Criminal Procedure Outline PDF

**[CRIMINAL PROCEDURE OUTLINE]** Bill of Rights & Criminal Procedure - 4^th^ amendment: (searches and seizures) - 5^th^ amendment: (due process, privilege against self-incrimination) - 6^th^ amendment: (right to counsel, trial rights) - 8^th^ amendment: (excessive bail or fines, cruel a...

**[CRIMINAL PROCEDURE OUTLINE]** Bill of Rights & Criminal Procedure - 4^th^ amendment: (searches and seizures) - 5^th^ amendment: (due process, privilege against self-incrimination) - 6^th^ amendment: (right to counsel, trial rights) - 8^th^ amendment: (excessive bail or fines, cruel and unusual punishments) 14^th^ amendment: due process, equal protection; applies (most of) Bill of Rights to the states. Fourth Amendment: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, AND no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be search, and the persons or things to be seized." ***[I. THE FOURTH AMENDMENT ]*** \*4^TH^ ONLY APPLIES IF: 1\) A government agent carries out 2\) A Search; or 3\) A seizure **[A. SEARCH, PROBABLE CAUSE, REASONABLE SUSPICION ]** 1. "Search" under the 4^th^ amendment occurs if: a. a government agent violates a person's "**reasonable expectation of privacy**" (***Katz*** test). **OR** b. a government agent **physically trespasses** on a constitutionally protected area (that is, a person, house, paper, or effect, where "house" **includes the curtilage** but not open fields outside the curtilage) for the purposes of obtaining incriminating evidence (***Jones***). i. **[REOP:] *Katz*** -- No one touched the phone booth BUT it was a **temporary private place** where D did not **knowingly expose to the public** his convo. ii. **[EFFECTS:] *Jones*** --D had a **REOP** of his vehicle and gov. trespassed his vehicle with **attached** tracking device = illegal "**search of effect**" 2. Search Case Specifics a. **[3^rd^ PARTY DOC:]** No **REOP** (reasonable expectation of privacy) regarding **trash left for collection** **by 3^rd^ party** in an area accessible to the public, outside the curtilage of a home (***Greenwood***). b. **[GENERAL PUBLIC] USE:** Use of a **thermal imager** (tech "not in **general public use**") on a home from **outside the curtilage** constitutes a search (***Kyllo***). c. **[PUBLIC EXPOSURE:]** Use of a **beeper** to **track automobile** on **public roads** is not a search, because no REOP in **movements on public highway** from one place to another (***Knotts***: "***public exposure***"). d. **[3^rd^ PARTY DOC:]** Use of a **pen register** is not a search, because no REOP regarding **numbers dialed on telephone** -- because info conveyed to telephone company (***Smith v. Maryland***: "***third-party doctrine***") 1. "**[Open fields doctrine]**": no REOP in "open fields," -- areas on property outside the "curtilage" to be defined on a case-by-case basis by **considering 4 factors**: - **Proximity** of the area to the home - Whether area **included in enclosure** surrounding the home - **Nature of uses** to which area is put - **Other steps** to protect area from **observation** by passer-by e. **[Intimate activities *within home* creates REOP -- not in a field]**: no search **walking around locked gate** with "no trespassing" sign to land **1 mile** from house. (***Oliver***) f. **[To remote from curtilage]**: no search crossing several fences and peering into barn 50 yds away (***Dunn***). g. **[Curtilage & Public airspace:]** No search to **view land** with naked eye (or ordinary camera) **from plane in public airspace** (***Ciraolo***). h. **[Curtilage partially open to airspace:]** No search to **view partially covered greenhouse** from **low-flying (400 ft)** helicopter (***Florida v. Riley***). 2. **[Limiting the 3^rd^ party doctrine]** in the digital age: i. REOP in long-term historical CSLI -- even though shared with cell service provider! A **[narrowing of the 3^rd^ party doctrine]** in response to the digital age (***Carpenter***). 3. The use of Narcotics Dogs: j. Sniff by narcotics dog in **public place** is **not** a "search" (**Place**). i. But is a search when conducted within the curtilage around home k. Sniff by narcotics dog of car **during traffic stop** is not a "search" (***Caballes***). ii. But: if officers, without reasonable suspicion, lengthen a traffic stop to conduct a dog sniff, the stop becomes an unreasonable seizure. (***Rodriguez***). l. Alert by qualified narcotics dog presumptively **creates probable cause for search** (***Florida v. Harris***) 4. 