Crim Pro 3-9-12 Important Topics:

Fourth Amendment Search & Seizure Confessions 5th amendment; Miranda Doctrine Wiretapping & Eavesdropping Law of Arrest Pretrial Identification Punishment Grand Juries Pretrial Detention Trial Rights Guilty Pleas & Plea Bargaining Punishment Double Jeopardy 5th amendment Privilege Against self-incrimination.

1. Fourth Amendment Search & Seizure

a. Four Main Issues: 1. Whether a search or seizure is governed by the 4th amendment;

a. Was the search or seizure executed by a government agent? i. Publicly paid police or ii. Private security guard deputized w/ power to arrest
b. Was there a reasonable expectation of privacy in the area or the

items seized? Person must have REP w/ respect to place search or item seized to have a 4th Amendment right + standing challenge search or seizure.

2. Whether a search or seizure conducted with a warrant satisfies 4th

amendment requirement?
a. Is the warrant supported by probable cause and particularity? Page 1 of 26

b. If not, did police officers rely on a defective warrant in good

faith? applies to MBE only; NY rejects good faith doctrine. Exceptions to good faith MBE: affidavit egregiously lacking, very deficient, magistrate bias).
c. Was the warrant properly executed by the police?

i. Did officers executing warrant comply with knock and announce rule? ii. Did they comply with termssearch only those areas authorized by warrant.

3. Whether a search or seizure conducted without a warrant satisfies 4th

amendment requirements? Only if one of 8 exceptions (ESCAPIST) Exigent circumstances (evidence will disappear or hot pursuit) Search incident to arrest (limited to person and immediate surroundings) Consent Automobile Plain View Inventory Special Needs Terry Stop and Frisk

4. The extent to which evidence obtained through a search and seizure that

violates the 4th amendment is nonetheless admissible in court.

b. Question#1: Is the search or seizure governed by the 4th amendment?

Consider 2 questions:
1. Was the search or seizure executed by a government agent? A. Publically paid police on or off duty. B. Private citizens if and only if they are acting at the direction of the

police.

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Note: Private security guards are government agents only if they are deputized with powers to arrestcampus security guards at many public universities. If yes:

2. Was there a reasonable expectation of privacy in the area or the items seized? A. Protected Areas: a. Person (body) b. Houses (including hotel rooms) c. Papers (personal correspondence)

d. Effects (purses, back packs)

e. Home-based privacy cutelage area of domestic use

immediately surrounding the house (back yard enclosed by fence, front porch).
B. Unprotected Items carry no reasonable expectation of privacy, even if

they are searched or seized by government agents:

a. Paint scrapings (on the outside of your car) b. Account records (held by a bank) c. Airspace (anything that can be seen below while flying in public

airspace)
d. Garbage (left on curb for collection) e. Sound of Voice --voice exemplars (a recording of a persons voice

made for identification

f. Odors (*including those that emanate from your car or luggage-

drug dogs)
g. Handwriting h. Cars Movement on Public Roads (even if detection of movement

requires tracking bug).

i.

Open fields (that is, anything that can be seen in or across the open fields) Example: If marihuana plants are discovered in an open field by police, the evidence is in plain view, and the owner of the field has no reasonable expectation of privacy, so the evidence cant be
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suppressed, even if police were trespassing in the field. Note: All of these items have knowing exposure to 3rd parties in common.

3. Challenging the Search or Seizure

To have authority or standing to challenge the lawfulness of a search or

seizure by a government agent, an individuals personal privacy rights must be invaded, not those of a third party. To confer standing:

If they own the premises Non-owners, but residents of the premises (renters) Overnight guests have standing for areas a guest would be expected to use. (Yes for living room, dining room, bathroom; no to closet in hosts bedroom). Using residence for business purposes no standing. Ex: Apartment of acquaintance used only to bag cocaine. Owner of seized property only if they have a reasonable expectation of privacy in the area from which the property was seized. Example: Man who hides drugs in gfs purse-no standing. Passengers in cars only is they have a reasonable expectation of privacy in the item or area searched & seized. Example: cop finds a bag of marijuana in a passengers coatyes standing; a cop finds a baggie of drugs w/ passengers name on it under drivers seat (no standing).

NEW YORK RULE: Passengers in cars can challenge the possession of

weapons, if possession is attributed to them.

