Criminal Procedure - To what extent can prosecutors use the evidence gathered in an unconstitutional search and seizure against the defendant in court? Flashcards
Exclusionary Rule
Evidence, whether physical or testimonial, that is obtained in violation of a federal statutory or constitutional provision is INADMISSIBLE in court against the individual whose rights were violated
4th Limits on the Exclusionary Rule - Case-in-chief vs. Cross
Unconstitutionally obtained evidence is excluded from the prosecutor’s case-in-chief ONLY; it may be introduced to impeach the D’s testimony on cross
4th Limits on the Exclusionary Rule - “Knock and Announce” Violations
A failure to comply with the “knock and announce” rule does NOT require suppression of evidence that is subsequently discovered
4th Limits on the Exclusionary Rule - Police Error
To trigger the exclusionary rule, erroneous police conduct must be deliberate, reckless, or grossly negligent
4th Limits on the Exclusionary Rule - Officers’ Reasonable Mistakes
The exclusionary rule does not apply to evidence obtained erroneously when executing a search warrant, provided an officers’ mistake was reasonable
4th Limits on the Exclusionary Rule - “Fruit of the Poisonous Tree” (General Principles - Direct Evidence)
Most of the unlawfully seized evidence that we have addressed thus far has been DIRECTLY linked to the constitutional violation e.g. evidence gathered pursuant to a search warrant that violates the 4th
4th Limits on the Exclusionary Rule - “Fruit of the Poisonous Tree” (General Principles - Derivative Evidence)
Evidence (both physical and testimonial) can also be obtained by exploiting PRIOR unconstitutional conduct, e.g. a confession obtained as a result of an earlier unlawful arrest. This derivative or “secondary” evidence is called “fruit of the poisonous tree” and, like direct evidence obtained in violation of the 4th, it is INADMISSIBLE in the prosecutor’s case-in-chief
4th Limits on the Exclusionary Rule - “Fruit of the Poisonous Tree” (Admitting Tainted Fruit)
To nullify “fruit of the poisonous tree,” prosecutors must show a break in the CASUAL LINK between the original illegality and the criminal evidence that is later discovered
4th Limits on the Exclusionary Rule - “Fruit of the Poisonous Tree” (Admitting Tainted Fruit - 3 Doctrines)
- Independent Source
- Inevitable Discovery
- Attenuation
4th Limits on the Exclusionary Rule - “Fruit of the Poisonous Tree” (Admitting Tainted Fruit - Independent Source)
This doctrine applies where there is a source for the discovery and seizure of the evidence that is distinct from the ORIGINAL illegality
4th Limits on the Exclusionary Rule - “Fruit of the Poisonous Tree” (Admitting Tainted Fruit - Inevitable Discovery)
This doctrine applies where the evidence would necessarily have been discovered through lawful means
4th Limits on the Exclusionary Rule - “Fruit of the Poisonous Tree” (Admitting Tainted Fruit - Attenuation)
This doctrine admits derivative evidence where the passage of time and intervening events, and the non-flagrant nature of the official misconduct “purge the taint” of the original illegality and restore the defendant’s free will
Wiretapping - Mnemonic
Screen Telephone Calls Carefully
Wiretapping - The 4 Requirements
Suspected Persons
Time
Crime
Conversations
Wiretapping - Suspected Persons
The warrant must name the suspected persons whose conversations are to be overheard
Wiretapping - Time
The wiretap must be for strictly limited time period
Wiretapping - Crime
There must be probable cause that a specific crime has been committed
Wiretapping - Conversations
The warrant must describe with particularity the conversations that can be overheard
Eavesdropping - “Unreliable Ear” Doctrine and Assumption of Risk
If you speak to someone who has agreed to a wiretap or some other form of the electronic monitoring, you have no 4th claim; you assume the risk that the other party will not keep your conversations private
The Law of Arrest - When does an arrest occur? (2)
- An arrest occurs whenever the police take someone into custody against her will for prosecution or interrogation
- It is considered a de facto arrest when the police compel someone to come to the police station for questioning or fingerprinting
The Law of Arrest - What standard of proof applies to arrests?
