Pretrial Issues

Question 1

EAVESDROPPING

What is the “unreliable ear” doctrine?

Answer 1

“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 assumed the risk that the other party WILL NOT keep your conversations in private

Question 2

THE LAW OF ARREST

When do you need an arrest warrant?

Answer 2

WHEN AN ARREST WARRANT IS REQUIRED:
Absent an EMERGENCY, 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

You DO NOT need an arrest warrant for…Felonies: officers may make a warrantless arrest when they have PC to believe that the arrestee has committed a felony

You DO NOT need an arrest warrant for…Misdemeanor: officers may make a warrantless arrest for any misdemeanor COMMITTED in their presence

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

THE LAW OF ARREST

What is the std of proof for an arrest?

Answer 4

Probable cause

Question 5

THE LAW OF ARREST

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

Answer 5

ALL offenses!

EVEN those punishable by a monetary fine ONLY

Question 6

THE LAW OF ARREST

When does an arrest occur?

Answer 6

Whenever the police take someone into custody against her will for PROSECUTION or INTERROGATION

NOTE: It is considered a DE FACTO ARREST when the police compel someone to come to the police station for questioning or fingerprinting

Question 7

CONFESSION

What is the std for excluding a confession under the Due Process Cl of the 14th Am?

Answer 7

A confession can be excluded under the Due Process Clause for “Involuntariness”

“Involuntariness” is when the confession is the product of POLICE COERSION that overbears the suspect’s will

Question 8

CONFESSION

What isthe 6th Am’s Right to Counsel AND when does it attach?

Answer 8

6th Am’s Right to Counsel = 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 RIGHT ONLY ATTACHES WHEN ∆ is formally CHARGED and NOT upon ARREST!

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 activity)

Incriminating stmts obtained from the ∆ by law enforcement abt charged offenses violate the 6th A. 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 IMPEACH the ∆’s contrary trial testimonyBUT ONLY for that purpose!

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

Question 9

CONFESSION

NY DISTINCTION

What is the std for excluding a confession under NY STATE’s 6th Am’s Right to Counsel?

Answer 9

NY INDELIBLE RIGHT TO COUNSEL
The NY “Indelible Right to Counsel” provides GREATER protection than the 6th Am (from the fed const).

The RIGHT attaches NOT ONLY at formal charging, BUT ALSO whenever there is significant judicial activity BEFORE THE FILING 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

Question 10

CONFESSIONS

What are 3 federal constitutional challenges AND ***1 NY state challenge that can be brought to exclude a confession?

Answer 10

Federal
1) 14th Am: Due Process cl

2) 6th Am: Right to counsel
3) 5th Am: Miranda doctrine NY:

• NY STATE*
  1) 6th Am NY state const: ∆ can challenge under NY’s “indelible” right to counsel

Question 11

GRAND JURY

What is a grand jury?

NOTE: NY Distinction

Answer 11

GRAND JURY = A SECRET body that issues INDICTMENTS (private proceedings)

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:
1) ALL FELONIES require grand juries unless the ∆ waives this requirement
2) Indictments MUST establish ALL ELEMENTS of the offense AND provide reasonable cause to believe that the accused COMMITTED the offense

Question 12

5th A. MIRANDA

What is the Miranda doctrine?

Answer 12

Miranda rights are IMPLIED rights grounded in the Self-Incrimination Cl of the 5th Am

Question 13

5th A. MIRANDA

What are the 4 core Miranda warnings?

Answer 13

The 4 Core Miranda Warnings are:

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

Question 14

5th A. MIRANDA

What is the procedure for a suspect to invoke his Miranda rights?

Answer 14

INVOKING THE RIGHT TO REMAIN SILENT
To invoke the 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 Miranda Waiver

INVOKING THE RIGHT TO COUNSEL
To invoke the 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

The 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

Question 15

5th A. MIRANDA

What 2 requirements are necessary for a valid waiver of Miranda rights?

**NOTE: NY Distinction

Answer 15

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 deception or concealment to keep a PARENT away from a CHILD who is being interrogated, the child’s waiver may be deemed INVALID

NOTE: Executing the Waiver: The waiver need not be “express”; it MAY be IMPLIED by course of conduct that indicates a desire to speak w/ police interrogators

NOE: Burden of Proof: The prosecution has the BURDEN OF PROOF in proving a valid waiver of a suspect’s Miranda rights by a preponderance of the evidence

Question 16

5th A. MIRANDA

When areMiranda warnings necessary?