4^th^ amendment: "... and no warrants shall issue, but upon probable cause..." AND: regardless of whether a warrant is required: m. A "**search**" requires **probable cause** to believe that the search will produce evidence bearing on a criminal offense. n. An **arrest** (a form of a "seizure") requires **probable cause** to believe that the seized person has committed or is committing a crime. 5. **[Probable Cause]**: "exists where 'the facts and circumstances within... the officers' knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief'..." o. In the case of an arrest, that the arrested person committed a crime. p. In the case of a search, that the search will produce evidence of a crime. q. A "**fair probability**" **more than a "reasonable suspicion**" but l**ess than a "preponderance of the evidence"** iii. Facts constituting PC: iv. ***Gates*** -- Probable cause with: "totality-of-the-circumstances" where anonymous detailed description of wrongdoing and 1^st^ hand observation lead to corroboration of future activity v. ***Wesby*** -- probable cause to arrest partygoers where it was reasonable to believe they knowingly took advantage of vacant house w/o ID of invite/permission. 6. **[Reasonable Suspicion]** requires "**some minimal level of objective justification**" -- more than a mere suspicion, but less than probable cause. r. Reasonable suspicion must be based on **specific and articulable facts**, **not an** "**inchoate and unparticularized suspicion or hunch**." **[B. WARRANTS]** **[Warrant Clause." It requires: ]** **(**1) that the **evidence presented** to the issuing judge or magistrate be **sufficient** to qualify as "**probable cause**," \(2) that the officers bringing the evidence to the judge or magistrate **swear or affirm** that the evidence is **true to the best of their knowledge**, \(3) that the warrant **specifies where** officers can search, and \(4) that the warrant **specify what things or persons** officers may **look for and may seize** if found. - Warrant must be issue by a "**neutral and detached magistrate**" - Not, ex, the state attorney general (***Coolidge v. New Hampshire***) - Must be based on **probable cause** established from facts submitted by government agent upon **oath or affirmation**. - See "totality of the circumstances" test for PC from (**Illinois v. Gates**) - Must particularly describe place to be search or person/things to be seized. - See, EX, the degree of precision held sufficient in ***Andresen***. - Warrant itself must provide **reasonable precision on its face** -- not enough if **[underlying affidavit]** describes what is to be searched/seized (***Groh***). 1. "**[Knock & Announce]**" Rule: a. Generally, "knock and announce" is required before entering place to execute search warrant -- unless officers have a reasonable suspicion that doing so "would be dangerous or futile, or would inhibit the effective investigation of the crime" i. EX: destruction of evidence (***Wilson v. Arkansas, Richards v. Wisconsin)*** ii. BUT: courts must determine whether no-knock raid was justified on a case-by-case, fact-specific basis. 1. EX: No blanket exception to the "knock -and -- announce" rule for ALL drug investigations (***Richards***). b. Even if no-knock raid was unreasonable and thus violated the 4^th^ amendment, exclusionary rule does not apply (***Hudson v. Michigan***). **[C. WARRANT EXCEPTIONS ]** **[Consider:]** \(1) when the exception applies and \(2) what the exception allows police to do. In particular, students should note **whether probable cause is necessary for the exception to apply** and, if not, what other quantum of evidence is required. 1. **[Plain View Doctrine]** a. The police may **SEIZE an object** without a warrant if: i. The object is in a place where the officer is **lawfully present** ii. The object is in **plain view** when the officer discovers it 1. Must truly be in plain view -- cannot exceed authority to obtain a better view (impermissible to move items out of way for better view) (***Arizona v. Hicks***). iii. And the officer has **probable cause** to believe the object is the **fruit, instrumentality,** or **evidence** of a crime. (***Coolidge v. New Hampshire; Horton v. CA).