Overview, Exclusions, 5th v 6th Amen Right to Counsel, Pretrial ID & Procedures

Question 1

4th Amendment

Answer 1

Prohibition against unreasonable searches and seizures

Question 2

5th Amendment

Answer 2

1. privilege against compulsary self-incrimination
2. prohibition against double-jeopardy

Question 3

6th Amendement

Answer 3

1. Right to a speedy trial;
2. Right to a trial by jury;
3. Right to confront witnesses;
4. Right to assistance of counsel.

Question 4

8th Amendment

Answer 4

prohibition against cruel and unusual punishment.

1. The death penalty;
2. Prisoner rights.

Question 5

Exclusionary Rule

Answer 5

a remedy of American constitutional procedure whereby
someone who has been the victim of an illegal search or a coerced confession can (among their other remedies) have the product of that illegal search or that coerced statement excluded from any subsequent criminal prosecution.

Question 6

Limitations to the Exclusionary Rule

Answer 6

1. Exclusion does not apply to grand jury proceedings.
   
   • A grand jury witness may be compelled to testify based on illegally seized evidence.
2. Exclusion is not an available remedy in civil proceedings
3. Exclusion is not an available remedy in parole revocation proceedings.
4. Exclusion does not apply to the use of excluded evidence for impeachment purposes
   
   • ALL illegally seized evidence may be admitted to impeach the credibility of the defendant’s trial testimony
   • the testimony of other defense witnesses may not be impeached.
5. Exclusion is not an available remedy for violations of the knock and announce rule in the execution of search warrants.

Question 7

Fruit of the Poisonous Tree Doctrine

Answer 7

The doctrine will not only exclude illegally seized evidence, but will also exclude all evidence obtained or derived from police illegality

Question 8

The Fruit of the Poisonous Tree Doctrine does not apply to:

Answer 8

Miranda violations, unless police acted in bad faith obtaining such information

Question 9

There are three ways that the government can break the chain between an original, unlawful police action and some supposedly derived piece of evidence: (Remedy for police to break the chain and get the evidence in)

Three I’s (III)

Answer 9

1. The government can show that it had an independent source for that evidence, independent
   of that original police illegality.
2. Inevitable discovery: the police would have inevitably
   discovered this evidence anyway.
3. Interveining acts of free will on the part of the
   Defendant.

Question 10

Exclusionary Rule & Convictions

Answer 10

A conviction will not necessarily be overturned
because improperly obtained evidence was admitted at trial.

• On appeal, a court will apply the Harmless Error test
• Under the test, a conviction will be upheld if the
  conviction would have resulted despite the improper evidence.

Question 11

The court created 5th Amendment right to counsel arises when:

Answer 11

a suspect invokes his Miranda rights and requests an attorney

Question 12

When do the 5th & 6th Amendment apply:

Answer 12

• The Fifth Amendment Right to counsel is NOT offense specific and thus applies to the entire process of custodial police interrogation
• Conversely, the Sixth Amendment Right to Counsel is offense specific, meaning counsel would only need to be present if the Defendant were being asked questions about the specific casefor which the Defendant has retained counsel.
  
  • when a Defendant has not specifically requested counsel, and has merely been given appointed counsel (e.g., at a preliminary hearing), the police can come back and ask Defendant to waive his Sixth Amendment right to counsel and talk to them about the crime for which he was charged

Question 13

Pretrial Stages where there is no right to counsel

Answer 13

1. taking of blood samples
2. taking of handwriting samples
3. pre-charge lineups
4. Brief recess during defendant’s testimony at trial
5. Parole and probation revocation proceedings
6. The taking of fingerprints

Question 14

There are two substantive bases on which you can attack a pretrial identification:

Answer 14

1. Denial of the right to counsel
2. Denial of Due Process

Question 15

When does right to counsel attach and does not attach for pretrial identification?

Answer 15

• Post charge line-ups (standing in line) and show ups (one on one) give rise to the right of counsel
• There is no right to counsel when the police go
  out to show the victim or witness photographs

Question 16

When can you attack denial of due process for pretrial identification?

Answer 16

Certain pretrial identification techniques are so unnesseraily suggestive and so substantially likely to produce a misidentification that they deny due process of law.

Question 17

6th Amen Right to Confront Witness - When 2 Ds are tried together and one gives a statement that implicates the other - how does the right of confrontation apply?

Answer 17

When 2+ Ds are tried together and one gives a statement that implicates the other, the right of confrontation prohibits the use of the statment, unless:

1. all portions referring to the D can be eliminated
2. the confessing D takes the stand and subjects himself to cross-examination; or
3. the non-stestifying co-defendant’s confession is being used to rebut the Ds claim that the D’s confession was obtained coercively.

Question 18

The remedy for an unconstitutional pre-trial identification is:

Answer 18

To exclude the in-court identification … unless the State can show that it had an adequate independent source for that in-court identification (independent of that bad line-up).

• The most common independent source is that the victim or witness hadan adequate opportunity to observe the Defendant at the time of the crime.

Question 19

Pretrial Procedures

Answer 19

1. Bail
2. Grand Jury

Question 20

Bail

Answer 20

1. Bail issues are immedietly appealable
2. Preventive detention is Constitutional.

Question 21

Grand Juries

Answer 21

1. Exclusion does not apply to the conduct of grand juries.
2. Accordingly, a grand jury witness may be compelled to testify based on the illegaly seized evidence
3. Grand Jury proceedings are secret. The Defendent has no right to appear or send in a witness.