Criminal Procedure PDF

STATE ACTION ------------ #### State actors: - ALL government **(\"gov\'t\'\')** officials, on- and off-duty police (look to motivation-serving gov\'t or private interests) #### Private action as state action: 1. *Nexus (relationship):* (i) gov\'t encouragement and (ii) private actor\...

STATE ACTION ------------ #### State actors: - ALL government **(\"gov\'t\'\')** officials, on- and off-duty police (look to motivation-serving gov\'t or private interests) #### Private action as state action: 1. *Nexus (relationship):* (i) gov\'t encouragement and (ii) private actor\'s intention 2. *Repetition (not state action) v. Extension (state action)* 4TH AMENDMENT: IS IT A SEARCH? TWO TESTS ---------------------------------------- - #### Reasonable expectation of privacy test - Katz v. U.S., 389 - **Trespass test - U.S. v. Jones,** 565 U.S. 400 (2012) - Uninvited state action that physically intrudes on or occupies a constitutionally protected area for the purpose of acquiring private information = search #### Reasonable expectation of privacy: - ***Eavesdropping:*** key issues are *invitation* and *scope* - ***Physical attributes:*** external physical characteristics exposed SEARCH: PHYSICAL LOCATION ------------------------- ### ThemisBar.com - Protection depends on type of intrusion: - *Non-physical:* defendant (\"D\'\') must establish a reasonable expectation of privacy - *Physical:* constitutes a search; warrant required **(\"req\'d\'\')** #### Curtilage and Open Fields 1. Proximity 2. Enclosure 3. Activity or uses 4. Precautions to exclude others ELECTRONIC TRACKING ANDENHANCEMENT DEVICES ------------------------------------------ - **Trespass analysis:** placing a device on a car for the purpose of acquiring information = a search - #### Reasonable expectation of privacy analysis: - Public roadways = not a search - Private area = a search #### Enhancement Devices - **Readily available to public =** not a search - Use of drug-sniffing dog to sniff luggage at a bus terminal or train station = not a search C RIMINAL PROC EDURE ========================================= SEARCH WARRANTS --------------- - **Warrant requirement:** an officer who, in pursuit of information, wants to trespass onto a constitutionally protected area, or search a location in which the subject has a reasonable expectation of - **General rule:** searches of private areas conducted without a warrant = per se unreasonable, even if probable cause **(\"PC\")** exists #### Arrest Warrants - **Arrest for a felony in a public place** = warrant not req\'d - **Arrest of felon inside the felon\'s home** = warrant req\'d - Limited search authority: can look anywhere a person may be hiding; any evidence of crimes found is fair game - **Arrest of felon inside a third party\'s home:** requires arrest warrant for the felon and search warrant for the home - **Arrest of felon while staying overnight in a third party\'s home:** only arrest warrant req\'d PROBABLE CAUSE: WARRANT COMPONENTS ---------------------------------- - Be issued by a neutral and detached magistrate - Be based on PC - Be supported by oath or affirmation - Particularly describe the place to be searched and the person or thing to be seized - **To arrest:** an offense has been committed and this is the person - **To search:** an item subject to seizure would be found in the place to be searched at the time of the search - #### Based on affidavit from police officer: - Lays out facts and circumstances (look to quality/quantity) - Swears they are true - Explains why they are sufficient to justify a reasonable person\'s belief in PC - **Aguilar-Spinelli** Test-validity/basis of knowledge; veracity EXIGENCY PRINCIPLES ------------------- WARRANT EXCEPTIONS: CONSENT --------------------------- 2. **Authority to consent-third-party** consent is when target of the search is not present and objecting to the search and either: - The consenter possesses actual common authority, OR - Based on the totality of the circumstances, a reasonable person would believe the person possessed actual authority 3. **Voluntariness** - totality of the circumstances - Factors **(Schneckloth v. Bustamonte,** 412 U.S. 218 (1973)): - Characteristics of the D - Characteristics of the situation - Gov\'t responsibility-need coercive activity 4. **Scope of consent-depends** on how consent was sought SEARCH INCIDENT