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Criminal Procedure - dbharlan
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Key Amendments in Criminal Procedure
  • 4th Amendment
    • prohibition against unreasonable search/seizures
  • 5th Amendment
    • privilege against compulsory self-incrimination
    • prohibition against Double Jeopardy
  • 6th Amendment
    • right to speedy trial
    • right to trial by jury
    • right to confront witnesses (Confront. Clause)
    • right to assistance of counsel
  • 8th Amendment
    • prohibition against cruel & unusual punishment
      • E.g., death penalty, prisoner rights
Exclusionary Rule
  • Remedy where there has been an illegal search or a coerced confession--exclude product of that illegal search or that coerced confession
  • Limitations: Excl. R. doesn't apply to:
    • grand jury proceedings
      • GJ witness may be compelled to testify based on illegally-seized ev
    • civil proceedings
    • parol revocation proceedings
    • use of excluded ev to impeach Δ (only Δ!)
      • Miranda violations qualify
    • violations of Knock & Announce rule
  • On appeal: if improperly-obtained ev admit @ trial:
    • Harmless Error: upheld if same outcome
How Gov't Can "Break the Chain"
  • 3 ways that gov't can "break the chain" b/w an OG, unlawful police action and derived ev"; the "3 I's":
    • Independent source for ev
    • Inevitably discovered by police anyway
    • Intervening acts of free will on part of Δ
4th Amendment (Generally)

The 4th Amendment protects citizens against unreasonable searches and seizures

4th Amendment: Arrests
  • Arrests: must be based on probable cause
    • Warrant not req'd before arresting in public place
      • Non-emergency arrest of person in their home does require warrant
    • Need P/C to arrest to compel you to come to station for fingerprints or interrogation

4th Amendment:

Investigatory Detentions ("Terry Stops")

  • P/O can briefly detain if has reasonable suspicion supported by articulable facts of criminal activity
    • Stop must be reasonable and P/O must have reasonable belief that Δ armed/dangerous
    • Purpose is to investigate suspicious conduct
    • If P/C arises during the stop, could become arrest and P/O could search incident to arrest
    • Mere hunch ≠ reasonable suspicion
  • Use totality of the circumstances test
  • Car stops: P/O can stop car if has reasonable suspicion that law has been violated
    • Exc: neutrally-applied checkpoints/roadblocks
  • Sniff ≠ search (P/O can't extend stop though)
  • Dog alert = P/C to search
    • Need P/C to sniff outside home of Δ!

Search & Seizure Model

For Answering Questions


Step 1. Was there governmental conduct?


Step 2. Did Δ have a reasonable expectation of privacy?


Step 3. Did police have a valid search warrant?


Step 4. Does the good faith defense apply?


Step 5. Do any exceptions to warrant requirement apply?


4th Amendment:

Governmental Conduct

  • For purposes of the 4th Amendment, there must be governmental conduct/action:
    • Publicly-paid police
    • Any private individual acting at the direction of the public police
    • Privately-paid police ≠ gov't conduct unless deputized w/ power to arrest you
      • If see any of these, treat as not deputized:
        • Store security guards
        • Subdivision police
        • Campus police (for MBE purposes)

4th Amendment:

Reasonable Expectation of Privacy

  • Automatic Standing if:
    • You own the premises searched;
    • You live on the premises searched (regardless of any ownership interest); or
    • You are an overnight guest of place searched
  • Possible Standing if: you own prop seized and you have REP in item or area searched
  • No standing: anything held out to public:
    • Sound of voice
    • Style of handwriting
    • Paint on outside of car
    • Account records held by bank
    • Location of car on public street/driveway
      • BUT, installation of GPS = search
    • Anything seen across an open field
    • Anything seen from flyover in public airspace
    • Odors emanating from luggage or car
    • Garbage set out on the curb for collection
Validity of Search Warrant
  • Two core requirements for facially valid S/W:
  • 1. Probable Cause. Must be a fair probability that:
    • Ev of crime will be found in area searched
  • 2. Particularity. Must state with particularity:
    • The place to be searched and
    • The things to be seized
  • Use of informants. If affidavit or P/C is based on informant info, use TotC test to check sufficiency
    • Informant's credibility and basis of knowledge are relevant factors in making determination
    • Anonymous informants --> only "in part"
  • "No Knock" Entry OK if exigent circumstances:
    • If K&A would be dangerous, futile, or inhibit
    • Why? Worried about destrux of ev
Leon Good Faith Exception
  • P/O's good faith reliance on S/W overcomes defects w/ P/C or particularity requirements
  • Four exceptions to the good faith defense:
    • Underlying affidavit is so lacking in P/C that no reasonable P/O would've relied on it
    • Underlying affidavit is so lacking in particularity that no reasonable P/O would've relied on it
    • P/O or prosecutor lied to or misled magistrate when seeking the S/W
    • Biased magistrate (wholly abandoned neutrality)