*** b. ***[Terry Stop]***: Police can temporarily stop someone but needs reasonable suspicion of illegal weapons to frisk that person. iv. ***[Plain feel exception]***: if during a lawful frisk, the police immediately perceive there is something illegal in pockets they can frisk and reveal its contents. (***Minnesota v. Dickerson --* cannot overstep stop by continuing to "examine" pockets BEFORE belief of illegal object & after concluding they have no weapons**) 2. **[Automobile Exception ]** c. Police may search an automobile **without a warrant** if they have **probable cause** to believe it contains contraband or fruits, instrumentalities, or evidence of a crime (***Carroll v. US -- CA v. Carney).*** v. OG justified by **exigency** rationale: automobiles are **mobile,** so it would be impractical to require a police officer to obtain a warrant and then return to conduct the search. vi. Later also justified by the argument that people have a **lesser expectation of privacy** in their vehicles than in their homes. d. If police have **probable cause** to search a vehicle for something, they may search any **container** in the vehicle that might contain that thing (***Acevedo***). vii. **BUT**: if police only have PC to search container in vehicle (EX: paper bag recently placed in trunk), that ***PC does not justify search of entire vehicle.*** 3. **[Search Incident to a Lawful Arrest ("SILA") ]** SILA- search incident to lawful arrest (no warrant required) - Must be arrest - Must be Lawful - Search must be incident to arrest (close in time and space to arrest). e. When police **lawfully arrest** someone in a private place, the police do not require a warrant or any suspicion to search (1) the arrest **person** and (2) the area within the arrestee's **immediate control** (the "lunging" area) -- but a warrant is required to search beyond that (***Chimel***). f. The police require a warrant to search the **digital information on a cell phone** seized from an arrested person (***Riley v. CA***). g. Police may search a **vehicle** without PC, incident to a recent occupant's lawful arrest, **only if** (1) the arrestee is **unsecured** and within "**reaching distance**" of the passenger compartment at the time of search, **OR** (2) it is "**reasonable to believe**" the vehicle contains evidence of the **offense of arrest (*Arizona v. Grant).*** h. For **traffic violations,** if the suspect is not arrested, there can be no SILA (***Knowles v. Iowa).*** 4. **[Consent Exception ]** i. No violation of 4^th^ Amendment to search without a warrant or probable cause if police receive **voluntary** consent from person who **apparently** has the **authority** to offer it. viii. "**Voluntary**": knowledge of the right to refuse consent is not required (**Schneckloth v. Bustamonte).** But officer's false claim to have a warrant negates possibility of voluntary consent (***Bumper v. North** **Carolina).*** ix. ***"*Apparently*"*:** officer's **reasonable belief** that consenting person had right to permit search is sufficient, even if it later turns out person lacked such right (***Illinois v. Rodriguez***). x. ***"*Authority":** Police officers may search jointly occupied premises if one of the occupants' consents, unless another occupant is **physically present** and objects to the search (***Randolph*).** If that objector is then removed on an objectively reasonable basis (EX lawful arrest), police may search with consent of remaining occupant (***Fernandez***). 5. **[Exigent Circumstances Exceptions ]** j. **HOT PURSUIT**: Probable cause is sufficient to arrest a felon in a **public place**: no warrant is required (***Watson*).** xi. **BUT:** a search warrant (or at least arrest warrant accompanied by "reason to believe the suspect is within") is required to enter a **home** in order to make an arrest (***Payton***). xii. **BUT:** officers in **hot pursuit** of a **fleeing felony suspect** may make a warrantless search and seizure to the extent necessary to prevent a felon's escape -- including pursuit into a home (**Hayden). BUT:** hot pursuit of a **fleeing misdemeanor suspect** does not *categorically* qualify as an exigent circumstance: "when the officer has time to get a warrant, he must do so" (***Lange***). \[regardless, still need **PC** that suspect committed crime\] k. **PRESERVATION OF EVIDENCE:** officer may also make a warrantless entry of a home to prevent the **destruction of evidence --** even if the officers caused the exigency by knocking -- as long as their creation of the exigency did not involve an actual or threatened 4^th^ amendment violation (***King).