TO ARREST (SITA) -------------------------------- #### Scope - **Wingspan:** area within the immediate control of the arrestee; fact-dependent inquiry ### ThemisBar.com C RIMINAL PROC EDURE ========================================= - **Containers:** can search closed or concealed containers in the same room and within the arrestee\'s wingspan - Locks: officers may search locked containers - Size: for physical containers, size is irrelevant #### Timing - **SITA search of home or person:** anything the arrestee could have accessed at the moment before the arrest - **SITA search of car:** wingspan is determined at the moment of - Car is within wingspan only if the arrestee is unrestrained and within reaching distance - Includes entire passenger compartment and any containers, but not the trunk - *\"Reason to believe\" search* - regardless of D\'s access, officers can search if there is reason to believe the car contains evidence of the crime for which the D was arrested VEHICLE EXCEPTION ----------------- - **Scope:** anywhere in the car, including the trunk and closed - What is a vehicle? - Mobility WARRANT EXCEPTIONS: HOT PURSUIT ------------------------------- ### ThemisBar.com - #### Criteria: - PC to believe a felony has been committed - PC to believe the suspect is in the house - Reasonable belief that suspect is dangerous - **Scope:** anywhere the suspect or weapon might be INVENTORY SEARCHES ------------------ #### Cars - **Criteria:** - Lawful impoundment - Must be of a routine nature (housekeeping purposes) - **Scope:** all readily accessible areas of the car (passenger compartment, unlocked glove box, the trunk) #### Arrested persons - booking search - **Criteria:** - LawfuI arrest - Arrestee is going into the jail for any length of time - Standard department procedures are followed - **Scope:** includes any article in the arrestee\'s possession - Containers - based on department policy C RIMINAL PROC EDURE ==================== ADMINISTRATIVE SEARCHES, SPECIAL NEEDS SEARCHES, AND PERVASIVELY REGULATED INDUSTRIES ------------------------------------------------------------------------------------- - Usually conducted by state actor other than police - Violation leads to fines or administrative sanctions, not jail - Use **administrative warrants:** based on generalized PC to believe the industry or neighborhood presents a risk to safety - Usually conducted by state actor other than police - Do not require individualized suspicion - Common settings: - School searches - Prisons and jails - Airports - Railways - drug testing of employees - Automobile checkpoints - Exception to administrative warrant requirement - Applies to inspection of buildings that house industries that are heavily regulated - **Criteria:** substantial gov\'t interest in activity being regulated, proof that warrantless searches are necessary for effective enforcement, and statutory criteria for inspections are an adequate substitution for a warrant 4TH AMENDMENT: COMMUNITY CARETAKING ----------------------------------- - Officers may enter private property to render assistance if they have an objectively reasonable basis to believe someone inside is - No probable cause or warrant req\'d 4TH AMENDMENT: CONTAINER SEIZURE AND SEARCH ------------------------------------------- -  **Public places:** only PC is req\'d to seize the item, but need a search warrant to search the item - **Private places:** usually requires a search warrant to seize - Exception: if officers are properly in a private location, they can seize items within that space without a warrant if PC - **Container placed in car:** - **Containers found during Carroll-Chambers search of a vehicle:** - **Containers found during a SITA:** officers can search containers found in passenger compartment; cannot open trunk - **Containers found during inventory search:** can only be opened pursuant to department policy - **Containers found during a consent search:** depends on the scope of the consent 4TH AMENDMENT: PLAIN VIEW ------------------------- ### ThemisBar.com C RIMINAL PROC EDURE ==================== 4TH AMENDMENT: PRETEXT ---------------------- - Circumstances known to the officer, not her subjective intent, control the analysis - Subjective intent in administrative and inventory searches: proper motivation is critical; not based on PC 4TH AMENDMENT: CHARACTERIZING CONTACT ------------------------------------- - Consensual encounter = not a seizure = no 4th Amend. issues - Stop or detention = must be supported by reasonable suspicion - Arrest = must be supported by PC - Intentional application of physical force to a suspect\'s body, or - Submission to the officer\'s show of authority-a reasonable, innocent person in the suspect\'s shoes would not feel free to leave, terminate the encounter, or ignore the officer - Look to the **totality of the circumstances** (e.g., number of 4TH AMENDMENT: JUSTIFYING CONTACT --------------------------------- - In public = no warrant needed - In arrestee\'s home = requires arrest warrant and reason to believe suspect is home - Stop and frisk can be justified on reasonable suspicion (RS) ### ThemisBar.com - Officer can conduct a frisk if RS that the person is armed and dangerous - Presence in a high-crime area = not enough, by itself, to justify a stop - Unprovoked flight from the police - Drug courier profiles - Tip from an informant - Presence at the scene of a warrant execution 4TH SCOPE OF CONTACT -------------------- #### Factors: - Duration-reasonableness of Terry stop hinges on brevity - Purpose - Content -  Use of a drug-sniffing dog does not transform stop into an arrest; must be performed expeditiously C RIMINAL PROC EDURE ==================== 4TH AMENDMENT: FRISKS --------------------- INTRODUCTION TO MIRANDA ----------------------- - Can still be used to impeach - Physical fruits of statements can be used - Public safety - Booking questions DEFINING CUSTODY ---------------- - Relevant inquiry: would a reasonable person feel restrained to a degree equal to being arrested? - Custody standard = ***constructive arrest*** - No formal arrest: look to the **totality of the circumstances** (e.g., location, number of officers, any communication regarding custodial status, etc.) - On the scene questioning = not custody INTERROGATION: DEFINING INTERROGATION ------------------------------------- - Direct questions OR conduct that is reasonably likely to elicit an incriminating response (constructive interrogation) - Asking booking questions = not interrogation - Third-party questioning = not interrogation - Questioning by undercover agent/informant = not interrogation THE WARNINGS REQUIREMENT ------------------------ - Must be given before custodial interrogation begins - **Substantial compliance:** did the officer reasonably convey the substance of the *Miranda* warnings? WAIVER OF MIRANDA RIGHTS ------------------------ - Burden of proof: prosecution by a preponderance of the evidence - **Existence of waiver** - **Validity of waiver** - Must be knowing and intelligent ### ThemisBar.com C RIMINAL PROC EDURE ==================== - Must be volu ntary INVOCATION ACTIVITY ------------------- #### Invocation of the right to silence - Upon invocation, police must stop interrogation immediately - Police can reinitiate contact if: - They wait a significant amount of time (2 hou rs) - They give fresh warnings and secure a valid waiver - They only question the suspect about a differe nt crime - **Exception:** D re-initiates the contact-passage of time doesn\'t matter and can talk about same crime #### Invocation of right to counsel (RTC) - Applies to ALL crimes; not offense specific - Protection lasts for **two weeks** after release from custody - Request must be unambiguous and specifically mention counsel\'s assistance - **Test:** would a reasonable officer in the circumstance understand this to be a request for counsel\'s assistance with - **Exception:** D reinitiates contact; requires fresh warnings and valid waiver 6^TH^ AMENDMENT RIGHT TO COUNSEL -------------------------------- #### Attachment - Occurs at earlier of (1) fi ling of charges or (2) initial appearance in court DELIBERATE ELICITATION AND SAME CRIME ------------------------------------- #### Deliberate Elicitation - Active inducement of statements from the D by a gov\'t agent or informant, or - Deliberate construction of a situation to induce the D to make an incriminating statement - Inducement other than questioning - **Use of undercover agent:** can engage in active inducement #### Same crimes v. different crimes COMPARISON OF 6^TH^ AMENDMENT RIGHT TO COUNSEL WITH 5^TH^ AMENDMENT AND MIRANDA ------------------------------------------------------------------------------- - Right is offense specific-attaches only