Exception to Warrant Requirement:

Search Incident To Arrest

  • The arrest must be lawful
    • If arrest unlawful, then SitA is unlawful
  • SitA must be contemporaneous in place and time
  • Can search person and areas w/in wingspan
  • Tech Searches. Ct balances degree to which SitA:
    • Intrudes upon person's privacy VS
    • Degree to which search needed to promote legitimate gov't interests
      • Can't search digital info on cellphones

Exception to Warrant Requirement:

Search of Automobile Incident to Arrest

  • Gant Rule: P/O may search the interior of the auto accident to arrest only if:
    • Arrestee is unsecured (uncuffed &/or ran off) and still may gain access to interior of vehicle OR
    • P/O reasonably believes that evidence of offense for which person was arrested may be found in vehicle
  • Can't open trunk/container unless have P/C for it
  • SitA & DUIs: courts are mixed on this
  • TIP: Doesn't matter if ev found is different than what gave rise for P/C--just focus on validity!

Exception to Warrant Requirement:

Community Caretaker Exception

  • C-C Exception: P/O doesn't need S/W if he faces an emergency that threatens the health or safety of an individual or the public
  • Sometimes called the "emergency aid exception"

Exception to Warrant Requirement:

Automobile Exception

  • P/O must have probable cause BEFORE searching anything/body to get Auto/Exc
  • OK if arises after stop but must have before search
  • If met, can search entire car (including trunk)
  • Containers? if it could reasonably contain item
  • Compare w/ Search of Auto Inc. to Arrest (SAitA):
    • Under Auto/Exc, P/O can search interior and trunk; containers too if reas. containable
    • Under SAitA, P/O can only search interior of car
    • Under Auto/Exc, P/O needs P/C before searching anything or anybody
    • Under SAitA, P/O can search if arrestee is unsecured or reas. belief ev of offense is in car

Exception to Warrant Requirement:

Plain View

  • To constitute valid plain view seizure, P/O:
    • Must be legitimately present at location where P/O does viewing of item seized; AND
    • It must be immediately apparent that the item is contraband or fruit of a crime

Exception to Warrant Requirement:


  • For consent to be valid, it must be voluntary
  • If P/O says he has warrant which is later deemed invalid, it negates consent (as being involuntary)
  • 3P Consent: where 2+ people have equal right to use prop, either can consent to search.
    • Unless both present and one refuses
      • If refusing party is removed from prop for a reason unrelated to his refusal (such as a lawful arrest), then P/O may search upon consent of other party
    • Anyone w/ apparent authority can validly consent

Exception to Warrant Requirement:

"Terry Frisks"

  • TEST: If P/O has reasonable suspicion req'd to conduct a Terry stop, he may conduct Terry frisk if:
    • The stop is reasonable and
    • There is a reasonable belief that the man might be armed and dangerous
  • Frisk: patdown of outer clothing/body for weapons
    • P/O cannot manipulate!
  • If car stopped for traffic violation and P/O meets test, then he may conduct both a frisk and search car limited to areas where weapon may be placed
  • If P/O reasonably believes by "plain feel" that something is a weapon or contraband, he may remove the item (and it will be admissible as ev)
  • If P/C arises during Terry stop (and frisk), then P/O may arrest and search incident to the arrest

Exception to Warrant Requirement:

Evanescent Evidence

  • Evidence which might disappear quickly if P/O took the time to get S/W.
    • Can scrape suspect's fingernails (b/c might wash)
  • Must get warrant before taking blood sample for DUI arrest if it is practical to do so.

Exception to Warrant Requirement:

Hot Pursuit of a Fleeing Felon

  • Under the Hot Pursuit theory, the police can enter anyone's home without a warrant and any evidence that they see in plain view will be admissible.
    • If the police are not within 15 minutes behind the fleeing felon, it is not a valid hot pursuit exception!
  • Example: P/O get call from X that fleeing felon ran into Y's house. P/O arrive at Y's house less than 15 minutes later.  They can now enter and seize any evidence seen in plain view.