Probable Cause
The Law of Arrest - For what offenses does the 4th permit custodial arrest?
All offenses, even those punishable by the monetary fine only
The Law of Arrest - When do you need an arrest warrant? (3)
- Police officers do NOT need a warrant to arrest someone in a public place
- Absent an emergency, police officers need a warrant to arrest someone in their home
- To arrest someone in the home of a third party, police officers need an arrest warrant AND a search warrant
Confessions - What are the three federal constitutional challenges that can be brought to exclude a confession?
- 14th - Due Process Clause
- 6th - Right to Counsel
- 5th - Miranda Doctrine
Confessions - Excluding Confessions under the Due Process Clause (What is the standard for excluding a confession under the Due Process Clause?)
Involuntariness which means that the confession is the product of police coercion that OVERBEARS the suspect’s will
Confessions - Right to Counsel under the 6th (5)
1.This is an express constitutional guarantee
- It attaches when the D is formally charged, NOT upon request
- It applies to all critical stages of the prosecution that take place after the filing of formal charges, including arraignment, probable cause hearings, police interrogation and plea bargaining
- This right is OFFENSE SPECIFIC. This means it applies ONLY to the crimes with which a defendant is formally charged. It provides no protection for uncounseled interrogation for other uncharged criminal activity
- Incriminating statements obtained from the defendant by law enforcement about charged offenses violate the 6th if those statements are deliberately elicited AND the defendant did not knowingly, intelligently, and voluntarily waive his right to have his attorney present.
5th Amendment Miranda Doctrine - Implied Rights
Miranda rights are implied rights grounded in the Self-Incrimination Clause of the 5th Amendment
5th Amendment Miranda Doctrine - 4 Warnings
- The right to remain silent
- Anything you can say can and will be used against you in a court of law
- the right to an attorney
- if you cannot afford an attorney, one will be appointed for you
5th Amendment Miranda Doctrine - When are Miranda warnings necessary? (2 Core Requirements)
- Custody
- Interrogation
5th Amendment Miranda Doctrine - Custody
A two-part, totality-of-the-circumstances test is used to determine if a suspect is in custody for Miranda purposes.
- A reasonable person would have felt that she was not at liberty to end the interrogation and leave and
- The environment presents the same inherently coercive pressures at the station-house questioning at issue in Miranda
- Age and Custody: While the custody inquiry objective it should take account of a juvenile suspect’s age, where age is relevant and when the officer knew or should have been aware of a child’s age at the time of questioning
5th Amendment Miranda Doctrine - Interrogation
The 5th Amend Miranda doctrine defines interrogation as any conduct the police knew or should’ve known was likely to elicit an incriminating response
REMEMBER: Miranda does not apply to incriminating statements made spontaneously, since they are NOT the product of interrogation
5th Amendment Miranda Doctrine - Public Safety Exception
If a suspect is subjected to custodial interrogation, the Miranda doctrine applies with one important exception: If custodial interrogation is prompted by an immediate concern for public safety, Miranda warnings are unnecessary and any incriminating statements are admissible against the suspect.
5th Amendment Miranda Doctrine - Unless the public safety exception applies, a suspect’s incriminating testimonial responses obtained through custodial interrogation are admissible, provided an officer does what two things?
- Reasonably conveys to the suspect his/her core Miranda rights; AND
- thereafter obtains a valid waiver of a suspect’s Miranda rights to silence and counsel
A Valid Miranda Waiver - 2 Requirements
- Knowingly and Intelligent
- Voluntary
A Valid Miranda Waiver - Knowingly and Intelligent (Definition)
A Miranda waiver is knowing and intelligent if the suspect understands:
(a) the nature of the rights; AND
(b) the consequences of abandoning them.
