Due Process & Police Interrogations - Outline PDF

CHAPTER 2: NATURE OF DUE PROCESS Duncan v. Louisiana - Facts: Simple battery charge and defendant asked for jury trial but was denied because it was a misdemeanor and jury trial is only for capital punishment - Rule: Defendant has a right to a jury trial under the 14th Amendment(Due Process) & 6th Amendment (right to fair trial) in state court proceedings including misdemeanors District Attorney v. Osborne - Facts: Osborne was convicted of kidnapping and rape from his own confession. However he claimed to not have done it and wanted new DNA testing done to exonerate him - Rule: Defendants do not have a constitutional right/DUE Process right in federal to post- conviction DNA Testing. It is left up to the states to decide CHAPTER 5: RIGHT TO APPOINTED COUNSEL *Betts v. Brady* - Facts: Indigent defendant that was a lay person and semi familiar with proceedings waived his right to a jury trial and appealed saying he should have had counsel - Rule: No right to counsel under the 6th and 14th Amendments o “Special Circumstances” Rule: an indigent defendant in a non-capital case had to show speciﬁcally that he had been “prejudiced” by the absence of a lawyer or that “special circumstances” rendered criminal proceedings without the assistance of defense counsel “fundamentally unfair.”  Special circumstances only included illiteracy, mental health issues, etc.  STILL APPLIES TODAY FOR PAROLE HEARINGS Gideon v. Wainwright - Facts: Indigent defendant tried to defend himself and was convicted appealed saying right for right to counsel - Rule: state courts are required under the 6th Amendment of the Constitution to provide counsel in criminal cases for indigent defendants. o OVERRULED BETTS V. BRADY Alabama v. Shelton - Facts: - Rule: a lawyer must be appointed in order to impose a suspended prison sentence o Holding: (1) a defendant may not be sentenced to a term of imprisonment absent provision of counsel; AND (2) for purposes of this rule, a suspended sentence constitutes a "term of imprisonment," even though incarceration is not immediate or inevitable. Rothgery v. Gilliepsie County - Facts: Rothergery was improperly brought in for being a felon with a gun. He did not have a counsel originally. Charges were dropped and then he ﬁled suit due to failure to have an attorney - Rule: The right to counsel attaches since the ﬁrst appearance is the initiation of adversary judicial proceedings but the presence of counsel is not required until we reach a critical stage, which the ﬁrst appearance is not.  Critical Stage: presence of counsel is necessary to preserve the defendants right to a fair trial *Douglass v. California* - Facts: Def. was charged with 13 felonies and was convicted at trial level. Appealed to Appellate Court and conviction was rea irmed. Def. petitioned Supreme Court that they had a right to counsel at the appellate and Supreme Court level - Rule: An indigent defendant has the right to an attorney for their ﬁrst appeal as a matter of right and due process. However, second appeal is seen as a privilege under the eyes of the law and an attorney is not a right Ross v. Mo it - Facts: Def. was convicted of two separate crimes. He appealed both and was represented by a court appointed attorney. He appealed again to the Supreme Court stating he needed an attorney. However, the courts would not grant him one. - Rule: Defendant has a right to appeal but the state does not have to provide counsel for this part of the process regardless of the persons ﬁnancial standing CHAPTER 6: POLICE INTERROGATIONS Ashcraft v. Tennessee - Facts: Def. was questioned for 36hrs straight in small room with bright light about the murder of his wife. Essentially, he hired another guy to do it. - Rule: Under Due Process Clause a confession made under coercion and duress is not admissible o Looking at the totality of the circumstances, if the confession was made under inherently coercive means then the confession is not admissible. Spano v. New York - Facts: Spano had shot and killed a man. He turned himself in. During hours and hours of questioning his friend told him he had to get a confession, or he would lose his job. Spano confessed. - Rule: A confession made after hours of interrogation, during which the defendant has been denied his right to counsel, is not made voluntarily and is therefore inadmissible at trial. *Massiah v. United States* - Facts: Massiah was indicted for violating federal drug laws. He plead guilty with the help of his attorney and was released on bail. Police sent a co-defendant to speak with him in a wired car about the crime to elict other incriminating evidence - Rule: The Sixth Amendment is violated if an informant working with law-enforcement agents deliberately elicits an incriminating statement from a defendant who has been charged. o prohibits the government from eliciting statements from the D about themselves after the point that the 6th Amendment right to counsel attaches Escobedo v. Illinois - Facts: Escobedo was brought in for questioning and then released. Shortly after he was brought back because someone had implicated him. Def. asked for lawyer and the lawyer asked for same. However requests were denied - Rule: When an investigation shifts from a general inquiry into an unsolved crime to a focus on a particular suspect and the suspect is denied attorney and not been given rights any statement the defendant gives is inadmissible. *Miranda v. Arizona* - Facts: Miranda was being interrogated for kidnapped and rape and was extensively questioned without given his rights. He signed a confession that had a clause that he was given and understood his rights - Rule: Statements made during custodial interrogations without hallmark warnings (right to remain silent and counsel) are inadmissible at trial o Custodial interrogation is questioning initiated by law enforcement o icers after a person has been taken into custody or otherwise deprived of his freedom of action in any signiﬁcant way (test for custodial interrogation is objective) o Miranda Comes Into Play:  Express Questioning: o icers intend their questions to elicit an incriminating response (textbook questioning)  Functional Equivalent: any words or actions by the police that the police should know reasonably likely to elicit an incriminating response from the suspect  Knowing certain information about the defendant (beliefs, morals, etc.) to elicit a response does count JBD v. North Carolina - Facts: Minor was interrogated in school conference room by 2 police o icers without being given Miranda warnings - Rule: Age is relevant for the objective test to determine whether reasonable person would believe they are free to leave (whether they are in custody under Miranda) Howes v. Fields - Facts: Prisoner in jail questioned by the policy about activity from before he was in prison but was free to return to his cell; prisoner eventually confessed - Rule: Imprisonment alone is not enough to create a custodial situation within the meaning of Miranda o Essentially the prisoner is not within a custodial interrogation *Rhode Island v. Innis* - Facts: Defendant was in police car talking about how they needed to ﬁnd the gun because of a nearby school. Defendant told them where it was so kids wouldn’t get hurt (here o icers were talking amongst themselves and not directly to defendant) - Rule: Must establish the confession was product of police’s words or actions that police should have known reasonably likely to elicit confession or incriminating response Illinois v. Perkins - Facts: Suspect was in jail when an undercover cop was in jail with him as a cellmate and he confessed to murder - Rule: Conversations between suspects and undercover agents do not implicate Miranda o Not Massiah violation because Perkins hadn’t been arraigned yet for the murder he confessed o Not Miranda violation because no inherent coercion because he was an undercover cop, Perkins was not coerced because he didn’t know the guy was a cop Berghuis v. Thompkins - Facts: Thompkins was arrested for murder, and questioned for 3 hours. He did not speak the majority of the time until asked if he wished God forgave him for the murder, he replied yes. Evidence/Testimony used against him - Rule: you must have unambiguous claim/request to right to counsel and right to remain silent o You Must explicitly invoke right to remain silent “I want to remin silent/ I will not be talking to the police” o You can not implicitly invoke right to remain silent… it is an implied waiver of rights to remain silent. Staying silent is NOT invoking your right to remain silent Salinas v. Texas - Facts: Defendant voluntarily went to police station, answered every question besides one, prosecutor used silence as evidence of guilt - Rule: If you are not in custody you have to explicitly invoke 5th Amendment to remain silent; otherwise the silence can be used in court as evidence of guilt o Exceptions –(1) defendant need not take the stand and assert the privilege at his own trial; (2) a witness failure to invoke the privilege must be excused where a governmental coercion makes his forfeiture of the privilege “involuntary” Maryland v. Shatzer - Facts: Defendant invoked his right to counsel, 2 years later detective returns to question him, he signed waiver of Miranda rights made multiple incriminating statement - Rule: 14 days of custodial break is enough time to get normal life back o Edwards v. Arizona Rule: prevents the badgering of the witness Montejo v. Louisiana - Facts: Defendant waived his Miranda rights, was assigned counsel, questioned again, and agreed to accompany detectives, waives rights a second time. However argued his waiver was invalid because counsel was not present - Takeaway: Police may seek a knowing/voluntary waiver of defendants right to have counsel present during interactions with the police, even after the defendant’s 6th amendment right have attached and become operative o If they want right to counsel they must do it in the moment. New York v. Quarles - Facts: Man frisked in supermarket after reports of a shooting, asked where gun was before given