General Crim Pro Outline

8/4/2019 General Crim Pro Outline

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CRIM PRO OUTLINE

I. Introduction

Two Goals of Criminal Procedure:a. Prosecuting Criminals

b. Protecting Citizens from unfair treatment by the state-- protection fromconvicting the innocent

Source of Constitutional rights

4: right of people to be secure against unreasonable search and seizures5: right not to self-incriminate, no double jeopardy, due process

6: right to a speedy trial, assistance of counsel

7: right to a jury trial8: right not to have cruel or unusual punishment inflicted

Amendments are incorporated by the 14th to the states

Due Process of 14th Amendment :

Incorporation Theories (Applying Bill of Rights to the States):

Selective Incorporation (The Test):

Is a right provided by the Bill of Rights fundamental to the American

system of Justice?

Total Incorporation:First 8 Amendments should be incorporated.

No Incorporation:

None need be incorporated.

e.g. Fundamentally you have to provide a jury trial where there is a risk ofpunishment over 6 months.

The Steps of the Criminal Prosecution:

1. Commission of the Crime

2. Pre-Arrest investigation3. The Arrest

4. Booking

5. Post Arrest Investigation

6. Decision to Charge-review process7. Filing of Complaint

8. Magistrate Review of the Complaint

9. Arraignment 1st appearance based on complaint (bail set)10. Preliminary hearing (criticalobtain attorney or one is appointed for you)

11. Grand jury review (if felony)

12. Filing of Information or indictment13. 2nd arraignment based on information or indictment and D enters plea

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14. Pre-trial proceedings discovery

15. Trial

16. Sentencing17. Appeals

18. Collateral challenges to the Conviction (Fed Crt or Writ of habeas corpus)

19. Administration the Sentence

II. Searches and the 4th Amendment: there is a search and seizure where there is agovernment intrusion of privacy or possessory interest.

STRUCTURE FOR ANALYSIS FOR EXAM-4 STEPS, overview

1) Was there a search (invasion of a privacy interest) or seizure (invasion of a

possessory right) conducted by a govt agent?

a) Use an objective test, evaluating the totality of the circumstances in assessingthis question.

2) If there was a search or seizure, did the government have a valid warrant based on

probable cause?3) If the search or seizure occurred without a warrant, was there an exception that

permits such a seizure?

4) If no exception that permits a warrantless search, does the exclusionary ruleapply?

A. Was there a Search and Seizure?i. Government activity:

Govt knew or should have known the search was beingconducted

Security guards and private individuals are not covered by

the 4th

If search was not conducted by Govt Official there is only

one exception that applies if the private actor has:

a) substantial connections to a govt agent

b) is acting on behalf of the govt agent

ii. Intrusion:

there has to be some invasion of the interest, it can not

be passive, for e.g. if you are somewhere you have a right to be

and overhear a conversation that is not an intrusion and will notbe protected by the 4th or drug sniffing dog

iii. Subjective Expectation of Privacy that is Objectively

Reasonable:

The more privacy the reasonable person expects themore protected the right

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Look both at the actual expectation and the reasonable

expectation

2-Prong Test to determine whether Privacy Interest Exists: (Katz)

1. A person must have a subjective privacy expectation.

2. That expectation must be objectively reasonable.a. Have you exposed your stuff to the average curious citizen?

i. Have you given it over to a third party?

ii. Are means used so sophisticated or specialized that they would be

rare to common usage?

iii. Could a curious citizen have been there?iv. Was it very efficient?

b. Can you easily protect yourself from the intrusion?

i. Can ordinary measures be taken to protect privacy, or requireextraordinary measures?

Places:

- No reasonable expectation of privacy where

trash is placed on curb for another to collect- Greenwood- Reasonable expectation violated where bags in

overhead compartment of bus were searched-Bond

- Officers who trespassed did not violate 4th. Noreasonable expectation of privacy where marijuana can be seen

with naked eye, because of this expecatation of privacy not

reasonable. 4th protects people not places - Oliver

- Overnight guests are protected the same as

occupants of the home- Olsen, however if you are only there for

business purposes this is not protected, Carter(guys bagging cokein house)- If an agent is somewhere he has a legal right to

be and sees criminal activity the D can not challenge the search bc

he has no reasonable expectation of privacy no invasion ofpersonal interest-- Carter

- In distinguishing Olsen from Carterthe

following factors are stated:a) Purely commercial

b) Short stay

c) No prior relationship

d) Person had never been there before- You have a 4th Amend right to protect your curtilege around

your home (flowerbeds, porch etc.) Curtilege analysis:

a) proximity to the homeb) enclosure

c) uses of the property

d) protective steps you take for the property

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Sensory Enhancement:

- No reasonable expectation of privacy where a dog sniffedluggage bc it takes relatively little time and sniffing is not invasive,

ok to sniff luggage but if you are going to detain it you need pc-

Place- Recent S. Ct. case expandedPlace, now ok to call dogs to

sniff trunk when car stopped for a traffic violation-Illinois v.Caballes

- No reasonable expectation of privacy where police flew

over greenhouse and saw plants bc flying is common place-Riley

- Reasonable expectation of privacy where police use a

beeper to track the movement of items within your home- Karo

- If Thermal Imaging: would same info be obtainable without

intrusion into home?-Kyllo

Factors to Consider When Determining if a Device Can be Used ina Legal Search?

