Criminal Procedure

Question 1

What constitutes a search and seizure?

Answer 1

A search is a governmental intrusion which violates a reasonable expectation of privacy, or an intrusion onto private property for the purpose of seizing information.

The Supreme Court has adopted a two part test for determining whether there is a reasonable expectation of privacy: (1) the person must have a subjective expectation of privacy; and (2) society must be prepared to recognize that expectation as objectively reasonable.

Question 2

Open Fields Searches

Answer 2

Under the “open fields” doctrine, areas outside the “curtilage” (dwelling house and outbuildings) are subject to police entry and search—these areas are “held out to the public” and are unprotected by the Fourth Amendment. Curtilage questions should be resolved with particular reference to four factors:

• (1) the proximity of the area claimed to be curtilage to the home,
• (2) whether the area is included within an enclosure surrounding the home,
• (3) the nature of the uses to which the area is put, and
• (4) the steps taken by the resident to protect the area from observation by people passing by.

Even a building such as a barn may be considered to be outside the curtilage and therefore outside the protection of the Fourth Amendment. In addition, the Fourth Amendment does not prohibit the warrantless search and seizure of garbage left for collection outside the curtilage of a home.

Question 3

Aerial Searches

Answer 3

The police may, within the Fourth Amendment, fly over a field or yard to observe with the naked eye things therein. Even a low (400 feet) fly-over by a helicopter to view inside a partially covered greenhouse is permissible. The police may also take aerial photographs of a particular site. The Court considers evidence of this nature to be legally obtained if the officers flew within legally navigable airspace.

Question 4

Thermal Imaging of Homes

Answer 4

The Supreme Court has held that because of the strong expectation of privacy within one’s home, obtaining by sense enhancing technology any information regarding the interior of a home that could not otherwise have been obtained without physical intrusion constitutes a search, at least where the technology in question is not in general public use.

For example, in Kyllo, the use of a thermal imager on defendant’s home from outside the curtilage to detect the presence of high intensity lamps commonly used to grow marijuana constituted a search. All of the details of a home are “intimate,” and thus, there is a reasonable expectation of privacy.

Question 5

Observation and Monitoring of Public Behavior

Answer 5

The Supreme Court frequently has stated, “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.”

• (a) GPS Trackers → The police may not covertly place a GPS tracking device on a person’s automobile without a warrant. However, in Knotts, the Court found that placing a “beeper” to track the location of a barrel of chloroform purchased by the defendant did not constitute a search. The Court found that the governmental surveillance conducted by means of the beeper amounted principally to the following of an automobile on public streets and highways. A person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.
• (b) Pen Registers → A pen register records only the numbers dialed from a certain phone. The Fourth Amendment does not require prior judicial approval for installation and use of pen registers.

Question 6

Use of Dog Sniffs At Traffic Stops

Answer 6

As long as police officers have lawfully stopped a car and do not extend the stop beyond the time necessary to issue a ticket and conduct ordinary inquiries incident to such a stop, a dog sniff of the car does not implicate the Fourth Amendment. However, police officers may not extend an otherwise-completed traffic stop, absent reasonable suspicion, in order to complete a dog sniff. The key question is not whether the dog sniff occurs before the police issue the ticket, but rather whether the dog sniff adds time to the stop.

Note: During a routine traffic stop, a dog “alert” to the presence of drugs can form the basis for probable cause to justify a search of the automobile.

Question 7

Use of Dog Sniffs At Entry of Home

Answer 7

Although the entry to a home is within the curtilage protected by the Fourth Amendment against unreasonable searches, a police officer may approach a home in hopes of speaking to its occupants—just like a private citizen, such as a neighbor or a delivery person. However, the scope of the license is limited. Police officers may not exceed the license by having a drug dog sniff around the entry or other areas within the curtilage. Such a physical intrusion into a constitutionally protected area constitutes a “search” within the meaning of the Fourth Amendment, and therefore requires a valid warrant or warrant exception.

Question 8

The Requirement for Probable Cause

Answer 8

A core requirement of the Fourth Amendment is the requirement for probable cause. Generally, a judge may issue a search or arrest warrant only if there is probable cause. If it is a circumstance where a warrant is not required, a police officer generally can search or arrest only if there is probable cause. Three questions are particularly important in understanding probable cause:

• (1) What Is Sufficient Belief to Meet the Standard → In Gates, the Court departed from the Aguilar-Spinelli approach and emphasized the need to consider the “totality of the circumstances.”
• (2) Is It an Objective or a Subjective Standard? → To determine whether an officer had probable cause to arrest an individual, examine the events leading up to the arrest, and then decide whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to probable cause.
• (3) What if the Police Make a Mistake as to the Law? → A police officer’s mistake of law that gives rise to reasonable suspicion does not invalidate a seizure as long as the mistake was reasonable.

Question 9

Valid Warrant Requirements

Answer 9

To be valid, a warrant must:

• (1) be issued by a neutral and detached magistrate;
• (2) be based on probable cause established from facts submitted to the magistrate by a government agent upon oath or affirmation; and
• (3) particularly describe the place to be searched and the items to be seized.

Question 10

Anticipatory Warrants

Answer 10

An anticipatory warrant is based on an affidavit for a search warrant that states that the search will occur only if certain events take place. In Grubbs, the Court held that anticipatory warrants are no different in principle from ordinary warrants. They require the magistrate to determine (1) that it is now probable that (2) contraband, evidence of a crime, or a fugitive will be on the described premises (3) when the warrant is executed.

In order for a conditioned anticipatory warrant to comply with the Fourth Amendment’s requirement of probable cause, two prerequisites of probability must be satisfied. (1) It must be true not only that if the triggering condition occurs “there is a fair probability that contraband or evidence of a crime will be found in a particular place,” but also that (2) there is probable cause to believe the triggering condition will occur. The supporting affidavit must provide the magistrate with sufficient information to evaluate both aspects of the probable-cause determination.

Question 11

How May Police Treat Those Who Are Present When a Warrant Is Being Executed?

Answer 11

The Supreme Court has held that a person who happens to be present in premises that are subject to a search cannot be searched just by virtue of being there. The Court explained that a search “must be supported by probable cause particularized with respect to that person.”

The Court has also held that when there is a search of a residence, those present at the time of the search may be detained. However, such detentions are limited to persons in the immediate vicinity of the premises when the warrant is being executed. It does not give officers authority to follow, stop, detain, and search persons who left the premises shortly before the warrant was executed.

Question 12

Do Police Have to Knock and Announce Before Searching a Dwelling?

Answer 12

The Court has held that absent exigent circumstances, the police must knock and announce their presence before entering a residence to execute a search warrant.

• Sufficiency of Delay → If the officers executing a warrant have a reasonable fear that evidence, such as cocaine, will be destroyed after they announce themselves, a limited 15-20 second delay before using force to enter the house is reasonable.

Question 13

“No Knock” Entries

Answer 13

No announcement need be made if the officer has reasonable suspicion, based on facts, that knocking and announcing would be dangerous or futile or that it would inhibit the investigation, e.g., because it would lead to the destruction of evidence. Whether a “no knock” entry is justified must be made on a case-by-case basis; a blanket exception for warrants involving drug investigations is impermissible.

• Note: The fact that property damage will result from a “no knock” entry does not require a different standard—reasonable suspicion is sufficient.

Question 14

Exigent Circumstances Exception

Answer 14

In an emergency, the police can search without a warrant if there is probable cause. This situation is often referred to as exigent circumstances. For this exception to apply, it must be an emergency situation justifying warrantless activity, and there must be probable cause. The Court generally has been reluctant to find exigent circumstances, but the Court has found exigent circumstances in a number of situations: hot pursuit of a felon, protecting safety, and preventing destruction of evidence. Police officers may not enter a home to make a routine felony arrest.

Question 15

Hot Pursuit (Exigent Circumstances)

Answer 15

Police officers in hot pursuit of a fleeing felon may make a warrantless search and seizure. The scope of the search may be as broad as may reasonably be necessary to prevent the suspect from resisting or escaping. When the police have probable cause and attempt to make a warrantless arrest in a “public place,” they may pursue the suspect into private dwellings.

Question 16

Protecting Safety (Exigent Circumstances)

Answer 16

Emergencies that threaten health or safety if not immediately acted upon will justify a warrantless search. This includes situations where the police see someone injured or threatened with injury. Whether an emergency exists is determined objectively, from the officer’s point of view.

Question 17

Destruction of Evidence (Exigent Circumstances)

Answer 17

Police officers may enter a home without a warrant to prevent the destruction of evidence, even if the exigency arose because police officers knocked on the door and asked for entry, as long as the officers have reason to believe that evidence is being destroyed and the officers did not create the exigency through an actual or threatened Fourth Amendment violation.

Question 18

Plain View Exception

Answer 18

Police may seize unspecified property while executing a search warrant. The police may make a warrantless seizure when they:

• (i) are legitimately on the premises;
• (ii) discover evidence, fruits or instrumentalities of crime, or contraband;
• (iii) see such evidence in plain view; and
• (iv) have probable cause to believe (i.e., it must be immediately apparent) that the item is evidence, contraband, or a fruit or instrumentality of crime.

Question 19

Automobile Exception

Answer 19

If the police have probable cause to believe that a vehicle such as an automobile contains contraband or fruits, instrumentalities, or evidence of a crime, they may search the vehicle without a warrant. If the police have full probable cause to search a vehicle, they can search the entire vehicle (including the trunk) and all containers within the vehicle that might contain the object for which they are searching. However, if the police only have probable cause to search a container (recently) placed in a vehicle, they may search that container, but the search may not extend to other parts of the car.

