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 4A 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 3rd party’s HOME NOTE: you’d ALSOneed a search warrant (UNLESS there are exigent circumstances)
You DO NOT need an arrest warrant…
1) when arresting someone in a public place
2) Felonies: officers may make a warrantless arrest when they have PC to believe that the arrestee has committed a felony
3) 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 between the driver and his passenger(s), the officer may arrest ANY or ALL of them, based on the reasonable inference of shared dominion and control over the contraband
What is the standard of proof for an arrest?
Probable cause
For what offenses does the 4A 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 standard for excluding a confession under the Due Process Clause of the 14A?
Involuntariness = meaning that the confession is the product of POLICE COERCION that overbears the suspect’s will
What isthe 6A Right to Counsel AND when does it attach?
Express constitutional guarantee 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 guarantee is “offense specific”: applies ONLY to the offense with which the ∆ has been FORMALLY charged
** Incriminating statements obtained from the ∆ by law enforcement about charged offenses violate the 6A IF those statements are deliberately elicited AND ∆ did not knowingly, intelligently, and voluntarily waive his right to have his atty present
** NOTE: a statement obtained in violation of a ∆’s 6A 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 without IMPRISONMENT, a criminal ∆ CAN BE DENIED COUNSEL
What is the standard for excluding a confession under NY STATE’s 6A Right to Counsel?
The NY Indelible Right to Counsel provides GREATER protection than the 6A (from the federal constitution).
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 represented 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 represented by counsel, waiver of the indelible right to counsel MUST take place in the presence of the atty
What are federal constitutional challenges AND NY state challenge that can be brought to exclude a confession?
Federal
1) 14A: Due Process Clause
2) 6A: Right to counsel
3) 5A: Miranda doctrine
NY:
1) 6A NY state const: ∆ can challenge under NY’s “indelible” 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 5A Self-Incrimination Clause
What are the core Miranda warnings?
1) the right to remain SILENT
2) anything you say can and will be USED AGAINST YOU in the court of law
3) the right to an ATTORNEY
4) if you cannot afford one, an attorney 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 significant period 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 statement as a request for counsel
** Once a suspect “lawyer’s up”, ALL interrogation must cease UNLESS initiated by the suspect
** Unlike the 6A, the 5A 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 period is VALID, provided it’s knowing, intelligent and voluntary
What requirement 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 coercion
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
When areMiranda warnings necessary?
Miranda warnings are necessary when there BEFORE there is a “CUSTODIALINTERROGATION”(i.e. you need both facets)
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
* * 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 statements 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 statements ARE admissible against the suspect
IF, after the police “reasonably conveys” Miranda rights, the suspect validly waives right to slience and counsel, then the statements provided ARE ADMISSIBLE
What are the consequences of violating the Miranda mandate?
1) Incriminating statements obtained in violation of Miranda are INADMISSABLE in the prosecutor’s case-in-chief, BUT may be used to impeach the ∆’s testimony (BUT NOT the testimony of a 3rd party witness)
** If a statement is inadmissible because of a Miranda violation, SUBSEQUENT statements made AFTER obtaining a Miranda waiver ARE ADMISSABLE (PROVIDED the initial, non-Mirandized statement was NOT obtained through use of inherently coercive police tactice, offensive to DUE PROCESS)
2) Failure to give a Miranda warning does NOT require supression of the “physical fruits” of incriminating statements, PROVIDED the statements were VOLUNTARY (i.e. no due process issues)
3) 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 because the ∆ would have been convicted without the tainted evidence
NOTE: this is ALSO the rule that applies to physical evidence improperly admitted under the 4A
What is the process for pre-trial detention?
1) The gov’t needs probable cause 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
2) “First Appearance”: occurs soon after arrest where a ∆ is brought before a magistrate who:
- advises him of his rights;
- sets bail; AND
- appoints counsel, if necessary
3) Bail declines are IMMEDIATELY appealable
What is the remedy for constitutional violations in pre-trial IDs?
Remedy = exclusion of the witness’s in-court ID
HOWEVER, a court WILL allow witness’s in-court ID (in light of a constitutional 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 witness's opportunity to view ∆ at crime scene - the certainty of the witness's ID; OR - the specificity of the description given to the police
What are the types of pre-trial IDs?
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
What are the substantive challenges to pretrial IDs?
NOTE: NY Distinction
1) Denial of right to counsel
5A: there is NO 5th Am right to counsel under Miranda for pre-trial ID procedures!
6A: only at LINE-UPs and SHOW-UPs that take place AFTER formal charging; NO 6A right to counsel for PHOTO ARRAYs
NY DISTINCTION: NY provides greater suspect protection; THUS, you have a right to have an attorney 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 due process when it is so UNECESSARILY suggestive that it creates a substantial likelihood of irreparable misidentification
* * Court determines due process violation by weighing the reliability of the suggestive ID AGAINST its corrupting effect
What are the requirements for a valid wiretap warrant?
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 limited period
3) Crime: probable that the SPECIFIC crime has been committed
4) Coversations: the warrant must describe with PARTICULARITY the coversations that CAN be heard
