely fastened so it cant be opened quickly, (2) the arrestee makes it clear he will not reach for contents, or (3) pkg is too small to contain weapon/contraband.
b) Auto Search–two types
i) protective search–if cop has articulable reason to believe motorist is armed or that there is a weapon in vehicle, officer may ask person to step out of car and pat-down person (stop and frisk) as well as do a “wingspan” protective search of passenger compartment of the car. CANNOT look in trunk.
ii) PC for search–if cop develops PC to believe vehicle contains contraband/evidence of crime, they can search any area of car that could contain contraband including trunk and containers. May be done at time of stop, or police may tow the vehicle to station and search later.
c) Plain view–only if lawfully present. Items seized must have been in plain view which means cops cannot manipulate/ope things or move things around.
d) Consent–must be voluntary and intelligent (Tot of Cir)
- dont need to tell D he can withhold consent
- Consent given per an invalid warrant not voluntary
- any individual w/ right to use/occupy premises may consent, but only to portion of premises controlled
- consent may be withdrawn (search must stop)
e) Stop and Frisk–requires reasonable suspicion. Pat down requires a belief that D is armed and dangerous and the officer may seize any item he reasonably believes is a weapon OR if cop immediately recogonizes contraband b/c it is in plain view (plain feel test)
f) Hot Pursuit
g) Exigent Circumstances (plus PC)
- if yes valid
- when search/seizure occurs that violates an individuals 4th A, the illegally obtained evidence can be suppressed by ct by EXCLUSIONARY RULE
Reasonable Expectation of Privacy
- to have 4th A protection the person must have a reasonable expectation of privacy w respect to the place searched and the items seized.
- It is not enough that someone has an expectation of privacy.
- SCOTUS has imposed a standing req so that a person can complain about an evidentiary search and seizure only if it violates his OWN reasonable expectation of privacy. -Whether a person has such expectation is based on the totality of the circumstances, considering factors such as ownership of the place searched and location of item seized.
The Exclusionary Rule
Judicial doctrine which prohibits into of evidence at trial that was obtained in violation of D’s 4th, 5th, or 6th A.
Fruit of the Poisonous Tree Doctrine–generally all evidence illegally obtained is excluded including secondary evidence derived from originally obtained evidence. BUT can purge taint in 5 ways:
1) Inevitable Discovery–if pros can show by preponderance of the evidence that tainted evidence would have otherwise been discovered despite illegal evidence then it is admissible. To be applicable process of discovery must have already been in motion.
2) Intervening Act of D–If following illegal search D voluntarily acknowledges the otherwise illegal evidence, taint will be removed and evidence is admissible.
3) Independent Evidence Source–evidence admissible if the prosecution can show evidence was gained from a source independent of illegality.
4) In-Court Identification–witness’ in court id of D will not be excluded as a poisonous fruit of an unlawful detention if the witness’ knowledge of the D’s identity was acquired prior to illegality.
5) Live Witness Testimony–If a witness is freely willing to testify, the court will hold that the testimony purges the taint.
Limits on Exclusionary Rule
1) Impeachment Admissibility–Although fruits of an illegal search are excluded from trial relative to the guilt of the D, the evidence may be used on cross-exam to impeach credibility of D who takes stand.
2) Grand Jury Admissibility–tainted evid may be used as a basis for the return of Grand Jury indictment against D, unless obtained in violation of federal wiretapping rules.
3) Violations of Internal Agency Rules–the exclusionary rules is n/a where the violation was of an internal agency rule. The rule applies only where there has been a violation of the Const or other Fed law.
4) Parole Revocation Proceedings–rule n/a in said proceedings
5) Violations of Knock and Announce during Execution of Warrant
6) Good Faith Reliance on Defective Warrant
Determining Admissibility of D’s stmts/confessions
1) Was stmt voluntary?
- If yes admissable
2) Was stmt made in response to police interrogation through questions/conduct known by police likely to elicit response?
- If no = admissable
- If yes go to 3
3) Was D in Custody when stmt made?
- individual in “custody” if under Tot of Cir a reasonable person woudl concluded that the individual was not free to go.
- if NO stmt admissible, unless D has already been charged, in which case the right to counsel has attached and D had the right to have atty present at all post-charge interrogations regarding charged offense.
- if YES go to 4
4) Miranda warning given?
- Required at time D taken into full custody and subjected to interrogation. Only applicable to testimonial evid (N/A re: blood samples, handwriting, voice samples). N/A to spontaneous voluntary stmts of D made w/o verbal/physical prompting by police. D at any time prior to/during interrogation may invoke Miranda right to remain silent or 5ht A right to counsel (need unambiguous communication). Adult must invoke herself.