Miranda warning, he answered - Takeaway: As long as there is an objectively reasonable need for public safety. There is an exception to Miranda requirement before a suspects statement can be admitted at trial US v. Patane - Facts: Defendant said he knew his rights, agent never gave full Miranda warning, defendant told him the location of gun - Takeaway: Physical evidence from failure to give Miranda warning are admissible, unless the evidence was found via a coerced statement. You do not have a right not to hear your Miranda warnings Missouri v. Siebert - Facts: Seibert was purposefully questioned the ﬁrst time with no Miranda warning and made incriminating statement, after 20 minutes she was requestioned and gave the same testimony - Takeaway: If there was a long enough break following the initial confession without a Miranda waiver to give a reasonable suspect the belief that he or she had a right not to speak to o icers, then a second confession after a Miranda waiver is admissible o This case it was not a long enough break, ﬁrst testimony was inadmissible. However if a longer time frame and a separate confession then it would be ﬁne. Moran v. Burbine - Facts: Defendant was being questioned for burglary. Attorney called asking about him and cops lied to him. Defendant waived all rights and made a confession. Never asked for an attorney. - Takeaway: If a suspect has knowingly waived his Miranda rights, o icers' deception of a lawyer seeking to represent the suspect and their refusal to inform the suspect that his family had obtained a lawyer for him does not invalidate the suspect's Miranda waiver. o No Duty to inform defendant of things that might e ect decision to confess Chavez v. Martinez - Facts: Martinez was shot, and paralyzed, in a lot of pain when an o icer Chavez came in to ask him questions about the crime. There was a belief that Martinez was going to die so the o icer proceeded with questioning. The confession that Martinez gave was not used in trial and he was never charged. - Takeaway: 5th amendment is not violated by a “coercive interrogation” if the suspect’s confession is never used in a criminal case. o However, coercive interrogation may violate the 14th amendment’s substantive due process even if confession never used in a criminal case. The o icial conduct must likely rise to the conscience-shocking level - the conduct intended to injure in some way unjustiﬁable by any governmental interest Dickerson v. United States - Takeaway: SCOTUS said Miranda wasn’t just made under supervisory authority; it is a constitutional rule that applies to all the states. Congress cant by statute overrule a constitutionally based decision Vega v. Tekoh - Facts: Tekoh was accused of sexual assault, questioned, and signed a written statement at his place of work. He was not given his Miranda rights. He was found not guilty and brought action saying his Constitutional Right - Takeaway: Miranda is prophylactic rule so it doesn’t have the same statute as constitutional violation. Violation of Miranda doesn’t always mean 5th amendment was violated; failure to give Miranda warnings does not create cause of action under 1983 o The Miranda rules are prophylactic so you don’t have the violation of the 5th amendment unless wrongfully obtained evidence is admitted at trial o Miranda violation is not itself a violation of the Fifth Amendment right against compelled self-incrimination o Here the defendant technically was not compelled to self-incrimination by the statement therefore there was no violation of the 5th Amendment. However, if there would have been some form of compulsion (interrogation) then there may have been a 5th Amendment claim. Massiah Doctrine - Once adversary proceedings have started against a suspect, he is entitled to the assistance of counsel (absent a voluntary waiver) and the government may not deliberately elicit incriminating statements from him–neither openly by uniformed police o icers or secretly by secret agents Brewer v. Williams - Facts: Williams escaped a mental health institution; he had abducted, raped, and murdered a girl. He was on the run. Police found him in Davenport, Iowa and were going to take him back to Des Moines, Iowa. Williams contacted attorney and they stated to not say anything until he got back. The o icers were also aware of not to speak to him. Police picked him up and implemented the “Christian Burial Tactic”, knowing he was Christian. He confessed and told him where the girl was. - Takeaway: A defendant has not e ectively waived his right to counsel if, at the advice of counsel he continues to invoke his right to remain silent until he has the opportunity to confer with his attorney but then makes a statement after being subject to police interrogation o Remember that right to counsel is o ense speciﬁc and ∆ can be questioned about other unrelated o enses arising from the same set of facts that led to the original charge o This was a violation because it violated Miranda due to it being in a custodial setting. It also violated Messiah because he had asked for his attorney and never once intended to give up his rights to counsel or to stay silent. Thus, the evidence gathered would be inadmissible. Passive Listener Exception - 6th amendment is not violated by a covert police informant if the informant only listened passively and did not deliberately elicit the statements Kuhlman v. Wilson - Facts: Wilson had robbed and murdered someone with 2 people. Placed in jail cell with cellmate. Cellmate was there just to listen and not elicit a response. Wilson eventually made incriminating statements. - Takeaway: Passive listening does not implicate Messiah. Wade-Gilbert Exclusionary Rule - Once the 6th amendment right to counsel has attached, the ∆ has the right to the presence and assistance of a defense attorney at a pretrial identiﬁcation procedure, therefore o The 6th Amendment is violated when anything post indictment happens: lineup/identiﬁcation/etc. is conducted without the suspects counsel or without notice to the counsel US v. Wade - Facts: Wade was brought in for robbery. During line-up all participants wore tape and made a statement similar to the crime. No counsel was present. The lineup was used but eventually thrown out. - Takeaway: Lineup is a critical state before trial because there is “grave potential for prejudice” whether intentional or not intentional. o Critical stage is essentially anything post-indictment or anything adversarial o Courtroom identiﬁcation is sometimes admissible if the court can determine whether the courtroom ID arose exclusively from the impermissible lineup or whether it arose from circumstances su iciently distinct from the lineup to remove it from exclusion as the fruit of illegal procedure  Must look at factors: opportunity to see defendant, time in between crime, failure to previously identify, etc. Limits to the Wade-Gilbert Rule - Police may conduct an identiﬁcation outside the presence and notice of counsel before the state of adversarial judicial proceedings of the explicit crime Kirby v. Illinois - Facts: Kirby was put in a lineup prior to being indicted. Courts said rights not violated because no adversarial judicial proceedings took place - Takeaway: A person's sixth and 14th amendment right to counsel only attached at or after the time that adversary judicial proceedings have been initiated against him Due Process Limitations on Identiﬁcations - Defendant unable to make a “Wade-Gilbert” right to counsel argument may still establish that the identiﬁcation was “so unnecessarily suggestive and conducive to irreparable mistaken identiﬁcation that the identiﬁcation is unreliable” - Stovall v. Denno: look at totality of the circumstances Manson v. Brathwrite - Facts: An undercover agent purchased heroin from the suspect through a cracked door. Went to the police station and ID the defendant and used memory and description to identify the suspect. The court must look at how the identiﬁcation was obtained - Takeaway: Totality of Circumstances Approach – more lenient---if the out-of-court identiﬁcation possess certain features of reliability o The out-of-court identiﬁcation is based upon the Bigger’s Test: Whether there was substantial likelihood of misidentiﬁcation o Both the in-court and out-of-court identiﬁcation are acceptable, as long as they are reliable. Private Arraignment Exception: - A privately arranged identiﬁcation (police are not involved in creating suggestive circumstances) will never violate Due Process no matter how suggestive or unreliable Perry v. New Hampshire - Facts: Man was walking around parking lot. Someone called police stating a person was breaking into cars. Police arrive and question suspect. People in apartment building come down to speak with police and they state that the suspect was indeed the person doing it - Takeaway: If police do not set-up the line-up or interrogation it is not unconstitutionally unfair. 