A Valid Miranda Waiver - Voluntary (Definition)
A Miranda waiver is voluntary if it is NOT the product of police coercion
A Valid Miranda Waiver - Executing the Waiver
A Miranda waiver need not be “express” it may, instead be implied by a course of conduct that indicates the desire to speak with police interrogators
(a) If a suspect has received and understood his Miranda rights, he waives his right to remain silent by making an uncoerced statement to the police
A Valid Miranda Waiver - Burden of Proof
The prosecution bears the burden of proving a valid waiver of a suspect’s Miranda rights by a preponderance of the evidence
Invoking Miranda Rights - Invoking the Right to Remain Silent (2)
- Suspects must unambiguously invoke their right to remain silent
- Once the suspect invokes, police officers must scrupulously honor the invocations –> at the very least the police cannot badger a suspect into talking. In addition, POs must wait a significant period of time before reinitiating questioning AND must first obtain a valid Miranda waiver
Invoking Miranda Rights - Invoking the Right to Counsel (4)
- The request must be sufficiently clear that a reasonable officer in the same situation would understand the statement to be a request for counsel
- Once a suspect asks for counsel, ALL interrogation must cease UNLESS initiated by the suspect
- NOT offense-specific –> interrogation following a request for counsel under Miranda is prohibited as to ALL topics, outside the presence of the suspect’s attorney
- The request for counsel expires 14 DAYS after a suspect is released from custody; a waiver of the Miranda right to counsel obtained after this period is valid, provided it is knowing, intelligent, and voluntary
Limitations on Evidentiary Exclusion as applied to Miranda Violations (3)
1 Incriminating statements obtained in violation are inadmissible for case-in-chief, admissible on cross (impeach)
- Failure to give suspect Miranda warnings does NOT require the impression of the physical fruits of incriminating statements, provided the statements are voluntary
- If a statement is inadmissible due to Miranda violation , SUBSEQUENT incriminating statements made after obtaining a Miranda waiver ARE admissible, provided the initial, non Miranda statements was not obtained through the use of inherently coercive police tactics or methods offensive to due process
Invoking Miranda Rights - Invoking the Right to Counsel The Fourth) –> If testimonial evidence that should have been excluded as violative of Miranda was improperly admitted at trial, and the defendant was convicted, is the court required to vacate the guilty verdict?
It depends. The guilty verdict will stand if the government can prove, beyond a reasonable doubt, that the error was harmless because the D would have been convicted without the attained evidence.
The harmless error rule also applies to physical evidence improperly admitted under the 4th
The 3 Types of Pretrial Identifications
- Line Ups
- Show Ups: 1v1 confrontation between witness and suspect
- Photo Arrays: Witness is shown a series of photos and is asked if the see the perpetrator among them
Substantive Challenges to Pretrial Identifications (2)
- Denial of the Right to Counsel
- Violation of Due Process
Substantive Challenges to Pretrial Identifications - Denial of Right to Counsel (2)
- 5th: there is NO 5th right to counsel under Miranda for pretrial ID procedures
- 6th: Exists for lineups and showups that take place after formal charging –> NO right for photo arrays (bar favorite)
Substantive Challenges to Pretrial Identifications - Violation of Due Process (2)
- A pretrial ID procedure violates the Due Process Clause of the 14th when it is so unnecessarily suggestive that it creates a substantial likelihood of misidentification
- In making this determination, courts must weigh the reliability of a suggestive identification against its corruptive effect
Pretrial IDs - Remedial Considerations
The remedy for constitutional violations in pretrial IDs is the exclusion of a witness’s in-court ID
Pretrial IDs - Remedial Considerations … However
However, even if there is a constitutional violation in a pretrial ID procedure, as in-court ID will still be allowed if the prosecution can prove that it is based on observations of the suspect other than the unconstitutional procedure
Pretrial IDs - Remedial Considerations . . . How to make this showing
To make this showing, the prosecution can point to factors such as:
(a) the W’s opportunity to view the D at the crime scene
(b) the specificity of the description given to the police; AND
(c) the certainty of the W’s ID
Pretrial Proceedings - The First Appearance
Soon after arrest, a D must be brought before a magistrate that will:
- advise him of his rights
- appoint counsel if necessary
- Set bail
Pretrial Proceedings - Setting Bail + the Exception
To comply with the constitutional prohibition of “excessive” bail, the amount should generally be no greater than what is necessary to ensure the accused’s presence at trial; however, bail may be denied, and the accused detained pending trial, based on proof of danger to the community
Pretrial Proceedings - Evidentiary Standard
the government need PROBABLE cause that the D committed the charged offense to bind him over for trial AND to either impose bail or detain him in jail before bail
Pretrial Proceedings - Preliminary Hearings. A pretrial hearing to determine probable cause is UNNECESSARY to justify pretrial detention if?