The search is not limited to the driver’s belongings and may extend to packages belonging to a passenger.

The automobile exception extends to any vehicle that has the attributes of mobility and a lesser expectation of privacy similar to a car. For example, the Supreme Court has held that it extends to motor homes if they are not at a fixed site.

Question 20

Searches Incident to Arrest Exception

Answer 20

The police may conduct a warrantless search incident to an arrest as long as it was made on probable cause. If an arrest violates the Constitution, then any search incident to that arrest also will violate the Constitution. The police may conduct a search incident to arrest whenever they arrest a person, and this is true even if the arrest is invalid under state law, as long as the arrest was constitutionally valid (e.g., reasonable and based on probable cause).

Incident to a constitutional arrest, the police may search the person and areas into which he might reach to obtain weapons or destroy evidence (his “wingspan”). The arrestee’s wingspan follows him as he moves.

Police officers may inspect the physical attributes of a cell phone. However, they may not, without a warrant, search digital information on a cell phone seized from the arrestee.

After arresting the occupant of an automobile, the police may search the interior of the auto incident to the arrest if at the time of the search: (a) the arrestee is unsecured and still may gain access to the interior of the vehicle; or (b) the police reasonably believe that evidence of the offense for which the person was arrested may be found in the vehicle.

Question 21

Inventory Searches Exception

Answer 21

The police may search an arrestee’s personal belongings in order to inventory them before incarcerating the arrestee. Similarly, the police may search an entire vehicle—including closed containers within the vehicle—that has been impounded, as long as the search is part of an established department routine.

Question 22

Protective Sweeps Exception

Answer 22

The Court has held that when the police arrest a person, they may conduct a protective sweep of the premises if they have reasonable suspicion that a person might be there who poses a threat to them.

In Buie, the Court upheld such protective sweeps but said that such a sweep may extend only to a cursory inspection of those places where a person may be found. The police may make a protective sweep of the area beyond the defendant’s wingspan if they believe accomplices may be present.

Question 23

Consent Searches Exception

Answer 23

The police may conduct a valid warrantless search if they have a voluntary consent to do so. Knowledge of the right to withhold consent, while a factor to be considered, is not a prerequisite to establishing a voluntary consent. The test for consent is whether it is voluntary under the totality of the circumstances.

The police may not act on consent from an occupant if a co-occupant is present and objects to the search and the search is directed against the co-occupant. If a co-occupant has objected to a search and is removed for a reason unrelated to the refusal (e.g., a lawful arrest), the police may act on consent of the occupant, even if the removed co-occupant had refused consent.

The scope of the search is limited by the scope of the consent. However, consent extends to all areas to which a reasonable person under the circumstances would believe it extends.

Question 24

Third Party Doctrine

Answer 24

Under the third-party doctrine, a person has no legitimate expectation of privacy, for Fourth Amendment purposes, in information he voluntarily turns over to third parties, and that remains true even if the information is revealed on the assumption that it will be used only for a limited purpose; as a result, the Government is typically free to obtain such information from the recipient without triggering Fourth Amendment protections.

However, the Government must generally obtain a search warrant supported by probable cause before acquiring cell-site location information (CSLI) from a wireless carrier.

Question 25

Special Needs Exception

Answer 25

The Supreme Court has said that there is a category of searches where there are “special needs,” where warrants do not need to be obtained and often where less than probable cause is required. There is no precise definition of the category of “special needs.” Some examples, such as checkpoints and border searches, could be regarded as “special needs” situations. The Court also has considered this in the context of administrative inspections and also drug testing. The special needs category often, though not always, involves searches for reasons other than criminal law enforcement. In fact, Ferguson v. City of Charleston stresses that “special needs” must be more than the special need to have more effective law enforcement. Most recently, the Court has considered “special needs” in terms of the ability of police to take DNA from a suspect to see if it matches DNA from an unsolved crime.

Question 26

Administrative Searches (Special Needs)

Answer 26

Inspectors must have a warrant for searches of private residences and commercial buildings. However, the same standard of probable cause as is required for other searches is not required for a valid administrative inspection warrant. A showing of a general and neutral enforcement plan will justify issuance of the warrant, which is designed to guard against selective enforcement.

Exceptions:

• (a) Contaminated Food → A warrant is not required for the seizure of spoiled or contaminated food.
• (b) Highly Regulated Industries → A warrant is not required for searches of businesses in highly regulated industries, because of the urgent public interest and the theory that the business has impliedly consented to warrantless searches by entering into a highly regulated industry. Such industries include liquor, guns, strip mining, and automobile junkyards, but not car leasing or general manufacturing.

Question 27

Border Searches (Special Needs)

Answer 27

There is a diminished expectation of privacy at the border and its functional equivalents due to competing interests of national sovereignty. Searches there do not require a warrant, probable cause, or reasonable suspicion. A functional equivalent of the border might be a point near the border where several routes all leading to the border merge.

Permissible border searches include the opening of international mail, which postal regulations authorize when postal authorities have reasonable cause to suspect that the mail contains contraband, although the regulations prohibit the authorities from reading any correspondence inside.

Border officials may stop an automobile at a fixed checkpoint inside the border for questioning of the occupants even without a reasonable suspicion that the automobile contains illegal aliens. Officials may disassemble stopped vehicles at such checkpoints, even without reasonable suspicion. However, the Supreme Court has suggested that nonroutine, personal searches at the border (e.g., strip searches or body cavity searches) may require probable cause.

If the officials have a “reasonable suspicion” that a traveler is smuggling contraband in her stomach, they may detain her for a time reasonable under the circumstances.

Question 28

Checkpoints (Special Needs)

Answer 28

In certain cases where special law enforcement needs are involved, the Court allows police officers to set up roadblocks to stop cars without individualized suspicion that the driver has violated some law. To be valid, it appears that such roadblocks must:

• (i) stop cars on the basis of some neutral, articulable standard (e.g., every car or every third car); and
• (ii) be designed to serve purposes closely related to a particular problem pertaining to automobiles and their mobility.

Examples: Because of the gravity of the drunk driving problem and the magnitude of the states’ interest in getting drunk drivers off the roads, police may set up roadblocks to check the sobriety of all drivers passing by. However, the police may not set up roadblocks to check cars for illegal drugs. The nature of such a checkpoint is to detect evidence of ordinary criminal wrongdoing unrelated to use of cars or highway safety. If suspicionless stops were allowed under these circumstances, all suspicionless seizures would be justified.

Question 29

School Searches (Special Needs)

Answer 29

A warrant or probable cause is not required for searches conducted by public school officials; only reasonable grounds for the search are necessary. This exception is justified due to the nature of the school environment. The Court has also upheld a school district rule that required students participating in any extracurricular activity to submit to random urinalysis drug testing monitored by an adult of the same sex. A school search will be held to be reasonable only if:

• (1) it offers a moderate chance of finding evidence of wrongdoing;
• (2) the measures adopted to carry out the search are reasonably related to the objectives of the search; and
• (3) the search is not excessively intrusive in light of the age and sex of the student and nature of the infraction.

Question 30

Government Employee Searches (Special Needs)

Answer 30

A warrantless search of a government employee’s desk and file cabinets is permissible under the Fourth Amendment if it is reasonable in scope and if it is justified at its inception by a noninvestigatory, work-related need or a reasonable suspicion of work-related misconduct.

Question 31

Drug Testing (Special Needs)

Answer 31

Although government-required drug testing constitutes a search, the Supreme Court has upheld such testing without a warrant, probable cause, or even individualized suspicion when justified by “special needs” beyond the general interest of law enforcement. Examples:

• (1) The government can require railroad employees who are involved in accidents to be tested for drugs after the accidents.
• (2) The government can require persons seeking Customs positions connected to drug interdiction to be tested for drugs. There is a special need for such testing because persons so employed will have ready access to large quantities of drugs.
• (3) The government can require public school students who participate in any extracurricular activities to submit to random drug tests because of the special interest schools have in the safety of their students.
• (4) Special needs do not justify a warrantless and nonconsensual urinalysis test to determine whether a pregnant woman has been using cocaine, where the main purpose of the testing is to generate evidence that may be used by law enforcement personnel to coerce women into drug programs.
• (5) The government may not require candidates for state offices to certify that they have taken a drug test within 30 days prior to qualifying for nomination or election—there is no special need for such testing.

Question 32

Searches in Jails or Prisons (Special Needs)

Answer 32

Jail officials need not have reasonable suspicion that a person arrested for a minor offense possesses a concealed weapon or contraband to subject him to a strip search before admitting him to the general prison population. Deference must be given to the officials unless there is substantial evidence indicating that their response to a situation is exaggerated. The risks that an unsearched prisoner poses are great—from diseases to weapons to gang affiliations. Therefore, suspicionless strip searches are not an exaggerated response.

Question 33

DNA Testing of Arrestees (Special Needs)

Answer 33

When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the police station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is a legitimate police booking procedure that is a reasonable search under the Fourth Amendment.

Question 34

Probation or Parole Exception

Answer 34

The Supreme Court has upheld warrantless searches of a parolee and his home—even without reasonable suspicion—where a state statute provided that as a condition of parole, a parolee agreed that he would submit to searches by a parole officer or police officer at any time, with or without a search warrant or probable cause. The Court held that such warrantless searches are reasonable under the Fourth Amendment because a parolee has a diminished expectation of privacy under such a statute and the government has a heightened need to search parolees because they are less likely than the general population to be law-abiding.

