Criminal Procedure General Deck Flashcards
Fourth Amendment
Prohibits against unreasonable search and seizures. It applies to states via the due process clause of the fourteenth amendment.
Fifth Amendment
Privilege against compulsory self-incrimination and prohibition against double jeopardy
Sixth Amendment
1) Right to a speedy trial
2) Right to a trial by jury
3) Right to confront witnesses
4) Right to assistance of counsel
Eighth Amendment
Prohibits cruel and unusual punishment; used in context of death penalty and prisoner rights (rarely tested)
Exclusionary Rule
a remedy of American constitutional procedure whereby someone who has been the victim of an illegal search or a coerced confession can (among other remedies) have the product of that illegal search or coerced statement EXCLUDED from any subsequent criminal prosecution
Limitations on exclusion (where does the exclusionary rule not apply to evidence)
Minor/obvious limits:
- exclusion does not apply to grand jury proceedings (and a grand jury witness may be compelled to testify based on illegally seized evidence)
- Exclusion is not an available remedy in civil proceedings
- Exclusion is not an available remedy in parole revocation proceedings
- Exclusion is not an available remedy for violations of the “knock and announce” rule in execution of search warrants
Major limit/likely tested on: Exclusion does not apply to the use of excluded evidence for IMPEACHMENT PURPOSES. Since 1980, ALL illegally seized evidence may be admitted to impeach the credibility of the D’s trial testimony–INCLUDING Miranda violations! BUT NOTE this is only for the D’s trial testimony, not other D witnesses
“The Fruit of the Poisonous Tree” doctrine
this will exclude not only illegally seized evidence but ALL evidence obtained/derived from police illegality
NOTE: FOTPT doctrine does not apply to Miranda violations unless the police act in BAD FAITH in obtaining such information
Limits to Fruit of the Poisonous Tree: Ways to “break chain” between original unlawful police action and piece of evidence
THREE “INs” to get evidence “In”
- Independent Source–government can show it had an independent source (from original police illegality) for that evidence
- Inevitable discovery–police would have invariably discovered the evidence anyway
- Intervening acts of free will on the part of the D
Exclusionary Rule and convictions
Conviction will NOT NECESSARILY be overturned because improperly obtained evidence was admitted at trial
Appellate court will likely apply the HARMLESS ERROR test–conviction will be upheld if it would have resulted despite the improper evidence
Arrest standard
Arrest must be based on probable cause
Arrest in public place
does generally not require a warrant, but non-emergency arrest of an individual in his home DOES require an arrest warrant
Station house detention
The police need probable cause to arrest you and compel you to come to the police station either for fingerprinting or interrogation
Investigatory Detentions (Terry stops)
The police have the authority to briefly detain a person even if they lack probable cause to arrest.
In order to make such a stop, the police must have a REASONABLE SUSPICION supported by ARTICULABLE FACTS of criminal activity
NOTE: a “hunch” is never enough
standard for Reasonable suspicion
court will look to the TOTALITY OF THE CIRCUMSTANCES
standard to stop a car
Police may stop car if they have REASONABLE SUSPICION that law has been violated
EXCEPTION: checkpoint roadblocks (DUI, Border crossings). Police may stop any car, as long as way they’re stopping cars is neutrally applied (e.g. every 4th car)
Routine traffic stops and police dogs
during traffic stops, a “sniff” is not a search so long as police do not extend the stop beyond time needed to issue ticket/conduct normal inquiries.
2013 SC: during a traffic stop, a dog “alert” to presence of drugs can form the basis for PROBABLE CAUSE for a search, BUT 2015 SC held that police cannot use a drug sniffing dog directly outside the home of suspected drug dealer WITHOUT PROBABLE CAUSE.
Search and Seizure Question
BIG OUTLINE (check notes for more detail) of what to ask of a search/seizure:
1) Governmental conduct?
2) Reasonable expectation of privacy?
3) Did police have valid search warrant?
4) If not valid warrant, did the officer’s good faith defense save the defective search warrant?
5) If warrant invalid and no good faith defense (or if police didn’t have a warrant at all), does this search fall under an exception to the warrant requirement?
