criminal PROCEDURE

I. Exclusionary Rule

1. The Rule: A judge-made doctrine that prohibits the introduction of evidence obtained in violation of a defendant’s 4^th, 5^th, or 6^th Am rights. Under the rule, illegally obtained evidence is inadmissible at trial, and all “fruit of the poisonous tree” must also be excluded.

2. Limitations

   1. Does not apply to the conduct of grand juries – grand jury witness may be compelled to testify based on illegally ceased evidence

   2. The rule is inapplicable in civil proceedings

   3. In order to qualify for exclusion, the search in question must violate either the federal constitution or a federal statute

   4. Exclusion is not an available remedy in parole revocation proceedings

   5. Good faith defense

      1. No exclusion where the police rely in good faith on a judicial opinion later changed by another opinion

      2. No exclusion where the police rely in good faith on a statute or an ordinance later declared unconstitutional.

      3. No exclusion where the police rely in good faith reliance on a defective search warrant. 4 Exceptions

         1. Affidavit underlying that warrant is so lacking in probable cause that no reasonable police officer would have relied on it

         2. The warrant is defective on its face (e.g. it fails to state with particularity the place to be searched or the things to be seized).

         3. PO lied to or mislead the magistrate

         4. The magistrate has wholly abandoned his judicial role.

   6. Some excluded evidence may be admitted to impeach the defendant’s trial testimony

   7. If the original police illegality is a Miranda violation, any real or physical evidence discovered as a result of that violation is not excluded as fruit of the poisonous tree

3. Fruit of the Poisonous Tree Doctrine: allows the court to exclude all evidence obtained or derived from that original police misconduct.Exceptions

   1. Evidence obtained from a source independent of the original illegality.

   2. Inevitable discovery (i.e. the prosecution can show that the police would have discovered the evidence whether or not the police acted unconstitutionally).

   3. Intervening acts of free-will on the part of the D

4. Harmless Error Test: if illegal evidence is admitted, a resulting conviction should be overruled on appeal unless the government can show beyond reasonable doubt that the error was harmless.

II. Arrest Warrants

1. Before arresting someone in a public place, arrest warrants are not required

2. But, the non-emergency arrest of an individual in his home requires an arrest warrant.

3. Station House Detention: Police need probable cause to arrest you, to compel you to go to the police station for fingerprinting or for interrogation

III. Search and Seizure

1. Generally, the 4^th Am provides that people should be free from unreasonable searches and seizures. This right includes the right to be free from unreasonable arrests by the police.

2. General Approach

   1. Does the D have a 4^th Am right?

      1. Was the search or seizure by a governmental agent?

      2. Did the search violate the defendant’s reasonable expectation of privacy?

   2. If so, did the government agent have a warrant?

      1. Was the warrant proper AND was the warrant property executed?

      2. OR can the search be saved with the good faith exception?

   3. If the police did not have a warrant, did they make a valid warrantless search?

3. 4^th Amendment

   1. Governmental conduct

      1. The publicly paid police (on or off duty)

      2. Any private individual acting at the direction of the public police

      3. Privately paid police are NOT government conduct UNLESS they are deputized with the power to arrest you (private security, campus police)

   2. Reasonable expectation of privacy

      1. Standing to object to the search

         1. Always have standing if:

            1. You own the premises searched

            2. You live in the place searched (whether you own it or not)

            3. You are an overnight guest of the place searched

         2. Sometimes have standing if

            1. You are legitimately present when the search takes place

            2. You own the property seized

         3. NO standing if:

            1. Passengers in a car who do not claim they own the car, or own the things taken out of the car.

            2. Drug dealer briefly on the premises of someone else for drug purposes

      2. Things held out to the public have NO expectation of privacy

         1. The sound of your voice

         2. The style of your handwriting

         3. The paint on the outside of your car

         4. Account records held by a bank

         5. Monitoring the location of your car on a public street or in your driveway

         6. Anything that can be seen across the open fields – like a marijuana field

         7. Anything that can be seen from flying over in the public air space

         8. The odors emanating from your luggage

         9. Garbage left on the curb for collection.

4. Search Warrants: Validity Requirements

   1. Must be issued by a neutral and detached magistrate

      1. State AG is NOT neutral

      2. Those paid incentives for issuing warrants are NOT neutral

      3. Court clerks ARE neutral

   2. Must be based on probable cause – look to the totality of the circumstances

      1. Police observation

      2. May be based on hearsay

      3. May be based in part from an informer’s tip, even if that informer is anonymous

   3. Must be precise on its face: Must state with particularity the place to be searched and the items to be seized.

   4. Must be properly executed:

      1. Without unreasonable delay

      2. After announcement (unless officers or evidence would be endangered)

      3. Person or place searched or seized within scope of warrant

5. Exception to Warrant Requirement

   1. Searches incident to a lawful arrest. Requirements:

      1. The arrest must be lawful – if the arrest is unlawful the search is unlawful

      2. The search must be contemporaneous in time and place with the arrest

      3. Scope: only the person and his wingspan may be searched

         1. E.g. the places in which he can reach to store a weapon

         2. When a person is validly arrested in a car, their wingspan will include the entire interior of the car and everything in it, but not the trunk.

