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?
You NEED an arrest warrant when… 1) Arresting someone in his HOME 2) Arresting someone in a 3d party’s HOME NOTE: you’d ALSOneed a search warrant (UNLESS there are exigent circumstances) You DO NOT need an arrest warrant…when arresting someone in a public place Felonies: officers may make a warrantless arrest when they have PC to believe that the arrestee has committed a felony Misdemeanor: officers may make a warrantless arrest for any misdemeanor COMMITTED in their presence
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 by a monetary fine only
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 the std for excluding a confession under the Due Process Cl of the 14th Am?
“Involuntariness” = meaning that the confession is the product of POLICE COERSION that overbears the suspect’s will
What isthe 6th Am’s Right to Counsel AND when does it attach?
= express const. g’tee that attaches ONLY WHEN ∆ is formally charged (NOT upon arrest!) Applies at “all critical stages” of the prosecution that take place after formal charges (arraignment, probable cause hearings, police interrogation, etc) The g’tee is “offense specific”: applies ONLY to the offense with which the ∆ has been FORMALLY charged (i.e. provides NO protection for uncounseled interrogation for other uncharged criminal activtiy) Incriminating stmts obtained from the ∆ by law enforcement abt charged offenses violate the 6th Am IF those stmts are deliberately elicited AND ∆ did not knowingly, intelligently, and voluntarily waive his right to have his atty present **NOTE: a stmt obtained in violation of a ∆’s 6th Am Right to Counsel MAY be used to (only) IMPEACH the ∆’s contrary trial testimony NOTE: Right to counsel is available in MISDEMEANOR cases ONLY IF imprisonment is ACTUALLY imposed Thus, for misdemeanor crimes w/o IMPRISONMENT, a criminal ∆ CAN BE DENIED COUNSEL
What is the std for excluding a confession under NY STATE’s 6th Am’s Right to Counsel?
The NY “Indelible Right to Counsel” provides GREATER protection than the 6th Am (from the fed const). Attaches NOT ONLY at formal charging, BUT ALSO whenever there is significant judicial activity before fililng of an accusatory instrument where ∆ may benefit from counsel If ∆ is taken into custody for questioning on a charge AND the police are aware that he is rep’d by counsel on THAT charge, they may not question him re: THAT charge OR any other matter w/o his atty present If a ∆ is rep’d by counsel, waiver of the indelible right to counsel MUST take place in the presence of the atty
What are 3 federal constitutional challenges AND 1 NY state challenge that can be brought to exclude a confession?
Federal 1) 14th Am: Due Process cl 2) 6th Am: Right to counsel 3) 5th Am: Miranda doctrine NY: 1) 6th Am NY state const: ∆ can challenge under NY’s “indeliable” right to counsel
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: indictments MUST establish ALL ELEMENTS of the offense AND provide reasonable cause to believe that the accused COMMITTED the offense
What is the Miranda doctrine?
Miranda rights are IMPLIED rights grounded in the Self-Incrimination Cl of the 5th Am
What are the 4 core Miranda warnings?
1) the right to remain SILENT 2) anything you say can and will be USED AGAINST YOU in the ct of law 3) the right to an ATTORNEY 4) if you cannot afford one, an atty will be APPOINTED for you
What is the procedure for a suspect to invoke his Miranda rights?
1) Right to remain silent: a suspect must UNAMBIGUOUSLY invoke her right to remain silent Once a suspect invokes the right to remain silent, 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 2) Right to counsel: a suspect must make a request that’s SUFFICIENTLY clear that a reasonable officer would understand the stmt as a request for counsel Once a suspect “lawyer’s up”, ALL interrogation must cease UNLESS initiated by the suspect Unlike the 6th Am, the 5th Am right to counsel is NOT offense-specific; THUS, interrogation must stop for ALL TOPICS (oustide presence of atty) once right to counsel is invoked Request for counsel expires 14 days after suspect is RELEASED from custody Waiver of the Miranda right to counsel after this pd is VALID, provided it’s knowing, intelligent and voluntary
What 2 reqs are necessary for a valid waiver of Miranda rights? NOTE: NY Distinction
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 DISTINCTION: has a parent/child rule that if 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 The prosecution has the BURDEN OF PROOF in proving a valid waiver of a suspect’s Miranda rights by a perponderance of the evidence