1. General knowledge of the existence of the device: ifsomething is viewable by binoculars there might be an arg that a

person does not have a reasonable expectation of privacy

2. Probability a reasonably curious citizen would have such a

device3. Ability of the average citizen to protect against such an

intrusion: you can not protect against a thermal imaging device,

you can put a roof on your shed4. Legality of Intrusion if the intrusion is otherwise legal

that is a factor that the court may consider (Riley- helicopter) note:

the home has a higher privacy expectation under the 4th

Misplaced Trust: usually not considered a search bc you are voluntarily

having the conversation

- No Search: No invasion of privacy; if you tell someone information you

waive privacy because if that person betrays you too bad- Hoffa

- Same w/ tape recordings and wire taps, this was an extension and the courtfound the wire tap preferable to Hoffa situation bc of accuracy- White

HYPOS:

- Hoffa tells (informant) he is going to bribe juror and then juror goes to thepolice. Is this a search? No bc juror is not govt informant.

- FBI recruits Partin as informer and tape records Hoffa telling of plans to bribejuror. This is ok, likeWhite.

- FBI recruits Partin and broadcasts Hoffa telling plans to bribe juror, policesimultaneously listen. This is ok, bc D still choose to misplace trust and it does notmatter which type of device was used.

- FBI recruits Partin and plants a transmitting device which is left in Hoffashouse which transmits conversations. This is a violation bc this is like the beeper case.

The difference is that if the informer plants a bugging device, this is a violation bc thereis a reasonable expectation of privacy and there is no misplaced trust.

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B. If Search is established must ask Was Search/Seizure Reasonable?i. Valid warrant

Possible challenges to a warrant:1.Affidavit is not true

Test: substantial showing the affidavit contains false information orknowingly/recklessly made affidavit AND false info was

material2.Affidavit does not establish probable cause

To give rise to probable cause an informants tip must ask:

A. Basis of Knowledgea. Personal Knowledge: informant saw something

happen

b. Details of knowledge that can be coroberatedB. Veracity

a. Credibility of the informant

b. Reliability of the information

Still use Spinelli analysis but based totality of the circumstances test is done.

Guidelines the less detail the more basis of knowledge you need, the more detail

the less basis of knowledge you need

3. Warrant broader than justified by the affidavit

4. Warrant went stale (usually have to be executed in 24 hours in CA,

reasonable amount of time in Fed)

5. Search exceeded the scope of the warrant

If the search exceeded the scope of the warrant ask: Was itreasonable the police did not know they were exceeding thescope of the warrant? It does not have to be precise and the

govt will be given the benefit of the doubt (think about the 2

apt, 1 floor case) If the mistake was reasonable the evidence

can be used

Protective sweeps are reasonable

Search must fit the warrant, remember if warrant is to look for

fugitives you can not open drawers6. Unreasonable means used to conduct search- did the police fail to

execute reasonably?

- Seize items on less than pc- unreasonable force in the execution

A. Knock Notice requirements will be evaluated on a case by case

basis, therefore it is illegal for a state to say in all of x type casesthere does not need to be knock notice. 2 prong test:

a. Knock

b. Notice

3 times failure to give knock notice would be upheld:

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a. Hot Pursuit of a Suspect

b. Threat of Physical Violence (have to have reasonable

suspicion person is there and has a weapon)c. Reason to believe there will be a destruction of evidence

When you talk about execution of a warrant keep in mind:

- the standard will always be reasonableness- based upon what the police knew at the time knew

- needs to be done on a case by case basis (court draws no bright lines)

You can not use deadly force to detain or arrest a suspect, court

comes to this conclusion based on a balancing test usefulness to

society v. threat of death

ii. Warrantless Search and Seizure [8]a. Arrest in public

arrests in public do not require a warrant if arresting for misdemeanor violation, violation had to

have occurred in the presence of an officer, if arresting for felonyyou only have to have probable cause- Watson

Probable cause hearing has to be held within 48 hours if sig

restraints on liberty (i.e. they are in custody)- Gierstein

Probable cause has to have existed at the time of the arrest,

if police try to justify arrest with evidence they seized during the

arrest you can suppress such evidence- McGlaughlin

If pc to arrest it does not matter if the motive of police was

for another reason

An illegal arrest will not affect the validity of conviction-Powell

The subjective intent of the officers is irrelevant, if they

have p/c to arrest they can search

Police can pull over and arrest anyone for a violation of lawwithout a warrant as long as they had probable cause to believe

that violation occurred.