*** xiii. \[even if warrant exception applies, still need **PC** that evidence of crime will be found in home\]. l. **"PUBLIC SAFETY" EXCEPTION:** in an emergency, officers may make a warrantless entry of a home to assist a seriously injured occupant or protect an occupant from imminent serious injury if they have an "**objectively reasonable basis for believing**" that a person in the person in the home is in need of immediate aid, or that persons were in danger (***Stuart, Fisher***). m. **DRUNK DRIVING:** If police can reasonably obtain a warrant, the 4^th^ amendment requires them to do so before taking a non-consensual blood alcohol content ("BAC") **blood** test (***McNeely***). 2. A state cannot pass a law that makes it a crime for a suspected drunk driver to refuse a blood test but **can criminalize refusal to take a breath test** (***Birchfield***). A breath test, but not a blood test, may be administered as a warrantless **search incident to a lawful arrest (SILA)** for drunk driving (***Birchfield***). 3. **Limitation on "exigent circumstances" exception**: warrantless home arrest likely not justified by risk of lost evidence (EX: dissipation of blood alcohol) if underlying offense is "extremely minor"- EX: civil traffic offense (***Welsh***). 6. **[Ports of Entry ]** n. At the border or its "functional equivalent," **routine searches** do **not** require a warrant or **any** evidentiary basis (no PC, no RS) (***Ramsey; Flores-Montano***), although **extended detention** requires at least **reasonable suspicion** of criminal activity (***Montoya de Hernandez***). o. "**Away from the border**," border officials may **stop** a vehicle at a **fixed** checkpoint and **briefly question** occupants regarding citizenship **without** individualized reasonable suspicion (***Martinez-Fuerte***). p. Agents of the executive have **expansive authority to conduct searches and seizures without a warrant when persons and items enter the US from abroad**. q. Stopping of the car -- even temporarily -- in a seizure. 7. **[Checkpoints ]** r. Stopping a vehicle is a "**Seizure**" like a *Terry* stop, thus generally requires at least **reasonable suspicion** of illegality (***Delaware v. Prouse***). s. **HOWEVER**: police may stop cars at **checkpoints WITHOUT reasonable suspicion** if the "**primary purpose**" of checkpoint is not **general crime control** (finding narcotics) (***Edmond***) but must be for certain "**special needs**" such as policing the border or ensuring roadway safety by combating drunk driving (***Martinez-Fuerte; Sitz***) -- or where the police are not seeking evidence that stopped drivers committed crimes (***Lidster***) (hit & run info). 8. **[Protective Sweeps ]** t. When the police **lawfully arrest** someone, the police do not require a warrant or any suspicion to search (1) the arrested **person** and (2) the area within the arrestee's **immediate control** (the "lunging" area). (***Chimel***) u. Even if arrest is in a **home**, the police may conduct a **protective sweep** of "places in which a person **may be hiding**": xiv. They can (**without a warrant or any suspicion**) "look in closets and other spaces **immediately adjoining** the place of arrest from which an attack could be immediately launched" xv. **Beyond that**, they may conduct a cursory, warrantless sweep based on **reasonable suspicion** "that the area swept harbored an individual posing a danger to the officer or others" (***Maryland v. Buie***). 9. **[Searches of Prisoners, Probationers, & Parolees]** v. Prisoner's **cell and effects are not protected by 4^th^ amendment**. Even if someone is arrested for a minor offense, jail officials need no warrant or reasonable suspicion of contraband to strip search person before admitting him to general population in jail (***Florence***). 10. **[Inventory Searches ]** w. As long as search follows an **established routine** for inventory purposes, police may conduct a warrantless, suspicionless **inventory search** of an **impounded vehicle**, including containers in vehicle -- even if vehicle was impounded for parking violation. (***South Dakota v. Opperman***). 11. **[Administrative Searches ]** x. When inspectors search private residences & commercial buildings based on reasonable, neutral plan that has purpose of enforcing administrative regulations, a **warrant** is required, but warrant need **not** be based on **individualized probable cause**. (***Camara***) xvi. **No warrant required** for admin searches of "**closely regulated industries**"; EX: liquor sales, firearm dealing, mining, or "running an automobile junkyard" (***New York v. Burger***), but not -- EX: car leasing or general manufacturing. 