Question 35

Probable Cause to Arrest

Answer 35

An arrest must be based on probable cause. Probable cause to arrest is present when, at the time of arrest, the officer has within her knowledge reasonably trustworthy facts and circumstances sufficient to warrant a reasonably prudent person to believe that the suspect has committed or is committing a crime for which arrest is authorized by law.

Three questions seem particularly important with regard to seizures. First, is a warrant needed for arrests? Second, when does a seizure occur? Finally, is an arrest permissible for a minor offense that does not carry with it the possibility of a prison term?

Question 36

Is a Warrant Needed for Arrests?

Answer 36

In contrast to the rule for searches, police generally need not obtain a warrant before arresting a person in a public place, even if they have time to get a warrant.

Question 37

When Is a Person Seized?

Answer 37

Generally, it is obvious when police arrest or seize a person. When it is not readily apparent, the Supreme Court has indicated that a seizure occurs only when, under the totality of the circumstances, a reasonable person would feel that he was not free to decline the officer’s requests or otherwise terminate the encounter. In this regard, police pursuit of a suspect is not a seizure in and of itself. To constitute a seizure, the Fourth Amendment requires a physical application of force by the officer or a submission to the officer’s show of force. It is not enough that the officer merely ordered the person to stop.

• Example: Officers boarded a bus shortly before its departure and asked individuals for identification and consent to search their luggage. The mere fact that people felt they were not free to leave because they feared that the bus would depart does not make this a seizure of the person.

Question 38

For What Crimes May a Person Be Arrested?

Answer 38

(a) Felony → A police officer may arrest a person without a warrant when she has probable cause to believe that a felony has been committed and that the person before her committed it.

(b) Misdemeanor → An officer may make a warrantless arrest for a misdemeanor committed in her presence. A crime is committed in the officer’s “presence” if she is aware of it through any of her senses.

• Note: The police may make a warrantless misdemeanor arrest even if the crime for which the arrest is made cannot be punished by incarceration.

(c) Exception: Home Arrests Require Warrant → The police must have an arrest warrant to effect a nonemergency arrest of an individual in her own home. The officers executing the warrant may enter the suspect’s home only if there is reason to believe the suspect is within it. All warrantless searches of homes are presumed unreasonable. The burden is on the government to demonstrate sufficient exigent circumstances to overcome this presumption.

• Homes of Third Parties → Absent exigent circumstances, the police executing an arrest warrant may not search for the subject of the warrant in the home of a third party without first obtaining a separate search warrant for the home. If the police do execute an arrest warrant at the home of a third party without obtaining a search warrant for the home, the arrest is still valid, but evidence of any crime found in the home cannot be used against the owner of the home since it is the fruit of an unconstitutional search. However, the arrestee will not be able to have such evidence suppressed unless he can establish a legitimate expectation of privacy in the home.

(d) Effect of Invalid Arrests → An unlawful arrest, by itself, has no impact on a subsequent criminal prosecution. Thus, if the police improperly arrest a person (e.g., at his home without a warrant), they may detain him if they have probable cause to do so, and the invalid arrest is not a defense to the offense charged. Of course, evidence that is a fruit of the unlawful arrest may not be used against the defendant at trial because of the exclusionary rule.

Question 39

Authority for Police to Stop and Frisk

Answer 39

Police have the authority to briefly detain a person for investigative purposes even if they lack probable cause to arrest. To make such a stop, police must have a reasonable suspicion supported by articulable facts of criminal activity or involvement in a completed crime.

• Note: If the police also have reasonable suspicion to believe that the detainee is armed and dangerous, they may also conduct a frisk (a limited search) to ensure that the detainee has no weapons.

Question 40

Distinction Between Stops and Arrests

Answer 40

Under Terry v. Ohio, both stops and arrests are seizures within the meaning of the Fourth Amendment. Arrests, though, must be based on probable cause, while stops require only reasonable suspicion. The Court has made clear that if a person is detained for sustained interrogation that is an arrest within the meaning of the Fourth Amendment.

The duration of the detention also matters in determining whether there has been a stop or an arrest. In United States v. Place, the Court found that detaining a person’s luggage for 90 minutes was a seizure under the Fourth Amendment. But the Court has not imposed rigid time limits in determining when a stop becomes an arrest. In other cases, stops amounting to between 30-45 minutes were not arrests.

Question 41

What May Police Do When They Stop an Individual?

Answer 41

Terry v. Ohio says that police may frisk an individual if there is reasonable suspicion to believe that the suspect is armed and dangerous. In Michigan v. Long, the Court said that the police may conduct a cursory “frisk” of a car if there is reason to believe that there is a weapon in the car and that the person may gain access to that weapon.

When the police frisk a person, they may seize any evidence that is apparent to their experienced “plain feel.” Minnesota v. Dickerson drew a distinction between “plain touch,” which is allowed, and the police manipulating the lining of a person’s clothes to look for evidence, which is not permitted.

As long as the police have the reasonable suspicion required to make a Terry stop, they may require the detained person to identify himself (i.e., state his name), and the detainee may be arrested for failure to comply with such a requirement.

Question 42

What is Sufficient for Reasonable Suspicion?

Answer 42

The Court has not specifically defined “reasonable suspicion.” It requires something more than a vague suspicion (e.g., it is not enough that the detainee was in a crime-filled area), but full probable cause is not required. Whether the standard is met is judged under the totality of the circumstances.

Question 43

Reasonable Suspicion Based on Informants’ Tips

Answer 43

Where the source of suspicion of criminal activity is an informant’s tip, the tip must be accompanied by indicia of reliability, including predictive information, sufficient to make the officer’s suspicion reasonable. The Court has also held that an anonymous tip of a person driving erratically is sufficient to make a stop in that context.

Question 44

Reasonable Suspicion Based on Avoiding a Police Officer

Answer 44

Reasonable suspicion justifying a stop is present when: (i) a suspect who is standing on a corner in a high crime area (ii) flees after noticing the presence of the police. Neither factor standing alone is enough to justify a stop, but together they are sufficiently suspicious. (Illinois v. Wardlow).

Question 45

Electronic Surveillance

Answer 45

Wiretapping and any other form of electronic surveillance that violates a reasonable expectation of privacy constitute a search under the Fourth Amendment. (Katz v. United States). In Berger v. New York, the Supreme Court indicated that for a valid warrant authorizing a wiretap to be issued, the following requirements must be met:

• (1) a showing of probable cause to believe that a specific crime has been or is being committed must be made;
• (2) the suspected persons whose conversations are to be overheard must be named;
• (3) the warrant must describe with particularity the conversations that can be overheard;
• (4) the wiretap must be limited to a short period of time (although extensions may be obtained upon an adequate showing);
• (5) provisions must be made for the termination of the wiretap when the desired information has been obtained; and
• (6) a return must be made to the court, showing what conversations have been intercepted.

Exceptions:

• (a) “Unreliable Ear” → A speaker assumes the risk that the person to whom she is talking is unreliable. If the person turns out to be an informer wired for sound or taping the conversation, the speaker has no basis in the Fourth Amendment to object to the transmitting or recording of the conversation as a warrantless search. (United States v. White).
• (b) “Uninvited Ear” → A speaker has no Fourth Amendment claim if she makes no attempt to keep the conversation private. (Katz).

Question 46

When Does the Exclusionary Rule Apply?

Answer 46

In Herring v. United States, the Supreme Court imposed substantial limits on the application of the exclusionary rule. The Court held that the exclusionary rule applies only to deliberate or reckless violations of the Fourth Amendment or those that are the result of systematic government policies. The exclusionary rule does not apply to negligent or good faith violations of the Fourth Amendment. The Court emphasized that the sole purpose of the exclusionary rule is to deter police misconduct.

Generally, not only must illegally obtained evidence be excluded, but also all evidence obtained or derived from exploitation of that evidence. The courts deem such evidence the tainted fruit of the poisonous tree.

In Davis v. United States, the Court reaffirmed that the exclusionary rule exists solely to deter violations of the Fourth Amendment and thus concluded that it does not apply when police follow the law as it existed as of the time of the search, even though the law was changed while the case was pending on appeal.

Question 47

Who Can Object to the Introduction of Evidence Raised?

Answer 47

Only those whose Fourth Amendment rights were violated may raise the exclusionary rule. The Supreme Court has imposed a standing requirement so that a person can complain about an evidentiary search or seizure only if it violates his own reasonable expectations of privacy. Whether a person has a reasonable expectation of privacy generally is based on the totality of the circumstances, considering factors such as ownership of the place searched and location of the item seized.

• Search of Third Parties → Standing does not exist merely because a person will be harmed by introduction of evidence seized during an illegal search of a third person’s property.
• Automobile Passengers → An automobile stop constitutes a seizure not only of the automobile’s driver, but also any passengers as well. (Brendlin v. California).

Question 48

Balancing Test (Exceptions to the Exclusionary Rule)

Answer 48

In recent cases, the Court has emphasized that in deciding whether to apply the exclusionary rule, lower courts must balance the rule’s purpose (i.e., deterrence of police misconduct) against its costs (i.e., the exclusion of probative evidence). Therefore, exclusion of tainted evidence, including fruit of the poisonous tree, is not automatic; whether exclusion is warranted in a given case depends on the culpability of the police and the potential of the exclusion to deter wrongful police conduct. (Herring v. United States).

Question 49

Independent Source (Exclusionary Rule Exception)

Answer 49

Evidence is admissible if the prosecution can show that it was obtained from a source independent of the original illegality.

• Example: Police illegally search a warehouse and discover marijuana, but do not seize it. The police later return to the warehouse with a valid warrant based on information totally unrelated to the illegal search. If police seize the marijuana pursuant to the warrant, the marijuana is admissible. (Murray v. United States).