Wiretapping and Eavesdropping
All wiretapping/eavesdropping requires a warrant, but TWO exceptions to this rule:
1) person A assumes risk that person B to whom A is talking is an informant wired or taping conversation.
2) Person A has no 4th Amendment protection if he made no attempt to keep a conversation private.
valid search warrant (requirements for facial validity)
Facially valid search warrant must have been issued (i) based on probable cause; (ii) by a neutral and detached magistrate, and (ii) state with particularity the place to be searched and the items to be seized
Probable Cause standard (for valid warrant)
A fair probability that contraband or evidence of a crime will be found in the area searched
Particularity standard (for valid warrant)
Must state with particularity the PLACE to be searched and the THINGS to be seized
Warrants based on informants
If affidavit/probable cause is based on informant information, its sufficiency is determined by TOTALITY OF THE CIRCUMSTANCES, including informants credibility (how many times used before, objective?) and basis of knowledge
Valid warrant can be based IN PART on informant tip if anonymous, but cannot be solely based on this.
“No Knock” entry: when permitted?
“no knock” entry is OK in execution of search warrants if “exigent circumstances exist”:
(1) if knocking and announcing would be dangerous and futile or inhibit the investigations
(2) fear: of destruction of evidence
Good faith defense to invalid search warrant
rule: officer’s good faith reliance on a search warrant overcomes defects with probable cause and particularity requirements.
good faith will not save a warrant if:
- no reasonable officer would have relied on affadavit underlying warrant b/c it is SO lacking in probable cause or particularity
- officer/prosecutor lied to/misled magistrate to get the warrant
- magistrate is biased and has wholly abandoned neutrality
Exceptions to the warrant requirement
1) Search incident to arrest
2) Automobile exception
3) Plain View
4) Consent
5) Stop and Frisk
6) Evanescent Evidence
7) Hot Pursuit
8) Special Needs
9) community caretaker
Search Incident to arrest exception to warrant requirement
warrant exception that allows evidence obtained without a warrant if:
- Arrest was lawful
- search and arrest were contemporaneous in time and place
- Search was of person and area within person’s wingspan (did not exceed geographic scope)
- Automobiles (GANT RULE): police may search interior of auto incident to arrest ONLY IF (i) person is unsecured and may still gain access to vehicle OR (ii) police reasonably believe that evidence of the offense for which arrested may be found in vehicle
Community caretaker exception to warrant requirement
(applied a lot in GANT cases to search cars w/o warrants)
Most states recognize the community caretaker exception, which justifies a warrantless search if an officer faces an emergency that threatens the health or safety of an individual or the public
Automobile exception to warrant requirement
1) Police need PROBABLE CAUSE to search anything/anyone under automobile exception
2) IF probable cause, then can search ENTIRE CAR and ANY package, luggage etc that could reasonably contain the item they had probable cause to look for
3) probable cause can arise AFTER car is stopped (if stop complied w/ investigatory detention aka had reasonable suspicion) BUT must have probable cause BEFORE any search
Plain view exception to warrant requirement
For a valid plain view seizure police officer must be
1) legitimately present at location where viewing happened + item seized
2) it must be IMMEDIATELY APPARENT that item is contraband or fruit of crime
Consent exception to warrant requirement
Police officers don’t need warrant if search was consented to. To be valid, consent must be
1) voluntary
2) third party consent: if multiple people have equal right to property, each can consent to warrantless search. but if both present and one does not consent, this controls.
BUT: if non-consenting occupant is removed from the premises for unrelated reason (like lawful arrest) then once again can search based on consent of other occupant
Stop and Frisk (Terry Stop) exception to warrant requirement (non-auto)
If during terry stop (Police may briefly detain person to investigate suspicious conduct. Must have “reasonable suspicion” to stop) officers have reasonable suspicion that suspect is armed, may do a terry frisk / “pat down” of outer clothing and body to CHECK FOR WEAPONS
- if obtain evidence, will be admissible if by the “plain feel” of it the officer believes it is either a weapon OR contraband.