to crimes for which critical stages  #### Critical Stage - Any court appearance on the crime charged - Any questioning by uniformed officers or undercover agents on the crime charged - Pre-trial identification procedu res after charges have been filed ### ThemisBar.com - Valid waiver of 5th Amend. RTC = effective waiver of 6^th^ Amend. RTC for interrogation purposes - 5th Amend.: once invoked, cannot question the D about any crime or try to get a waiver unless the attorney is present - Exception: D reinitiates the conversation - Protection lasts while D is in custody plus two weeks C RIMINAL PROC EDURE ========================================== - 6th Amend.: officers may try to get a waiver even if the lawyer is not present - Police efforts to prevent attorney access: - 5th Amend.: police do not need to provide full information to the suspect - 6th Amend.: D can try to establish waiver was involuntary if officers misrepresent whether a lawyer had been appointed INTERROGATION: DUE PROCESS -------------------------- #### Involuntary confession - Test for involuntariness = ***totality* of *the circumstances*** - Gov\'t must prove voluntariness by a preponderance of the evidence - Consider traits of the suspect and nature of the interaction - Compliance with *Miranda-not* sufficient to prove confession was voluntary - Noncompliance with Miranda-noncompliance + one other factor = involuntary confession #### Boundaries of the coercion doctrine 1. Police responsibility 2. Undercover agents 3. Promises IDENTIFICATION PROCEDURES ------------------------- #### Types: - Line-up - Show-up - Photo array #### 5th and 1 4th Amend. Due Process - Regulates the reliability of the identification procedure - Applies to all types at any time - If D claims procedure was impermissibly suggestive and court agrees, it considers: 1. Opportunity of witness to view offender at the time ofthe crime 2. Witness\'s degree of attention to the offender\'s face at the time of the crime 3. Accuracy of the witness\'s prior description of the offender 4. Level of certainty demonstrated at the time the witness made the identification 5. Time between the crime and the identification procedure EXCLUSIONARY RULE ----------------- - 4^th^ Amend.: gov\'t cannot use evidence seized during an unreasonable search or seizure to prosecute the person from whom it was seized - 5^th^ and 6^th^ Amends.: statements obtained in violation of the right to counsel, Due Process, or Miranda cannot be used against the speaker in a criminal trial - #### Limitations: - Proceedings-generally limited to criminal prosecutions - Standing-conferred only on those persons directly victimized by police conduct - Houseguests: - Overnight guest-legitimate expectation of privacy in the portions of the home with a connection - Houseguest not staying overnight and limited connection-no reasonable expectation of privacy EXCLUSIONARY RULE: GOOD-FAITH EXCEPTION --------------------------------------- - Based on the objective reasonableness of an officer\'s reliance on a warrant that later turns out to be defective - Four instances when the exception **cannot** be claimed: - Officers misled the magistrate with information they knew was false or recklessly disregarded the truth - Magistrate has wholly abandoned its judicial role - It is entirely unreasonable for officers to believe PC existed - The warrant is so facially deficient that it is unreasonable for officers to presume it was valid - Extensions of the exception: ### ThemisBar.com C RIMINAL PROC EDURE ========================================== FRUIT OF THE POISONOUS TREE --------------------------- - **Direct evidence:** obtained immediately and directly from police action - **Derivative evidence:** obtained by police who follow the trail produced by direct evidence - Both are presumptively excludable if obtained from a - T hree exceptions: - Independent source - Inevitable discovery ATTENUATION: 4^TH^, 5^TH^, AND 6^TH^ AMEND. VIOLATIONS ------------------------------------------------------ - Gov\'t may use evidence derived from methods that are far removed from the illegality - Dissipation of the taint: **totality of the circumstances** - Attenuation in 4th Amend. cases: - Attenuation applies to statements and physical fruits - 5th and 1 4th Due Process: same attenuation doctrine applies, but more difficult to establish - 6th Amend. RTC: open