   2. Automobile exception. To search a car w/out a warrant requires:

      1. Probable cause – the same probable cause they would have needed to obtain a warrant e.g. that the vehicle contains the fruits, instrumentalities or evidence of a crime.

      2. No need to arrest the driver, nor need for probable cause that the driver has committed a crime.

      3. Scope: police may search the WHOLE car (including the trunk), and may open any package or luggage w/in the car (regardless of who owns it) as long as the items for which they are looking could reasonably be hidden in those compartments. Police may also tow the vehicle to the station and search it later.

   3. Plain view. The police may seize property w/out a warrant where they:

      1. Are legitimately on the premises;

      2. Discover evidence, fruits or instrumentalities of a crime or contraband;

      3. See such evidence in plain view; AND

      4. Have probable cause to believe that the item is evidence, contraband or a fruit or instrumentality of a crime.

   4. Consent.

      1. Must be voluntary and intelligent

      2. Person must have authority to give consent: where two or more people have an equal right to use a piece of property, anyone of them can consent to its warrantless search. But, if two people are present, and one denies entry, they can’t come in.

      3. Saying they have a warrant negates consent. But, the police do not have inform someone of their right to refuse consent.

   5. Stop and Frisk.

      1. Police officer may stop a person w/out probable cause where there is reasonable suspicion of criminal activity (lower standard than probable cause)

      2. Scope: limited to pat-down of outer clothing/

      3. Admissibility: weapons are always admissible as long as the stop was reasonable. If non-weapon, admissibility will depend on how much like a weapon or contraband could it have appeared from the outside.

   6. Hot pursuit and evanescent evidence (evidence that could go away if you take the time to get a warrant).

      1. Hot pursuit of a fleeing felon can enter anyone’s home, not just

IV. Wiretapping and Eavesdropping

1. All wiretapping and eavesdropping requires a warrant

2. Except: everyone assumes the risk that the person to who they are speaking could be wired.

V. 5^th Am Privilege Against Self-Incrimination – Miranda

1. A Miranda warning is a pre-requisite to the admissibility of any statement made by the accused during custodial interrogation.

2. Only applies if:

1. The person is in custody (not free to leave) – e.g. at a police station. But probation interviews and routine traffic stops are NOT custodial.

2. There is an interrogation: any conduct that the police knew or should have known may produce a damaging statement.

   1. Spontaneous statements by the accused do not need a Miranda warning

3. Miranda Waiver: a suspect may waive his Miranda rights, but the prosecution must prove that the waiver was knowing, voluntary and intelligent. NO waiver of Miranda right from silence or shoulder shrugging.

4. 5^th Am right to counsel

1. When, upon hearing the Miranda warning, someone invokes his right to counsel, re-initiation of interrogation by the police w/out his attorney present violates the D’s 5^th Am right to counsel.

1. The 5^th Am right to counsel is NOT offense specific – police must STOP interrogation of ANY issue.

1. Any other time a suspect asks for an attorney (not after a Miranda warning), he invokes the 6^th Am right to counsel.

   1. The 6^th Am right to counsel IS offense specific – police may initiate interrogation of OTHER issues.

5. Exception: SC has allowed interrogation w/out Miranda warning where it was reasonably prompted by a concern for the public safety.

VI. Pre-trial Identification

1. Two Bases for Attack

   1. Denial of right to counsel

   2. Denial of due process

2. Denial of Right to Counsel

   1. Generally, under the 6^th Am, a suspect has a right to the presence of an attorney at any post-charge line-up or show-up.

   2. But, no right to counsel, when the police show a witness or a victim photographs

3. Denial of Due Process

   1. Where a pre-trail identification is unnecessarily subjective and there is a substantial likelihood of misidentification the defendant may attack the identification as denying due process. In such case, those identifications must be excluded.

   2. But, a witness may make an in-court identification despite the existence of a prior unconstitutional identification, as long as the prosecutor can verify the identification with an independent source (e.g. proof that the witness had ample opportunity to look at the accused at the time of the crime)

VII. Bail

1. Bail issues are immediately appealable

2. Preventive detention is constitutional

VIII. Grand Juries

1. States do not have to use grand juries as a regular part of their charging process (and most states don’t). People may be charged by a writing signed by the prosecutor stating the charge.

2. Exclusion does not apply to the conduct of grand juries – a grand jury witness may be compelled to testify based on illegally seized evidence.

3. The proceedings of grand juries are secret. The D has no right to appear, and no right to send witnesses.

IX. Trial

1. Right to an unbiased judge. Bias = financial interest in the outcome of the case OR some actual malice against the defendant.