note: if probable cause arises during terry stop, detention can become arrest and full search incident to that arrest can happen (i.e. no longer need “plain feel”)
Terry stops: automobiles
if vehicle properly stopped for traffic violation or officer reasonably believes passenger may be armed/dangerous officer may 1) conduct a frisk of the person and 2) may search the vehicle so long as limited to areas in which weapon may be placed
Evanescent evidence
evidence that might disappear quickly if police took the time to get a warrant is excepted from warrant requirement (i.e. scrape under fingernails before can wash hands) NOT blood samples for DUI
Hot pursuit
if police are within 15 minutes of fleeing felon, and in course of the chase find evidence, admissible w/o warrant
note: if truly in hot pursuit, may enter any home w/o warrant, and any evidence they see in plain view is admissible under plain view exception
Inventory searches
before incarceration of an arrestee, police may search arrestee’s 1) personal belongings and/or 2) entire vehicle plus closed containers IN vehicle
Public school searches
Public school kids engaged in extracurricular activities may be RANDOMLY drug tested.
Warrantless searches of public school kids’ affects is permissible to investigate violations of school rules. Search will be reasonable if: 1) it offered a moderate chance of finding evidence of wrongdoing and 2) measures used are reasonably related to search objectives and 3) search is NOT excessively intrusive
Miranda warnings
Suspect must receive following warnings (not verbatim, but substance must be here)
1) right to remain silent
2) anything you say can be used against you in court
3) right to an attorney
4) if you can’t afford an attorney one will be appointed for you if you so desire
When Miranda required
for any “custodial interrogation”
Custody: if at time of interrogation, reasonable person would not feel free to leave–ct look to whether situation presents same “inherently coercive pressures” as station (can be home, hospital bed) NOT traffic stops or probation interviews tho
Interrogation: any conduct where police knew or should have known they might elicit an incriminating response
note: not required prior to “spontaneous statement” for admissibility
When is Miranda waived?
Waiver must be knowing and voluntary (courts will look at totality of the circumstances)
Invoking Miranda right to remain silent
must be unambiguous. Once invoked police MAY reinitiate questioning:
1) if they wait a significant amount of time and
2) questions are about a crime NOT the subject of the earlier questioning
Invoking Miranda right to counsel (5th Amendment right to counsel)
Request for counsel must be unambiguous. Once invoked, ALL QUESTIONS must cease until
1) accused is given an attorney or
2) accused reinitiates questioning
BUT: if “break in custody” (like being put back in general prison population, or accused goes home), police can come back and ask D to waive his Miranda rights after 14 DAYS
NOTE: unlike 6th amendment right to counsel, NOT offense specific and applies to ENTIRE PROCESS of custodial police interrogation, not just require presence of attorney if being asked about specific case
Pretrial identification (by victim, witness, etc) grounds for challenge
1) denial of right to counsel (6th amendment)
2) denial of due process
Pretrial ID challenge based on 6th amendment
D may challenge pretrial identifications via POST-CHARGE lineups and showups if counsel not present.
BUT: no right to counsel at pre-charge lineups/show ups, and NO right to counsel when police show victim/witness photographs
other ID forms with no right to counsel
- blood samples
- handwriting samples
- recess during D’s testimony at trial
- parole/probation hearings
- fingerprinting
Pretrail ID challenge based on due process
If identification technique is “unreasonably suggestive” and “substantially likely to produce a misidentification” then it denies D his due process of law.
remedy and exception If Pretrial ID is unconstitutional
If pre-trial ID is unconstitutional, can exclude witness/victim’s IN COURT identification, unless state can show adequate independent source for that in-court identification
Most common Independent source: that V/W had “adequate opportunity to observe” D at time of the crime
Bail related procedures
1) immediately appealable
2) preventative detention IS constitutional
Grand Juries
NOTE: Exclusionary rule does NOT APPLY to GJ, so witnesses may be compelled to testify based on illegally seized evidence
Proceedings are SECRET: D has no right to APPEAR and no right to send WITNESSES
Prosecutorial duty to disclose exculpatory information (Brady material)
willful or inadvertent failure violates Due Process and may reverse conviction if:
1) Evidence is favorable to D and
2) Prejudice has resulted. Means “reasonable probability” that result would have been different had the information been disclosed (tip: if state can show verdict strongly supported by bunch of other evidence, probably not prejudice)
Right to unbiased judge
To show bias, must show judge had
1) financial interest in outcome of case or
2) Actual malice against D
Right to jury trial: when apply
Anytime D tried for offense for which max sentence EXCEEDS 6 months
Right to jury trial: the jurors you get
Minimum jurors allowed is 6–if used, verdict must be unanimous (no federally protected right to unanimous 12 juror verdict)
Right to Jury POOL reflecting “fair cross section” of community, but not to EMPANELED jury.