Note: If you find at end of Issue 1 that government agent has violated an individuals reasonable expectation of privacy, the 4th Amendment applies to
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search and/or seizure. Next step: does search or seizure comply with 4th Amendment (warrant)?

c. Question #2: Does the search warrant under which criminal evidence was gathered

satisfy 4th amendment requirements? 3 Questions *Is the warrant supported by probable cause and particularity? *If not, did police officers rely on a defective warrant in good faith? (applies to MBE only; NY rejects good faith doctrine. * Was the warrant properly executed by the police?

Q1: Is the warrant supported by probable cause and particularity?

1. Probable cause requires proof of a fair probability that contraband or

evidence of crime will be found in the area searched.

A. Hearsay admissible for this purpose. B. Use of informants tips may be used, even if anonymous. a. Sufficiency of the tip rests on corroboration by the police of

enough of the tipsters information to allow the magistrate to make a common sense practical determination that probable cause exists.
C. NEW YORK: continues to use the stricter Aguilar-Spinelli test in

evaluating probable cause. Under this test, when applying for a search warrant, the government must establish: (1) The informants basis of knowledge;
(2) His/her veracity/reliability.

Hypo: The Chicago, IL police receive an anonymous letter stating that Bill and Terry Jones, who live at 55 High Street in Chicago, sell drugs from home. Letter explains how, in first week of month, Bill drives their Honda to Miami and loads it with drugs. Terry flies to Miami and drives the car back to their home in Chicago. Two days after Terry arrives in Miami, Bill flies home to get the house ready. Before applying for a warrant to search the Jones home, the police confirm that, in each of the last six months, the couple has purchases a series of one-way plane tickets consistent with the itinerary specified in the letter. Police officers conducting surveillance this past month also saw the couple unloading a number of
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large packages from the car at midnight soon after Terry arrives home. Should magistrate issue the warrant? Federal/MBE standard? Yes The police have confirmed enough of the tipsters info. to allow the magistrate to make a common sense, practical determination that probable cause exists, based on a totality of the circumstances test.

In NY? No. The police lack info. that established either the informants basis of knowledge or his or her veracity or reliability.

2. Particularity the search warrant must specify the place to be searched and the

items to be seized. Ex: Warrant for 416 Oak Street issued but address is a duplex. In a multi-unit dwelling, warrant must say what unit to search. But if police reasonably believed only one unit, anything they discover from wrong unit before they realize their mistake is admissible.

Ex: Warrant issued specific documents and other fruits and instrumentalities unknown at that time was valid in a complex criminal fraud case. Police had a hard time predicting exactly what form evidence to prove guilt could take.

Q2: Does an officers good faith save a defective search warrant?

A. General Rule: Good Faith suffices if absence of particularity or probable

cause. A warrant that is invalid due to the absence of particularity or probable cause still valid if the officer relied on it in good faith.
i. NY-Dist-Not in NY Invalid if absence of probable cause

or particularity. B. Exceptions:
1. The affidavit is so egregiously lacking on probable cause that no

reasonable officer would have relied on it. Example: Bare Bones affidavit that states only that the police have received information from a confidential informant who is known to then and has provided reliable information in the past.

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2. The warrant is so deficient in particularity that officers cannot

reasonably presume it to be valid. Example: Warrant authorizes a search for all serial numbers and identification numbers on all property at an address where probable cause existed only as to the presence of a stolen car parked outside.
3. The affidavit relied on by the magistrate contains knowing or

reckless falsehoods necessary to the probable cause finding.

4. The magistrate who issued the warrant is biased in favor of the

prosecution. Example: Salary of town official responsible for issuing search warrants made up of cash for each warrant issued. Q3: Was the search warrant properly executed by the police? There are 2 requirements:
1.

Did the officers executing the warrant comply with its terms and limitations

2.

Did officers comply with the knock and announce rule?

First: Compliance with the warrants terms and limitations: In executing the warrant, officers are allowed to search ONLY those areas and items authorized by the language of the warrant.

Example: A warrant allows police to search the living room for firearms

Areas: Anything other than living room would be outside the scope of the warrant. Kitchen, bedrooms, etc.

Items: Any container too small to contain a firearm (pill box, wallet).

Second: Knock and announce Rule: This rule requires police to knock and announce their presence and their purpose before forcibly entering the place to be searched, unless the officer reasonably
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believes that doing so would be futile or dangerous or would inhibit the investigation.