Question 50

Inevitable Discovery (Exclusionary Rule Exception)

Answer 50

If the prosecution can show that the police would have discovered the evidence whether or not they had acted unconstitutionally, the evidence will be admissible. (Nix v. Williams).

Question 51

Inadequate Causal Connection (Exclusionary Rule Exception)

Answer 51

If the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that the causal link between the police misconduct and the evidence is broken, the evidence will not be suppressed. In such a case, suppression would not serve the purpose of deterring future misconduct and so the evidence is admissible under the “attenuation exception” to the exclusionary rule. The court will consider:

• (a) the temporal proximity between the unconstitutional conduct and the discovery of the evidence (the closer the temporal proximity, the less likely the exception applies);
• (b) the presence of intervening circumstances; and
• (c) most importantly, the purpose and flagrancy of the official misconduct.

Question 52

Good Faith Exception (Exclusionary Rule)

Answer 52

The exclusionary rule does not apply when the police arrest or search someone erroneously but in good faith, thinking that they are acting pursuant to a valid arrest warrant, search warrant, or law. The Supreme Court has suggested four exceptions to the good faith defense for reliance on a defective search warrant. A police officer cannot rely on a defective search warrant in good faith if:

• (a) the affidavit underlying the warrant is so lacking in probable cause that no reasonable police officer would have relied on it;
• (b) the warrant is defective on its face (e.g., it fails to state with particularity the place to be searched or the things to be seized);
• (c) the police officer or government official obtaining the warrant lied to or misled the magistrate; or
• (d) the magistrate has wholly abandoned his judicial role.

Question 53

Knocking and Announcing Exception (Exclusionary Rule)

Answer 53

Exclusion is not an available remedy for violations of the knock and announce rule pertaining to the execution of a warrant.

• Rationale: The exclusionary remedy is too attenuated from the purposes of the knock and announce rule of protecting human life and limb, property, privacy, and dignity. Moreover, the cost of excluding relevant evidence because of claims that the knock and announce rule was violated is too high when compared to the deterrence benefit that will be gained. Finally, there are other deterrents to prevent officers from violating the rule, such as civil suits and internal police disciplinary sanctions. (Hudson v. Michigan).

Question 54

Statutory Requirements for Electronic Surveillance

Answer 54

Title III of the Omnibus Crime Control and Safe Streets Act regulates interception of private “wire, oral or electronic communications.” (18 U.S.C. §§2510-2520). All electronic communication surveillance (e.g., phone taps, bugs, etc.) must comply with the requirements of this federal statute, which exhibits a legislative decision to require more than the constitutional minimum in this especially sensitive area. Title III prohibits all eavesdropping and wiretapping without a court order.

Question 55

Fourth Amendment Standing

Answer 55

It is not enough merely that someone has an expectation of privacy in the place searched or the item seized. The Supreme Court has imposed a standing requirement so that a person can complain about an evidentiary search or seizure only if it violates his own reasonable expectations of privacy. (Rakas v. Illinois). Whether a person has a reasonable expectation of privacy generally is based on the totality of the circumstances, considering factors such as ownership of the place searched and location of the item seized. (Rawlings v. Kentucky). The Court has held that a person has a reasonable expectation of privacy any time:

• (a) she owned or had a right to possession of the place searched;
• (b) the place searched was in fact her home, whether or not she owned or had a right to possession of it; or
• (c) she was an overnight guest of the owner of the place searched.

Question 56

Fourteenth Amendment Requirement for Voluntariness

Answer 56

For confessions to be admissible, the Due Process Clause of the Fourteenth Amendment requires that they be voluntary. Voluntariness is assessed by looking at the totality of the circumstances, including the suspect’s age, education, and mental and physical condition, along with the setting, duration, and manner of police interrogation.

• (1) Must Be Official Compulsion → Only official compulsion will render a confession involuntary for purposes of the Fourteenth Amendment. A confession is not involuntary merely because it is the product of mental disease that prevents the confession from being of the defendant’s free will.
• (2) Harmless Error Test → A conviction will not necessarily be overturned if an involuntary confession was erroneously admitted into evidence. The harmless error test applies, and the conviction will not be overturned if the government can show that there was other overwhelming evidence of guilt. (Arizona v. Fulminante).

Question 57

Sixth Amendment Right to Counsel

Answer 57

The Sixth Amendment provides that in all criminal prosecutions, the defendant has a right to the assistance of counsel. The right protects defendants from having to face a complicated legal system without competent help. It applies at all critical stages of a criminal prosecution after formal proceedings have begun.

The right is violated when the police deliberately elicit an incriminating statement from a defendant without first obtaining a waiver of the defendant’s right to have counsel present. Since Miranda, the Sixth Amendment right has been limited to cases where adversary judicial proceedings have begun (e.g., formal charges have been filed). (Massiah v. United States). Thus, the right does not apply in precharge custodial interrogations.

Question 58

“Offense Specific” (Right to Counsel)

Answer 58

The Sixth Amendment right to counsel is “offense specific.” Thus, if a defendant makes a Sixth Amendment request for counsel for one charge, he must make another request if he is subsequently charged with a separate, unrelated crime if he desires counsel for the second charge. Similarly, even though a defendant’s Sixth Amendment right to counsel has attached regarding one charge, he may be questioned without counsel concerning an unrelated charge. (Illinois v. Perkins).

• Test for Different Offenses → The test for determining whether offenses are different under the Sixth Amendment is the Blockburger test. Under the test, two crimes are considered different offenses if each requires proof of an additional element that the other crime does not require. (Texas v. Cobb).

Question 59

Waiver of Right to Counsel

Answer 59

The Sixth Amendment right to counsel may be waived. The waiver must be knowing and voluntary. Moreover, the waiver does not necessarily require the presence of counsel, at least if counsel has not actually been requested by the defendant but rather was appointed by the court. (Montejo v. Louisiana).

Question 60

Remedy for Right to Counsel Violations

Answer 60

If the defendant was entitled to a lawyer at trial, the failure to provide counsel results in automatic reversal of the conviction, even without any showing of specific unfairness in the proceedings. Similarly, erroneous disqualification of privately retained counsel results in automatic reversal. However, at nontrial proceedings (such as a post-indictment lineup), the harmless error rule applies to deprivations of counsel.

Question 61

Use of Right to Counsel Violations as Impeachment

Answer 61

A statement obtained in violation of a defendant’s Sixth Amendment right to counsel, while not admissible in the prosecution’s case-in-chief, may be used to impeach the defendant’s contrary trial testimony. This rule is similar to the rule that applies to Miranda violations.

Question 62

Miranda Warnings

Answer 62

In Miranda v. Arizona, the Fifth Amendment privilege against compelled self-incrimination became the basis for ruling upon the admissibility of a confession. The Miranda warnings and a valid waiver are prerequisites to the admissibility of any statement made by the accused during custodial interrogation. A person in custody must, prior to interrogation, be clearly informed that: (i) he has the right to remain silent; (ii) anything he says can be used against him in court; (iii) he has the right to the presence of an attorney; and (iv) if he cannot afford an attorney, one will be appointed for him if he so desires. Note: The Supreme Court has held that the holding of Miranda was based on the requirements of the Fifth Amendment as made applicable to the states through the Fourteenth Amendment, and therefore Congress cannot eliminate the Miranda requirements by statute. (Dickerson v. United States).

• (a) Need Not Be Verbatim → Miranda requires that all suspects be informed of their rights without considering any prior awareness of those rights. The warnings need not be given verbatim, as long as the substance of the warning is there.
• (b) Rewarning Not Needed After Break → There is generally no need to repeat the warnings merely because of a break in the interrogation, unless the time lapse has been so long that a failure to do so would seem like an attempt to take advantage of the suspect’s ignorance of his rights.

Question 63

When Are Miranda Warnings Required?

Answer 63

Anyone in police custody and accused of a crime, no matter how minor a crime, must be given Miranda warnings prior to interrogation by the police. (Berkemer v. McCarty).

Question 64

Governmental Conduct Requirement (Miranda)

Answer 64

Miranda generally applies only to interrogation by the publicly paid police. It does not apply where interrogation is by an informant who the defendant does not know is working for the police. (Illinois v. Perkins).

• (i) Meeting with Probation Officer → Admission of rape and murder by a probationer to his probation officer was not compelled or involuntary, despite the probationer’s obligation to periodically report and be “truthful in all matters.” (Minnesota v. Murphy).
• (ii) Grand Jury Hearings → The Miranda requirements do not apply to a witness testifying before a grand jury, even if the witness is under the compulsion of a subpoena. Such a witness who has not been charged or indicted does not have the right to have counsel present during the questioning, but he may consult with an attorney outside the grand jury room. A witness who gives false testimony before a grand jury may be convicted of perjury even though he was not given the Miranda warnings.

Question 65

Custody Requirement (Miranda)

Answer 65

Determining whether custody exists is a two-step process: The first step (sometimes called the “freedom of movement test”) requires the court to determine whether a reasonable person under the circumstances would feel that he was free to terminate the interrogation and leave. All of the circumstances surrounding the interrogation must be considered.

If an individual’s freedom of movement was curtailed in this way, the next step considers “whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda.” Therefore, the more a setting resembles a traditional arrest (i.e., the more constrained the suspect feels), the more likely the Court will consider it to be custody. If the detention is voluntary, it does not constitute custody.