- If NO inadmissible unless Qs were prompted by concern for public safety. If officer reasonably believes the public is in danger, he may question D w/o Miranda.
- If YES go to 5
5) Did D knowingly and voluntarily waive both right to remain silent and right to atty?
- individual may waive and such stmts are admissible (must be KNOWING, INTELLIGENT, VOLUNTARY)
- if YES admissable
- if NO then…
(i) D invoked only right to remain silent and police continued Qs, confession is inadmissable unless there was a break in questioning, D given Miranda again, and subsequent questioning about a different crime. (if D says wants to remain silent all questioning re that crime must stop).
(ii) If D requested atty, a confession in response to further Qs w/o atty is inadmissible unless D reinitiated Qs
NY: once atty has entered proceedings there is no waiver of right to counsel w/o atty being present.
- Exception: spontaneous stmt
- Ct of App just reaffirmed–D asked for atty then immediately waived right to counsel–ct said atty needed to be present to waive after invoked.
Grand Jury Proceedings
The Grand Jury is to determine the existence of PC for the prosecution of a D
1) D’s rights–attendant rights of presence of D, right to confront witness, or intro of witness to not apply to D at grand jury. BUT D has right to TESTIFY. Since D was not subpoenaed no automatic immunity. D’s testifying in GJ against them are granted immunity on a question-by-question basis.
2) Miranda Warnings–if a D testifies before GJ, there is no right to Miranda even if subpoenaed.
3) Evidence–to return a “true bill.” a GJ may use evid that would be inadmissible at trial.
4) Witnesses–GJ witnesses don’t have right to counsel at GJ proceedings. They may consult an atty outside the proceeding. If witness subpoenaed to testify he is permitted to have atty present.
5) Use immunity–testimony given by an individual subpoenaed before a GJ confers automatic immunity on that witness relative to that testimony. Gov may not use evidence gained as a result of the literal testimony of the witness against that witness.
- If Gov has ability to gain same evidence by means ind of testimony, that evid may be employed against witness.
6) Waiver–any witness subpoenaed to testify before GJ must waive immunity to formal writing.
6th Amendment
- The rights associated w/ 6th A relative to crim prosecution of D are:
1) Right to speedy trial–attached when D has been arrested or charged
2) Right to impartial jury and, by implication impartial judge
3) Right to be informed of the cause of action and confrontation of witnesses
4) Right to compulsory process for obtaining witnesses
5) Right to assistance of counsel
Ten Critical Stages when Right to Atty Attaches
PRE-TRIAL
1) Custodial Interrogations–D is questioned by police (Miranda–5th)
2) Accusatory Stage–Arraignment/Indictment
- NY: the accusatory stage includes the drafting of accusatory instrument, which is prior to arraignment
3) Post-charge line-up
4) Post-indictment interrogation whether custodial or not
5) Preliminary hearing (to determine PC to prosecute)
TRIAL Stage
6) all felony trials
7) Misdemeanor trial when imprisonment is actually imposed
8) Overnight recess during trial
POST-TRIAL
9) Guilty plea and sentencing
10) First appeal granted as a matter of right
Seven Non-Critical Stages
1) Pre-charge line-up or photo id
2) non-adversarial “Gerstein” hearing (PC hearing)
3) GJ proceeding
4) Discretionary appeal
5) Parole and probation revocation proceedings
6) Taking of handwriting or voice exemplars and blood
7) Brief recess during D’s testimony at trial
NY Distinction: Indelible Right to Counsel
NY gives D’s broader protections than Fed re “indelible right to counsel.” Right attaches under following circumstances:
(1) at ARRAIGNMENT
(2) when ACCUSATORY INSTRUMENT is filed in ct
(3) when there has been SIGNIFICANT JUDICIAL ACTIVITY; or
(4) when the D is in custody, an ATTY ENTERS the proceeding, and the police are engaged in an activity overwhelming to the layperson.
RIGHT TO ATTY ATTACHES: (i) as soon as D find out they are going to be arrested, (ii) when an atty has entered the proceedings (often before D knows going to be arrested)
NY RULE: if there is “undue delay in drafting an accusatory instrument” and there is a line-up of the accused w/o the D’s atty, tje prosecution must explain the delay and show it was not designed to give the prosecutor time to do a line-up. Right to atty can also attach if there is a judicial intervention, like a REMOVAL ORDER or ordering an incarcerated person from jail.
Pre-Indictment/Accusatory Stage (Non-Critial)
No right to counsel at these preceedings, but the right so the individual are protected using due process analysis. Was the lineup fair? Same sex, age, description, etc. Or was is suggestive.