4th Amendment & Subpeona & Grand Jury - Two types of subpoena o Subpoena and testiﬁcandum  A subpoena that orders a person to testify before the grand jury o Subpoena duces tecum  Subpoena for physical evidence to be presented to the grand jury Boyd v. US - Facts: Boyd was asked to produce documents for glasses and things seized by customs. He was supeonead and did not want to comply. Court ruled he didn’t have to - Takeaway: Compulsory production of a person’s private books or papers to establish a criminal charge against that person constitutes an unreasonable search and seizure under the Fourth Amendment. o the using of a person’s private belongings as evidence against that person Hell v. Hankel - Facts: Corporation was supeoaned to supply documents - Takeaway: The 5th Amendment does not apply to corporations and they must comply as long as the request is relevant and reasonable US v. Dionsio - Facts: Dionsio and 20 other witnesses were asked by the jury to submit voice recordings. They did not want to comply stating it was a 4th & 5th Amendment violation. Court ruled against - Takeaway: Compelled protection of a voice sample by a grand jury doesn’t violate your 4th and 5th amendment rights because there is no expectation of privacy in your voice. Despite it being 20 people the Court found that it was not an unreasonable request Carpenter v. US - Facts: Government seeked to get location records from cell phone company to track movements of the suspect. The suspect objected due to violation of 4th Amendment rights. Court ruled that it was a violation of rights - Takeaway: Compelling wireless carriers to turn over data that tracks users’ movements for long periods of time requires a warrant, absent exigent circumstances. o Third party doctrine  people don’t have expectation of privacy because data has been given to 3rd party  Declined to extend in this case 5th Amendment Limitations to Grand Jury’s Subpoena Investigation - Spousal, attorney-client, and other privileges are not constituliation - Privilege against self-incrimination is derived from the 5th Amendment - Applies to a witness in any proceeding who is compelled to give testimony that might later be used against him o However, the threat of subsequent incriminatory use of a compelled testimony must be real and appreciable not imaginary or unsubstantial - Originally, failure to give Miranda warnings to a witness prior to grand jury interrogation did not provide grounds for suppressing admission of the witness’s statement in a subsequent charge for perjury US v. Mandujano - Facts: Def. was subpoenaed to testify in front of grand jury regarding drug ring in area and was advised e could talk with attorney outside grand jury room. Court ruled that he didn’t need Miranda warning because he wasn’t charged with anything at that time - Takeaway: You do not have the right to Miranda warning before a grand jury and you do not have the right to lie - Government may compel testimony from a witness who has invoked his right to silence by o ering immunity from use of the compelled testimony and any evidence derivied from that testimony Kastigar v. United States - Facts: Petitioner was subpoenaed to testify in front of grand jury and was granted immunity. Petitioner was later charged with crimes and the government stated the immunity wasn’t coexistent with privilege from against self incrimination - Takeaway: The government may compel testimony from someone who has invoked their 5th Amendment giving the witness immunity from use of both compelled testimony AND any evidence derived from the testimony o Transactional immunity = full immunity o Use & Derivative Immunity = immunity from statement being used against you but you can still be prosecuted (because there was no immunity from later evidence) o Immunity crosses jurisdictional lines… immunity from state also transfers to federal and vice versa Active Production Doctrine - When government seeks documents that are voluntarily created there is no 5th amendment protection o However, when documents are produced there may be self-incriminating aspect. By responding to the subpoena you are authorizing the documents Fisher v. US - Facts: Client sent documents to lawyers, IRS subpoenaed lawyers to produce documents, lawyer refused to comply - Takeaway: 5th Amendment doesn’t protect lawyers from sending documents to the IRS, 5th Amendment protects testimonial right against self-incrimination o If documents were involuntarily prepared there can be no 5th amendment violation to the documents without personal compulsion o IF someone was not compelled to put content on the documents, they aren’t protected from self-incrimination regarding content. But may have protection through act of turning over o By responding to the subpoena (act of producing) then you are admitting that the documents exist o By being compelled production of handwriting you are admitting you can write and the writing you are producing is yours o Corporations cannot resist a subpoena because they do not have 5th Amendment privilege Pretrial Release - Types of Bond o Recognizance: released based on promise to appear (not powerful because no writing or consequence o Personal bond: if they don’t appear they’re liable for X amount o Surety bond: surety says if defendant doesn’t appear, surety will liable for X amount o Cash bond: I promise to appear and deposit X amount - Federal judge is supposed to choose the least restrictive conditions to ensure the defendant shows up at trial - Considerations in Setting Bond o Flight risk o Nature of crime o Recommendation of DA (most important consideration) 8th Amendment - Prohibits the imposition of excessive bail, ﬁnes, or cruel and unusual punishments - Fixing of bail for nay individual must be based on standards relevant to the purpose of assuring def. presence at trial Stack v. Boyle - Facts: Def. was faced with a 50k bail. Defendants presented evidence regardling ﬁnancial resources, family, health, etc. - Takeway: Bail set at an amount higher than necessary to assure def. will stand trial and submit to sentence if found guilty, is excessive under 8th Amendment RECEIVING BAIL IS NOT AN ABSOLUTE RIGHT US v. Salerno: There can be a detention hearing to challenge that state is keeping people in jail. IF gov. can establish the def. is a future danger by clear and convincing evidence they can keep them in jail because eno conditions of release would help safety of society (can be jailed prior to trial) - States regulatory interest outweighs individual liberty - This is not a violation of due process because def. can challenge, request counsel, present evidence, etc. Decision Whether to Prosecute - American prosecutors have discretion in deciding to press charges. Consider the following o Su icient evidence o Convictability o Crime Selective Prosecution Claim US v. Armstrong - Facts: Def. were black and prosecuted for crack possession, Claims they were selected for prosecution because of their race. Government was told to give forth data about dismissed cases for similar crimes. The government refused to comply. Ultimately said that def must provide some evidence to support selective prosecution (however this is not a defense) - Takeaway: Claimant must demonstrate that the federal prosecution policy had a discriminatory e ect and that is was motivated by a discriminatory purpose. o May be shown by similarly situated individuals of di erent races not being prosecuted Selection of the Charge - Conduct that violates 2 statutes punishing similar conduct can be punished under either statute US v. Batchelder - Facts: Def. was a convicted felon found guilty of receiving ﬁrearm which violated 2 statutes which had di erent sentences. Def. challenged stating he could only receive the shorter of the 2 sentences - Takeaway: Government can choose which statute to apply; similar to when a charge for a higher or lesser version of the same crime o Equal Protection Clause prohibits selective enforcement based upon race, religion, or other arbitrary classiﬁcations Prosecutorial Vindictiveness - A presumption of prosecutorial vindictiveness does not arise if a prosecutor increases charges against a criminal defendant after the def. has requested a jury trial US v. Goodwin - Facts: Def. convicted of a felony, claims vindictiveness because of pretrial decision to modify charges. - Takeaway: No presumption of vindictiveness pre-trial; must show actual vindictiveness o Harsher conviction/sentence must be based upon new information to overcome presumption of vindictiveness o Due process is violated if increased punishment after appeal (North Carolina v. Pearce o Presumption of vindictiveness is imposed post-trial Prosecutor’s Charging Decisions Screening the Prosecutor’s Charging Decision - Prosecutor’s have discretion but decision to charge must be reviewed by a neutral agency - Two major screenings, which both have probable cause standard (probable cause to prosecute) o Grand jury; or o Preliminary hearing with magistrate judge (mechanism for jurisdictions with no grand jury screening) - 5th Amendment provision of grand jury indictment hasn’t been incorporated to the states, so there is no right to grand jury indictment - If def. waives right to grand jury indictment, charged with information by District Attorney o Even a constitutional error will not reversed when the appellate court believes beyond a reasonable doubt that the error did not contribute to the guilt or punishment of def. - Harmless Error Doctrine: a ruling by a trial judge, which is later held to be mistaken by a higher court but is not prejudicial to the defendant will not warrant the reversal of conviction - In Federal cases a defendant may not challenge the indictment on grounds of: o Grand jury considered evidence obtained unconstitutionally by the police o The prosecutor failed to present known exculpatory evidence to the grand jury o Where the indictment is supported in part by incompetent evidence o Indictment is based solely on hearsay evidence o Costello v. US  Facts: Def. was indicted for tax evasion, 3 government agents were only witness at grand jury. Def. wanted indictment dismissed for hearsay  Takeaway: rules of evidence don’t apply in grand jury proceedings. And jury indictment won’t be dismissed because it is solely based on hearsay - In State Cases o Some allow prosecution ot proceed by indictment or information (no grand jury) o If state grants some type of procedure prior to indictment there are constitutional limitations o Coleman v. Alabama: Def. has right to counsel during a preliminary/grand jury hearing because it is a critical stage o Vasquez v. Hillery:  Facts: Black man killed white girl and the jury was only of white people  Takeaway: Intentional exclusion from a grand jury from members of the def. racial group is a structural error and violates equal protection requirements  Structural error requires mandatory reversal because it undermines the structural integrity of criminal tribunial itself o EX: goes to the very integrity of the judicial process. (racial bias, denial of counsel, judge ﬁnancial interest  Structural errors are not subject to harmless error review: requires mandatory reversal RIGHT TO SPEEDY TRIAL - Generally a def. wants to delay trial due to witness memory, dying. Etc. and it is ethical to purposely delay proceeding - Remedy for violation for right to speedy trial is dismissal of indictment with prejudice Attachment of Right to Speedy Trial - Right to speedy trial does not attach until arrest or indictment (formal charge) - Preindicment delay is cause for dismissal only if it violates either: o Statute of limitations or o Due Process  Must show prosecution deliberately delayed to gain an unfair tactical advantage and there was actual prejudice to the defense - Prosection following an “investigative delay” does not deprive a def. of due process even if the defense is somewhat prejudice by the delay o US v. Lovasco  Facts: Def. indicted 18 months after crime was committed. 