• (i) Test Is Objective → The initial determination of whether a person is in custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being interrogated. Thus, a court would consider things like the location of the questioning (e.g., suspect’s home, workplace, or school; crime scene; police car; police station); whether police officers had their guns drawn; the length of the questioning; the suspect’s apparent youth; whether the suspect was told he could not leave; etc.
• (ii) Traffic Stops Generally Not Custodial → Although a routine traffic stop curtails a motorist’s freedom of movement, such a stop is presumptively temporary and brief, and the motorist knows that he typically will soon be on his way; therefore, the motorist should not feel unduly coerced. Thus, Miranda warnings normally need not be given during a traffic stop.
• (iii) Incarcerated Suspects → The fact that a suspect is incarcerated does not automatically mean that any interrogation of the suspect is custodial. The test still is whether the person’s freedom of action is limited in a significant way.

Question 66

Interrogation Requirement (Miranda)

Answer 66

“Interrogation” refers not only to express questioning, but also to any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect. (Rhode Island v. Innis). However, Miranda does not apply to spontaneous statements not made in response to interrogation, although officers must give the warnings before any followup questioning. Neither does Miranda apply to routine booking questions (e.g., name, address, age, etc.), even when the booking process is being taped and may be used as evidence.

• Questioning by Different Police Agencies → When a second police agency continues to question a suspect at a point when the first police department terminates its questioning, the impact of an earlier denial of rights by the first department carries over into the questioning by the second agency.

Question 67

What happens if a detainee does nothing after receiving Miranda warnings?

Answer 67

If the detainee does not respond at all to Miranda warnings, the Court will not presume a waiver, but neither will the Court presume that the detainee has asserted a right to remain silent or to consult with an attorney. Therefore, the police may continue to question the detainee.

Question 68

What happens if a detainee waives his Miranda rights?

Answer 68

The detainee may waive his rights under Miranda. To be valid, the government must show by a preponderance of the evidence that the waiver was knowing and voluntary. The Court will look to the totality of the circumstances in determining whether this standard was met. But it appears that if the government can show that the detainee received Miranda warnings and then chose to answer questions, that is probably sufficient.

• Police Deception of Detainee’s Lawyer → If the Miranda warnings are given, a voluntary confession will be admissible even if the police lie to the detainee’s lawyer about their intent to question the detainee or fail to inform the detainee that his lawyer is attempting to see him, as long as adversary judicial proceedings have not commenced.

Question 69

What happens if a detainee invokes his right to remain silent under Miranda?

Answer 69

At any time prior to or during interrogation, the detainee may indicate that he wishes to remain silent. Such an indication must be explicit, unambiguous, and unequivocal (e.g., the detainee’s failure to answer does not constitute an invocation of the right to remain silent). If the detainee so indicates, all questioning related to the particular crime must stop.

The police may reinitiate questioning after the detainee has invoked the right to remain silent, as long as they “scrupulously honor” the detainee’s request. This means, at the very least, that the police may not badger the detainee into talking and must wait a significant time before reinitiating questioning.

• Example: In the Supreme Court’s only opinion directly on point, it allowed police to reinitiate questioning where: (i) the police immediately ceased questioning upon the detainee’s request and did not resume questioning for several hours; (ii) the detainee was rewarned of his rights; and (iii) questioning was limited to a crime that was not the subject of the earlier questioning. (Michigan v. Mosley).

Question 70

What happens if a detainee invokes his right to counsel under Miranda?

Answer 70

At any time prior to or during interrogation, the detainee may also invoke a Miranda (i.e., Fifth Amendment) right to counsel. If the detainee invokes this right, all questioning must cease until the detainee is provided with an attorney or initiates further questioning himself.

• (i) Police May Not Resume Questioning About Any Crime → Once the detainee invokes his right to counsel under Miranda, all questioning must cease; the police may not even question the detainee about a totally unrelated crime, as they can where the detainee merely invokes the right to remain silent. However, the detainee may waive his right to counsel after invoking the right, and thus initiate resumption of questioning.
• (ii) Unambiguous and Specific → A Fifth Amendment request for counsel can be invoked only by an unambiguous request for counsel in dealing with the custodial interrogation. The request must be sufficiently clear that a reasonable police officer in the same situation would understand the statement to be a request for counsel.
• (iii) Counsel Must Be Present → Mere consultation with counsel prior to questioning does not satisfy the right to counsel—the police cannot resume questioning the detainee in the absence of counsel. (Minnick v. Mississippi). Of course, counsel need not be present if the detainee waives the right to counsel by initiating the exchange.
• (iv) Duration of Prohibition → The prohibition against questioning a detainee after he requests an attorney lasts the entire time that the detainee is in custody for interrogation purposes, plus 14 more days after the detainee returns to his normal life. After that point, the detainee can be questioned regarding the same matter upon receiving a fresh set of Miranda warnings. (Maryland v. Shatzer).

Question 71

What is the effect of a Miranda violation?

Answer 71

Generally, evidence obtained in violation of Miranda is inadmissible at trial.

• (a) Use of Confession for Impeachment → A confession obtained in violation of the defendant’s Miranda rights, but otherwise voluntary, may be used to impeach the defendant’s testimony if he takes the stand at trial, even though such a confession is inadmissible in the state’s case in chief as evidence of guilt. However, a truly involuntary confession is inadmissible for any purpose.
• (b) Warnings After Questioning and Confession → If the police obtain a confession from a detainee without giving him Miranda warnings and then give the detainee Miranda warnings and obtain a subsequent confession, the subsequent confession will be inadmissible if the “question first, warn later” nature of the questioning was intentional (i.e., the facts make it seem like the police used this as a scheme to get around the Miranda requirements). (Missouri v. Seibert). However, a subsequent valid confession may be admissible if the original unwarned questioning seemed unplanned and the failure to give Miranda warnings seemed inadvertent. (Oregon v. Elstad).
• (c) Nontestimonial Fruits of an Unwarned Confession → If the police fail to give Miranda warnings and during interrogation a detainee gives the police information that leads to nontestimonial evidence, the evidence will be suppressed if the failure was purposeful, but if the failure was not purposeful, the evidence probably will not be suppressed. (United States v. Patane).

Question 72

Public Safety Exception to Miranda

Answer 72

If police interrogation is reasonably prompted by concern for public safety, responses to the questions may be used in court, even though the suspect is in custody and Miranda warnings are not given. (New York v. Quarles).

Question 73

Sixth Amendment Right to Counsel at Pretrial Identification

Answer 73

(a) When Right Exists → A suspect has a right to the presence of an attorney at any post-charge lineup or showup. (United States v. Wade). At a lineup, the witness is asked to pick the perpetrator of the crime from a group of persons, while a showup is a one-to-one confrontation between the witness and the suspect for the purpose of identification.

(b) Role of Counsel at a Lineup → The right is simply to have an attorney present during the lineup so that the lawyer can observe any suggestive aspects of the lineup and bring them out on cross-examination of the witness. There is no right to have the lawyer help set up the lineup, to demand changes in the way it is conducted, etc.

(c) Photo Identification → The accused does not have the right to counsel at photo identifications. (United States v. Ash). However, as in the case of lineups, the accused may have a due process claim regarding the photo identification.

(d) Physical Evidence → The accused does not have the right to counsel when the police take physical evidence such as handwriting exemplars or fingerprints from her.

Question 74

Due Process Standard for Pretrial Identification

Answer 74

A defendant can attack an identification as denying due process when the identification is unnecessarily suggestive and there is a substantial likelihood of misidentification. It is clear that both parts of this standard must be met for the defendant to win, and that to meet this difficult test, the identification must be shown to have been extremely suggestive.

• Example: No substantial likelihood of misidentification was found in the showing of a single photograph to a police officer two days after the crime. (Manson v. Brathwaite).

Question 75

Remedy for Unconstitutional Pretrial Identification

Answer 75

The remedy for an unconstitutional identification is exclusion of the in-court identification (unless it has an independent source).

• (1) Independent Source → A witness may make an in-court identification despite the existence of an unconstitutional pretrial identification if the in-court identification has an independent source. The factors a court will weigh in determining an independent source include the opportunity of the witness to observe the criminal at the time of the crime, the witness’s degree of attention, the accuracy of the witness’s prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. (Neil v. Biggers; Manson v. Brathwaite).
• (2) Hearing → The admissibility of identification evidence should be determined at a suppression hearing in the absence of the jury, but exclusion of the jury is not constitutionally required. The government bears the burden of proof as to the presence of counsel or a waiver by the accused, or as to an independent source for the in-court identification, while the defendant must prove an alleged due process violation.

Question 76

Selective or Discriminatory Enforcement (Prosecution)

Answer 76

If a defendant can show that the prosecution used an impermissible motive to prosecute, such as prosecuting a defendant because of his race or exercise of his First Amendment rights, then the prosecution can be dismissed. As Wayte and Armstrong illustrate, not only has the Supreme Court set a high standard for defendants claiming selective prosecution, but it has imposed a significant burden on defendants seeking discovery to support a claim of discriminatory prosecution.

• Duty to Disclose → The duty to disclose appears to extend only to evidence relevant to the prosecution’s case in chief. Material going to a defense not on the merits probably need not be disclosed. (United States v. Armstrong: material relevant to defendant’s claim that he was selected for prosecution because of his race need not be disclosed).

Question 77

Vindictive Prosecution

Answer 77

A prosecutor’s decision to increase the number or severity of charges against a defendant may also be challenged as violating due process if it penalizes a defendant’s exercise of constitutional or statutory rights. The mere increase in charges does not satisfy the standard. Rather, a defendant must show actual vindictiveness.

Pretrial decisions by prosecutors are generally not considered to be vindictive. For example, there is no presumption of vindictiveness when a prosecutor threatens to increase charges if a defendant does not accept a plea offer. (Bordenkircher v. Hayes). Such threats are accepted as part of the plea bargaining process. Likewise, there is no presumption of vindictiveness when additional charges are added after a defendant requests a jury trial.

