Pretrial Issues

Question 1

When does “arrest” occur?

Answer 1

When either:

• i) person is taken against his will for questioning or prosecution
• ii) de facto- if person is taken to station for questioning OR fingerprinting

Question 2

When do you need an arrest warrant?

Answer 2

General rule: do NOT need warrant to arrest someone; just probable cause that they committed any offense

Exceptions:

• 1) Arresting someone in his HOME
• 2) Arresting someone in a 3d party’s HOME
  
  • NOTE: you’d ALSO need a search warrant (UNLESS there are exigent circumstances)

Question 3

What is the “common enterprise” theory of arrest?

Answer 3

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

Question 4

What is the std of proof for an arrest?

Answer 4

Probable cause

Question 5

For what offenses does the 4th Am permit custodial arrests?

Answer 5

ALL offenses! EVEN those punishable by a monetary fine only

Question 6

Confessions:

What are constitutional requirements that apply?

Answer 6

1. 14th Amendment- voluntariness
   
   1. (always)
2. 5th Amendment- Miranda rights- silence + counsel
   
   1. (when in custody, under interrogation)
3. 6th Amendment right to counsel
   
   1. (after charged)
4. NY: Indelible RIght to Counsel
   
   1. (after significant judicial activity)

Question 7

Confessions:

14th Amendment requirements

Answer 7

Confession must be “voluntary”

“Involuntariness” = meaning that the c_onfession is the product of POLICE COERCION_ that overbears the suspect’s will

Question 8

6th Amendment:

Right to Counsel

Answer 8

Attaches when D is :

• formally charged (NOT upon arrest!)
• with charge that may result in imprisonment
  
  • (otherwise can deny)
• and ONLY to the charged offenses

Applies: _ “all critical stages”_ of the prosecution that take place after formal charges

• arraignment,
• probable cause hearings,
• police interrogation,
• lineups & show-ups

VIOLATION IF:

• i) D did not knowingly, voluntarily & intelligently waive
• ii) stmts are deliberately elicited
• • iii) D did not knowingly, intelligently, and voluntarily waive his right to have his atty present

Effect of violation:

• Statement is excluded from trial as substantive
• (can be used to impeach)

Question 9

NY:
Indelible Right to Counsel

Answer 9

“Indelible Right to Counsel” provides GREATER protection than the 6th Am (from the fed const).

Attaches when:

• significant judicial activity before fililng of an accusatory instrument where D may benefit from counsel
• (NOT offense specific)

Applies if:

• i) D is known to be represnted by counsel
• ii) D would benefit from presence of counsel
• iii) D _did not wavie with attonry present _

Question 10

5th Amendment:
Miranda doctrine

Answer 10

(based in right against self-incrimination)

Right to be informed, before being held in custody for questioning, of:

1. right to remain silent
2. anything said will be held against in court of law
3. right to attorney
4. if cannot afford one, state will appoint

Question 11

HOw to get incriminating statements in?

(if in custody & product of interrogation)

Answer 11

1. Public safety exception
2. OR Miranda warnings given + waived rights

Question 12

Miranda warnings:
when necssary?

Answer 12

BEFORE there is a “CUSTODIAL INTERROGATION” (i.e. you need both facets)

• 1) Custody: a suspect is in custody IF the atmosphere, viewed OBJECTIVELY, is characterized by police domination and coercion such that his/her freedom of action is ltd in a sig. way
  
  • (i) D could not terminate & leave
  • (ii) Same coercive pressure as station
  • (iii) If juvenile, determine objectivity standard based upon his age
  • NOTE: does NOT have to be in a police station necessarily
• + 2) Interrogation: any conduct the police KNEW or SHOULD HAVE KNOWN was likely to elicit an incriminating response
  
  • ​ NOTE: Miranda does NOT apply to incriminating stmts made SPONTANEOUSLY, since they are NOT the product of police interrogation “

Public safety” EXCEPTION: if custodial interrogation is prompted by an IMMEDIATE concern for public safety,

Question 13

Miranda rights:
to Invoke

Answer 13

Right to remain silent:

• to invoke: must be UNAMBIGUOUS
• Effect: police must “scrupulously honor” the invocation (i.e. they can’t badger the suspect) Police detectives
  
  • MUST wait a sig. pd of time before re-initiating questioning AND must first obtain a valid waiver

Right to counsel:

• to invoke: SUFFICIENTLY clear that a reasonable officer would understand the stmt as a request for counsel
• Effect: all interrogation must cease UNLESS initiated by the suspect
  
  • (contra 6th amend, must stop for all topics) (oustide presence of atty)
• Expires: 14 days after release from custody

Question 14

What 2 reqs are necessary for a valid waiver of Miranda rights? NOTE: NY Distinction

Answer 14

A valid Miranda waiver MUST be…

1) “Knowing and Intelligent”: when the suspect understands the NATURE of the rights AND the CONSEQUENCES of abandoning them
2) “Voluntary”: when it’s NOT the product of police coersion
* NY : has a parent/child rule: the police use deceception or concealment to keep a PARENT away from a CHILD who is being interrogated, the child’s waiver may be deemed INVALID

NOTE: The waiver need not be “express”; it MAY be IMPLIED by course of conduct that indicates a desire to speak w/ police interrogators (speaks after hearing miranda)

Procedure: prosecution has BURDEN in proving a valid waiver of a suspect’s Miranda rights by a perponderance of the evidence

Question 15

What are the 3 consequences of violating the Miranda mandate?