Any time a suspect is arrested in public the police have

authorization to search the immediate area surrounding the suspect

and to do a body search incident to lawful arrest, based on the

following reasons:

prevent the destruction of evidence

prevent access to weapons

Police can inventory all articles controlled by D whenmaking an arrest, this is based on following reasons:

Guarantees against theft by police

False claims by arrestees

keeping false claims out of the jails

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Generally searches prior to make an arrest will not be

sanctioned however the courts will make an exception whereevidence can be very easily destroyed, for e.g. gather blood

scrapings from under suspects nails

b. Arrest in home

Arrests in home require an arrest warrant and probable

cause to believe the person is home at the time you are going tosearch unless there are exigent circumstances. Possible exceptions:

hot pursuit

immediate danger to the public

p/c evidence will be destroyed

Common law restrictions:

Probable Cause (not reasonable suspicion)

Has to be a felony (as opposed to a

misdemeanor)

Knock Notice

Done in the Daytime

Search Warrant and arrest warrant are required if police

want to arrest in home of a 3d partys home. Arrest warrant mustspecify D will be in 3d partys home. Steagald

c. Search Incident to Arrest

With an arrest warrant but no search warrant search is

limited to:

immediate area of the person beingarrested, (def.): any area from which suspect

could get a weapon or destroy contraband

arrestees person

A protective sweep of area from which an attack could be

immediately launched to look for others is acceptable, you musthave reasonable suspicion for this.Buie

If medical procedure (blood urine etc) you can only search

based on pc, and if it is overly broad (pump stomach) you can not

complete procedure, this is bc of 14th

It is acceptable to freeze a scene that is, place officers

inside or ouside of a home to make sure that evidence is notdestroyed while they obtain a warrant. Reasoning this isacceptable, look for these factors when evaluating:

police have p/c to believe the home

contains evidence of a crime

good reason to believe the evindence

will be destroyed if left unsecured while

they obtain a warrant

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imposing a less restrictive restrain

then warrantless search of house

restraint imposed for a limitedamount of time

d. Vehicle Search

You dont need a warrant if you have probable cause as long as it is not

objectively being used as a home: has to do with lessened expectation of privacy.

the vehicle is readily mobile

in its present setting it can be used for transportation

p/c goes to the car generally they can search the whole

car. BUT IF the probable cause goes only to a container in the

car, then that is all they can search.

Does not matter who owns the car if there is probablecause.

Where the driver consents to a warrantless search, Police can arrest

everyone in a car, not the case if you are speaking of larger areatavern, classroom etc, but ok in case of carPringle

RV Rule- Any vehicle that is readily mobile and subject to the

pervasive laws governing motor vehicles may be searched withouta warrant so long as there is p/c supporting the search Carney

i. SITA need to have p/c to make arrest, do not have to thinkthere is anything in the car

When D is outside his automobile you can search entire passenger

area including closed containers within area so long as car was

recently occupied, they can not search the trunk, look to:Belton/Thorton

1. temporal

2. proximity

If you police has option of citing or arresting and decides to cite

you can not do aBelton/Thorton search

ii. P/C to think there is something in the car not SITA, do nothave to have p/c to arrest

Where you search bc of p/c (not SITA), police may search any

where including closed containers in an automobile (including

trunk and entire car) unless p/c only goes to the container and thenthe search is limited to the containerAcevedo

The govt can search any containers in the car if they have pc, evenif they are the property of the passengerHoughton (dicta: might bediff if passenger was wearing purse)

Limitcan not search glove box if looking for an illegal alien

Govt can search car if they have reason to believe there are

weapons in the car they can search it even if they to not have pc toarrest, notBelton/Thorton-- Lawn

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You can not search a locked glove compartment unless you have

pc for an item being in the glovee. Administrative/ Inventory

An inventory of a motor vehicle and the containers therein

pursuant to established police dept admin policy does not violate

the 4th

amend prohibition of unreasonable searches and seizuresBertine

Searches of the arrestees in the station house are okay as

administrative searches that serve to protect the D's possessionsfrom theft or loss.Lafayette

f. Terry Stop: detention of persons (seizure) note: police cannotuse mere fact you ran away as sufficient to form reasonable suspicion

Detention on the street is constitutional as long as officers have

specific and articulatable facts based on individualized suspicion thatwould cause a reasonable police officer to believethere was criminal

conduct. If officer has reasonable suspicion to believe person armedand dangerous, conduct limited to frisk for weapons is also

constitutional.

