Law of Arrest and Punishment

Question 1

4 major requirements for a valid wiretap warrant:

Answer 1

S.T.C.C.

1. Suspected Persons - must name them
2. Time - must be for a strict time period
3. Crime - must be PC
4. Conversations - must describe the conversation to be heard

Question 2

When is Arrest Warrant Needed?

Answer 2

• Need them to arrest person in his/her home
• Need them to arrest in the home of a third party
• Arrest AND search warrant required to arrest someone in third party’s home
• Do not need warrant to arrest someone in public place

Question 3

Common Enterprise Theory

Answer 3

In a traffic stop, where a police officer discovers evidence of crime that suggests a common unlawful enterprise between the driver and passengers, the officer may arrest any or all of them, based on the reasonable inference of shared dominion and control over contraband.

Question 4

3 Federal Challenges that Can be Brought to Exclude Confession

Answer 4

1. Fourteenth Amendment - Due Process
2. Sixth Amendment - Right to Counsel
3. Fifth Amendment - Miranda Doctrine

GA - confession alone cannot justify a conviction

Question 5

Right to Counsel under 6th Amendment

Answer 5

-Express constitutional gurantee
Attaches when the Def is formally charged, NOT upon arrest!

• It applies at all “critical stages” of the prosecution.
• It is OFFENSE SPECIFIC - only applies to crimes which D is formally charged

Question 6

When Are Miranda Rights Necessary

Answer 6

1. Given when suspect is put in custody! (totality of circumstances test to determine if in custody)
   a. Whether a reasonable person would have felt
   at liberty to leave and end the interrogation
   b. Whether environment the questioning takes
   place presents the same inherently coercive
   pressures as the station house questioning
   c. Age take into account for a juvenile where age
   is relevant AND when the officer knew or
   should have been aware of a child’s age at the
   time of questioning
2. Given before interrogation. - Defined as any conduct police knew or should have known was likely to elicit an incriminating response.

Question 7

Miranda - Public Safety Exception

Answer 7

Miranda warnings are unnecessary and any confessions are admissible against the suspect if interrogation is prompted by an immediate concern for public safety.
ex. Boston Marathon Bombing Suspect

Question 8

Miranda Waiver

Answer 8

Two requirements:

1. Knowing and Intelligent - satisfied if suspect understand NATURE of the rights AND the CONSEQUENCES of abandoning those rights, and
2. Voluntary
   
   • Voluntary if not product of police coercion

Question 9

Invoking Right To Counsel

Answer 9

Once a suspect asks for counsel, ALL interrogation must cease unless initiated by the suspect. Not offense specific

Request must be sufficiently clear where reasonable officer in same situation would understand the request.

*Request expires 14 days after a suspect is released from custody
-Wavier of Miranda right to counsel obtained
after this period is valid if knowing, intelligent,
and voluntary.

Question 10

Invoking right to remain silent

Answer 10

1. Suspect must unambiguously invoke their right to remain silent.
2. Cops must then “scrupulously honor” the invocation of right.

*Must wait a significant period of time before re-initiating questioning.

Question 11

Harmless Error

Answer 11

The guilty verdict will stand (despite inclusion of Miranda-violative evidence) if the gov’t can prove beyond a reasonable doubt that the error was harmless because the Def would have been convicted without the tainted evidence.

Question 12

Limitations on Evidentiary Exclusions (Applied to Miranda)

Answer 12

1. Incriminating statements obtained in violation of Miranda rights are inadmissible in prosecutor’s case in chief but may be used to impeach the Def’s testimony on cross. - However an involuntary confession cannot be used to impeach
2. Failure to give Miranda warnings does NOT require suppression of the physical fruits of incriminating statements, provided they are voluntary.
3. Statements made after Miranda given (following Miranda violation) are admissible as long as they weren’t coerced through police tactics.

Question 13

Right to Counsel for Pretrial Identifications Line Ups, Show Ups, Photo Arrays

Answer 13

• A right to counsel exists under the SIXTH AMENDMENT at line ups and show ups that take place after formal charging - NO Sixth Amendment right to counsel for photo arrays!!!
• NO Fifth amendment right to counsel under the Miranda doctrine for pretrial identifications

Question 14

Pretrial Detention

Answer 14

“Commitment Hearing”
- Government needs PC to both bind and detain in jail before trial

GA - “First Appearance” (before the Magistrate) must happen within 72 hours of arrest. Magistrate will:

• advise suspect/Def of rights
• Set bail
• appoint counsel if necessary

Question 15

Who Cannot be Sentenced to Death Penalty?

Answer 15

Cannot be imposed against:

1. Defs with mental retardation,
2. Defs who are presently insane, or
3. Defs who were under 18 at time of crime

Question 16

Double Jeopardy

Answer 16

1. When it attaches:
   - jury trial - when jury sworn in
   - bench trial - when first witness sworn in
   - guilty plea - when court unconditionally accepts plea
   * *Does NOT apply to civil proceedings!
2. Must apply only to offenses that are similar of of a “lesser included” nature,
3. Same sovereign - States CANNOT sue after municipality (Fed can after state does)

Question 17

Exceptions to Double Jeopardy

Answer 17

1. Hung jury
2. Mistrial for manifest necessity
3. successful appeal
4. Def breached plea agreement

Question 18

Standard for Excluding Confessions Under the DP Clause of the 14th?

Answer 18

Involuntariness, which means the confession is the product of police coercion that overbears the suspect’s will

Question 19

When does a pretrial identification violate DP Clause of 14th?

Answer 19

• When it is so unnecessarily suggestive that it creates a substantial likelihood of misidentification
• Remedy is to exclude witnesses in court ID
• But if prosecution can prove that it is based on observations other than the unconstitutional show up, line up, or photo array.

Question 20

States right to provide greater protection than Miranda?

Answer 20

• Miranda warnings and a valid waiver are minimum prerequisites to the admissibility of any statement made by the accused in a custodial interrogation
• States are are free to provide greater protections

ex. State statue that requires interrogator to inform the D about the nature of the crimes he is being charged
- SCOTUS has held statements obtained in violation of stricter state statute must be excluded