Criminal Procedure

What are the Four Key Amendments in Criminal Procedure

1. Fourth

2. Fifth

3. Sixth

7. Eight

What is the Exclusionary Rule

When evidence is obtained illegally, remedy available to not admit evidence in criminal proceeding

When is evidence obtained illegally for Exclusionary Rule Purposes?

1. Illegal search and seizure OR coerced confession

2. That violates the federal constitution or a federal statute

When is the Exclusionary Rule remedy NOT available?

Knock and Announce: Even if required, evidence found while bursting in is still admissible (if knocking were futile/dangerous/or inhibit investigation)
Inevitable Discovery: If the evidence would have been discovered anyway lawfully
Independent Source: If the evidence was found independent from the violation
Intervening Factors w/in Causal Chain: act of free will on part of D (voluntary confession)
Good Faith (most common exception)

What type of proceedings is Exclusionary Rule allowed in?

1. Grand Jury witness can testifying to illegally seized evidence;

2. Civil Proceedings;

3. Parole Revocation Proceedings

Exclusionary Rule and Impeachment

Can use illegally seized evidence to impeach credibility of ONLY D's testimony

Remember, confessions taken in violation of Miranda, CAN IMPEACH

What is the Harmless Error Test?

b/c a conviction won't be automatically overturned b/c of illegally obtained evidence,

Court uses this test to uphold conviction, when conviction would have resulted despite improper evidence

What does the Fourth Amendment Do?

Protects against unreasonable searches and seizures

Categories protected under Fourth Amendment?

1. Arrests/Detentions

2. Terry Stops (investigatory detentions)

Arrests and Detentions under the 4th amendment : are valid:

Must be based on probable cause

warrants for arrest not required in a public place

Exceptions Apply!

What are the exceptions for arrests/detentions

EXCEPTIONS

1. in a home= must have a warrant to arrest someone in home

2. Station House - need probable cause to compel you to come to police station for interrogation or fingerprinting

Valid Investigatory Detentions (Terry Stops) are:

1. When police have authority to detain person (briefly), even lacking probable cause to arrest

Required for a Terry Stop

Must have reasonable suspicion (that law has been violated)

Mere hunch IS NOT ENOUGH

Reasonable Suspicion for a Terry Stop depends on:

Totality of Circumstances

Supported by articulable facts of criminal activity

Exceptions to requirement of Reasonable Suspicion

Check Point Road Blocks; however, must be:

1. Neutrally applied (DUI, Border-Crossing)

During routine traffic stops, a sniff is:

NOT A SEARCH, as long as not extended beyond time needed to issue citation/conduct normal inquiries

What are the five general steps for determining whether a search or seizure is constitutional?

1. search by state agent

2. reasonable expectation of privacy (Standing)

3. valid search warrant

4. warrant proper or agent relied in good faith

5. Look at exceptions, if warrant invalid

What is considered a governmental agent?

Publicly paid police (on or off duty); or

private individual acting on direction of public police; or

What about privately paid police?

Generally, NO.

Unless

Deputized w/power to arrest

1. Campus security

2. Store security

3. Subdivision security

Reasonable Expectation of Privacy if you own premise?

Always have standing to object to search of premises owned by you

Reasonable Expectation of Privacy for premises lived on?

Have standing, whether you have ownership interest or not

Reasonable Expectation of Privacy for overnight guests?

Only have standing to place you're staying at, if you were a guest that was invited in

Reasonable Expectation of Privacy for property seized?

Have standing ONLY if you have reasonable expectation of privacy in item/area searched

You will NEVER have Standing in the following:

Anything you hold out to the public everyday:

Sound of your voice; style of your handwriting; paint outside of your car; account records held by bank; monitoring location of your car on public streets or your driveway (doesn't include GPS device); anything seen on public fields, public airspace; order emanating from luggage/car; garbage set out on the curb.

Requirements for a facially valid search warrant

probable cause
particularity

Standard for Probable Cause is defined as

Fair Probability that contraband/evidence will be found in area search

Standard for Particularity, defined as

Warrant must state w/particularity:

1. place to be searched (rooms)

2. items to be seized

Use of Hearsay/Informants re valid search warrant

Sufficiency is determined by totality of circumstances

1. reliability/credibility

2. Basis of knowledge

Officer's Good Faith Defense to Invalid Search Warrant

Generally, Good faith reliance overcomes a defective warrant EXCEPT

So lacking in PC no reasonable off would have relied
So lacking in particularity, no reasonable off would have relied
Off or pros lied to or misled magistrate
The magistrate is biased and wholly abandoned neutrality (bias = financial interest)

What are the 9 exceptions to having a valid search warrant requirement?