1. Detention: Has a seizure (detention or stop) taken place OR is this aconsensual encounter?

If a reasonable person would feel they are free to decline the

encounter then it is a consensual search, not a detention.Royer

Look to words, uniforms, seizure of objects

Seizure (def.): a govt termination of freedom of movement

through means intentionally appliedHadari a. Initiation: Was initial seizure reasonable or justified?Was there

reasonable suspicion of criminal activity?

If seizure is based on informants tip tip must be corroborated

at least to the stage of reasonable suspicion.J.L.

Terry stops can be based upon suspects presence in an area of

heavy crime if there is unprovoked flight upon noticing the

police. Wardlow

If suspect consents then it is justified. Royer

Detention may be to investigate present or past crime but

generally you need individualized suspicion, however, there

are times these can be conducted more broadly for e.g. whenyou are a driver or passenger an you are ordered out of the car.

b. Scope: Was the limited seizure extended too long?

D can not feel as if he is under arrest (such as by putting him ina room)Royer

90 minute detention is too long esp if there is no indication asto how long the detention will last, should only last long

enough to rid officer of original concernsPlace

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Factors:

o length

o location (public v. private)

o amount of force used

o nature of the crime (drug suspicion may not be

enough, but robbery would be)2. Frisk: You cannot frisk unless you have:

individualized reasonable suspicion weapons are present(fitting a profile is not enough)

consenta. Initiation: Was there reasonable suspicion the D had a weapon?

anonymous tip is not enough for individualized

suspicion unless corroboration, exceptions: immense threat of

hamr (e.g. bomb) or areas of lesser privacy (e.g. school)JL

b. Scope: Was the frisk limited to the outside of the clothing, and did the

frisk look for weapons only?

exceeded scope of frisk when police reached into Dspocket after he had been hanging out w/known drug addicts

for 8 hours note: if they find a weapon, police can make an arrest and do a more extensive

search

g. Inspections/ Regulatory (def.): search or seizure done

w/out warrant, done bc justified govt purpose distinct from generalcrime prevention, must be a scheme in place to curb officer discretion

Administrative Searches are an exception to probable cause:a. Two Kinds of Cases:

i. Intrusion on general public according to standardized ruleii. Fact specific (e.g. school cases)

Two Questions to Ask:

i. Is a warrant required or is the discretion of the police limited inother ways?

ii. Is the search reasonable? Balancing test: public interest v. intrusion

on the individual

Location of Searches:

i. Building Searches:a. Generally need a warrant to search a home or business

b. Businesses that are closely regulated (infected with

criminality) can be searched without a warrant bc statestatute substitutes for judge discretion (e.g. a junk yard for

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stolen cars however these searches will be closely

regulated)

c. Govt can enter building when there is a fire burning to putit out but once it has stopped and they are coming in to look

for the cause of the fire they need a warrant

ii. Automobile Search:a. No warrant req as long as you have a consistent scheme.

Cannot be left to the discretion of the police. (e.g. stop

every car, stop every 5th car, can not be based on profile)b. Scheme is reasonable if government interest is high,

intrusion is low, and there is a reasonable success rate.

c. Scheme is not reasonable if the only goal is general crime

control.d. You can only do an administrative checkpoint search if the

govt interest is special and not just crime prevention:

- Border patrol is ok

- Drunk driving is ok - NOT drugs (because no government interest

beyond crime control and no immediate danger)iii. Searches of People:

1. Test is reasonableness, but not reasonable if only goal is

general crime control.

2. Pool must be limited to people participating in certainactivitiesdebate club, athletics

3. Reasonableness will consider factors such as:

a. Whether a warrant is appropriate in the settingi. Not required in a school

b. Principle has high interest in preventing student

drug use, not in preventing crime.c. Students have lesser privacy expectation so

balance of reasonableness tilts towards

government/school interest.d. Urine Samples are ok if reasonable for after school

activities

e. More reasonable if activities include communal

dress (less privacy expectation).f. Testing pregnant women for drug use falls outside

reasonableness exception.

g. Can test train workers for drugs, public interest: waron drugs and avoidance of train wrecks

h. No real interest in checking people who run for

office for drugs

h. Consent: an exception to warrant requirement based on reasonableness

I. Was the Consent voluntary?

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a. look at totality of the circumstances, factors to determine if voluntary:

i. Considers the intelligence of the party giving consent, lacking of

schooling, age, knowledge of rights, responses to officersquestions, number of cops and lack of effective warnings.