What are the 2 core requirements?

Answer 16

Miranda warnings are necessary BEFORE there is a “CUSTODIALINTERROGATION”(i.e. if both facets exist then Miranda warning must be provided)

CUSTODY
1) Custody: a suspect is in custody IF the atmosphere, viewed OBJECTIVELY, is characterized by police domination and coersion such that his/her freedom of action is limited in a significant way
TWO-PART TEST
Part 1) A person is in custody when a reasonable person would not have felt that she was at the liberty to END the interrogation and leave
AND
Part 2) The environment presents the same inherently coercive pressures as the station-house questioning at issue in Miranda
→ NOTE: does NOT have to be in a police station necessarily
→ NOTE: although the custody inquiry is objective, it should take into account a juvenile suspect’s age (where relevant and when officer knew or should have been aware of child’s age at time of questioning)

INTERROGATION
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, THEN Miranda warnings are unnecessary and any incriminating stmts ARE admissible against the suspect

IF, after the police “reasonably conveys” Miranda rights, the suspect validly waives right to slience and counsel, then the stmts provided ARE ADMISSIBLE

NOTE: A suspect facing interrogation has the following 3 options after receiving Miranda warning:

1) Waive right and speak
2) Remain silent
3) Assert right to counsel

Question 17

5th A. MIRANDA

What are the 4 consequences of violating the Miranda mandate?

Answer 17

If a Miranda Violation Occurs:

1) Incriminating stmts obtained in violation of Miranda are INADMISSABLE in the prosecutor’s case-in-chief, BUT may be used to impeach the ∆’s testimony on cross examination (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)
4) 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 ∆ 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 18

PRETRIAL PROCEEDINGS

What is the process for pre-trial detention?

Answer 18

1) The "First Appearance" 
The first appearance occurs soon after arrest where a ∆ is brought before a magistrate who:			
(i) advises him of his rights;
(ii) sets bail; AND
(iii) appoints counsel, if necessary

Note: Bail decns are IMMEDIATELY appealable

2) Evidentiary Standard
The gov’t needs Probable Cause that the ∆ committed the charged offense BOTH to bind the ∆ for trial AND to detain him in jail BEFORE trial

3) Preliminary Hearings:
A hearing for probable cause (Gerstein hearing) is NOT NECESSARY to justify pretrial detention IF:
(i) grand jury has issued an INDICTMENT; OR
(ii) a magistrate has issued an ARREST warrant

Question 19

PRETRIAL IDENTIFICATIONS

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

Answer 19

Remedy = 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

To make a showing that the witnesses ID is based on OTHER factors the prosecution can point to:

1) the witness’s opportunity to view the ∆ at the crime scene
2) the certainty of the witness’s ID; OR
3) the specificity of the description given to the police

Question 20

PRETRIAL IDENTIFICATIONS

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

What are 2 substantive challenges to pretrial IDs?

**NOTE: NY Distinction

Answer 21

1) Denial of right to counsel
a) 5th Am: there is NO 5th Am right to counsel under Miranda for pre-trial ID procedures!
b) 6th Am: a right to counsel exists 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
a) Pre-trial ID violates DP when it is so UNECESSARILY suggestive that it creates a subtl likelihood of irreparable misidentification
b) Ct determine DP violation by weighing the reliability of the suggestive ID AGAINST its corrupting effect

Question 22

WIRETAPPING

What are the 4 reqs for a valid wiretap warrant?

NOTE: NY Distinction

Answer 22

4 MAJOR RQMTS FOR VALID WIRETAP WARRANT
Mnemonic = "Screen Telephone Calls Carefully"	
(S) Suspected persons
(T) Time
(C) Crime
(C) Conversations

(S) Suspected persons: the warrant must name the suspected persons whose conversations are to be overheard

(T) Time: the wiretap must be for a STRICTLY LIMITED TIME PERIOD

**NY Distinction: Wiretap warrants expire after 30 days

(C) Crime: there must be PC that a SPECIFIC crime has been committed

(C) Coversations: the warrant must describe w/ PARTICULARITY the coversations that CAN be overheard