2 witnesses died before going to trial. Claim for due process (must show conduct of prosecution gained an unfair advantage) (ie. Knew witnesses were dying)  Takeaway: Def. has no right to speedy trial because only formal indictment or actual restraint allows for attachement of right to a speedy trial Speedy Trial Violation Test - Barker v. Wingo o Facts: Def. were arrest for killing older couple. Multiple continuances led to trial being delayed for 4.5 years. o Takeway: Right being violated requires applying balancing test for the conduct of the prosecution and the conduct of the def. are weighed  Length of delay  Reason for delay o Prejudice to the Def.  Bad Faith Rule: bad faith on behalf of the government is an automatic reversal on the grounds of 6th amendment violation  Negligence Rule: an 8.5yr delay between indicitment and arrest due to government’s negligence violates 6tth amendment right to a speedy trial o If delay Is long enough prejudice is assumed o Must look at totality of circumstances (did def. assert right? Did def. want a speedy trial) THE DUTY TO DISCLOSE - There is no general constitutional right to discovery (primarily up to states to decide) o Disclosure of albi-witnesses is required and no violation of 5th or 14th Amendment The Brady Test - Suppression by the prosecution of evidence favorable to an accused upon request violated due process evidence is material either to guilt or punishment - Test for prosecutorial failure to disclose evidence is favorable to the accused if: o Evidence is material only if ther eis a reasonable probability that, had the evidence been disclosed to defense, the result of the proceeding would have been di erent o The prosecution’s failure to turn over favorable evidence only requires a new trial if a reasonable probability exists that the outcome would have been di erent if the evidence was turned over - US v. Bagley o Facts: 2 witnesses paid $300 for testimony. Prosecution did not give info on discovery and said statement were maid voluntarily. o Takeaway: Failure to disclose exculpatory evidence is impermissible whether def. requested or not. New trial must be granted if reasonable probability outcome would have been di erent but for the non-disclosure Confrontation Clause - Provision of the 6th Amendment guarantees criminal def. the right to confront the witness against him and conduct a cross-examination o Only guarantees opportunity for cross, not an e ective cross o Not guaranteed for pretrial disclose or pretrial issues - Confrontation is a trial right not a pre-trial right File Compulsion and Due Process - Privileged material o Absent state policy to the contrary, relevant privileged information can be disclosed when a jurisdiction determines information is material under Brady o However, def. right to discover exculpatory evidence does not include unsupervised authority to search through gov. ﬁles  Court can issue an in-camera review of ﬁle for def. Guilty Pleas Plea Bargaining - No constituonal right to plea bargaining/plea negotiations o Consist of less jail time, probation, lower charges, etc. o If deal looks too good, indicates problems with prosecutions case - Innocent are more likely to get concessions - 14th Amendment o Plea bargaining is constitutional if due process is satisﬁed o Due process is not violated when a prosecutor exercises direction in whether or not to prosecute and what to charge before bringing a grand jury so long:  Prosecutor has probable cause for higher charged  Discretion is not intentionally based on race, religion, etc. o Prosecutor may blu , but should not threaten or coerce a def. o When a plea rests in any signiﬁcant degree of promise/agreement of prosecutor, so that it can be meant for inducement, promise must be fulﬁlled o Santabello v. New York  Facts: Def. plead to lesser sentence for no recommendation at sentencing. Di. prosecutor recommended full sentence  Takeaway: If promise induces plea, the promise must be upheld - 6th Amendment o Requires defense counsel to communicate to a def. formal plea o ers from the prosecution because it is a critical stage in the criminal justice system o Missouri v. Frye  Facts: Frye was charged with a felony and plea o er was sent to attorney but Frye was not informed and time limit on plea expired  Takeaway: Not informing def. of a plea deal was ine ective assistance of counsel  Test to establish ine ective assistance of counsel, convicted def. must show that  1) Counsel was deﬁcient because lawyer did not act as a reasonably competent attorney  2) He was prejudiced by the deﬁciency o Show prejudice where plea has lapsed or been rejected, def. must show that:  Reasonable probability that they would have accepted the earlier plea  Reasonable probability the plea would have been entered had it not been cancelled Waived Rights Via Guilty Plea - When def. pleads guilty voluntarily, the forego not only a fair trial but also other accompanying constitutional guarantees o 5th Amendment: privilege against self incrimination o 6th Amendment: right to confront ones’ accuser o 6th Amendment: right to trial by jury o Exculpatory impeachment information relating to any informants or other witnesses before entering into a binding plea agreement with a criminal def. - US v. Ruiz o Facts: Def. was found with marijuana at border. O ered fast track plea bargain and waived indictment, trial, appeal, and impeachement materials for lesser sentence. o Takeaway: Pretrial exculpatory impeachment information does not have to be disclosed if the plea agreement was waived voluntarily  Fed. Prosecutors are not constitutionally obligated to disclose information relaed to any informants or witnesses before entering into binding plea agreement with def.  You are not required to have evidence in the plea negotiation process, prosecutor does not have to tell you anything - Non Crime Exception o Information implicating that def. acts were a non crime or non-criminal should be admitted and cannot be waived via a guilty plea Requirements of a Valid Plea - Lawyer has obligation to tell def. of possibility of deportation or other adverse e ects before pleading guilty (Padilla) o Judge doesn’t have to advise def. of these adverse e ects. o Judge should not participate in plea negotiations because it is inherently coercive - Plea must be: o Voluntary  A plea is only constitutionally valid if it is apparent form the record that the plea was made knowingly, intelligently, and voluntarily  Boykin v. Alabama: def. pled guilty to armed robbery, sentenced to death 5 times over. Need record that plea was intelligently, voluntarily entered. Stated charges, potential punishment, rights being waived o Def. must be informed and understand the nature of the charge and possible penalty and various rights he is surrendering by pleading guilty  A pela may be involuntary because (1) accused doesn’t understand the nature of the constitutional protections they waives or (2) an incomplete understanding of the charge and his plea cannot stand as an intelligent admission of guilty  UNEXPLAINED = UNVOLUNTARY o Judge must require disclosure of any plea agreement and accept or reject that agreement  Judge does not have to accept the recommended plea but often does  Alford Plea: def. pleads guilty due to strong evidence against him but still maintains innocence. Court can still accept this despite his testimony based on STRONG evidence of guilty and clear and convincing evidence of guilt o Judge must make su icient inquire to ensure there is factual basis for the plea E ect of a Guilty Plea - Guilty plea does not waive def. claim that the statute of conviction is unconstitutional under other grounds - Class v. US o Facts: Def. was indicted for possession of gun at Capitol. Plead guilty. Now wanted to challenge constitutionality of statute o Takeaway: Can challenge constitutionality of statute on appeal. Can always argue the plea was involuntary on appeal  Menna Blackridge Doctrine: Don’t waive the right to challenge the very statute that gives the state the power to prosecute TRIAL BY JURY Right to Jury Trial - 6th Amendment is incorporated to the states o Duncan v. LA: Clariﬁes right to jury trial is for serious crimes, but doesn’t stipulate what is a serious crime o Blanton v. City of North Law Vegas  Jury trial rights do not apply for petty o enses with max sentence of 6 months  If less than 6 months have to establish that the legislative intent was a non-petty o ense in order to receive jury trial  If over 6 months (assume serious o ense) and right to jury trial - Jury nulliﬁcation: when the jury acquits the def. because the jury believes the law is unjust - O ense that have jury trial right: o Criminal charges with sentence more than 6 months automatically attach right to jury trial o Generally do not apply to petty o enses  Serious O ense Exception: def. are entitled to jury trial regardless of the time period only if the additional penalties imposed for the o ense are serve enough to reﬂect that the legislature considered the o ense serious o Each individual o ense must be weighed under this analysis, there is no aggregate system except for criminal attempts - Unanimity Requirement o 6th Amendment requires that a jury ﬁnal a criminal def. guilty by a unanimous verdict (fed. And state courts) o Jury trial means unanimous verdict o Ramos v. LA: SCOUTS held 6th Amendment requires unanimous guilty verdict. However it does not apply retroactively  6th Amendment does not require number of people that must