ii. Limited by what police knew of those circumstances (focus on

police position)iii. Police do not have to tell suspect that consent is voluntary but if

they do then there will be no arg for the suspect to make

II. Did the person who gave consent have the authority or apparent authority toconsent?

a. If it is reasonable to assume that the person had authority to consent it is

ok even if that person didnt have the authority (Girlfriend consented to

search of boyfriends home, not reasonable to believe hotel clerk couldconsent to hotel room search)

b. If there is a co-occupant, police can not search over the objection of the

co-occupant

b. Exclusionary Rulei. Fruit of Poisonous Tree: if violation of the 4th there is a remedy

of exclusion of the evidence

The Exclusionary Rule now Applies to states Reason: deter police misconduct

Judicially created remedy

Exclusionary Rule Applies when:a. Test: Should tainted evidence be admitted? Look to following factors to

determine if there has been sufficient attenuation:

1. Temporal proximity between the illegality and the evidence

2. Intervening circumstances sometimes will intervene tomake illegalities admissible, for e.g. Miranda warnings (however,Miranda does not necessarily attenuate the taint)

3. Purpose and flagrancy of the misconductExclusionary rule does NOT apply:

a. Grand Jury Proceedings

b. Parole and Probation Proceedingsc. Deportation Proceedings

d. When living witnesses come forward

ii. Exceptions1. Police Reliance: Evidence obtained in searches based on

apparently valid warrant or statute need not be excluded. Considered in

good faith if the police are acting on a warrant they believe to be valid

(Good faith)i. Not ok if either is CLEARY invalid

ii. Standard is good faith Exclude evidence obtained in bad faith.1. Not good faith if affiant gave false info on purpose

2. Not good faith if warrant was not specific enough.

3. Not good faith if the magistrate was not neutral.

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2. Inevitable Discovery: evidence that would inevitably be

discovered by legal means is not subject to the fruits doctrine

c. Interrogation and Confessions 5th: D can seek to exclude statement on 3additional grounds

Note: Courts very reluctant to exclude confessions, this is the strongest evidence they can get.

i. 14th and 5th Voluntary: a claim that a statement or confession was obtained as a

result of coercion must be excluded because statement was involuntary.

1. Voluntariness Test:a. Outrageous police behavior used to overcome the

will of the defendant

b. Physical violencec. Threats, length of time.

d. Interrogation can be so severe it is presumptively

coercive.1. Ashcraft: Guy under the lights for 36

hours is presumptively coercive.

2. Watts: D kept in solitary for 2 days

w/out prelime. Police tactics can be coercive by tugging

inappropriately on Ds heart strings.

2. S. Ct. has not said whether MR and/or intoxication should be considered.

Left up to the states. If this is case, raise issue, state will arg intoxication

was vol. Args:a. Did not understand rights

b. Did not understand what was going on

ii. 6th Right to Counsel1. Right only after adversarial process has begun (you have been indicted:

formal written accusation of a crime)

2. Test is whether incriminating statement was Deliberately Elicited:a. Police cannot say or do anything to elicit

incriminating response without lawyer present. Normal conversation is

ok.b. You can question D about a separate crime he has

not been charged with. The 6th only applies to crimes D has been

charged with (and lesser included crimes).c. Police can question D in absence of a lawyer if D

reinitiates the conversation.

d. Jailhouse Informants also cannot deliberately elicit

incriminating evidence:1. If informant initiates or encourages

conversation about the crime, statement obtained is inadmissible.

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2. If you just listen to D, no 6th

amendment violation

3. Waiver of counsel has to be voluntary and knowing (Christian BurialSpeech was coercive)

a. If government interrogates D after his 6th Amend.

rights become applicable, the burden of proof is on thegovernment to prove knowing and intelligent waiver.

b. Knowing does not include outside information

police dont have to tell you favorable info (like a lawyer iswaiting for you)

4. No exception based on emergency or special considerations: police always

have to let you have attorney absent valid waiver.

5. Motive of police doesnt affect Ds right to counsel

iii. 5th Privilege against Self-Incrimination:No person shall be compelled in any

criminal case to be a witness against himself

1. You get Miranda if you are both:a. In custody

b. Interrogatedi. Was D in Custody?

1. Would reasonable person think theyre in custody?

a. If D voluntarily goes to police station, he isnt in

custody.b. Police dominated atmosphere, not custody if:

o In the public or in

your home w/out arrest

o If being questioned in

home and you are not under arrest, this is notcustody bc you can tell police to leave

c. Terry Stop/ Temporary detention is not custody no

Miranda.

d. Doesnt include visit to probation officer2. Factors to Consider:

a. Time

b. Where it takes placec. Number of officers

d. Whether or not police were armed

ii. Was the D interrogated?