Exception to Warrant Requirement:

Special Needs Searches

  • Inventory searches: before incarceration of arrestee, P/O may search arrestee's:
    • Personal belongings and/or
    • Entire vehicle (including containers)
  • Public School searches: can search PS kids' effects if investigating violation of school rules
    • Search is reasonable only if it:
    • Offers moderate chance of finding ev;
    • Measures adopted to carry out the search are reasonably related to objective of search; AND
    • Search is not excessively intrusive
  • PS kids engaged in extracurricular activities (including school dances) can be rando drug tested

Exception to Warrant Requirement:

Wiretapping and Eavesdropping

  • All wiretapping and eavesdropping req. warrant!
  • Eavesdropping Exceptions: No 4th Am. right if:
    • Unreliable Ear: speaker assumes risk that person to whom they're speaking with will either consent to gov't monitoring or will be wired
    • Uninvited Ear: speaker who makes no attempt to keep the conversation private
Miranda Warnings (Generally)
  • When Miranda required, suspect must be given following information:
    • You have right to remain silent;
    • Anything you say can be used against you in Ct;
    • You have right to an attorney; AND
    • If you can't afford one, one can be appointed.
  • The warnings need not be verbatim, so long as the substance of the warnings is conveyed.
  • What triggers Miranda: custodial interrogation
  • EXAM TIP: if statement violates Miranda (and is inadmissible), may still be used to impeach Δ!
  • In custody if, at time of interrogation, a reasonable person would not feel free to leave
    • Objective standard
    • "Not feel free to leave": in police car; in jail; in home; in hospital bed--ANYWHERE so long as:
      • Situation presents same "inherently coercive pressures" as a station house questioning
      • Probation interviews? not custodial
      • Routine traffic stops? not custodial
  • TIP: Custody alone not enough--need interrogation in order for Miranda to apply!
  • Any conduct that P/O knew or should have known might elicit an incriminating response from the suspect
    • Must be more than just rigorously questioning!
  • Miranda warnings are not required prior to admissibility of a spontaneous statement
Miranda Waiver
  • Must be knowing and voluntary
  • Courts will use a totality of the circumstances test in making this determination
Invoking Your Right To Remain Silent Under Miranda
  • Invoking the right to remain silent:
    • Must be unambiguous
    • P/O may reinitiate questioning after Δ has invoked the RtRS if they:
      • Wait a significant amount of time;
      • Re-Mirandize Δ; AND
      • Limit their questions to a crime that was not the subject of the earlier questioning
Invoking Your Right To Counsel Under Miranda
  • Invoking your right to counsel:
  • Request for counsel must be unambiguous
  • If accused invokes RtC, all questions must cease until:
    • Accused is given an attorney OR
    • Accused initiates further questioning
  • However, if there is a "break in custody" (e.g., accused released into gen pop), P/O can come back and ask Δ to waive his Miranda rights after 14 days

5th Am. Right to Counsel


6th Am. Right to Counsel

  • 5th Amendment Right to Counsel
    • Arises when suspect invokes his Miranda rights and requests an attorney
    • Not offense-specific
      • Applies to entire process of custodial police interrogation
  • 6th Amendment Right to Counsel
    • Attaches when the suspect retains counsel
    • Is offense-specific
      • Applies when Δ is asked questions about specific case for which he retained counsel
    • However, if Δ didn't request counsel (just appointed counsel), P/O can come back and ask him to waive his 6th Am. RtC and talk to them about crime for which he was charged