- The grand jury has issued an indictment; OR
- a magistrate has issued an arrest warrant
Trial Rights - Speedy Trial
All criminal Ds have the constiutional right to a speedy trial. Courts should consider the totality of circumstances, including:
(a) the length of the delay
(b) the reason for the delay; and
(c) prejudice to the D
Trial Rights - Evidentiary Disclosure (Brady Rule)
A prosecutor must disclose to a criminal D ALL material exculpatory evidence
Trial Rights - The right to an unbiased judge means two things . . .
- the judge has no financial stake in the outcome of the case; AND
- the judge has no actual malice towards the D
Trial Rights - Juries (Fundamental Protections)
All criminal Ds have the right to a fair and impartial jury
Trial Rights - Juries (Right to Jury Trial)
Criminal Ds have the right to a jury trial when the maximum authorized sentence exceeds 6 months
Trial Rights - Juries (Requisite Number of Jurors)
the fewest number of jurors allowed in a criminal trial is 6
Trial Rights - Juries (Unanimity of Jury Verdicts)
Jury verdicts in criminal trials must be unanimous ONLY if 6 jurors are used; verdicts in 12 person juries need NOT be unanimous
Trial Rights - Juries (Cross-Sectional Requirement)
The cross-sectional requirement regarding jurors requires that the pool from which the jury is drawn represents a cross-section of the community
Trial Rights - Juries (Peremptory Challenges)
Peremptory challenges permit both sides to exclude jurors w/out stating their reasons for doing so, but they cannot be used by either side to exclude prospective jurors on account of race or gender
Trial Rights - Counsel (Deficiency Requirement)
Claims of ineffective assistance of counsel are subject to prong test:
(a) D must show that his counsel’s performance fell below an objective standard of reasonableness, meaning that counsel made errors so serious that he was not functioning as counsel; AND
Trial Rights - Counsel (Prejudice Requirement)
Claims of ineffective assistance of counsel are subject to prong test:
(b) D must also show that “but for” the deficiency, the outcome of the trial would have been different
Trial Rights - Counsel (Upshot)
Because of the strictness of the two-prong test, unless there is some colorable argument that the D is not guilty, always deny relief under an ineffective assistance of counsel
Guilty Pleas and Plea Bargaining - A Valid Plea
For a plea to be valid, the judge must establish that it is voluntary and intelligent
Guilty Pleas and Plea Bargaining - “Plea Taking Colloquy” (2)
Before accepting the plea, the judge must conduct a colloquy in open court in which she addresses on the record:
(a) the nature of the charges, including the required elements of the charged offense; AND
(b) the consequences of the plea, e.g. waiver of the right to plead not guilty/to a trial
Guilty Pleas and Plea Bargaining - Withdrawing the Plea / Once a D who has pled guilty is sentence, it is difficult for him to withdraw the plea. He may do so, however, if: (3)
- the plea is involuntary due to a defect in the plea taking colloquy
- the D prevails on a claim of ineffective assistance of coursel (Deportation Risk); OR
- the prosecutor fails to fulfill his or her part of the bargain
Guilty Pleas and Plea Bargaining - Special Circumstance (Deportation Risk)
If a guilty plea carries a risk of deportation, counsel’s failure to inform her client of that fact satisfies the deficiency requirement of ineffective assistance of counsel claims. To establish prejudice, a D must further prove that a decision to reject the plea bargain would’ve been rational under the circumstances
Punishment - The 8th Amendment
The 8th disallows criminal penalties that are grossly disproportionate to the seriousness of the offense committed
The 8th and the Death Penalty - Statutory Limits
A death penalty statute would violate the 8th if it created an AUTOMATIC category for the imposition of the death penalty
The 8th and the Death Penalty - Evidentiary Requirements