1. If it is reasonablyforeseeable that police statement oraction that would elicit incriminating response then this is

interrogation.

a. Exam: argue chit-chat v. comment likely to elicitresponse

o Officers intent

o Susceptibility of

Suspect

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o Neither are

determinative

b. Miranda warnings are not required when the suspect is

unaware he is speaking to law enforcement and gives avoluntary statement because coercion is determined

from perspective of the suspect.c. Talking to probation officers isnt inherently coercive

they have different motives than cops so no

interrogation

d. Not interrogation where you are pulled over and asked

things like your b-day, last time you drank, these areadministrative, not testimonial

iii. Public Safety Exception:

1. If police officers ask questions reasonably prompted by aconcern for public safety, Miranda warnings are not

required.

a. Exam: Balance threat to society vs. defendants rightfor Miranda.

b. Questions must be limited to concerns for public safety:

o In public

o Weapon involved

(most likely)

iv. Impeachment Exception:1. If statement not admissible bc Miranda violation and D

testifies contrary to statement, suppressed statement can be

used for impeachment purposesiv. Assertion of Rights:

1. Two ways of asserting rights:a. Right to silence

b. Ask unambiguously for attorney2. Once you assert your right to silence, police cannot resume

questioning later for same charge.

3. Police can come back and question D for a different charge but must give the Miranda rights again.

4. Edwards Doctrine: Once you assert right to counsel, police

must stop questioning until counsel arrives.a. Assertion of right must be clear.

b. Police cant requestion even if for a different charge.

c. Once D has requested counsel, interrogation may not bereinitiated without counsel being presented.

d. If you dont assert your rights police can requestion if

they discuss a different charge

5. You can waive your right after asserting it by voluntarilyinitiating discussion.

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a. Exam: initiating v. just asking question court held

what will happen to me is initiation discussion

(Bradshaw)6. Waiver has to be voluntary and intelligent

a. This is usually met when Miranda is given.

7. You do not need counsel present to waive your rightcounsel (Miranda warnings make your waiver voluntary

and intelligent)

8. If you assert right to counsel in Jx A and then talk to anattny, Jx B can not then re-question you without your

counsel present

v. Failure to Warn, Statement Made, Advisement of Rights,

Statement Repeated:----------------------------------------------------------------------------

STATEMENTS:

1. Statements made as part of 2nd interrogation (afterMiranda

warnings) will be inadmissible if reasonable suspect wouldview 2nd interrogation as merely a continuation of the first

questioning.a. Elstad: 2nd statements admitted where D asked 1

question in the living room, then re-questioned later

after rights given, at station house

b. Seibert: Police practice to get extensive confession pre-Miranda, then to break and come backMIrandize and

get suspect to repeat story. This will be inadmissible.

c. Factors:

ocompleteness and detail of 1st round

o

overlapping content of 2 statementso timing and location (more distance seems like same

interrogation)

ocontinuity of police personnel (same person doing

the questioning)

odegree to which 2nd round treated as continuation of

1st

PHYSICAL EVIDENCE/OTHER WITNESSES: Not subjectto Fruits doctrine

Adequacy of Representation: Four possible challenges.

I. Government Interference with the attorney client relationship.a. Indigent D has no right to choose counsel or retain particular counsel if

there is a state interest in appointing a different counsel.

b. Government violates the right to effective assistance when it interferes incertain ways with the ability counsel to make independent decisions about

how to conduct the defense.

c. Court cannot deny D right to meet with counsel during overnight recess inthe middle of testimony

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II. Presumed ineffectiveness

a. The court can infer ineffectiveness for objective factors in an extreme

case.i. Lawyer drunk/sleeping at trial.

ii. Court appointing unprepared, out of state counsel.

iii. Late appointment of inexperienced counsel in a complex caseDOES NOT give rise to a presumption of ineffectiveness.

III. Actual Ineffectiveness

a. Counsel made errors so serious D was not receiving 6th Am. right tocounsel,

i. Heavy presumption in favor of the reasonableness of attorney

conduct.

ANDb. Reasonable probability deficiency resulted in prejudice to D (Less than

preponderance/sufficient to undermine our confidence in the outcome)

i. If you havent lost anything you were entitled to, there is no

prejudice.1. No entitlement if attorney fails to argue a then valid point

of law that is overturned by time of appeal.2. No entitlement to perjure yourself.

ii. Presumption of a reasonable jury, no allowance for irrational,

emotionally charged decisions.

