Pretrial Issues Flashcards
What is the “unreliable ear” doctrine?
If you speak to someone who has AGREED to a wiretap or some other form of eletronic monitoring, YOU have NO 4th Am claim as you’ve assume the risk that the other party will NOT keep your conversations in private
When do you need an arrest warrant?
An officer NEEDS a warrant to Arrest someone in his HOME (UNLESS there is an emergency) 2) If in the home of a 3d party, officer needs an ARREST warrant AND a SEARCH warrant
You DO NOT need an arrest warrant when arresting someone in a public place
What is the “common enterprise” theory of arrest?
In a TRAFFIC STOP, where a police officer discovers evidence of a crime that suggests a COMMON UNLAWFUL ENTERPRISE b/t the driver and his passenger(s), the officer may arrest ANY or ALL of them, based on the reasonable inference of shared dominion and cntrl over the contraband
What is the std of proof for an arrest?
Probable cause
For what offenses does the 4th Am permit custodial arrests?
ALL offenses! EVEN those punishable ONLY by a monetary fine
When does an arrest occur?
Whenever the police take someone into custody against her will for PROSECUTION or INTERROGATION. NOTE: it’s considered a de facto arrest when the police compel someone to come to the police station for questioning or fingerprinting
What is a grand jury? NOTE: NY Distinction
A SECRET body that issues INDICTMENTS States do NOT have to use grand juries as part of the charging process.There is NO RIGHT to have (improper) evidence excluded at the grand jury stage (it would be PREMATURE)
NY DISTINCTION: ALL felonies require indictments, unless ∆ waives the reqs. indictments MUST establish ALL ELEMENTS of the offense AND provide reasonable cause to believe that the accused COMMITTED the offense
What is a “First Appearance?
Occurs soon after arrest, ∆ is brought before a magistrate who will (i) ADVISE him of his rights, ii) set BAIL; AND appoint counsel, if necessary
The gov’t needs PC BOTH to bind the ∆ for trial AND to detain him in jail BEFORE trial A hearing for probable cause (Gerstein hearing) is UNNECESSARY to justify pretrial detention IF (i) grand jury has issued an INDICTMENT; OR (ii) a magistrate has issued an ARREST warrant
What is the remedy for const. violations in pre-trial identifications?
EXCLUSION of the witness’s in-court ID HOWEVER, a ct WILL allow witness’s in-court ID (in light of a const violation) IF the prosecution can prove that it is based on observations of the suspect OTHER than the unconst. line-up, show-up or photo array. The prosecution can point to i) the witness’s opportunity to view the ∆ at the crime scene; the certainty of the witness’s ID; AND the specificity of the description given to the police
What are 3 types of pre-trial identifications?
1) Line-ups 2) Show-ups: one-on-one confrontation b/t witness and suspect 3) Photo arrays
What are 2 substantive challenges to pretrial IDs? NOTE: NY Distinction
1) Denial of right to counsel - there is NO 5th Am right to counsel under Miranda for pre-trial ID procedures! A right to counsel exists under the 6th Am at LINE-UPs and SHOW-UPs that take place AFTER formal charging; HOWEVER, there is NO 6th Am right to counsel for PHOTO ARRAYs.
NY DISTINCTION: NY provides greater suspect protection; THUS, you have a right to have an atty present at line-up conducted BEFORE the filing of formal charges IF police are aware that you have counsel AND you requested that counsel be present
2) Violation of due process - Pre-trial ID violates DP when it is so UNECESSARILY suggestive that it creates a substantial likelihood of irreparable misidentification. Ct determine DP violation by weighing the reliability of the suggestive ID AGAINST its corrupting effect
What are the 4 major requirements for a valid wiretap?
“Screen Telephone Calls Carefully”
1) the warrant must name the SUSPECTED PERSONS 2) must be for a strictly limited TIME PERIOD NY DISTINCTION: Wiretaps expire in 30 days 3) must be probable cause that a specific CRIME has been committed 4) must describe with particularity the CONVERSATIONS that can be overheard.