12. **[DNA Tests]** y. When officers make an arrest based on **probable cause** for a **serious offense**, police may collect a cheek swab of the arrestee's DNA at police station, without warrant or suspicion, as part of routine booking procedure. (***Maryland v. King***). **[D. SEIZURES: ]** 1. **[Seizure of a person:]** An encounter with the police rises to the level of a "**seizure**" if: a. Based on the totality of the circumstances, a reasonable person would not **feel free to terminate the encounter** (***Mendenhall:*** "free to leave"; ***Florida v. Bostick***: "free to terminate the encounter"), ***and*** the person in fact submits to the assertion of authority (***Hodari D***: if someone flees without submitting to the officer's show of force, there is no seizure). **OR** b. Police apply **physical force** (note: includes striking someone with a bullet) with intent to restrain. This is a seizure even if the person then flees (***Torres v. Madrid***). i. **[Police encounters, ranked by level of coercion: ]** 1. Lethal Force 2. Arrest: custodial seizure for indefinite period, usually for interrogation or prosecution, requires probable cause 3. "Custody" 4. "Terry Stop": temporary, limited seizure, requires reasonable suspicion 5. Consensual police encounter: NOT a seizure, totally unrestricted by 4^th^ amendment. 2. **[Arrests:]** custodial seizure for indefinite period, usually for interrogation or prosecution. c. Requires **probable cause** to believe the arrestee has committed or is committing a crime. ii. Test for PC based on **facts** that officers knew at the time of arrest but is not affected by officers' erroneous **legal** conclusions. If officers have PC to arrest suspect for crime X, but instead arrest suspect for crime y, erroneously believing they have PC for crime Y, arrest does not violate 4^th^ amendment (***Devenpeck v. Alford; Wesby***). d. **Warrant** required to enter **home** to make arrest (absent proof of exigent circumstances) (***Payton***), but **not** required for felony arrest in a **public place** (***Watson***). e. Warrantless misdemeanors arrest permissible even if misdemeanor cannot be punished by incarceration (***Atwater***). 3. **[Terry Stops ("Stop-and-Frisk")]** f. The 4^th^ amendment allows police to briefly detain ("stop") a person based on reasonable suspicion of criminal activity (***Terry***). iii. Temporary investigative detention of **effects** (ex: luggage) based on reasonable suspicion is also permissible (***Place***). g. Once a person is lawfully stopped, the police may conduct a protective patdown ("**frisk**") based on **reasonable suspicion** that the person is **armed and dangerous** (***Terry***). h. There is no rigid time limit for a stop, although its duration must be reasonable in light of its purpose and the means of investigation. The police must be diligent in confirming or dispelling their suspicions (***Sharpe***). i. State statues that make it a crime for legally stopped persons to refuse to provide their names do not violate the 4^th^ amendment (***Hiibel***). 4. **[Reasonable Suspicion ]** j. Reason suspicion must be based on **specific and articulable facts**, not an "inchoate and unparticularized suspicion or **hunch**." Reasonable suspicion requires "**some minimal level of objective justification**," but ***less*** than **probable cause**. k. Whether the standard is met is judged under the **totality of the circumstances** (***Sokolow***). iv. Unprovoked flight from police in high crime area established reasonable suspicion (***Wardlow***). l. Where suspicion is based on informant's tip, tip must have indicia of reliability sufficient to make officer's suspicion reasonable (***Alabama v. White***; ***FL v. J.L***), but officers need not personally witness evidence of criminal activity (***Navarette v. CA***). m. ***Tip***: To determine whether some set of facts provides reasonable suspicion, compare the facts to the facts of cases we have studied where the court found there was, or was not, reasonable suspicion. ***[II. INTERROGATIONS ]*** **[A. DUE PROCESS & VOLUNTARINESS REQUIREMENT ]** 1. **[Due Process ]** a. Requires confessions to be **voluntary** in order to be admissible. Voluntariness is determined based on the **totality of the circumstances**, including: age, education, and mental and physical condition of suspect; and setting, duration and manner of interrogation (***Spano***). i. Confession resulting from **physical beating** is involuntary (***Brown v. Mississippi***). ii. Confession not involuntary merely because product of mental illness (***Connelly***). iii. Erroneous admission of involuntary confession into evidence will not necessarily result in overturning of conviction: "harmless error" review applies (***Fulminante***). 