be in a jury - Non-Waiver Rule o Criminal def. does not have the constitutional right to waive right to a jury trial in favor of a bench trial and force a bench trial o FRCP RULE 23(a) cases required to be tried by a jury shall be so tried unless def. waives a jury trial in writing with the approval of the court and the consent of the government JURY SELELCTION - 6th and 14th Amenmdnets requires that venires, panels, and lists from which petit juries are drawn represent a fair cross section of the community o Taylor v. LA: Court ruled that LA’s rule against woman on juries violated the 6th amendment because the lack of women was not a fair representation of the population  You must have a jury from a pool of cross section of the community - To claim systematic exclusion must prove: o A distinctive semi-suspect/suspect froup within the community o Group is not fairly represented in the jury pool; and o The systematic underrepresentation in the jury pool constitutes a failure under the 6th amendment requirement Voir Dire - The process by which the judge or an attorney question a potential juror to asses the person’s sustainability for sitting on the jury o May also be used to qualify a witness as an expert during trial or explore certain aspect of a witness’s testimony out of the jury’s presence  Federal Courts: judges perform voir die  State Courts: attorneys perform voir die - A capital def. accused of an interracial crime is entitled to have prospective juror informed of the race of the victi and questioned on the issue of racial bias during voir dire o Turner v. Murray: A def wanted to question a juror about racial prejudice. Court should have allowed because it went to whether or not he had a fair trial, but only in special circumstances (capital punishment) o Special Circumstances Rule: the mere fact that it is an interracial crime does not give rise to the right to ask questions (has to be special circumstances) - Can’t exclude a juror automatically because they’re against the death penalty, but can if they say it would a ect their ability to follow the judge’s instructions o Lockhart v. McCree: judge removed 8 jurors who said they wouldn’t impose death penalty under circumstances; def. challenged their removal  Court can justify removal because people who have reservations against death penalty and can’t apply law impartially aren’t distinctive group for 6th amendment purposes. Such distinctive groups are typically those with immutable characteristics.  So long as jurors aren’t so opposed to not follow judges instructions, can be excluded for cause - Challenge for Cause: party’s request to disqualify a juror that is supported by a speciﬁc reason, such as bias or prejudice, with no limit on the number of possible requests - Peremptory Challenges o During voir dire, the defense and prosecution may each reject a certain number of potential jurors without having to give a reason o Equal Protection Clause of 14th Amendment prohibits prosecutors from using peremptory challenged to remove jurors based on race  Batson v. Kentucky: black man on trial prosecutor use prempstory strickes to exclude all 4 black people from jury o To Win Batson Challenge:  Def. must make prima facie showing of discrimination  Look at all relevant circumstances  Burden shifts to the prosecution to show the strike was because of race- neutral justiﬁcation  Judge then judges the adequacy of the prosecution’s reason and decided whether it passes muster – was there purposeful discrimination? o Extensions of Batson  Def of any race may raise a Batons challenge  Def. may raise a Batson challenge even if the def. and the excluded juror are of di erent race o Baton Challenge also applies ot  Gender  Criminal def. premptory challenges  Civil cases  Not religion as it is a choice - Rule 606(b) – Non impeachment rule o A rule that prohibits jurors from testifying about jury deliberations o Cant question jurors about deliberation because you want to encourage free discussion o Exceptions  Testifying about outside prejudicial information improperly presented to the jury  Improper outside inﬂuence  Mistakes on verdict forms  Reliance on racial bias or animus to convict (in deliberation) o If juror makes a clear statement showing reliance on racial bias or animus to convict a def, an exception to the non-impeachment rule allows jurors to testify about jury deliberations to determine whether racial bias deprived the def. of an impartial jury  Pena- Rodriguez v. Colorado: Juror made anti-Hispanic statements during deliberations, sent back to lower courts for a Harmless Error review Right to Impartial Judge - Test: an objective standard that requires recusal when the likelihood of bias on the part of the judge is “too high to be constitutionally tolerable” o Not whether a judge harbors an actual, subjective bias, but instead whether the average judge in his position is likely to be neutral, or whether there is an unconstitutional potential for bias - Williams v. Pennsylvania: o Facts: Judge was former DA who authorized death penalty and vacated relief based on a Brady claim. Def. claims due process violation because judge didn’t recuse himself. o Takeaway: Where a judge has had an earlier signiﬁcant, personal involvement as a prosecutor in a critical decision in a defendant’s case, the risk of bias is so high that the judge must be recused  Use objective standard. It was critical part that judge was previously involved in, so he must recuse form later proceedings. Risk of actual bias would be impermissible, this was structural error (automatic reversal) Fair Trial/Free Press Generally - If judge is worried about publicity of trial, trial judge can sequester jurors, exclude cameras, etc. o Nebraska Press v. Stuart:  Used continuances, cautionary instructions for jury not to consider media, sequester jury  Cant put gag order on the press unless there is a clear and immediate danger Pretrial Request to Change Venue - A def. can request a change in venue if bias in the original district is so great ti would prevent the def. from receiving a fair trial o Skillings v. US  Facts: Enron went bankrupt, CEO and President were on trial, judge declined to change venue because news was unemotional and a poll found jurors could consider law impartially. Def. convicted on all but 9 counts  Presumption of prejudice was rebutted by voir dire because: o Houston is massive city o New didn’t include confession or other prejudicial reports o 4 years between bankruptcy and trial o Jury acquitted him of other counts they weren’t prejudiced against him  Test for change of venue due to media exposure  Circumstances of the case warrant a presumption of prejudice  It appears during voir that an impartial jury cannot be seated in the current venue because of actual prejudice Pretrial Press Conferences - A lawyer may be disciplined for out of court statements that are substantially likely to materially prejudice a judicial proceeding so long as the disciplinary rule provides fair notice of the prohibited conduct o If regulations fails to give fair notice of the nature of the prohibited conduct, it is void for vagueness - Gentile v. State Bar Nevada o Facts: Def. attorney made press release accusing cops of planting evidence, his client was then acquitted. Attorney faced disciplinary action for violating rule that you can’t share prejudicial info in press before case o Takeaway: A lawyer may not make a statement that a reasonable person would expect to be disseminated by means of public communication. If the layer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding  As a lawyer, you can’t make statements that are likely to prejudice a legal proceeding During Trial - Media access o 1st amendment right to access applied to preliminary hearings in criminal cases; therefore preliminary “presumption of openness” o Presumption may be overcome if there is a speciﬁc ﬁnding that, apparent to the record:  There is a substantial probability that publicity would prejudice a defendant’s fair trial rights; and  No alternaitves exist to preserve these rights (narrowly tailored) o Press Enterprise v. Superior Court:  Court proceedings cant be closed unless speciﬁc ﬁndings demonstrate that closure is esstnial to preserve higher values and is narrowly tailored  Substantial probability that right to fair trial will be prejudiced that closure could protect o Glove Newspaper v. Superior Court  State made it mandatory that juveniles under 18 were alleged to be sexually abused would have closed proceedings; Statute was unconstitutional  Judge must consider in each individual case whether ther eis harm that would compel closed proceedings  Have to show child would be harmed by having to testify in open court; shall be closed only is speciﬁed ﬁndings of substantial probability of unfair trial - Public Broadcasting o Constitution does not prohibit a state court system from allowing the public broadcast of a criminal trial; so long as there are some safeguards in place to protect the def. fundamental rights o Chandler v. Florida:  Facts: Florida law limited presence of media in courtroom  Takeaway: States should be free to experiment, having camera in courtroom is not automatically a violation of a def. due process rights  Def Appeal Remedies  Def. has right on review to show that coverage had adverse impact on trial participants su icient to constitute denial of due process  Def. can try and show that coverage had adverse impact on trila su icient to constitute denial of due process  Def. must show something more than “juror aware ness” that trial is such as to attract attention of braodcasters  You can constitutionally televise criminal trials if you have addquate protections in similar to those in the ﬂorida rule THE ROLE OF COUNSEL Ine ective Assistance of Counsel - Four basic challenges o So deﬁcient as to deprive def. of e ective counsel o Conﬂict of interest o Failure to abide by client’s direction o Denial of right to self-representation - Most IAOC Claims are post-trial habeus corpus claims - IAOC and failure to disclose exculpatore evidence are 2 most often relief granting claims - Strickland 2 prong