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 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
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
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 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)
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
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
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
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?
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)
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?
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]
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