Pretrial Identification
  • Two ways to attack pretrial identification:
  • Denial of the Right to Counsel
    • Post-charge lineups & show-ups give rise to RtC
    • No RtC when:
      • P/O shows victim/witness photos
      • Taking fingerprint/blood/handwriting
      • Pre-charge lineups
      • Parole/probation revocation proceedings
      • Brief recess during Δ's testimony at trial
  • Denial of Due Process
    • Pretrial ID techniques that are so unnecessarily suggestive and substantially likely to produce a misID that they deny DP
  • Remedy for unC pretrial ID: exclusion unless State can show adequate independent source for ID
    • Did V have adequate opportunity to observe Δ?
  • Bail issues are immediately appealable
  • Preventive detention is Constitutional
Grand Juries
  • Exclusion doesn't apply to conduct of GJ
  • GJ witness may be compelled to testify based on illegally-seized evidence
  • GJ proceedings are secret, meaning:
    • Δ has no right to appear
    • Δ has no right to counsel
    • Δ cannot send in his own witnesses
Prosecutorial Duty to Disclose Exculpatory Information
  • Prosecutor's failure to disclose evidence, whether willful or inadvertent, violates DP and may be grounds for reversal of a conviction if:
    • Evidence is favorable to the Δ AND
    • Prejudice has resulted, meaning there is a reasonable probability that the result would have been different had the information been disclosed
Right to an Unbiased Judge
  • Right to an unbiased judge.  Bias means:
    • Having a financial interest in the outcome OR
    • Having actual malice against the Δ
Right to Jury Trial
  • Attaches anytime Δ tried for an offense for which maximum authorized sentence exceeds 6 months
    • No RtJT if less than or equal to 6 months
  • Number of jurors:
    • Minimum: 6 (verdict must be unanimous)
    • Maximum:12 (no right to unanimous verdict)
      • 10-2 and 9-3 approved
  • Jury pool must reflect fair cross-section of community
    • No right though for empaneled jury
  • Peremptory challenge based on race or gender = unC
6th Amendment Right to Counsel
  • Δ's 6th Am. RtC applies to all critical stages of a prosecution, including trial.
  • Ineffective Assistance of Counsel:
    • Deficient performance by counsel AND
    • But for such deficiency, there is a reasonable probability that the result of the proceeding would have been different
      • Must specify particular errors by trial counsel
        • Vague allegations of inexperience or ineffective trial tactics aren't enough
Right to Self-Representation
  • Δ has right to defend himself so long as:
    • His waiver of counsel is knowing and intelligent AND
    • He is competent to proceed pro se
  • It is possible for a Δ to be found mentally competent to stand trial yet incompetent to represent himself
    • Up to trial judge's discretion
Right to Confront Witnesses
  • Absence of face-to-face confrontation b/w Δ and accuser does not violate 6th Am. when:
    • Preventing such confrontation serves an important public purpose AND
    • The reliability of witness testimony is otherwise assured
  • Disruptive Δ may be removed from the courtroom, thereby relinquishing his right of confrontation
Guilty Pleas and Plea Bargaining
  • If Δ pleads guilty, judge must specifically address Δ on the record about the following:
    • Nature of charge;
    • Maximum penalty and any mandatory minimum; AND
    • Right to plead not guilty and demand a trial
  • Ct usually won't disturb guilty pleas after sentencing
  • 4 bases to withdraw guilty plea after sentence:
    • Involuntary plea (mistake in plea ceremony)
      • Prosecutor's threat to charge Δ with more serious crime ≠ involuntary
    • Lack of jurisdiction
    • Ineffective assistance of counsel
    • Failure of prosecutor to keep an agreed upon plea bargain
Death Penalty
  • Automatic categories for death penalty are unC
  • Any death penalty § that does not give Δ a chance to present mitigating facts & circumstances is unC 
  • State may not by § limit the mitigating factors
    • All relevant mitigating evidence must be admissible or the death penalty § is unC
  • Only a jury may determine the aggravating factors justifying imposition of the death penalty
    • Not the judge
Double Jeopardy
  • Jeopardy attaches in jury trial when jury is sworn
  • Attaches in bench trial when 1st witness sworn
  • Two crimes ≠ same offense if each crime requires proof of an additional element that the other does not
Exceptions Permitting Retrial
  • Exceptions permitting retrial:
  • Jury unable to agree upon verdict
    • "Hung jury"
  • Mistrial for manifest necessity
    • Usually takes form of Mx emergency during trial (e.g., Δ has heart attack during trial)
  • After successful appeal
    • Upon retrial, Δ can't be retried for a more serious offense than convicted of at 1st
  • Breach of agreed upon plea bargain by Δ
    • Plea/sentence withdrawn, OG charges reinstated
    • Note: once you agree to testify as part of plea bargain, you must testify at the trial and any subsequent retrial

5th Amendment Privilege

Against Compelled Testimony

  • Can be asserted by anyone in any type of case!
  • Applies when asked a question under oath, wherein response might tend to incriminate
  • Must assert privilege 1st time the question is asked
    • Or deemed waived for all subseq. prosecutions
  • Must be claimed in civil proceedings to prevent privilege being waived for later crim prosecution
  • Doesn't protect citizens from gov't using physical evidence to incriminate them
    • "Non-testimonial": blood/handwriting/hair/voice samples (also DNA swab after arrest if serious enough crime)

Eliminating the 5th Amendment Privilege

Against Compelled Testimony

  • Can be eliminated in 3 ways:
  • Under grant of immunity
  • No possibility of incrimination
    • E.g., if SoL has run on the underlying crime, not entitled to 5th Am. Privilege
  • Waiver
    • The criminal (not civil) Δ who takes the stand waives the 5th Am Privilege as to all legitimate subjects of cross-examination
The Fifth Amendment and Prosecutorial Conduct
  • Unconstitutional for prosecutor to comment on:
    • Δ's failure (refusal) to testify
    • Δ's choosing to remain silent after being given Miranda warnings
  • Prosecutor can comment on Δ's failure to testify when made in response to defense counsel's assertion that Δ was "not allowed to explain her side of the story"
  • Prosecutor can comment on Δ's choosing to remain silent before being given Miranda warnings
  • If prosecutor makes impermissible comments, apply the harmless error test
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