2. **[*Miranda* Warnings ]** b. 5^th^ amendment privilege against compelled self-incrimination: no person "shall be compelled to be a witness against himself." iv. Statement by accused during custodial interrogation is only admissible if accused received ***Miranda* warnings** and provided valid waiver (***Miranda***). Warnings need not be verbatim (***Eagan, Pyrsock***). 1. Required by 5^th^ amendment, therefore **cannot be overridden** by legislation. (***Dickerson v. U.S.***). c. ***Miranda* warnings:** 2. Right to remain silent 3. Anything you say can be used against you 4. Have the right to an attorney a. Present during questioning 5. Attorney will be provided by government if you cannot pay. 3. **[Remedies ]** d. **Exclusionary Rule ("fruit of the poisonous tree")** v. Evidence obtained through violation of D's **due process** rights, or D's rights under **4^th^** (S&S), **5^th^** (self-incrimination), or **6^th^** (right to attorney) **Amendments**, ***generally*** cannot be used against the D at a **criminal trial.** 6. Supreme court applied **4^th^ amendment** exclusionary rule to the **federal** government in (***Weeks***) then to the **states** in (***Mapp***). vi. Exclusionary rule generally applies to "fruit of the poisonous tree," 7. Ex: evidence derived from illegally obtained evidence (***Silverthorne***). e. Fruit of poisonous tree cannot be used against D to prove guilt at criminal trial **BUT:** exclusionary rule **does not apply** to: vii. Violations of the "**knock-and-announce**" rule (***Hudson***) viii. **Good Faith** violations of the 4^th^ amendment resulting from **isolated negligence (**rather than **systemic negligence** or **recklessness**), at least where negligence is sufficiently **attenuated** from the violation (Ex: distant 3^rd^ party was negligent, not officer who conducted search) (***Herring***). ix. **Good faith** searches authorized **at the time** of the search by a **binding appellate precedent** that is later overturned (***Davis***). 4. **[Right to Counsel ]** f. **6^th^ amendment**: "in all **criminal** prosecutions, the accused shall enjoy the right... to have the assistance of counsel for his defense." x. Applies to **states** through 14^th^ amendment (***Gideon***). xi. Today -- applied to **all** criminal prosecutions with **risk of incarceration --** but ***only*** to criminal prosecutions. xii. Right to counsel "attaches" at the initiation of "adversary judicial proceedings" -- not at arrest but once charges are filed and formal proceedings begin (***Kirby --*** no right to counsel at pre-charge lineup). g. Indigent D has right to **government-funded** counsel (***Gideon***) -- at trial and all other "**critical stages**" of prosecution, including: xiii. Arraignment, most other preliminary hearings; post-indictment line-ups (***Wade)***; post-indictment interrogation (***Massiah***); plea bargaining process; direct appeal where right to appeal exists. h. **[Ineffective Assistance of Counsel ]** xiv. ***Strickland***: under 6^th^ amendment, convicted D is entitled to a new trial based on **ineffective assistance of counsel** is she can show: 8. **Deficient performance** by counsel; **AND** 9. **That but for** the deficiency, there is a **reasonable probability** that the result of proceeding would have been different (that she was **prejudiced** by the deficient performance). i. **[Identifications ]** xv. **6^th^ amendment,** D has right to the presence of counsel at any lineup (***Wade***) after the initiation of adversary judicial proceedings (Ex: filing of charges) (***Kirby*).