• Recharging in a Trial De Novo → The prosecutor may not obtain an indictment for a more serious charge in a trial de novo, because of the possibility of prosecutorial vindictiveness and retaliation for exercising the statutory right to a trial de novo. (Blackledge v. Perry).

Question 78

Right to a Grand Jury

Answer 78

The right to a grand jury was incorporated into the Fifth Amendment. It provides that, except in military cases, “no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury.” Grand jury indictments are the primary mechanism for bringing federal charges.

The right to an indictment only applies to “infamous crimes.” A crime is “infamous” if it can result in imprisonment in a penitentiary or hard labor. Thus, federal felony charges are brought by way of indictment. Misdemeanor charges can be filed directly by the prosecutor by information. The right to a grand jury indictment only applies to federal prosecutions. Thus, states are free to bring charges for serious crimes without using a grand jury or by using a grand jury that has different procedures from a federal grand jury.

Question 79

Screening Function of the Grand Jury

Answer 79

The role of the grand jury is to screen cases before defendants are required to stand trial. Yet it is not bound by the same rules of evidence and procedure that will govern the trial jury’s decision. A grand jury may base its indictment on evidence that would not be admissible at trial (Costello v. United States), and a grand jury witness may not refuse to answer questions on the grounds that they are based upon unconstitutionally obtained evidence. Nor may an indicted defendant have the indictment quashed on the grounds that it is based upon illegally obtained evidence.

• Exculpatory Evidence → An indictment may not be dismissed by a federal court for a prosecutor’s failure to present exculpatory evidence to the grand jury unless the prosecutor’s conduct violates a preexisting constitutional, legislative, or procedural rule. (United States v. Williams).

Question 80

Preliminary Hearings

Answer 80

Another mechanism available to screen cases is the preliminary hearing. In federal court, preliminary hearings are governed by Federal Rule of Criminal Procedure 5.1 and are only used to hold a defendant until an indictment can be obtained. However, states routinely rely on preliminary hearings in lieu of or in addition to grand jury proceedings. Approximately two-thirds of the states permit felony prosecutions to be initiated by information or indictment. Once the magistrate or judge finds probable cause, the defendant is “bound over” for trial on charges filed by the prosecutor in an information.

• The Process → A preliminary hearing is fundamentally different from a grand jury proceeding. Preliminary hearings are more akin to “mini-trials.” A judge presides over the preliminary hearing; it is an adversarial process. The defendant has the right to be present and to be represented by counsel. The prosecution bears the burden at a preliminary hearing to present probable cause supporting the charges.
• Confrontation → Although the Supreme Court has held that the Sixth Amendment Confrontation Clause is a trial right and does not apply to the preliminary hearing (Goldsby v. United States), states now provide defendants the right to cross-examine pursuant to local or state rule.

Question 81

Federal Rules of Criminal Procedure 8 and 14

Answer 81

Federal Rules of Criminal Procedure 8 and 14 govern the issues of joinder and severance of criminal cases in federal court.

• (a) Rule 8(a) permits the joinder of offenses that “are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan.” Rule 8(b) permits two or more defendants to be charged together if they have participated in the same act or transaction, or in the same series of acts or transactions. The defendants may be charged in one or more counts together. All defendants need not be charged in each count.
• (b) Rule 14 provides relief from prejudicial joinder. If the joinder of offenses or defendants in an indictment, or information, or a consolidation for trial, appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants’ trials, or provide any other relief that justice requires.

Question 82

Conflicting Defenses of Defendants

Answer 82

When defendants have been properly joined under Rule 8(b), a district court should grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence. When many defendants are tried together in a complex case and they have markedly different degrees of culpability, this risk of prejudice is heightened. Defendants are not entitled to a severance merely because they would have a better chance of acquittal in separate trials. (Zafiro v. United States).

Question 83

Bruton Problems

Answer 83

If two persons are tried together and one has given a confession that implicates the other, the right of confrontation prohibits the use of that statement, even with instructions to the jury to consider it only as going to the guilt of the “confessing” defendant. (Bruton v. United States). A co-defendant’s confession is inadmissible even when it interlocks with the defendant’s own confession, which is admitted.

Courts have had to fashion other alternatives to the Bruton problem. Prosecutors have a few options: (1) they can agree to separate trials for the defendants; (2) they can try the defendants jointly but forgo use of the confession; or (3) they can redact the confession to remove all references to the existence of a non-confessing defendant. In redacting the confession, prosecutors must be careful to ensure that a non-testifying codefendant’s confession still cannot be construed as implicating the defendant.

• Note: All portions referring to the other defendant can be eliminated. It is not sufficient merely to insert a blank or some other substitution for the name of the other defendant; the redaction must not indicate the defendant’s involvement. Compare Richardson (after redaction, confession indicated that defendant and a third party [who was not a co-defendant] participated in the crime and contained no indication of co-defendant’s involvement) with Gray (redaction “me, deleted, deleted, and a few other guys killed” the victim held to clearly refer to co-defendant).

Question 84

Pretrial Detention

Answer 84

The issue of bail pending trial raises the basic question of whether it is fair to hold a defendant in custody before he has been adjudged guilty of a crime. Salerno cleared the way for courts to consider both a defendant’s flight risk and future danger to the community in deciding bail. Some crimes, such as violent offenses and drug trafficking, may even carry a rebuttable presumption that detention is warranted. In general, courts will consider several factors in determining whether the defendant should be granted bail and the amount of that bail:

• (i) the seriousness of the offense;
• (ii) the punishment the defendant faces;
• (iii) defendant’s prior criminal record;
• (iv) defendant’s ties to the community;
• (v) defendant’s character;
• (vi) defendant’s financial status; and
• (vii) any other information relevant to its determination of whether defendant is a flight risk or poses a future risk to the community.

Question 85

Preventive Detention for Non-Criminals

Answer 85

Salerno had a dramatic impact on courts’ attitudes toward preventive detention. Not only may defendants now be detained because they pose a risk of future danger to the community, but persons who are not being held on criminal charges may also be detained. This may include preventative detention of material witnesses, sexual predators, psychiatric patients, persons subject to deportation and removal proceedings, and individuals designated as enemy combatants. Each of these situations requires a balancing of the detainee’s liberty interests with the government’s reasons for seeking detention.

Question 86

Detention of Material Witnesses

Answer 86

Pursuant to 18 U.S.C. § 3144, persons designated as “material witnesses” may be detained pretrial. A material witness is an individual who has information regarding a criminal proceeding whose appearance may become impracticable to secure by subpoena. These individuals are not themselves accused of any crime; however, they are kept in custody because they may have information regarding a crime that was committed and their appearance at trial cannot otherwise be secured.

Question 87

Preventive Detention of Sexual Predators

Answer 87

The concept of preventive detention is also used to incarcerate other types of individuals who do not face criminal charges but continue to pose a danger to society. In response to the growing number of sexual offenders, states have passed “sexual predator” laws that allow the ongoing detention of defendants after they have completed their sentences for sexual offenses. The Supreme Court upheld the constitutionality of this type of preventive detention in Kansas v. Hendricks by once again, in its substantive due process analysis, balancing the need for detention against the defendant’s liberty interests.

Question 88

Preventive Detention for Immigration Detainees

Answer 88

Immigrants illegally in the United States may also be detained by the government even if they have not been convicted of or charged with a specific crime. Detention necessarily serves the purpose of preventing deportable criminal aliens from fleeing prior to or during their removal proceedings, thus increasing the chance that, if ordered removed, the aliens will be successfully removed.

Question 89

Preventive Detention of Enemy Combatants

Answer 89

The doctrine of preventive detention most dramatically affects individuals who are not charged in the criminal justice system or protected by immigration procedures. It allows for the ongoing detention of individuals, including American citizens, suspected of terrorism whom the president designates to be enemy combatants.

Question 90

Statutory and Rule Discovery

Answer 90

Unlike Constitution-based discovery, statutory rules of discovery are ordinarily two-way streets. These rules require prosecutors and defense attorneys to disclose to each other certain types of evidence that they plan to use in their respective cases-in-chief.

If there is a violation of the statutory rules of discovery, the court has broad discretion in ordering a remedy. The court may exclude the evidence, grant an appropriate continuance, or sanction counsel. Courts generally will impose the least severe sanction that will accomplish the goal of compliance with the discovery rules.

Question 91

Constitutional Discovery

Answer 91

In addition to statutory rights to discovery, defendants also have a constitutional right to certain types of evidence. The Bill of Rights does not refer explicitly to “the right to discovery.” Rather, the Court has fashioned the right to discovery from the defendant’s right of due process. Because only defendants have constitutional due process rights, constitutional discovery rights are a one-way street—the prosecutor must give evidence to the defense that may help the defendant avoid conviction, but there is no corresponding obligation for the defense to give evidence to the prosecution that may help secure a conviction.

Question 92

Prosecutor’s Duty to Disclose Exculpatory Evidence (Constitutional Discovery)

Answer 92

The government has a duty to disclose material, exculpatory evidence to the defendant. (Brady v. Maryland). Failure to disclose such evidence—whether willful or inadvertent—violates the Due Process Clause and is grounds for reversing a conviction if the defendant can prove that:

• (i) the evidence at issue is favorable to the defendant because it impeaches or is exculpatory; and
• (ii) prejudice has resulted (i.e., there is a reasonable probability that the result of the case would have been different if the undisclosed evidence had been presented at trial). If the prosecution can show that the verdict is strongly supported by other evidence, sufficient prejudice will not be found.