Test o Def. has su ered from the ine ective assistance of counsel when  Attorney has not acted as a reasonably competent attorney AND  Reasonable probability that but-for ine ectiveness of counsel, outcome would’ve been substantially di erent o Result oriented test; no reversal unless result would’ve been di erent o Def. must show speciﬁc acts or ommissions that show a denial of reasonable counsel assistance - Strickland v. Washington: o Facts: Strickland repeatedly refused lawyer’s advice and acted against it, ultimately got death penalty o Cases where prejudice is presumed  Counsel is either totally absent or prevented from assisting the accused during a critical stage of the proceeding  Counsel was physically present, but completely absent in e ort  Although counsel is available to assist the accused, the likelihood that any laywer (even fully competent one), could provide e ective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial - Harringotn v. Richter o Facts: Def. claimed IAOC because counsel didn’t present blood spatter expert to support def. theory o Takeaway: Just because strategy doesn’t work does not mean there is ine ective assistance of counsel  Expert could have just as easily disproved theory - Plea Bargaining Stage o 6th Amendment guarantees e ective assistance of counsel during the plea- bargaining process even if the def. ultimately receives a fair trial  If def. counsel is deﬁcient in advising, prejudice can be shownin:  Loss of plea o er resulted in a more serious conviction, or  Longer sentence that otherwise would have been imposed  Laﬂer v. Cooper: Def. denied plea and went to trial layer argued shooting below waist wasn’t intent to kill; def. thinks this was bad advice  Court held def. was prejudiced because sentence was 3x longer than if he had taken plea, counsel can be IOAC based on what they do/don’t say or advise during plea bargaining - Collateral Review o Ine ective assistance of counsel raised on collateral review is a structural error requiring a new trial only if the def. shows prejudice or fundamental unfairness  TEST: burden on def. to show either  A reasonable probability of di erent outcome  Public trial violation was so serious that it made the trial fundamentally unfair  Weaver v. Massachusetts: Def. had no public allowed in courtroom due to size during voir dire (including family. Court held no prejudice by excluding family as there was no reasonable probability of di erent outcome  Object before trial so you don’t have to show prejudice - Conﬂict of Interest o In a case where the def. did not object at trial for conﬂict of interest, even though conﬂict may be real, reversal isn’t appropriate unless mutltiple representations caused a conﬂict of interest that a ects the adequacy of the def. representation o Mickens v. Taylor  Facts: Def. convicted and sentence to death for murder. Lawyer previously represented def. victim; def. claims IOAC because of conﬂict of interest  Def. needed to show conﬂict had adverse e ect on counsels performance and but for that conﬂict outcome of case would’ve been di erent.  Takeaway: Reversal of conviction is not automatic in cases where defense counsel did not raise an objection of a multiple representation issue; and trial court did not inquire into the question - Co-Defendants Choice of Attorney Under 6th Amendment o Under FRCP 44(c) def allowed to waive right to conﬂict free representation of “attained counsel” allowing them to have a person al choice of their attorney o Where a court justiﬁably ﬁnds an actual conﬂict of interest, court may decline pro er of waiver and require that def. be separately represented by di erent attorney’s o Wheat v. United States  Facts: Def. wanted to be represented by Iredale but he just represented 2 co-def’s who pled guilty, so potential conﬂict during cross examination  Takeaway: Def does not have an unqualiﬁed right under 6th Amendment to the attorney of his choice if the attorney has represented other def. charged in the same criminal conspiracy o Def. does not have option of appointed counsel - Counsel Control vs Client Control o Lawyer has full authority to manage the conduct of the trial, however, some decisions are exclusively reserved for the client to decide control  Whether to pelad guilty  Waive right to a jury trial  Testify on one’s own behalf  Forgo on appeal  The right to be present o If def. is denied any of these, it is per se ine ectiveness under 6th Amendmnet  McCoy v. Louisiana:  Facts: Def. accused of killing family, attorney’s strategy was to admit the act, but challenge mens rea element and admittance was against def. wishes  Takeaway: Client decision cannot be overcome. Confession of guitl is substantive right that can’t be given up by the attorney as strategic decision o Structural error so automatically reversible o If a client declines to participate in his defense, the attorney may permissibly guide the defense pursuant to the strategy she believed to be in the def. best interest Right to Self-Representation under 6th Amendment - The right to defend is personal, therefore, def. have constitutional right to represent themselves at trial if they so choose so long as 2 requirements are made: o Waiver requirement: in order for a def. to represent himself the accused must knowingly and intelligently forgo those relinquished beneﬁts o Court Warnings Requirement: the accused should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with his eyes open. - Faretta v. California: o Facts: Def. wanted to exercise his right to defend himself; judge denied it because the def. didn’t have adequate knowledge o Takeaway: SCOTUS says def. had that right; judge has to inform of perils and can appoint stand-by lawyer to assist so long as def. still in control  BUBANY DOESN”T LIKE Restraints to the Right: - Def. does not have the right to a stand-by lawyer - NO Constitutional right to self-representation in the appellate process - Def. does not have to be made aware of o Dangers and disadvantages of self-representation beyond Faretta; or o The right to self-represent itself - Constitution permits States to insist upon representation by counsel for def’s competent enough to stand trial, but who will su er severe mental illness to the point where they are not competent to conduct trail proceedings by themselves TRIAL Presence of the Def. During Critical Proceedings - Under 6tth Amendment, a criminal def. is entitled to confront any qitness against him. Therefore implied guaranteeing the def. right to be present at trial - However, criminal def. can waive constittuonal right to be present during trial by continuing to engage in disruptive behavior after being warned that such conduct will lead to his removal o Illinois v. Allen  Facts: Def. removed from courtroom for arguing with judge. SCOTUS ruled you can waive right if disruptive in court o Judge has options if def. is rowdy in court:  Bind and gag  Threaten contempt  Has def. removed o Being disruptive is essentially waiving your right to be present Confrontation and Compulsory Process - 3 types Under Confrontation Clause o Cases involving admission of out-court statements o Cases involving joint trials o Cases involving restrictions imposed by law or by trial court on the scope of cross- examination - Admission of Out of Court Statements o Confrontation Clause’s reach only extends to testimonial statements which is only admissible if it is subject to cross-examination o Statements made to assist police in addressing an “ongoing emergency” are not testimonial for confrontational purposes because they are not made for the primary purpose of creating a record for trial o Michigan v. Bryant  Hearsay from guy’s deathbed was entered into evidence. SCOTUS said admitting the dead guy’s statements weren’t testimonial because they were obtained in process of ongoing emergency  BUBANY DOES NOT LIKE o Samia v. United States  Deleting the defendan’t sname from a statement does not violate the confrontation clause  Facts: 3 people were tasked with killing real estate broker. A’s statement implicated B, however A did not testify. However B has been denied his right of confrontation  Takeaway: Be careful of how you redact confessions so it does not implicate non-testifying defendant. - Joint Trials o Burton Protective Principle: A def. is deprived of his rights under confrontation clause when his non-testifying co-def. confession naming his as participant in the crime is introduced at joint trial, even if the jury is instructed to consider that confession only against co-def. o It is not a violation of the confrontation clause to admit a non-testifying co-def’s confession implicating the same co-def if the confession has been redacted to omit any mention of the other co-def and the jury has been instructed not to use the confession against the other co-def.  