** 10. **BUT**: no right to counsel at photo identifications (***Ash***), or when police take physical evidence from D (Ex: handwriting exemplars, fingerprints) (**Gilbert)**. xvi. **NO** right to refuse line-up based on **5^th^ amendment privilege against self-incrimination** (***Wade***). xvii. **Remedy:** suppression of pretrial identification procedure. **ALSO:** no in-court identification by witness who participated in pretrial ID procedure, ***unless*** prosecutor can prove by clear and convincing evidence that in-court ID would not be **tainted** by pretrial procedure (***Wade, Gilbert***). Factors to consider in determining lack of taint include: 11. Witness's opportunity to view criminal @ time of crime; witness's degree of attention; accuracy of witness's description of criminal *before* participation in ID procedure; witness's level of certainty during ID, and time b/w crime and ID (***Wade***). ***[III. ADJUDICATION ]*** **[A. DECISION TO PROSECUTE]** -- 2 main ways to challenge prosecutor's use of discretion: 1. **[Selective Prosecution ]** a. Based on race, religion, etc. violates the **Equal Protection Clause.** Requires proof of (1) **discriminatory effect** (including evidence of similarly situated people no prosecuted) **AND** (2) **discriminatory purpose** (prosecution because of impermissible consideration). (***US. V. Armstrong*** -- failure to provide evidence of selective prosecution). 2. **[Vindictive Prosecution ]** b. Violated the **Due Process Clause**. Requires **either** (1) **direct evidence** that charging decision was motived by the desire to punish D "for doing something that the law plainly allows him to do"; **or** (2) showing that facts of his case create a "**presumption of vindictiveness**" that prosecutor has burden of disproving. **NOT** vindictive prosecution if prosecutor threatens to file more charges if D refuses to plead guilty and insists on going to trial (***Bordenkircher v. Hayes***). 3. **[Pretrial Confinement ]** c. 8^th^ amendment" "Excessive bail shall not be required..." i. Does **not** create a ***right* to bail** (***US v. Salerno***). d. **Due Process Clause & Equal Protection Clause** ii. Substantive due process does not categorically prohibit pretrial detention based on clear and convincing evidence of likely future dangerousness (***Salerno***). **[B. PRETRIAL DISCOVERY ]** 1. **Due process** requires the **government** to disclose the D any info in its possession that is both **favorable** to the accused and **material** to the issue of guilt or punishment. "**Brady violation**" leads to **reversal** of conviction and new trial. (***Brady v. Maryland***). **[C. DOUBLE JEOPARDY ]** 1. **[5^th^ amendment]**, no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." a. Once jeopardy "**attaches**," the D may not be retried for the "**same offense.**" i. At **jury trial**: jeopardy attaches at the **swearing** in of the empaneled jury ii. At **bench trial**: jeopardy attaches when the **first witness is sworn** b. Does not bar future **civil** proceedings involving same offense c. Does not bar trial by **separate sovereign** (federal, state, tribal) iii. (***Health v. AL**)* **[D. JURY SELECTION ]** 1. **6^th^ amendment** requires that "**venire**" (jury pool) be drawn from a **representative cross-section** of the community. 2. **Equal Protection Clause** prohibits the use of peremptory challenges to exclude jurors based on race or sex (***Batson v. Kentucky***). a. **[3-steps]** to establishing purposeful discrimination in use of peremptory challenges: i. D must make a **prima facie** case that prosecutor exercised a peremptory challenge based on **intentional discrimination**: D must show evidence **raising an inference** that challenge was based on race or sex. ii. Prosecutor may offer race/gender-neutral **explanation** for peremptory strike. iii. The trial court must then decide whether the defendant has carried his burden of proving **purposeful discrimination** (Ex: must determine whether prosecutor's neutral explanations were **pretexts** for discrimination). **[E. EIGHT AMENDMENT ]** 1. **8^th^ amendment** prohibition on "**cruel and unusual punishment**" is violated by a penalty that is **grossly disproportionate** to the **seriousness of the offense** committed. a. **But**, 25 yrs to life for D who stole 3 golf clubs is not grossly disproportionate in light of previous convictions (***Ewing v. CA***). 2. **Death penalty** is not cruel and unusual if imposed under statutory scheme including proper discretion and guidance (***Gregg***). Also, statistical evidence in (***McCleskey v. Kemp)*,** of racial disparities in application of death penalty was insufficient to show equal protection or due process violation.