Peremptory challenges
challenge to exclude a prospective juror for any reason whatsoever, but unconstitutional to exclude on basis of race or gender
Right to counsel (6th Amendment)
A criminal D’s right to counsel applies to all CRITICAL STAGES of a prosecution including trial.
Ineffective Assistance of Counsel
to prove IAC must show deficient performance by counsel and but for such deficiency, reasonable probability that the result of the proceeding would have been different.
Generally need to specify particular errors made by trial counsel
Right to self representation
D has right to defend himself so long as his waiver of counsel is KNOWING and INTELLIGENT and he is COMPETENT to proceed pro se
can be competent to stand trial yet incompetent to represent self, determined by trial judge’s discertion
Confrontation Clause (6th Amendment)
Gives D right to confront Witnesses against him face to face.
Absence of confrontation IS constitutional IF preventing confrontations serves important public purpose and reliability of witness is otherwise assured.
if D is disruptive in courtroom and removed, relinquish CC rights
Guilty Pleas
Generally court will NOT disturb guilty plea after sentencing.
If D pleads guilty, judge must address D ON THE RECORD about:
- nature of charge
- tell D the maximum authorized and mandatory minimum penalty
- right to plead non guilty and right to demand a trial
When guilty pleas may be withdrawn after sentence
- when plea was involuntary (some mistake in understanding)
- lack of jurisdiction
- IAC
- failure of prosecutor to keep an agreed upon bargain
Death penalty
Unconstitutional if:
- no chance for D to present mitigating facts and circumstances–and cannot limit mitigating factors, all relevant evidence must be admissible
- automatic category for penalty
- only jury may determine aggravating factors justifying imposition of death penalty
Double Jeopardy
Jeopardy attaches in jury trial when jury is sworn; in bench trial when first witness is sworn.
Does NOT attach to civil proceedings on issue of criminal trial.
Exceptions to Double Jeopardy that permit retrail
- If jury unable to agree upon verdict (hung jury)
- Mistrials for manifest necessity (medical issues)
- Retrial after successful appeal–but D cannot be retried for more serious crime
- Breach by D of plea bargain: plea/sentence can be withdrawn and original charges re-instated
Double Jeopardy and multiple crimes
Two crimes do not constitute the same offense if each requires proving and additional element that the other does not
BUT: Jeopardy BARS retrial for lesser included offenses, and if put in jeopardy for lesser offense, cannot be retried for greater offense.
E.g. Robbery = larcency + assualt. If tried for robbery, no larceny. If tried for larceny, no robbery
BUT BUT: if tried for battery then later V dies of injuries, can be prosecuted for murder.
Separate sovereigns
Can be retried for same offense by DIFFERENT sovereigns
Fifth Amendment Privilege against self-incrimination
Can be asserted by ANYONE (not just D) in ANY kind of case (not just crim).
Anyone asked a question under oath in any kind of case, wherein the response might lead to incriminate him is entitled to a Fifth Amendment privilege.
Privilege must be asserted the FIRST TIME the question is asked or it will be waived for all subsequent criminal proceedings. This includes if first time asked in civil case.
Scope of Fifth Amendment protection: testimonial evidence
Protected: Compelled testimony
Not protected: physical evidence can be compelled, including blood, handwriting, voice and hair.
Prosecutorial conduct and Fifth Amendment protection against self incrimination
prosecutor cannot make negative comment about D’s failure to testify or choice to remain silent after Miranda warnings.
CAN comment on this if D’s counsel says jury not allowed to hear “his side of story”. CAN remark on silence BEFORE miranda warnings.
BUT: if prosecutor comments, “harmless error” test applies to any resulting conviction.
Ways Fifth Amendment privilege can be eliminted
- by grant of immunity
- if no possibility of incrimination (e.g. statute of limitations has run on crime)
- waiver: by answering questions under oath