(warrantless search allowed in the following):

1. incident to lawful arrest

2. automobile search

3. plain view

4. consent

5. stop and frisk

6. hot pursuit/evanescent evidence, emergency

7. 3P consent

8. public school search

9. inventory search

Search Incident to Arrest, requires:

lawful arrest, w/the search and arrest occurring in same period of time/place.

What can be searched?

The person, and areas the person can reach to get a weapon/destroy evidence

Search of: Automobiles

Police may search interior of car incident to arrest if at time of search:

Arrestee is unsecured and may gain access to interior of car; OR
Police reasonably believe evidence of crime person was arrested for may be found in car.

Unsecured arrestee means?

In the process of being handcuffed? Secured

About to be handcuffed and escapes? unsecured and valid search

Community Caretaker Exception to searches of Automobiles, which

Justifies a warrantless search if officer faces an ER that threatens health or safety of an individual or public

Police may search ENTIRE car, provided they have:

probable cause

Entire car to be searched includes:

interior compartment, and trunk;

packages, luggage, or other containers, which could reasonably contain the item they had probable cause to look for (whether owned by driver or passengers)

When must probable cause arise to search entirety of the vehicle?

BEFORE anything or anyone is searched; but can arise after the car is stopped

A valid plain view search requires

The officer to be legitimately present at the location where the viewing of the item, AND

It must be immediately apparent (can't be something in a sack)

Requirements of a valid consent

Consent must be voluntary and intelligent

Note: no obligation by police to tell you that you have a right to say no to search

Remember, having a warrant negates

consent - meaning, no proper consent with a valid warrant

Third-Party Consent comes into play where

two or more people have an equal right to use piece of property, than either can consent to its warrantless search

However, exception to 3P consent

If both 3Ps are present, and one consents, and one doesn't, the "no" takes control

Stop-and-Frisk (pat-down), defined as

a brief detention for purpose of investigating suspicious conduct

For an officer to conduct a stop-and-frisk, must have

Reasonable Suspicion for the stop/detention, that something is a weapon or contraband

Probable Cause vs. Reasonable Suspicion

More: Probable Cause: Significant reason to believe that someone is in violation of a law (if probable cause arises during a stop, then detention can become arrest, and can conduct full search)

Less: Reasonable Suspicion: A hunch that someone may be committing an illegal act (used only in pat-down cases)

If getting a search warrant means that the evidence could disappear quickly, then it is an

Evanescent Evidence

(fingernail scraping, blood sample)

To be considered in hot pursuit, police must

be w/in 15 minutes behind fleeing felong

Hot Pursuit allows police to

enter anyones home w/o warrant, and any evidence in plain view will be admissible

An inventory search allows police to

search personal belongings, entire vehicle of arrestee, before incarceration

what can be searched in a public school

random drug testing of kids in extracurricular activities (including dances)

Warrantless searches of purses, backpacks allowed for school violations only

A public school search, however, requires that the search be

Reasonable, w/moderate chance of finding wrongdoing, not excessively intrusive, and measures for search are reasonably related to objective

What is the general rule for wiretapping and eavesdropping?

All wiretapping and eavesdropping requires a warrant

What are the exceptions to the warrant requirement for wiretapping and eavesdropping?

1) "unreliable ear:" Everyone assumes the risk that by engaging in conversation with another, that the other participant will consent to gov't monitoring or wiretap. Thus, no expectation of privacy.
2) "uninvited ear:" A speaker has no Fourth Amendment claim against third parties if he makes no attempt to keep a conversation quiet

For confessions, giving a miranda warning need not be

verbatim

(remain silent, anything you say used against you, right to an attny, or appointed one if can't afford)

What triggers a miranda warning?

Custodial Interrogation

Custodial Interrogation has two

separate analysis

1. Custody

2. Interrogation

Taking a person into custody means

D, at time of interrogation, not free to leave

(police car, jail, or home/hospital)

Custody requires a standard of

objectivity; just b/c the D thought s/he wasn't free to live, doesn't mean it was true

Probational interviews and routine traffic stops

are not considered to be in custody meaning, police can ask you questions w/o giving you a miranda warning

An interrogation by police means

any conduct that police knew/should have known that would elicit an incriminating response from D

(must state specifically which police question triggers miranda warnings)

What about miranda warnings and spontaneous statements?

Miranda warnings not triggered by a blurted out phrase and this statement is then admissible

Can D waive right to miranda warning?

Yes, so long as the waiver is knowing, voluntary, and intelligent

(totality of circumstances test)

D can invoke their miranda rights, by

requesting right to an attorney or invoking their right to remain silent

Invoking right to an attny requires

An unambiguous request by D

Once right to an attny has been invoked, what happens

all questions must be ceased, until accused is given an attny, or accused initiates further questioning

What happens to any incriminating statements obtained in violation of Miranda?

can still come into play to impeach D's testimony, so long as obtained voluntarily

When D invokes his/her right to remain silent, statement must be

unambiguous (so, D can't just remain silent)

Once right to silence has been invoked, police can only reinitiate questioning

after waiting significant amount of time, and D is remirandized.

