CRIMINAL PROCEDURE

Class Six

Today’s Topics: Fourth Amendment Standing Derivative Evidence Independent Source Inevitable Discovery Good Faith Alternatives

Today’s Topics: Fifth Amendment Privilege Against Self Incrimination Policies Scope Compulsion Holder Non-Testimonial Evidence Records & Required Documents

STANDING Issue: Who can claim 4th Amd

violation?

STANDING Challenging party’s relationship to

search conducted or thing seized Current Supreme Court view more

limited than past Personal rights No vicarious assertion

Target Standing Defendant does NOT have

standing to raise 4th Amendment claim merely because he was target of search that netted evidence gov’t now wants to introduce against him at trial

Rakas v. Illinois

Standing Principles D must have reasonable or

legitimate expectation of privacy in area searched

D’s interest does NOT have to reach level or recognized property interest

Ownership & Standing Possible to have possessory

interest in property seized while failing reasonable expectation of privacy requirement

Co-Conspirators & Standing No co-conspirator exception to

standing requirements of Rakas

EXCLUSIONARY RULE

Theories of Admissibility Derivative Evidence & Attenuation Independent Source Inevitable Discovery Use in Non-Criminal Proceeding Use for Impeachment Good Faith Exception

Derivative Evidence Fruit of the

Poisonous Tree Evidence “derived

from” particular illegal search or seizure

Attenuation Concept: What is the connection

between the illegal search and the proffered evidence

Query: Has the causal chain been broken?

Application in Confession Cases Brown v. Illinois: Was confession

fruit of illegal arrest or was taint attenuated by Miranda warnings?

Dunaway v. New York

Application in Confession Cases Taylor v. Alabama

Rawlings v. Kentucky [statements “spontaneous reaction” to discovery of evidence]

New York v. Harris [custody not unlawful]

Independent Source Concept: Allows evidence

discovered during unlawful search if that evidence is discovered later through an untainted source

Hint: Imagine parallel lines of investigation that never intersect

Relation to “Rediscovered” Evidence Murray v. United States

Restrictions Decision to seek warrant not prompted

by what saw during initial entry Information obtained during illegal

entry cannot form any material part of basis for search warrant

Inevitable Discovery “Hypothetical independent source”

Prosecution must show illegally obtained evidence would have been discovered through legitimate means that were independent of official misconduct

Example Nix v. Williams

Critical feature: Gov’t obtained no benefit from constitutional violation

Inevitable Discovery, cont. Is doctrine limited to situations

where officers acting in good faith?

Who has burden of proof?

What is the standard?

“Other Uses” & E/R Concept: Exclusionary rule generally

will operate to prevent introduction of illegally obtained evidence during the gov’t case in chief

Exceptions exist: Inevitable discovery, independent source, good faith

Issue: Is evidence “excludable” in scenarios other than prosecution’s case in chief?

Use in Non-Criminal Proceedings Grand Jury Civil Tax Civil Deportation Habeas Actions Sentencing

Use in Criminal Trial Issue: Although illegally obtained

evidence cannot be used to establish essential element of offense, can it be used for other purposes in a criminal trial?

Impeachment

D opens door [e.g., “I’ve never, ever been arrested before.”] Rationale: E/R should not be used as

license for perjury Cross-examination of D raises issue Limitation:Cross-examination of

defense witnesses

Good Faith Exception to general rule that

illegally obtained evidence cannot be used during prosecution’s case in chief

Usually encountered when search warrants are found defective, but Supreme Court has extended further

Good Faith Reliance on Defective Warrant Issue: What goal of exclusionary

rule is furthered by prohibiting evidence obtained by officers relying on search warrant ultimately found not to be supported by probable cause?