IV. Conflict of Interest:a. If Counsel made a timely objection about conflict of interest:

i. and court denied motion, there should be an automatic reversal

b. If Counsel did not make an objection at trial, D must show:i. conflict of interest

ii. actually affected counsels performance

c. How is the objection raised?i. Ds counsel can make motion

ii. Court should bring up objection on own if they are

aware of problemiii. Failure of court to raise the conflict of interest objection

on their own is not sufficient for an auto reversal

III. THE PROSECUTOR

The Decision to Prosecute

I. Generally, prosecutor has complete discretion as to whether to prosecute.

II. Cannot Selectively Prosecute on basis of race, sex, religion, etc (14th Equal

Protection)

III. Very difficult to bring these claims, even more difficult to win

a. To get discovery for selective prosecution, you must make a showing ofevery material element of your claim.

i. Must show: Discriminatory effect that similarly situated members

of another group could have been prosecuted but were not (very

diff to ID those not prosecuted)

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ii. Will not be able to use statistics as proof, need to prove discrim

also in play in Ds case

IV. Vindictive Prosecution (5th & 14th Due Process Claim):a. During or Post-trial:

i. Cant have even the appearance of vindictiveness if this

appearance is there, we presume vindictiveness.1. If presumption made, burden shifts to P to give objective

facts that rebut presumption. (New info, person you shot

died, had been using an alias and was actually a habitualoffender etc.)

ii. Prosecutor cannot bring greater charges based on Ds exercise of

rights.iii. Must cite reasons in the record if you give higher sentence.

b. Pretrial:i. The prosecutor has not committed himself, so there is no

presumption of vindictiveness.

ii. Must prove actual vindictiveness.

The Right to Speedy Trial

_______14th_____ ______________6th______________

( ) ( )

]------------------------][------------------------][----------------------[Crime Arrest Indictment Trial

I. 6th Amendment Speedy Trial Claims:a. Turn on 4 factors (Balancing Test)

i. Length of Delay

1. Length of time turns on seriousness or complexity of crime.ii. Reason for Delay1. Sheriff getting sick v. to hamper defense.

iii. Ds assertion of right

iv. Prejudice to D1. Prevent undue lengthy incarceration

2. Anxiety about being under the cloud of suspicion

3. Prejudice to his defense

v. Factors are balanced, so one strong one can outweigh all

others.

1. Fact that you cant show prejudice will not defeat claim

where there is 8 year delay with only reason being govtnegligence

2. If case is dismissed and refiled or appealed and reversed,

the time when it is not pending does not count for speedytrial claim.

II. 14th Amendment Due Process Speedy Trial Claim:

a. Time period: Crime to arrest

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i. Here you are claiming it was so long from the actual crime to your

arrest that your defense was prejudiced.

b. Test: (D has to win both of the following to succeed)i. Defendant must show the prosecution acted deliberately for some

impermissible reason in delaying the case. (Malicious or at least

reckless.)ii. AND, the defendant actually suffered prejudice. (Lovasco- 2 key

witnesses died and this was not enough to show due process

violation)

Duty to Disclose (5th & 14th Due Process)

I. State must disclose evidence that is favorable to the accused and material either to

guilt or punishment.II. Three Contexts:

a. If state uses perjured testimony, conviction must be set aside unless

state can show it is harmless error beyond a reasonable doubt.

(perjured test= diff std)b. If state fails to disclose evidence, conviction must be overturned if

evidence is material: that is, if there is a reasonable probability that hadthe evidence been disclosed, the result would have been different.

i. Does not have to necessarily mean acquittal, only be reasonably

probable: ask, does this evidence undermine my confidence in the

states caseii. Once found to be matieral, no reason to evaluate if it was harmless

error

iii. If there are several things that are suppressed, you look at thecollective result of their suppression, not at each individually.

iv. Prosecutors are held to the knowledge that the police have.

c. Failure to turn over evidence will not be excused bc failure was made ingood faith

d. Where the prosecution asserts that information was not turned over is

confidential, due process will require disclosure. BUT, judge will evalevidence in camera to determine materiality.

e. If government looses or destroys evidence, D must show bad faith on the

part of state and make a showing that evidence was material.

f. If D individually finds something that state never had, D must show:i. Failure to discover was not due to lack of diligence, AND

ii. Evidence would more likely than not have changed the result of

the trial.

Plea Bargains

I. 2 Types:a. Charge Bargaining: Do not get to bargain about sentence, only about

charge, so for instance, you bargain so you are charged with theft instead

of grand theft

b. Sentence Bargaining: Bargain made as to the length of sentence charged

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II. Grounds on which you can challenge a plea bargain:

a. The plea was not voluntary or intelligent (Due Process):

i. D must be advised on the record:- nature or the charges

- elements of the crime (Ds plea not vol bc

he did not understand elements of M2)- rights he is giving up

- consequences of pleading guilty

- prove competency of D- Plea is voluntary

ii. Plea bargains are presumed voluntary because they are generally

the end of a bargaining process.