In deciding whether there has been a Brady violation, the focus should be on the collective impact of the withheld evidence and whether it undermines confidence in the verdict. The prosecutors’ duty to provide exculpatory and impeachment materials includes evidence not directly in the prosecution’s possession, such as evidence that the prosecutor can obtain from his or her investigating officers.

The remedy for a Brady violation is the grant of a new trial at which the defendant will be able to use the previously undisclosed exculpatory evidence. Thus, even when a defendant has been improperly convicted because of a clear Brady violation, a defendant may still not be able to sue the individual prosecutor for violation of the defendant’s due process rights.

Question 93

Discovery for Guilty Pleas

Answer 93

In Ruiz, the Court held that due process does not require that the government disclose impeachment evidence before a defendant’s guilty plea. Disclosure of impeachment evidence is required to ensure a fair trial, but a guilty plea may be voluntary without it. Although the Supreme Court held that due process does not require disclosure of material exculpatory evidence before a guilty plea, the prosecution’s failure to disclose such evidence may affect whether the court finds that there was a “knowing and voluntary” guilty plea. If a defendant is unaware of evidence that could support a defense, it is easier for the defendant to claim that he or she did not enter a valid guilty plea.

Question 94

Duty to Preserve Evidence

Answer 94

Defendants have no right to have the police preserve all evidence for trial, at least where it is not certain that the evidence would have been exculpatory. Due process is violated, however, if the police in bad faith destroy evidence potentially useful to the defense at trial. (Arizona v. Youngblood; California v. Trombetta).

Question 95

Guilty Pleas

Answer 95

The judge must determine that the plea is voluntary and intelligent. This must be done by addressing the defendant personally in open court on the record. (McCarthy v. United States; Boykin v. Alabama). Specifically, the judge must be sure that the defendant knows and understands things like:

• (i) the nature of the charge to which the plea is offered and the crucial elements of the crime charged (Henderson v. Morgan);
• (ii) the maximum possible penalty and any mandatory minimum (but the failure to explain special parole terms is not fatal [United States v. Timmreck]); and
• (iii) that he has a right not to plead guilty and that, if he does, he waives the right to trial.

Attorney May Inform Defendant → The judge need not personally explain the elements of each charge to the defendant on the record. Rather, the constitutional prerequisites of a valid plea may be satisfied where the record accurately reflects that the nature of the charge and the elements of the crime were explained to the defendant by his own counsel. (Bradshaw v. Stumpf).

Unfairly Informed Defendant Not Bound → If counsel makes unfair representations to the defendant concerning the result of the defendant’s pleading guilty, and the defendant can prove this, the defendant is not bound by her record answer, obtained at the plea taking, that her counsel made no such representations. (Blackledge v. Allison).

The remedy for a failure to meet the standards for taking a plea is withdrawal of the plea and pleading anew.

There is no general requirement that the record contain evidence of the defendant’s guilt or other factual basis for the plea.

Question 96

Collateral Attacks On Guilty Plea After Sentence

Answer 96

Those pleas that are seen as an intelligent choice among the defendant’s alternatives are immune from collateral attack. Examples:

• (1) A plea is not involuntary merely because it was induced by a fear of the death penalty, which could be imposed only after a jury trial. Fear of the death penalty is like fear of any other penalty, which is the reason defendants plead guilty. (Brady v. United States).
• (2) Fear of a coerced confession in the hands of the state will not support a collateral attack, and the defendant will be bound to his choice to plead guilty. If the defendant thought the confession was coerced, he should have made a motion to suppress; if he did not, the court will think it was because he believed he could not win. (McMann v. Richardson).
• (3) Unconstitutional, systematic, racial exclusion in the indicting grand jury will not entitle the defendant to collateral relief. Here also, the Court views the choice not to object and to plead guilty as the result of the defendant’s informed decision as to what course would be in his best interest. (Tollett v. Henderson).

Question 97

Guilty Plea Offered by Defendant Who Denies Guilt

Answer 97

When a defendant pleads guilty despite protesting his innocence, the plea will be seen as an intelligent choice by the defendant, and withdrawal of the plea will not be permitted when there is other strong evidence of guilt in the record. Admission of guilt is not a constitutional requisite to imposition of criminal penalty. (North Carolina v. Alford).

Question 98

Bases for an Attack On a Guilty Plea After Sentence

Answer 98

(a) Plea Involuntary → Failure to meet the constitutional standards for taking a guilty plea will support a post-sentence attack on the plea.

(b) Lack of Jurisdiction → The defendant may withdraw his plea if the court lacked jurisdiction to take the plea, or if prosecution for the offense for which the plea was offered is barred by double jeopardy. (Menna v. New York).

(c) Ineffective Assistance of Counsel → Ineffective assistance of counsel undercuts the assumption of an intelligent choice among the defendant’s alternatives on the advice of counsel. Therefore, a defendant may successfully attack a guilty plea on the ground that he received ineffective assistance of counsel if, but for counsel’s errors, the defendant probably would not have pleaded guilty and instead would have insisted on going to trial. (Hill v. Lockhart).

(d) Failure to Keep the Plea Bargain

Question 99

Enforcement of Plea Bargains

Answer 99

A defendant who enters into a plea bargain has a right to have that bargain kept. The plea bargain will be enforced against the prosecutor and the defendant, but not against the judge, who does not have to accept the plea.

• (a) Prosecution → If the prosecution does not keep the bargain, the court should decide whether the circumstances require specific performance of the plea agreement or whether the defendant should be granted an opportunity to withdraw her guilty plea. (Santobello v. New York). However, if the prosecutor withdraws a proposed plea bargain and the accused subsequently pleads guilty on other terms, the original offer cannot be specifically enforced despite the accused’s attempt to “accept” the offer. (Mabry v. Johnson).
• (b) Defendant → If the defendant does not live up to the plea agreement, his plea and sentence can be vacated.

Example: D agrees to testify against a co-defendant in exchange for a reduction in charges from first to second degree murder. If D fails to testify, the prosecution can have D’s plea and sentence vacated and reinstate the first degree murder charge. (Ricketts v. Adamson).

Question 100

Power of the State to Threaten More Serious Charge (Plea Bargains)

Answer 100

Consistent with the contract theory of plea negotiation, the state has the power to drive a hard bargain. A guilty plea is not involuntary merely because it was entered in response to the prosecution’s threat to charge the defendant with a more serious crime if she does not plead guilty. (Bordenkircher v. Hayes).

Question 101

Power to Charge More Serious Offense (Plea Bargains)

Answer 101

The Supreme Court has held that there is no prosecutorial vindictiveness in charging a more serious offense when the defendant demands a jury trial. (United States v. Goodwin).

Question 102

Admission of Statements Made in Connection with Plea Bargaining

Answer 102

Under the Federal Rules of Evidence and of Criminal Procedure, statements made by a defendant in the course of unsuccessful plea negotiations are inadmissible at trial. However, such statements can be admitted if the defendant has knowingly and voluntarily waived the Federal Rules’ exclusionary provisions. (United States v. Mezzanatto).

Question 103

No Right to Impeachment or Affirmative Defense Evidence (Plea Bargains)

Answer 103

Defendants are not entitled either to impeachment evidence or to evidence relevant to affirmative defenses prior to entering a plea agreement. Failure to provide such evidence does not make a plea involuntary. (United States v. Ruiz).

Question 104

Collateral Effects of Guilty Pleas

Answer 104

(1) Conviction May Be Used in Other Proceedings → The Supreme Court has held that evidence of a defendant’s conviction, based on a guilty plea in one state, may be introduced at trial in a second state for the purpose of proving a “specification” allowing imposition of the death penalty (Marshall v. Lonberger), and a defendant is “convicted” within the meaning of the firearms disabilities provisions of the 1968 Gun Control Act when the defendant pleads guilty to a state charge punishable by more than one year, even if no formal judgment is entered and the record has been expunged. (Dickerson v. New Banner Institute).

(2) Does Not Admit Legality of Search → The Court has decided that a defendant’s guilty plea neither admits the legality of the incriminating search nor waives Fourth Amendment claims in a subsequent civil damages action challenging the constitutionality of the incriminating search. (Haring v. Prosise).

Question 105

Appointment of Counsel

Answer 105

The right to counsel is a fundamental right essential to a fair trial and due process of law. The right of an indigent defendant to appointed counsel is a fundamental right, essential to a fair trial. Failure to provide an indigent defendant with an attorney is a violation of the Fourteenth Amendment of the United States Constitution. (Gideon v. Wainwright).

Question 106

When the Right to Counsel Attaches

Answer 106

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.” The Court has interpreted this language to mean that the absolute right to counsel applies to all “critical stages” of a criminal prosecution after the filing of formal charges.

A defendant has a Sixth Amendment right to counsel in any felony case or in a misdemeanor case if a sentence of incarceration is actually imposed. (Argersinger v. Hamlin). This includes cases in which the defendant received a suspended sentence and was later incarcerated for a probation violation.

Question 107

Effective Assistance of Counsel

Answer 107

The Sixth Amendment right to counsel includes the right to effective counsel. The ineffective assistance claim is the most commonly raised constitutional claim. With this claim, the defendant seeks to secure not malpractice damages, but rather a reversal of his conviction and a new trial.

Effective assistance of counsel is presumed unless the adversarial process is so undermined by counsel’s conduct that the trial cannot be relied upon to have produced a just result. (Strickland v. Washington).

Effective assistance of counsel is also guaranteed on a first appeal as of right. (Evitts v. Lucey).

