Pretrial identifications, exclusionary rule, grand juries and pretrial proceedings

Question 1

3 types of pretrial identifications

Answer 1

i. line-ups: witness asked to id the perp from a group
ii. show-ups: 1-on1 confrontation bw witness and suspect
1. most suggestive
iii. photo arrays: witness is shown series of photos and asked t see if she sees the perp

Question 2

two Substantive challenges to pretrial identifications

Answer 2

i. Denial of the right to counsel
1. 5th amd: no application of Miranda for pretrial id procedures
2. 6th amd: right to counsel at lineups and showups does exist after formal charging. HOWEVER no 6th amdt right at photo arrays (MBE fave)
a. right to have counsel at lineu includes right to have counsel present the ENTIRE time

ii. Violation of DP
1. violation of DP when pretrial id is so unnecessarily suggestive that it creates subst likelihood of misID
2. Courts weigh reliability of suggestive ID against corrupting effects
more likely in the show up (1 on 1, very suggestive)

Question 3

Remedial considerations for pretrial identifications constitutional violations

Answer 3

Remedial considerations for pretrial identifications constitutional violations–either denial of right to counsel (only applies for 6th amdt after charge) OR violation of DP

i. remedy is usually exclusion of witness’ in court ID
ii. However even if pretrial id is unconst, in court id will still be allowed if it has an independent source, that is if P can show that incourt ID is based on observations of the suspect other than the unconst pretrial ID
iii. P must point to certain factors like
1. witness opportunity to view the ∆ at the crime scene
2. specificity of the description given to police
3. witness certainty

Question 4

Court’s general attitude towards pretrial identifications

Answer 4

d. court doesn’t want the witness to be able to point out the perp (very much convincing to a jury) if P implanted it in W mind. but if the only reason that the pretrial id procedure was messed up bc of P mistake, witness SHOULD be able to take the stand.

Question 5

Exclusionary rule

Answer 5

a. Cannot introduce evidence obtained in violation of 4th,5th and 6th amendments.
b. All “fruit of the poisonus tree” also excluded.
i. Exceptions:
ii. evidence obtained form independent source of original illegality
iii. attenuation (break in chain)
iv. inevitable discovery
v. violation of knock and announce

these things are decided as a matter of law by the judge!!
prosecution bears the burden of establishing admissibility

Question 6

Limits to exclusionary rule

Answer 6

i. inapplicable to grand juries, civil proceedings, parole revocation proceedings, or where evidence was obtained only contrary to state/ agency rules
illegally seized evidenc is admissable here
ii. Good faith reliance on law, defective search warrant, or clerical error
iii. use of evidence is admissible only to impeach the ∆
iv. knock and announce rule violations not excluded

Question 7

Harmless error test

Answer 7

if illegal evidence is admitted, a conviction should be overturned on appeal unless govt can show beyond reasonable doubt the error was harmless.

Question 8

Enforcing the exclusionary rule

Answer 8

: ∆ entitled to have the matter decided as a matter of law by judge. Government bears burden of establishing admissibility.
i. ∆ can testify at suppression hearing without testimony being used in trial

Question 9

Pretrial proceedings: first appearance

Answer 9

soon after arrest ∆ must come before magistrate who will

i. advise of rights
ii. appoint counsel
iii. set bail
1. const prohibition on excessive bill, amount should not be greater than what is necessary to ensure accused presence at trial. bail may be denied and the accused detained pending trial based on danger to community
2. refusal to set bail = immediately appealable.

Question 10

Pretrial proceedings evidentiary standard

Answer 10

: govt needs probable cause that a ∆ committed the offense to bind him over for trial and to either impose bail or detain him before trial

Question 11

Preliminary hearings

Answer 11

pretrial hearing to determine prob cause (aka Gerstein hearing) is unnecessary to justify pretrial detention if either

i. GJ has issued an indictment
ii. or magistrate issued an arrest warrant

Question 12

Prosecutorial duty to disclose exculpatory info and notice of defenses

Answer 12

govt has duty to disclose material exculpatory evidence. Otherwise DP violation. Grounds for reversing if ∆ can prove that

i. evidence is favorable to him because it impeaches or is exculpatory
ii. prejudice resulted

iii. if ∆ is going to use an alibi or insanity defense, he must notify the P. ∆ must give list of witnesses, and P must give any witnesses used to rebut.

Question 13

Incompetency as a bar to trial

Answer 13

bar to trial. Based on mental condition at time of trial. Lacks capacity if

i. lacks a rational as well as factual understanding of the charges and proceedings
ii. OR
iii. lacks sufficient present ability to consult with his lawyer with a reasonable degree of understanding.
iv. state MAY place burden on ∆ to show incompetency, but only by preponderance standard. Clear and convincing standard is unconstituonal.

Question 14

Pretrial publicity

Answer 14

excessive pretrial publicity may require change of venue or retrial.

Question 15

Grand juries

Answer 15

a. They issue indictments
b. Proceedings are not public. secret
c. states don’t have to use them as part f charging process
d. Witness subpoenaed to testify to grand jury has no
i. right to receive Miranda warnings
ii. no right to have an attorney present
iii. no right to warning that she is a potential ∆
e. exclusionary rule does not apply in grand jury proceedings, so illegaly seized evidence is admissible in grand jury proceedings.
i. They can hear hearsay, whatever obtained even if illegaly. Etc.