Answer 15

1) Incriminating stmts obtained in violation of Miranda are INADMISSABLE in the prosecutor’s case-in-chief,

• may be used to impeach the D’s testimony
  
  • (BUT NOT the testimony of a 3d party witness)

2) If a stmt is inadmissable b/c of a Miranda violation, SUBSEQUENT stmts made AFTER obtaining a Miranda waiver ARE ADMISSABLE
* (PROVIDED the initial, non-Mirandized stmt was NOT obtained thru use of inherently coercive police tactice, offensive to DUE PROCESS)

**3) Failure to give a Miranda warning does NOT require supression of the “physical fruits” of incriminating stmts, PROVIDED the stmts were VOLUNTARY (i.e. no due process issues)

IF evidence that SHOULD have been excluded was improperly admitted, a GUILTY verdict will NOT be vacated IF the gov’t can prove (beyond a reasonable doubt) that the error was HARMLESS b/c the

• (D would have been convicted without the tainted evidence)
• NOTE: this is ALSO the rule that applies to physical evidence improperly admitted under the 4th Am

Question 16

What if evidence improperly admitted in violation of Miranda?

Answer 16

IF evidence that SHOULD have been excluded was improperly admitted, a GUILTY verdict will NOT be vacated IF the gov’t can prove

• i) beyond a reasonable doubt) that the
• ii) error was HARMLESS
  
  • b/c the D would have been convicted without the tainted evidence

(NOTE: this is ALSO the rule that applies to physical evidence improperly admitted under the 4th Am)

Question 17

What is a grand jury? NOTE: NY Distinction

Answer 17

A SECRET body that issues INDICTMENTS

MBE:

• 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 :

• ALL felonies require idictment (Unless D waives)
• indictments MUST:
  
  • 1) establish ALL ELEMENTS of the offense
  • 2) provide reasonable cause to believe that the accused commited the offense

Question 18

Pre-trial detention:

When can govt bind D for trial & detain in jail?

Answer 18

The gov’t needs probable cause :

• to bind the ∆ for trial
• • to detain him in jail BEFORE trial

How establish probable cause:

• 1) magistrate-issued arrest warrant
• 2) grand jury indictment
• OR 3) Gerstein hearing
  
  • hearing to determine probable cause

Question 19

Pre-trial proceedings

First Appearance:

Answer 19

“First Appearance”:

• Occurs: soon after arrest where a D is brought before a magistrate
• Magistrate:
  
  • advises him of his rights;
  • sets bail;
    
    • (no const’l right to bail, but if state provides, cannot deprive arbitrarily)
  • • appoints counsel, if necessary
• Bail decns are IMMEDIATELY appealable

Question 20

What are 3 types of pre-trial IDs?

Answer 20

1) Line-ups: witness is asked to identify the perp form a group
2) Show-ups: one-on-one confrontation b/t witness and suspect
3) Photo arrays: witness is shown a series of photos and is aksed if she sees the perp among them

Question 21

Pretrial Identifications:

Constitutional Challenge

+ NY Challenge

Answer 21

1) Denial of right to counsel

• * 6th Am: a right to counsel exists
  
  • at _LINE-UPs and SHOW-UP_s that take place after formal charging;
  • (not for photo arrays)
• NY: 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

• test = “so unnecessarily suggestive that it creates a subtl likelihood of irreparable misidentification“
• (applies to show ups, lineup and photo array)
• –> weigh:
  
  • reliability of the suggestive ID
  • vs. its corrupting effect

Question 22

What is the remedy for const. violations in pre-trial IDs?

Answer 22

Remedy = exclusion of the witness’s in-court ID

–> Prosecution must show: (exception)

• incourt identification is based on observations of the suspect OTHER than the unconst. line-up, show-up or photo array
• Factors:
  
  • i) witness’s o_pportunity to view the D_ at the crime scene
  • ii) the specificity of the description given to the police
  • iii) certainty of witness’ identification

Question 23

What are the 4 reqs for a valid wiretap warrant?

Answer 23

Mnemonic = “Screen Telephone Calls Carefully” 1) Suspected persons: the warrant must name the suspected persons whose conversations are to be overheard 2) Time: the wiretap must be for a STRICTLY ltd pd of time 3) Crime: there must be PC that a SPECIFIC crime has been committed 4) Coversations: the warrant must describe w/ PARTICULARITY the coversations that CAN be heard