In deciding whether to impose the death penalty, the jurors must be allowed to consider all potentially mitigating evidence
The 8th and the Death Penalty - Categorical Exclusions (4)
The 8th prohibits the death penalty:
- against Ds with mental retardation
- against Ds who are presently insane
- against Ds who were under the age of 11, at the time the relevant offense occurred (not present age - Also extends to mandatory life in prison without the possibility of parole)
- On crimes against individual persons where the victim did not die
Sentence Enhancements - In the Jury’s Control
Any fact that increases either the statutory maximum or the mandatory minimum sentence for a crime must be found by the jury not the judge
Sentence Enhancements - In the Judge’s Control
The decision as to whether sentences for multiple crimes are to run consecutively or concurrently may be made by the judge
Double Jeopardy - Language
Nor shall any person be subject for the same offense to be twice in jeopardy of life or limb
Double Jeopardy - When does jeopardy attach? (3)
- Jury Trial: When the jury is sworn
- Bench Trial: When the 1st witness is sworn
- Guilty Plea: when the court accepts the D’s plea unconditionally
Double Jeopardy - Does the Double jeopardy clause apply to civil proceedings
NO
Double Jeopardy - The Same Offense Requirement (General Rule)
Two offenses are NOT the “same offenses” for purposes of double jeopardy if each contains an element the other does not
Double Jeopardy - Greater or Lesser Offenses
The prosecution of a previous greater/lesser offense precludes later prosecution of a greater/lesser iff only one of the offenses has an element not contained in the other
Double Jeopardy - The “Same Sovereign” Requirement
Double Jeopardy bars retrial for the same offense by the SAME sovereign ONLY
Double Jeopardy - The 4 Exceptions to the Double Jeopardy Rule that Permit Retrial
- A hung jury
- A mistrial for manifest necessity
- A successful appeal unless the reversal on appeal was based on the insufficiency of the evidence presented by the prosecution at trial; OR
- a breach of the plea bargain by the D
Taking the 5th - Who can take the 5th?
Anyone
Taking the 5th - When can someone take the 5th?
The privilege can be asserted in ANY proceeding in which an individual testifies UNDER OATH
Taking the 5th - Can the failure to assert the privilege in a civil proceeding undermine the ability to assert it in a later criminal proceeding?
Yes, if an individual responds to questions in a civil proceeding, he cannot exclude that evidence in a subsequent criminal proceeding on self-incrimination grounds
Taking the 5th - What is the scope of this testimonial privilege?
Because this is a testimonial privilege, it disallows negative prosecutorial comment on:
(a) a D’s decision not to testify at his trial; AND
(b) a D’s invocation of his right to silence or counsel
- However, prosecutors may comment negatively on the noncustodial silence during police interrogation of a D who has NOT invoked his Miranda rights
Because this is testimonial privilege, it does NOT apply to the content of documents whose production was mandated by subpoena.
Taking the 5th - 3 Ways to Eliminate the Privilege
- Grant of Immunity
- Taking the Stand
- Statute of Limitations
Taking the 5th - 3 Ways to Eliminate the Privilege (Grant of Immunity - 2)
- Prosecutors can grant “use and derive use” immunity, which bars the government from using your testimony or anything derived from it to convict you
- REMEMBER: An individual can be convicted based on evidence obtained prior to the grant of immunity
Taking the 5th - 3 Ways to Eliminate the Privilege (Taking the Stand)
By taking the stand, the D waives the ability to take the fifth as to anything properly within the scope of cross-examination
Taking the 5th - 3 Ways to Eliminate the Privilege (Statute of Limitations)
The privilege is unavailable if the statute of limitations has run on the underlying crime since, in the circumstance, a witness’s testimony could NOT expose him or her to criminal prosecution