If you don’t want joint trial make motion to sever and argue prejudice due to co-def. confession. May be granted motion or suppression of confession - Cases involving restrictions on scope of cross o A def’s right to confront an adverse witness under 6th amendment is infringed when the def. is denied the opportunity to conduct an adequate cross-examination, including the right to impeach a witness fully on biases or prejudice o Davis v. Alaska:  Facts: Def was charged wit stealing safe and identiﬁed by witness. Def. argued witness was pressured to shit focus to def due to being on probation. Def. wanted to use witness record to prove he was shifting police focus  Takeaway: Court held def. was unconstitutionally denied his right by being denied access to the juvenile record under the confrontation clause Right to Remain Silent/Testify - Def. has right under 5th Amendment not to testify and rely on the presumptions of evidence if they choose - 5th Amendment forbids either comment by the prosecution on the accused’s silence or instruction by the court that a def’s silence is evidence of guilt o Gri in v. California: Jury instructed that def. has right not to testify, but also told they can use lack of testifying as evidence that his guilt maybe more probable  SCOTUS holds that comment by prosecution on silence and court instructions were both unconstitutional Special Compulsory Process Rules - Hypnotic & Polygraph Evidence o Rock v. Arkansas: Def. charged with husband’s manslaughter; went to hypnotist to refresh memory. Trial judge did not allow to testimony about things remembered after hypnosis  This violated due process right to testify; no per se rule about hypnosis - 3rd Party Guilty o Third party guilt is not admissible if it merely to case doubt o Chambers v. Mississippi  Def. has right to present defensive evidence o Voucher Rule: You cannot call a witness and then also cross examine them o Holmes v. South Carolina: Def convicted of killing and raping elderly woman; on retrial def. wanted to present evidence of 3rd party guilt. Trial court excluded due to evidence being so strong to prevent def. evidence from being enough  Violated def. right to have meaningful opportunity to present complete defense. Defense must be entitled to introduce evidence of a third party’s guilt o Washington v. Tennessee (Bubany Favorite)  Takeaway: Def. can testify for the state but not defense. Can not testify for both Closing Arguments and Jury Instructions - Don’t always have to give jury instruction on presumption of innocence, but can’t deny def request to give instruction o Taylor v. Kentucky: Trial court refused to give jury instruction on presumption of innocence  Refusal to give instruction violated def. right to fair trial under Due Process Clause of 14th Amendment - 4 Proper Areas of Closing Argument o Summation of evidence o Reasonable Inferences o Address improper argument o Make plea for law enforcement - Darden v. Wainwright o Facts: Def. argued prosecution closing argument rendered trail fundamentally unfair. Prosecution’s argumentative comments in closing.  If def. makes an improper argument so can prosecution o Takeaway: Court is not required to reverse def. conviction when prosecution has made improper comments during closing arguments if the comments do not misstate evidence or facts the defense is given a chance to rebut SEARCH & SEIZURE Exclusionary Rule: sometimes referred to as the fruit of the poisonous tree doctrine. Evidence obtained in violation of a defendant's constitutional rights (4th Amendment prohibiting unreasonable search and seizure) cannot be used against that defendant in a criminal trial - Mapp v. Ohio: 4th Amendment exclusionary rule does apply to the states o Helps deter police misconduct Good Faith Exception: Evidence obtained by o icers in reasonable, good faith reliance, on a facially valid search warrant is not subject to the 4th amendment’s exclusionary rule, even if the warrant is later deemed defective - Objective test: whether it was objectively reasonable that the o icers had the authority to conduct the search 4 Instances of Good Faith Exception: - Wrong info on the search warrant - Magistrate has fully abandoned his role as a neutral agistrate - Warrant on its face was wrong - Rendered belief in the validity of the warrant as justiﬁed by probable cause Knock and Announce: exclusionary rule does not apply to knock and announce violations. If the evidence obtained is the product of unlawful police conduct but that evidence would have been obtained anyway then it is ok Good Faith Negligence Exception: Where police act negligently due to clerical error but not recklessly and lead an o icer to reasonably believe an arrest warrant exist, the evidence obtained pursuant to the unlawful arrest remains admissible Reasonable Expectation of Privacy Test: 4th Amendment protections attach when: 1) An individual demonstrates a subjective expectation of privacy; and 2) The individuals subjective expectation is supported by societal acceptance that the expectation of privacy is reasonable Katz v. United States - Facts: FBI put listening device on outside of phone booth and used recordings to convict - Takeaway: Even when there is no physical invasion, wire tapping a public phone booth is a Fourth Amendment search and seizure - New approach: If a person knowingly exposes something to the public, then it is not protected by the 4th amendment Police Recording Of Private Phone Calls: What a person knowingly exposes to the public even in his own home or o ice, is not a subject to 4th amendment protection Trash Search: There is no reasonable expectation of privacy in trash left for collection in a publicly accessible place Helicopter Observation: Aerial observation of an area within the curtilage of a home form a helicopter at an altitude of 400ft is not a search requiring a warrant Florida v. Riley: Facst: Police ﬂew over def. backyard and saw marijuana plants, got search warrant. Takeaway: If police had been in violation of local aviation laws, case would have been di erent Luggage Searches: Physical manipulation of a bag on a public bus is a search under 4th Amendment GPS Tracking: Warrantless placement of a GPS tracking device on undercarriage of car to track person’s movement on public stress constitutes an unlawful search in violation of 4th Amendment US v. Jones: - Facts: Police put GPS tracker on car without search warrant and tracked over a month - Takeway: Person has a right to be free form unreasonable searchs and seizures in their persons, houses, papers, etc. o Trespass without a warrant becomes a search when police trespass for the purpose of obtaining information Wireless Carries: Compelling wireless carries to turn over data that track’s users movements for long periods of time is considered a “search” and requires a warrant, absent exigent circumstances Carpenter v. US: - Facts: FBI got location points of def. from cell tower records - Takeaway: Court recognizes that obtaining locations requires a search warrant except in exigent circumstances Drug Sni ing Dogs: Using a drug sni ing dog on a homeowner’s porch to investigate the contents of the home is a search warrant under the meaning of the 4th Amendment (Florida v. Jardines) Property Trespass Rule: When an o icer trespasses to get incriminating information about someone on the property without a warrant, it constitutes an unreasonable search under the 4th amendment - 4th Amendment protection extends to a home’s curtilage (area immediately surrounding the home) License Exception: a police o icer not armed with a warrant may approach a home and knock without the 4th Amendment Test to Determine license: whether the o icer has implied license to enter the curtilage depnds on the “objective” purpose for which they entered the property Automobile Exception: a car that can be readily moved and that has a reduced expectation of privacy due it its use as a licensed motor vehicle may be searched without a warrant provided probable cause (California v. Carney) - However physical trespass into the curtilage is not justiﬁed in order to conduct a search warrant Heat Thermal Imaging: Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance constitutes a “search” (Kyllo v. US) Wired Government Informant: 4th Amendment does not prohibit government agent from testifying to what they hard heard over a wiretap worn by an information (not a search) - US v. White (1971): Court reasoned that criminal def. assume risk when they conﬁde in others about their illegal activities. In this case one of the conversers was aware of the wire SEIZURES Two Types of Seizures: - Seizures of persons (arrests of temporary detentions) o Application of (1) physical force to the body of a person (2) with intent to restraint, is a seizure even if the force does not succeed in subduing the persons (Torres v. Madrid) - Seizures of inanimate objects (when the government takes property into police custody) o Generally, seizure of property occurs when the government assumes possession and control of the property o It does not violate constitutional protectiosn to issue a search warrant for the o icers of a newspaper even the object of the search could be demanded through the issuance of a subpoena (Zurchers v. Stanford Daily)  There is not a seizure of abandoned or thrown away property WARRANTS Valid Warrant Requirements: - Adequate showing of probable cause - Issued by neutral magistrate - Must speciﬁcally descrive person or property that is subject to the search of seizure and the items to be seized Adequate Showing of Probable Cause - Probable cause is the basic requirement for arrests and search - Reaosnable groudns to believe the material exists in a locations - Must be supported by an adequate showing of probably cause supported by oath/a irmation o Generally must be probable cause before the warrant is issues not because of what is discovered via the search o The Gates Test/Rule: an arrest or search in unreasonable unless based upon probable cause o Totality of Circumstances Test: a warrant application satisﬁed 4th amendment probable cause requirements so long as it established a substantial basis for concluding that a search will uncover evidence of wrongdoing  Spinelli v. US: Two prongs for search warrant based on informant  Credibility of informer  Reliability of evidence (basis/source of info) - Common Enterprise Cases o A persons mere propinquity to to others independently suspected of criminal activity does not, without more, give rise to probable cause to search - Common Enterprise Exception o Presence of drugs in a car gives rise to probable cause to arrest any occupant of the car who had knowledge about the drugs and exercise dominion and control over them Approved/Issued by Neutral Magistrate - 3 Requirements o Severance and disengagement from activites of law enforcement o A part of the judiciary o No ﬁnancial or personal stake in the warrant Speciﬁcally Describe Search Premises/Person - Warrants with Mistakes: so long as police acted reasonable a search made with an otherwise valid warrant does not violate 4th amendment o Maryland v. Garrison: Facts- police had warrant for 3rd ﬂoor apartment, actually had 2 rooms instead of one o TEST: Was the o icers failure to realize the warrant was ﬂawed objectively understandable  Neighboring exception: a neighboring area near the area speciﬁed by the warrant is ok. However if o icers discover they are outside the boundaries of