question; likely applies ### ThemisBar.com ATTENUATION: MIRANDA VIOLATIONS ------------------------------- - Factors: - Completeness and details in questions and answers - Overlapping content - Timing and setting - Continuity of police personnel - Officers\' intent to circumvent *Miranda* - Physical fruits and new witness testimony-should not be suppressed just because of a *Miranda* violation INDEPENDENT SOURCE DOCTRINE --------------------------- #### Complex independent source (rediscovery) #### Genuinely independent: - Police decision to get a warrant must not have been prompted by the unlawful search - Magistrate\'s decision to issue a warrant must have been independent of the illegality INEVITABLE DISCOVERY DOCTRINE ----------------------------- EXCLUSIONARY RULE: IMPEACHMENT ------------------------------ C RIMINAL PROC EDURE ==================== - **Evidence used to impeach the D\'s direct testimony** - **Evidence used to impeach the D\'s direct testimony** 6TH AMENDMENT RIGHT TO COUNSEL ------------------------------ - **Rule:** in all criminal prosecutions, the accused shall have the right to have the assistance of counsel for his defense - Right to appointed counsel in felony cases - Misdemeanors: right to counsel depends on the fact of incarceration after conviction RIGHT TO COUNSEL: WAIVER ------------------------ - High standard for waiver **(Faretta v. California,** 422 U.S. 806 (1975))-D must: - Prove he is knowingly choosing to proceed without counsel - Make a clear and unequivocal assertion of the desire to represent himself - Not abandon the effort to represent himself - Competency to waive RTC: - Must get explicit statements on the record demonst rating waiver - D must demonstrate a minimal degree of cognitive capacity - Court must inform D of dangers of self-representation - Self-representation on appeal: RIGHT TO COUNSEL OF CHOICE -------------------------- - Right belongs to non-indigent Ds - Indigent D: no right to choose public defender or to change appointed counsel mid-trial, except for \"good cause\" -  Limitations-conflict of interest; too many conflicting schedules; not a lawyer; inability to afford EFFECTIVE ASSISTANCE OF COUNSEL ------------------------------- - Two-part test **(Strickland v. Washington,** 466 U.S. 668 (1984)): - Deficiency-performance beyond the bounds of objective reasonableness under prevailing professional standards - **Prejudice-result** would have been different - Effective assistance in plea bargaining - **Structural ineffectiveness and presumed prejudice:** - Complete or explicit denial of counsel - Actual conflict of interests PROSECUTOR FILING ----------------- - Prosecutor has discretion over who and how to cha rge - **Equal Protection: Selective Prosecution** - Prima facie case-D must prove that the gov\'t: - Used an arbitrary classification - Was motivated by discriminatory purpose, and - Created discriminatory effect with its enforcement policy - violation occurs when D is punished for asserting his constitutional rights by a prosecutor motivated by actual vindictiveness 5TH AMENDMENT: DOUBLE JEOPARDY ------------------------------ - Jury trial-when jury is sworn - Bench trial-when the first witness is sworn - Plea-when the court accepts the guilty plea - No person can be: (i) retried after acquittal, (ii) retried after - IF conviction overturned on appeal, new prosecution does not violate DJ unless appeal was granted for insufficient evidence ### ThemisBar.com C RIMINAL PROC EDURE ==================== - Separate sovereign rule: do the two jurisdictions derive their power from independent sources or from same source? - Each state = independent of other states and the fed. gov\'t - Native American tribes = separate authority - Municipalities and counties = not separate - Territories = not independent of the U.S. gov\'t - Use of illegally obtained evidence-generally subject to PRETRIAL SCREENING DEVICES -------------------------- Most states: 13-23 PRE-ACCUSATION DELAYS --------------------- - Time between crime and filing - Remedy: dismissal w/ prejudice - Delay was unreasonable D\'s defense was thereby prejudiced PRETRIAL DETENTION ------------------ - *Gerstein* hearing: basis for PC is judged by the court within 48 hours or a reasonable time - PC exists = judge can authorize continued detention until arraignment or bail hearing ### ThemisBar.com - PC does not