1. Fact government promised a benefit or made a threat if theD does not take a plea DOES NOT make the plea

involuntary so long as state has the right to do what he

threatens to do.

iii. The plea is involuntary if state does not keep the bargain.1. Whether a bargain is kept or not is determined by K

analysis.iv. Limitations of Prosecutorial Conduct in Plea Bargaining:

1. state cant threaten you with things they cant permissibly

do.

2. state cant use impermissible mental coercion.3. state cant choose with whom to plead based on race,

religion etc.

4. state cant threaten 3d parties5. state cant use misrepresentation

6. state cant use improper promises (things that are part of

the negotiation business)7. state cant use threat of physical or psycho harm

8. Cant over charge to induce a particular D to plea

v. A plea is not involuntary if:1. D asserts she is innocent while making the plea.

vi. D can potentially challenge on the grounds that there is something

that would not come up in the record, but reveals that D did not

understand the deal he was making.vii. D plead guilty bc he did not want jury trial (way to avoid DP), law

found unconstitutional 9 yrs later, so D came back and said, I only

plead to avoid DP, Ct said even if DP was the but for cause of yourplea, it does not mean plea was invol

viii. State has right to withdraw Plea offer before deal formalized

b. Ineffective Assistance of Counsel (6th Am.) (see Stricklandabove):i. Test: But for attorneys ineffective assistance would reasonable D

have plead guilty?

c. When you plead guilty a lot of rights are waived:

- right to a trial

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- right to confront witness

- self incrimination

- compulsory process: right to subpeona witnesses,have them testify on your behalf

IV. TRIAL BY JURY

Right to Jury Trial: You have a right to jury trial in all felony and serious cases.

Serious: can be punished by more than 6 mos in jail

Jury Selection

I. 4 Possible Constitutional Challenges:

a. Jury Venire

i. Jurors have a 14th Equal Protection right to challenge

discrimination in the venire.ii. D has 6th Amendment right to challenge venire on the basis that

there was not a fair cross section. Test:

1. Substantial and distinctive group is underrepresented in the

jury pool, AND2. This results from systematic application of selection

process.b. Voir Dire (Due Process)

i. When racial issues are going to be part of trial, you get to ask

potential jurors questions about race prejudice.

ii. There is a Constitutional Right to voir dire on racial prejudice for

capital defendants tried forinterracial crimes.

c. Challenges for Cause (6th Right to Impartial Jury)

i. The D is entitled to a reversal if prosecutorial challenge for causeis improperly granted.

ii. Right to impartial jury looks only at individual jurors.

iii. Eliminating for cause all jurors who have scruples about the deathpenalty violates Constitution as to penalty phase, ok at guilt phase

1. You can kick off those who are adamantly opposed or

would impose it in any murder case.2. You can death qualify a jury before guilt phase.

3. If you are in state that does not bifurcate the trial then it is

ok to death qualify for entire trial

iv. Fair cross-section does not apply to petit jury, just overall venire.d. Peremptory Challenges

i. D can make a prima facie case of purposeful racial discrimination

under the Equal Protection clause by relying on facts of his owncase.

1. Defendant must show:

a. state has exercised peremptory challenges toremove from the venire members of a certain race.

i. Can exercise veniremens 14th rights.

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b. He can rely on the fact that peremptory challenges

constitute a jury practice that permits those to

discriminate who want to discriminate.c. Must show that facts of his case and any other

relevant circumstances raise an inference that the

prosecutor used peremptory challenges to excludethe veniremen on account of their race.

ii. Then, burden shifts to state to give neutral reason for dismissals.

iii. Then, burden to D to show neutral reason is a pretext.1. Sometimes neutral reason is not really neutral.

a. Bilingual jurors do not qualify.

2. Other times, reason is simply a lie.

iv. If not allowed to excuse juror for cause, can not then usepreemptory

V. DOUBLE JEOPARDY

I. Double Jeopardy clause: bars prosecution of a D twice on the same charges.

a. in determining whether there is DJ problem, applyBlockburgertest:

i. Compare elements of the 2 crimesii. Question: whether the previous offense and the present offense

each contain at least one elements that is not found in the other

b. Where a D has already been tried and found guilty of criminalcontempt of court for selling coke while released on bail and awaiting

trial, D could not then be tried fro selling coke.

c. CE applied in crim and civ cases. After an issue of ultimate fact has

been finally determine, the same issue can not be relitigated btw thesame parties in any future proceeding.

i. Thus, where D was acquitted of the armed robbery of one man in a

house, he can not later be convicted of robbing another man in thesame incident.

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