The questioning must also be limited to a crime not the subject of the earlier questioning

Fifth and Sixth Amendment both deal

with D's right to counsel

Fifth Amendment right arises when

miranda warning given + D invokes right to an attny

Sixth Amendment right to counsel is offense specific (5th v 6th)

Fifth Amendment right to counsel: Police cannot initiate questioning as to any crimeafter a suspect has invoked the right to counsel.

Sixth Amendment right to counsel: The police are only limited in questioning the suspect about specific crimes for which formal judicial proceedings have been initiated. (offense specific)

When does counsel need to be present

5th Amendment: entire process of custodial police investigation.

6th Amendment: only when D asked questions about specific case for which D retained counsel

A right to counsel in pretrial identification is required during

post-charge lineups and post-charge show-ups; NOT when police just show witnesses/victim photos

Right to counsel is NOT required in the following:

1. taking blood samples;

2. taking handwriting samples;

3. pre-charge line-ups

4. brief recess during D's testimony at trial

5. parole and probation hearings

6. taking of fingerprints

An unconstitutional pretrial identification is one

that is so unnecessarily suggestive, and substantially likely to produce a misidentification

Generally, unconstitutional pretrial identification is excluded from court, UNLESS

police can show adequate independent source for identification in court (victim or witness had ample opportunity to observe D at time of crime)

Right to a jury trial allowed when sentence

exceeds 6 months

Minimum number of jurors permissible is

6.

Verdict must be unanimous

Excluding a prospective juror on account of race or gender, is

unconstitutional

Cross-sectional jury requirement, is when

D has right to have jury pool reflect cross-section of community.

Does not extend to actual jury, just the pool to be selected from

Ineffective assistance of counsel claim arises

when there is deficient performance by counsel, enough to result in a proceeding, which had there been sufficient performance, would have garnered different result

must specify particular errors of counsel (inexperience or ineffective trial tactics is NOT ENOUGH)

Competent to stand trial vs. competent to represent self

You can be competent to stand trial, but not competent to be pro se (which must be knowing and intelligent)

General Rule of Guilty Pleas (plea bargaining)

will not be disturbed after sentencing, b/c treated as a contract and both sides held to that deal

If D pleads guilty, then judge must specifically address D on the record about:

1. the nature of charge

2. max. authorized penalty and mandatory min. penalty

3. D's right to plead not guilty and demand a trial

Guilty pleas can be withdrawn, provided they were

1. made involuntarily (mistake)

2. lack of jurisdiction

3. ineffective assistance of counsel

4. failure of prosecutor to keep an agreed upon plea bargain

The 8th Amendment deals with

the death penalty, and double jeopardy

A death penalty statute is constitutional only when it

1. provides for D to mitigate facts and circumstances

2. has no automatic imposition of death penalty

3. has no statute of limitations limiting admissible evidence

4. provides that jury, not judge, makes determination

Double Jeopardy

Fifth amendment right providing that a person cannot be tried twice for the same crime

(note: greater offense bars retrial for any lesser included offense (tried for robbery, cannot be retried for lesser offense of larceny)

exceptions permitting retrial (to double jeopardy)

-jury is unable to agree upon verdict (hung jury)

-mistrials for manifest necessity (usually when some sort of medical emergency)

-a retrial after a successful appeal is ok (but D cannot be retried after successful appeal for a more serious crime than what he was convicted of originally)

-breach of agreed-upon plea bargain by D (when breach, plea and sentence withdrawn and original charges reinstated)

5th Amendment privilege of self-incrimination

Anyone can assert this privilege, if response under oath might incriminate him

Requirements for 5th Amendment privilege against self-incrimination

Must be asserted first time question is asked

Must be claimed in civil proceedings

(note: if individual responds to questions instead of claiming this privilege, then waived)

What does privilege against self-incrimination protect against?

Protects citizens from compelled testimony NOT use of physical evidence to incriminate them

Evidence that D can be compelled to produce, include:

Blood Sample,

Handwriting Sample,

Voice Sample,

Hair Sample

Prosecutorial Misconduct Occurs when prosecutor:

1. Fails to disclose information
2. Communicates with judge
3. Conflicts of interest arises
4. Fails to correct false witness

4. Makes a negative common on D's failure to testify/on D's silence ( here, however, harmless error test applies)

Criminal Procedure

About this deck

About StudyBlue

Sign up (free) to study this.

About this deck

About StudyBlue