exist = must release - Prohibits excessive bail - No right to bail - Purposes of bail: - Prevent flight - Prevent commission of more crimes (dangerousness) PROSECUTORIAL DISCLOSURE DUTIES ------------------------------- - Goal = no surprises - Governed by statutes and court rules - Grounded in the Due Process Clause - Rule: failure to disclose evidence in its possession, regardless of whether requested, violates DP if (i) the evidence is favorable to the accused (i.e., exculpatory or impeaching), (ii) the evidence was suppressed by the gov\'t willfully or inadvertently, and (iii) prejudice ensued SUBSTANCE OF PLEAS AND PLEA BARGAINS ------------------------------------ - Plea to the court/open plea/non-negotiated plea - Pleas resulting from bargain with prosecutor - Charge bargain - Sentence bargain - Waives ability to contest guilt or the sufficiency of evidence - Waives trial rights unless (i) specifically reserved in the plea or VALIDITY OF INDIVIDUAL PLEAS ---------------------------- - D must have: (i) sufficient present ability to consult with an attorney and (ii) rational and factual understanding of the proceedings - Understanding the charge-must receive notice of the true nature of the charge - Understanding consequences of the plea: - Judge must advise D of direct consequences (maximum penalty and mandatory minimums), not collateral - Understanding rights waived: C RIMINAL PROC EDURE ========================================== - Judge must advise D of privilege against self-incrimination, right to trial by jury, and right to confront accuser(s) VOLUNTARINESS OF INDIVIDUAL PLEAS --------------------------------- - Courts generally consider whether the plea is the result of - #### Prosecution\'s behavior: - Prosecutor promises to drop certain charges, but charge the whole complaint or add charges if negotiations break down = OK - Negotiations fail and prosecutor brings more serious charges, but did not present these during negotiations = possible claim for vindictive prosecution - D pleads guilty but prosecutor misrepresented sentence exposure = possible claim for involuntary plea #### Judge\'s behavior: - Participation in negotiation, by itself = OK - Look to particular facts of the case - Involuntary pleas-judge significantly overstates D\'s predicament were he to stand trial; presses for guilty plea when D manifests desire not to plead guilty; indicates conviction at trial is a foregone conclusion 6TH AMENDMENT: RIGHT TO SPEEDY TRIAL ------------------------------------ #### Attachment ASSESSING 6TH AMEND. VIOLATION ------------------------------ - Length of delay-most courts: delay of 9 months or one year - Reason for delay - Whether, when, and how often D asserted the right - Whether D was prejudiced by the delay RIGHT TO PUBLIC TRIAL --------------------- 1. Party seeking to close must advance an **overriding interest** 2. Must be **no broader than necessary** to protect interest 3. Trial court must consider **reasonable alternatives** to closing 4. Trial court must make findings **adequate to support** the closure RIGHT TO JURY TRIAL ------------------- - Waiver must be: - expressly and intelligently made - in writing, signed by D, or stated on the record by D STRUCTURE OF JURY TRIAL ----------------------- - Jury size - Unanimity-6th Amend. requires unanimity in state and federal court JURY SELECTION {VOIR DIRE) -------------------------- - **Purpose:** ascertain the ability of prospective jurors to decide the case on the merits - **Array:** pool of jurors that represents a fair cross section of the community - **Venire:** group of prospective jurors sent to a particular - **Panel:** drawn from the venire; seated to hear the case - **Required characteristics for jurors:** U.S. citizen, 18 years old, resident of county or district, impartiality (among others) - #### Peremptory challenges: - Strikes for any reason other than race **(Batson v. Kentucky,** - *Batson* challenge: - Opponent claims racial or gender bias by the opposing party - Lawyer who has been accused is asked to give a race or gender-neutral reason for the strike to rebut the presumption - Judge decides if race or gender-neutral reason is pretext COLLATERAL ESTOPPEL (CLAIM PRECWSION) RULE: ------------------------------------------- - Only the prosecution is bound by collateral estoppel Typically does not apply to guilty pleas ### ThemisBar.com