2. Juries: the 6^th and 14^th Ams guarantee the right to a public trial.

1. Right to a jury trial only applies where

   1. The maximum authorized sentence exceeds 6 months OR

   2. The sum of the sentences for criminal contempt exceeds 6 months

2. The minimum number or jurors is 6

   1. If you use 6 it must be unanimous

   2. There is no constitutional right to a 12 person unanimous verdict.

3. The cross sectional requirement: you have the right to have the jury pool reflect a fair cross section of the community. But, no right to have your own jury reflect a cross-section of the community.

4. It is unconstitutional for the prosecution or the defense to exercise preemptory challenges to exclude prospective jurors on account of their race or gender

3. Ineffective Assistance of Counsel. Claimant must show:

   1. Deficient performance by counsel

   2. But for such deficiency, the result of the proceeding would have been different.

X. Guilty Pleas & Plea Bargaining

1. General Rules

   1. The SC will not disturb guilty please after sentence.

   2. Contract Theory of Plea Bargaining: SC treats plea bargaining like contracts, both sides held to whatever the deal is.

2. Taking the Plea: The judge must determine that the plea is voluntarily, and inform the D on the record:

   1. The nature of the charge

   2. The maximum authorized sentence and any mandatory minimum sentence

   3. That he has a right not to plead guilty, and that if he does plead guilty, he waives the right to a jury trial.

3. 4 Good Bases for Withdrawing a Guilty Plea After Sentence

   1. The plea was involuntary

   2. Lack of jurisdiction

   3. Ineffective assistance of counsel

   4. Failure of the prosecutor to keep an agreed upon plea bargain*

XI. Sentencing

1. Generally, the D may not be given a harsher sentence of re-trail after a successful appeal.

2. The Death Penalty

   1. Any death penalty statute that does not give the D a chance to present mitigating facts and circumstances is unconstitutional.

   2. There can be no automatic category for imposition of the death penalty.

   3. The state may not by statute limit the mitigating factors; all relevant mitigating evidence must be admissible or the statute is unconstitutional.

   4. Only a jury and not a judge may determine the aggravating factors justifying imposition of the death penalty.

XII. Double Jeopardy

1. Generally, once jeopardy attaches, the defendant may not be retrial for the same offense.

2. When does jeopardy attach?

   1. At a jury trial when the jury is sworn

   2. At a judge trial when the first witness is sworn

   3. Generally, jeopardy does not attach when the proceedings are civil.

3. Same Offense

   1. Generally, two crimes do not constitute the same offense if each crime requires proof of an additional element the other does not.

   2. Lesser included offenses (e.g. robbery = larceny + assault): being put in jeopardy for the greater offense bars retrial or the lesser offense. Being put in jeopardy for the lesser offense bars retrial or the greater offense (except for battery that escalates to murder when the victim dies).

   3. Separate Sovereigns: prohibition against double jeopardy does not apply to trials by separate sovereigns. Thus, a person may be tried for the same conduct by both the state and federal government or by two states. But not by a state and its municipalities.

4. Exceptions permitting re-trail

   1. Hung jury: the jury is unable to agree on a verdict

   2. Mistrial for manifest necessity

   3. Re-trial after successful appeal

   4. Breach of an agreed upon plea bargain by the defendant: when a D breaches a plea bargain agreement his plea and sentence can be withdrawn and the original charges reinstated.

XIII. 5^th Am Privilege Against Self-Incrimination

1. Applies to any person asked under oath in any case a question which tends to incriminate them.

2. Waiver: You must assert the privilege the first time the question is asked, or you will have waived that privilege in all subsequent proceedings.

3. Scope: the 5^th Am does not protect a D from having to use his bodies to incriminate him (e.g. a hair sample, urine sample, blood sample). Only protects from compelled testimony (e.g. a lie detector test or custodial police interrogation).

4. It is unconstitutional for the prosecutor to make a negative comment on the D’s failure to testify or his remaining silent on hearing the Miranda warning.

5. 5^th Am privilege can be eliminated by:

1. Grant of an immunity – use and derivative use immunity – promise that the gov will not use your testimony or any evidence derived from that testimony to convict you – but the gov may still prosecute you based on evidence it can show it had prior to granting that privilege.

2. There is no possibility of incrimination (the statute of limitations has run)

3. Waiver. Criminal D who takes the witness stand waives immunity for all legitimate subjects of cross-examination.

Hot Topics in Criminal Procedure

1. Exclusion and its limitations and the fruit of the poisonous tree doctrine

2. Search and seizure – look to model

3. Miranda

4. Pre-trial identification – there’s no right to counsel for photos

5. Right to jury trial and guilty pleas

6. Ineffective assistance of counsel

7. Double Jeopardy and 5^th Am privilege against compelled testimony