United States v. Leon

Exceptions to the Exception Magistrate misled by information affiant

knew or should have known was false Issuing magistrate wholly abandoned

judicial role of neutral and detached Affidavit so lacking indicia of probable

cause that unreasonable for officer to rely on it

Profoundly facially deficient

Justifying Good Faith Exception E/R designed to deter police

misconduct, not punish judge error No evidence suggests judges &

magistrates inclined to ignore 4th Amd

No basis to believe exclusion will have significant deterrent effect on issuing magistrate

Application to Warrantless Searches Issue: Can there be “good faith”

objectively reasonable warrantless searches?

Illinois v. Krull (statute) Arizona v. Evans (clerical error)

Alternatives to E/R Tort recovery Criminal Administrative

Exercise: Evaluating Proposed Solutions Describe your understanding of each

alternative [tort recovery, criminal prosecution, administrative action] and be prepared to give a definition or example of each

Identify a minimum of 3 problems with each of the 3 proposed alternatives

Chapter Three: CONFESSIONS

Self-Incrimination and Confessions

Privilege Against Compelled Self Incrimination Seen in variety of contexts:

traditional confessions to police trial testimony subpoenas production of records

The Debate: Con Inconsistent with values we teach

and prize in most of our relationships

Impedes assessment of truth Stands in the way of convictions Can prevent restitution to crime

victims Frequently protects the guilty

The Debate: Pro Cruel trilemma

[self-accusation, contempt, perjury] Protect the innocent Unreliability of coerced statements US preference for accusatorial system

[cf inquisitorial systems] Deter improper police practices Fair balance between State & individual

Scope of Privilege Fifth Amendment

Nor shall [any person] be compelled in any criminal case to be a witness against himself

Fundamental Questions What is criminal Where [in what forum] can privilege

be asserted

Fifth Amendment Privilege: A Quiz

WhenWhereHow

Quiz: In which forum can D successfully assert? Forfeiture Proceeding Grand Jury Civil Trial Criminal Trial Bankruptcy Action Administrative License Revocation

Quiz: “Criminal” under Privilege? Probation Revocation? Juvenile Adjudication of Delinquent

Conduct? Divorce? Foreign Prosecution? Forfeiture Proceeding? Civil Commitment (sexual violent predator)? Wrongful Death Action following Vehicular

Homicide?

Quiz: Sufficient Compulsion? You receive subpoena You are threatened with contempt

for refusing to testify You refused to testify and are

offered immunity

Quiz: Sufficient Compulsion? State law requires you to give

information as condition of maintaining current contract and securing future contracts

You are required to file annual IRS return

Quiz: Sufficient Compulsion? Prosecution secures your journal,

which you have written in faithfully since college

Your uncle is incarcerated as a sex offender for a crime he did not commit. He is offered “incentives” to participate in sex offender program

Scope: “Criminal Proceedings” Boyd Hitchcock In re Gault

“Non-Criminal Proceeding” Murphy Piedmont L.O. Ward Allen

Forum of Invocation Judicial? Administrative? Legislative?

Basis of Invocation To protect against use of

incriminating statements in subsequent criminal prosecutions

Foreign Prosecution Issue: Does 5th Amd protect against

the risk of foreign prosecution?

Scenario: X is asked questions in deportation hearing. X fears that truthful answers will provide evidence that could be used against him by other nations

Potential Use in Foreign Prosecution, con’t Balsys

5th Amd does not provide personal testimonial inviolability

“Conditional” protection [e.g. impact of immunity]

When might be applicable -- stalking horse

COMPULSION 5th Amd protection against self

incrimination only triggered when self incrimination is compelled by government

Issue: How is compulsion shown?

Examples Contempt Other state-imposed sanctions

Contrast Lefkowitz v. Turley with McKune v. Lile

Contempt Scenario: A Preview Question asked Assertion Responses to assertion, either

honor, or seek judicial determination that applicable

If not, witness must answer If yes, 2 options

Let stand on privilege Apply for immunity

If granted, refusal to answer may be contempt

Invocation & Consequences at Trial Comment on invocation prohibited

[Griffin rule] --- Fact that D did not take stand cannot be used as evidence against him

Jury instructions re: adverse inferences Carter (required if requested) Lakeside (can be given over D’s

objection)

Invocation & Consequences, con’t Adverse Inferences at Sentencing?