Question 108

Circumstances Constituting Ineffective Assistance

Answer 108

An ineffective assistance claimant must show:

• (i) deficient performance by counsel; and that
• (ii) but for such deficiency, the result of the proceeding would have been different (e.g., defendant would not have been convicted or his sentence would have been shorter). (Strickland v. Washington).

Typically, such a claim can be made out only by specifying particular errors of trial counsel, and cannot be based on mere inexperience, lack of time to prepare, gravity of the charges, complexity of defenses, or accessibility of witnesses to counsel. (United States v. Cronic).

Question 109

Plea Bargain Cases (Ineffective Assistance)

Answer 109

The Sixth Amendment requires effective assistance at all critical stages of a prosecution. Because the plea stage is a critical stage, Strickland applies to plea bargain cases as well as cases that go to trial. In a plea bargain case, the defendant must show deficient performance and a reasonable possibility that the outcome of the plea process would have been different with competent advice.

An attorney’s failure to notify a defendant of a plea offer can constitute deficient performance if the defendant can show that had the plea agreement been communicated he likely would have accepted, and the plea likely would have been entered without the prosecutor’s canceling it. (Missouri v. Frye). Moreover, deficiencies in counsel at this stage are not obviated by the fact that the defendant subsequently has a fair trial (after turning down a plea offer). (Lafler v. Cooper).

• Example: Defendant was charged with assault with intent to murder. He was offered a sentence of 51-85 months in exchange for a guilty plea. His attorney advised him to reject the plea, erroneously suggesting that the state could not prove intent to kill, since the victim was shot below the waist. At trial, Defendant was found guilty and received the minimum 185-360 month sentence. Defendant’s Sixth Amendment right to counsel was violated. (Lafler v. Cooper).

Question 110

Deportation Risk (Ineffective Assistance)

Answer 110

It is constitutionally deficient for counsel not to inform a client whether his plea carries a risk of deportation. When the deportation risk is clear under the law, counsel has a duty to give correct advice. If the law is not straightforward, counsel must advise the client that pending criminal charges may carry a risk of deportation. (Padilla v. Kentucky).

Question 111

Trial Tactics (Effective Assistance)

Answer 111

Courts will not grant relief for any acts or omissions by counsel that they view as trial tactics. Examples:

• (1) It was not ineffective assistance in a capital murder trial to fail to obtain a client’s affirmative consent to the strategy of going to trial and not challenging guilt (rather than pleading guilty) in hopes of having more credibility at sentencing. (Florida v. Nixon).
• (2) It was not ineffective assistance when appointed counsel for an indigent defendant refused to argue nonfrivolous issues that the attorney had decided, in the exercise of her judgment, not to present. (Jones v. Barnes).
• (3) It was not ineffective assistance when an attorney failed to present mitigating evidence or make a closing argument at a capital sentencing proceeding when counsel asserted that mitigating evidence had just been presented at trial, the defendant’s mother and other character witnesses would not have been effective and might have revealed harmful information, and a closing argument would have allowed rebuttal by a very persuasive lead prosecutor. (Bell v. Cone).

Question 112

Failure to Raise Constitutional Claim that Is Later Invalidated (Effective Assitance)

Answer 112

The failure of a defendant’s counsel to raise a federal constitutional claim that was the law at the time of the proceeding but that was later overruled does not prejudice the defendant within the meaning of the Sixth Amendment and does not constitute ineffective assistance of counsel. (Lockhart v. Fretwell).

Question 113

Conflicts of Interest (Effective Assistance)

Answer 113

Joint representation (i.e., a single attorney representing co-defendants) is not per se invalid. However, if an attorney advises the trial court of a resulting conflict of interest at or before trial, and the court refuses to appoint separate counsel, the defendant is entitled to automatic reversal. If the defendant does not object to joint representation in a timely manner, to obtain reversal the defendant must show that the attorney actively represented conflicting interests and thereby prejudiced the defendant.

• (a) Conflict with Attorney Is Rarely Ground for Relief → A defendant can rarely obtain relief by claiming a conflict of interest between himself and counsel. Conflicts between a defendant and his attorney are best analyzed as claims of ineffective assistance of counsel. To be successful, the defendant must demonstrate that the conflict with his attorney was so severe that the attorney could not effectively investigate or present the defendant’s claims.
• (b) No Right to Joint Representation → While a defendant ordinarily has the right to counsel of her own choosing, a defendant has no right to be jointly represented with her co-defendants. Trial courts have the authority to limit joint representation to avoid potential and actual conflicts of interest. Even when all of the defendants waive any claim to conflicts of interest, the trial court can still prohibit the joint representation.

Question 114

Right to Support Services for Defense

Answer 114

Where a defendant has made a preliminary showing that he is likely to be able to use the insanity defense, the state must provide a psychiatrist for the preparation of the defense. Where a state presents evidence that the defendant is likely to be dangerous in the future, the defendant is entitled to psychiatric examination and testimony in the sentencing proceeding. (Ake v. Oklahoma).

Question 115

Right of Self-Representation

Answer 115

A defendant has a right to represent himself at trial as long as his waiver is knowing and intelligent (Faretta v. California) and he is competent to proceed pro se (Indiana v. Edwards). The Court has held that a waiver will be held to be voluntary and intelligent if the trial court finds—after carefully scrutinizing the waiver—that the defendant has a rational and factual understanding of the proceeding against him.

The Court has not established the standard for determining whether the defendant is mentally competent. It has noted that a defendant may be mentally competent to stand trial and yet incompetent to represent himself, based on the trial judge’s consideration of the defendant’s emotional and psychological state.

Question 116

Right to Counsel for Enemy Combatants

Answer 116

In Hamdi v. Rumsfeld, the Court held that “due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to test the factual basis for that detention before a neutral decisionmaker.” In her opinion, Justice O’Connor noted the integral role of counsel in whatever proceedings are formulated for enemy combatants, stating that Hamdi “unquestionably had the right to access to counsel in connection with the proceedings on remand.”

Question 117

Role of the Jury

Answer 117

The essential role of the jury is to decide whether the prosecution has proven each element of a crime beyond a reasonable doubt. In doing so, jurors are expected to make credibility decisions and to decide what is “reasonable” for people in their community. They are not expected to be experts in the law. While jurors have a critical role in protecting defendants from the power of the government, the Supreme Court recognized that the government also has an interest in jury trials.

Question 118

When Is There a Right to a Jury Trial?

Answer 118

There is no constitutional right to jury trial for petty offenses, but only for serious offenses. Also, there is no right to jury trial in juvenile delinquency proceedings. Absent extraordinary circumstances, a defendant is entitled to a jury trial only if he faces a maximum of more than six months in prison on any one charge he faces.

Question 119

Composition of the Jury

Answer 119

There is no constitutional right to a jury of 12, but there must be at least six jurors to satisfy the right to jury trial under the Sixth and Fourteenth Amendments. (Ballew v. Georgia). Previously, unanimous jury verdicts were not required. However, the Court decided in 2020 that unanimity is now required.

Question 120

Selecting the Jury Venire

Answer 120

The Sixth Amendment guarantees an “impartial jury.” The Supreme Court has repeatedly held, however, that a defendant does not have a right to a jury composed of particular groups. Rather, the Sixth Amendment prohibits the prosecution from systematically excluding certain cognizable groups in assembling the venire for jury selection.

As set forth in Taylor, the jury pool must be drawn from a cross-section of the community. Cognizable groups may not be excluded unless there are compelling reasons. For example, the government may have compelling reasons to exclude convicted felons from the jury pool. However, the systematic exclusion of groups based on gender, race, and ethnicity is unconstitutional.

Question 121

Selecting the Petit Jury

Answer 121

Once the jury pool is selected, the parties enter the second stage of the jury-selection process. The court or the parties will question individual jurors about their background, attitudes, experiences, and knowledge of the particular case. When the defendant asks the court to inquire into potential jurors’ possible racial biases, the court is required to do so if there is a reasonable possibility that racial prejudice may influence the jury. Moreover, where a defendant is charged with an interracial violent crime, the court must presume that the possibility of prejudice exists, and ask the jurors about their attitudes toward race. The parties then have an opportunity to challenge individual prospective jurors.

• Types of Challenges → There are two types of challenges: challenges for cause and peremptory challenges. A party may raise a challenge for cause when a juror does not meet statutory requirements for serving on a jury or has indicated that he or she cannot set aside personal opinions and render a fair verdict based on the evidence. By contrast, peremptory challenges allow the parties to excuse jurors whom they believe to be unfavorable to their side.

Question 122

Applying Batson

Answer 122

In contrast to striking potential jurors for cause, a prosecutor generally may exercise peremptory challenges for any rational or irrational reason. However, the Equal Protection Clause forbids the use of peremptory challenges to exclude potential jurors solely on account of their race or gender.

• (1) Proving Strike Improper → Batson established a three-step process for challenging the alleged discriminatory use of peremptory challenges. (1) The objecting party must establish a prima facie case of intentional racial discrimination. (2) Then, the burden shifts to the other party to offer a race-neutral basis for its exercise of the challenges. (3) The trial court must evaluate the sincerity of the explanation and decide whether there really was a neutral reason for the exercise of the challenges. If the judge believes that the prosecutor was sincere, the strike may be upheld.
  
  • Example: That a stricken juror was young, had no ties to the community, and was disrespectful were sufficient grounds to support a peremptory strike. (Rice v. Collins).
  • Note: The defendant need not be a member of the group excluded. (Powers v. Ohio).
• (2) Defendants → It is also unconstitutional for a criminal defendant or the defendant’s attorney to use peremptory challenges in a racially discriminatory manner. (Georgia v. McCollum). The same rule probably applies to a defendant’s peremptory strike based on gender.