the warrant they must vacate Limitations to Warrants - Reasonableness Requirements: 4th amendment’s reasonableness requirement incorporates the common law rule that police entering a home must knock and announce when executing a search warrant (unless exigent circumstances) o Exceptions to Knock and announce Requirement (Richards v. Wisonconsin)  Must have reasonable suspicion that if they did knock and announce under the circumstances:  It would be dangerous or futile  IT would inhibit the investigation of the crime because it would allow for destruction of evidence - Plain View Exception o An exception to the warrant requirement following the warrantless seizure of items if:  It is immediately apparent that there is probable cause to believe an items is evidence of a crime without the need for touching or further investigation; and  Law o icers are lawfully in a position to see and obtain them Anticipatory Warrants - A warrant premised upon probable cause to believe that evidence will be present at a particular location at some future time o To comply with the 4th Amendment, must show (1) there is probable cause to believe that the triggering condition will occur (2) that if condition occurs, there is a fair probability that contraband or evidence will be found in a speciﬁed place (US v. Grubbs) Arrest and Search of Arrested Person Arrest: Police must have judicially valid warrant to enters a suspects home in order to arrest them Common Law Exception: - Police O icer is permitted to arrest someone without a warrant if: o A misdemeanor or felony was committed in their presence or o Felony was not committed in their presence but (1) Suspect is in a public place and (2) Police have reasonable grounds for making the arrest (probable cause) Search of Arrested Person - During a lawful arrest, it is reasonable under 4th Amendment to fully search a person being arrested without probable cause for search - Once you have lawfully arrested someone you can search them without violating the 4th amendment Subjective Mentality of Police O icer - If o icers have probable cause for ANY tra ic infraction or custodial arrest, stopping the car is objectively reasonable the 4th amendment, regardless of the subjective intent of the police o icer (Whren v. US) o As long as there was a constitutional reason to stop the car, the search of the car is ﬁne o Question: Whether police could have pulled over car, not whether they would have without other intent - An o icer’s true motive for searching or detaining a person does not negate the constitutionality of the search of seizure, so longas the probable cause exists - Atwater v. City of Lago Vista o Facts: Def. was pulled over because her nor her children wore seat belts. She was arrested for driving without a license o Takeaway: 4th Amendment does not prohibit a warrantless arrest for a minor o ense  SCOTS held reasonable under 4th Amendment  Custodial arrest for commission of a ﬁne-only misdeameanor is reasonable under the 4th amendment “Booking” DNA Procedures - General Booking Rule: Warrantless collection of DNA from a person arrested for a serious o ense pursuant to state statute with adequate procedural protections is a reasonable search under 4th amendment, so long as the search is not for the investigation of criminal conduct - Maryland v. King o Facts: Def. arrested and swabbed DNA, ran through database, matched with rape from 6yrs ago, SCOTS said don’t need warrant for administrative purpose search because it wasn’t being used to gather evidence for a crime  Most jurisidications do authorize taking DNA sample upon arrest o Takeaway: DNA swab is a search, but so long as it is for an administrative purpose, no search warrant is necessary. It is considered a legitimate police booking procedure that is reasonable under the 4th Amendment - Mitchell v. Wisconsin o Facts: Def. was unconscious so couldn’t do breath test for DUI, took blood test without consent or warrant to get BAC levels o Takeaway: Exigent circumstances allow for warrantless blood test  Unconscious suspect is exigent, but mere presence of alcohol is not  Other example, only one o icer o Warrantless blood draws may be unconstitutional if def. can establish 2 things:  That their blood would not have been drawn absent the police request  Police could not have reasonably believed a warrant application would interfere with other pressing duties Search & Seizure of Premises Generally: - Absent exigent circumstances it is unreasonable for police to enter home: o Without warrant for searching premises and seizing certain items o Without warrant for for purpose of arresting owner - Payton v. New York o Facts: Police went to def. house with arrest warrant. Entered home and found shell casings in plain view o Takeway: Seizure of property in plain view involved no invasion of privacy  Arrest warrant su icient protection. Need at least arrest warrant to search home of person who own’s house  If 3rd party owns home, arrest warrant is not su icient Scope of Search of Premises - Search Incident of Arrest Exception: allows o icers to search a suspect’s person or the surrounding area during a lawful arrest without a search warrant o Area limited to those areas in suspect’s immediate control:  Where suspect can reach to grab weapon, destroy evidence  Visible parts of the room which suspect is arrested  Closed draws or other containers within the suspect’s easy reach - Can not search entire house even after a lawful arrest o Chimel v. CA:  Facts: police had wife’s consent to go into house and arrest def. they search entire house and seized items  Takeaway: Searching entire house with just arrest warrant was outside of scope of search and evidence seized was inadmissible  If you arrest someone lawfully you can search their person and the area in which tey have IMMEDIATE control over o Maryland v. Buie  Takeaway: O icers are justiﬁed in making a protective sweep of the house, but not a full search. If there is something that could harm the o icers they are allowed to retrieve it Search of 3rd Party Homes - Absent consent of exigent circumstances, the 4th amendment prohibits law enforcement from searching for the subject of an arrest warrant in a 3rd party’s home without ﬁrst obtaining a search warrant or consent - Steagold v. United States: def. was in 3rd persons home.Arrest warrant was not enough to enter 3rd party home they needed search warrant Exceptions to Warrant Requirement - Emergency Exception: If o icers have a reasonable belief that an individual is injured/dying or in danger within a home, they can enter without a warrant o Even if o icers don’t ave reasonable belief, they can “secure” premises while in the process of getting a warrant (SEGURA CASE) - Exigent Circumstances Exceptions: O icers may enter home without a warrant to pursue a ﬂeeing suspect (hot pursuit doctrime) to prevent the imminent destruction of evidence o O icer Created Exigency: If the exigency does not arise from the o icer’s unreasonable or unconstitutional conduct… POLICE are not allowed to create exigent circumstances  Kentucky v.King: police smelled marijuana and went inside without warrant; police can use exigent circumstances doctrine to keep evidence admissible when police do not gain entry to premises by means of actual or threatened violation of 4th amendment  Vaie: arrested outside home, search inside home was unconstitutional  Segura: can secure premises while other o icers go to retrieve warrant  McArthur: can detain suspect while obtaining warrant  Welsh: hot pursuit doctrine: going into drunk drivers home wasn’t exigent circumstances because it is a minor o ense Search & Seizure of Automobiles Generally Searching Vehicles - If def. is not arrested o Automobile exception: under 4th amendment a vehicle that (1) Can be readily moved and (2) has a reduced expectation of privacy due to its use as a licensed motor vehicle may be searched without a search warrant provided probable cause exists o California v. Carney  Facts: Motor home parked in San Dieo, police had probable cause to search but no search warrant  Takeaway: Able to search because it is a automobile and readable moveable therefore creating exigent circumstances  Historically based on the ready mobility of the vehicle (being used for transportation - IF def. is arrested o Search Incident to arrest Exception: O icers may not automatically search a car invident to a driver’s arrest  Police must have the def. right next to car or have reasonable belief that crime related evidence is inside car o Arizona v. Grant  Facts: Def. was arrested for driving with suspended license. Searched car and found cocaine in jacket on backseat  Takeaway: Search was unreasonable because no possibility of accessing jacket nor likelihood of discovering o ense related evidence which would have authorized the search  Search will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies  If it is a house you have to have a warrant. If it is a vehicle all you need is pro bable cause Closed Containers Within Vehicle - Under automobile exception, 4th Amendment allows warrantless searches of any containers found in vehicles provided police have probable cause that the containers contains contraband or evidence a crim o California v. Acevedo:  Facts: Police knew container had marijuana, Def. came out of apartment with container, put in trunk. Police pulled him over and searched trunk and container  Takeaway: If you have probable cause to search car, you can search any part of the car where you have probable caue and any containers where you are searching  Scope of search of car is same as scope if magistrate executed search warrant  Police may search a car and the containers within it where they have probable cause to believe contraband of evidence is contained Passengers Belongings Within Vehicle - Under automobile exception police with probably cause to search a car may inspect passanger’s belongings found in the car that are capable of concealing the object of the search - Wyoming v. Houghton o Facts: Driver was found with syringe and admitted to using drugs. Police s

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