Application to Civil proceedings

HOLDER Privilege against self-incrimination

is personal Cannot be vicariously asserted Belongs only to person who is

himself incriminated by his own testimony

“Holder” in the Business Context Taxpayers & accountants Taxpayers & lawyers Partnerships Sole proprietorship Corporation Corporation wholly owned &

operated by single person

What is protected Non-testimonial evidence outside

scope of privilege, including: blood sample fingerprint photograph measurements voice or handwriting exemplar

Analytical Key Communicative/testimonial

Not physical characteristic

Query: Does witness face cruel trilemma in disclosing?

“Is it testimonial?” Tip: An express or implied

assertion of fact which can be true or false

Documents Contexts:

Gov’t subpoenas evidence from third party

Gov’t uses D’s business records, seized pursuant to valid warrant

Example: Fisher v. U.S. Subpoena of records Aspects of potential incrimination

Contents of documents Act of production

Fisher: Contents Privilege inapplicable Rationale:

Subpoena does not compel oral testimony Does not compel taxpayer to restate,

repeat or affirm truth of contents Pre-existing documents; preparation

voluntary No compulsion by gov’t to make

incriminating records

Fisher: Act of Production Communicative aspects [distinct

from what document itself might say] existence possession/control authenticity belief that same

Facts here do not support claim

Recently: U.S. v. Hubbell Facts: Whitewater Held: 5th Amd privilege applies Rationale: Gov’t had shown no

independent, prior knowledge of existence or whereabouts

Contrast: Fisher

Act of Production: People Bouknight: order to produce child

subject to protective order Issue: Can mother claim act of

producing is potentially incriminating as implicit communication of control over child?

Required Records General rule: If voluntarily

prepared, no valid claim that “compelled” by gov’t at time made

Issue: What if documents are prepared at gov’t direction? Are they compelled for 5th Amd purposes?

Required Records Doctrine Shaprio

Critical fact: documents kept for legitimate administrative purpose, which cannot be focused solely on those inherently suspected of criminal activity

Contrast, Marchetti, Haynes [targeting group suspected of criminal activity]

Analyzing Legislation under Required Records Doctrine Issue: When does law have non-

criminal [regulatory] purpose and when is it essentially criminal?

California v. Byers [compelled reporting of accident]

Procedural Considerations Invoking privilege, followed by

grant of immunity

Waiver of privilege

Immunity Types

Transactional: no transaction about which witness testifies can be subject of future prosecution against that witness

Use/Derivative: prevents use of testimony or other information directly or indirectly derived from it. Prosecution for transaction still possible

Immunity & Constitutional Limitations Kastigar

Does 5th Amd require transactional immunity?

If immunity granted and witness compelled to testify, who has burden of proof to show that evidence proffered by gov’t is free from immunized statement?

Mechanics of Immunity Question asked Assertion of

privilege by witness

Response: honor, or seek judicial

determination

If no privilege found, witness must answer

If privilege exists, questioner must either Let witness stand

on privilege Apply for immunity

Judge’s Role in Immunity Typically limited to insuring that

procedural aspects of statute are met

Many statutes do not permit judge to refuse to grant on grounds she believes prosecutor’s decision to offer is incorrect or not in public interest

Asserting Privilege Ohio v. Reiner

Can privilege be asserted by someone claiming that she is innocent?

Does witness’s assertion, standing alone, establish risk of incrimination?

Waiver General rule: Person must refuse

to answer and rely on 5th Amd privilege in order to invoke its protection

Once person answers, privilege against self-incrimination is waived

Exercise Assume you are drafting a Policies

& Procedures Manual for a prosecutor’s office. List at least 5 factors you would include as items that should be considered by a prosecutor in deciding whether to offer immunity