Compare:
1.

No-knock entry was deemed reasonable where there was probable cause that occupant was dealing drugs out of his home, had a violent criminal history, and kept a cashe of weapons in the home. No-knock entry was deemed unreasonable where occupants believed to be making methamphetamine in their home had no violent criminal record, no evidence suggested they were armed, and no demonstrated risk of destruction of evidence in time that it would take to knock and announced.

2.

d. Question #3: Is the warrantless search through which criminal evidence was

gathered valid under any of the 8 exceptions in the warrant requirement? (ESCAPIST)
1. Ex 1 Exigent Circumstances A. Evanescent evidence evidence that would dissipate or disappear in the

time it would take to get a warrant. Example: Scraping under fingernails as D might wash hands; blood evidence in DUI where breathalyzer refused b/c it could go down.

B. Hot pursuit of fleeing felon Hot pursuit allows police, when looking for

a suspect, to enter a suspects home or that of a 3rd party into which he has fled. During hot pursuit, any evidence of criminal activity discovered in plain view is admissible. Must be real hotat most 15 minutes behind felon is ok. Search just about unlimited if pursuit was valid. Police can go into anyones home, not just fleeing felon.

2. Ex. 2Search Incident to Arrest: Definition: search conducted by law

enforcement personnel when they lawfully arrest a suspected criminal. Usually limited to the person and immediate surroundings of a suspect. A. Arrest must be lawful. B. Justification: Officer safety + the need to preserve evidence.
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C. The search must be contemporaneous in time and place with the arrest. D. Scope: wingspan of suspect (body, clothing, containers within immediate control) without regard to the offense for which arrest was made. NY-Dist. In NEW YORK: Cant search containers within wingspan unless police suspect the arrestee is armed. ???? Can you search body?

Example: After making an arrest for driving while intoxicated, an officer searches a cigarette pack in the arestees front short pocket and seized the crack cocaine he finds inside. Are the search and seizure lawful?

Under federal/MBE standard? Yes. The contraband found in a container in immediate control of suspect.

In NY, No. The arresting officer had no reason to believe that the arrestee was armed.

E. For AUTOMOBILES searched incident to a custodial arrest (an arrest of

a person accompanied by taking person into custody):

a. Permissible Scope = interior cabin including closed or locked

containers, but NOT the trunk.

b. Location of Suspect: Once an officer has secured an arrestee (by

handcuffing him and putting him in squad car), the officer can search the arrestees vehicle only if she has reason to believe the vehicle may contain evidence relating to the crime for which the arrest was made.

NEW YORK: Once the occupant is out of the car, police cannot search closed containers or bags in the car to look for weapons or evidence of crime. Example: Mary is arrested for driving with a suspended license. Officer Jill tells Mary, who is not handcuffed, to stand in front of the car while she searches it. In Marys purse on the floor of the car, Jill finds pot and takes it.

Are Jills actions lawful?

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Under federal/MBE standard yes since Mary has not yet secured arrestee.

In NY, No b/c Mary is outside the car at the time of the search.

What if Mary were handcuffed inside the squad car at the time of the search? No for federal also since Mary is now secured and Jill could not reasonably expect to find evidence related to driving with suspended license inside car.

3. Ex. 3 Consent A. Standard: Consent must be voluntary and intelligent. B. Police do not need to warn you that you have a right not to consent. C. Apparent authority if officer obtains consent from someone who lacks

actual authority the consent is still valid under the 4th amendment provided the officer reasonably believed that the consenting party had actual authority. Example: Apparent authority was found where officers believed that a woman had actual authority to consent to their entry into her boyfriends apartment since she referred to the apartment as ours, had a key to enter it, and claimed to keep her stuff there.
D. Shared Premises When adults share a residence any/all adult residents

have authority to consent for common areas.

E. Disagreeing co-tenants: OBJECTING PARTY WINS. If co-tenants with

equal rights to use or occupy the premises disagree re: consent to search common areas, objecting party wins (to areas over which they share control).

4. Exception 4: Automobile (1) Standard police officers need probable cause to believe that contraband or evidence of crime will be found in the vehicle. (2) Search: Police may search the entire vehicle and they may open any package, luggage, or other container that may reasonably contain the items for which there is probable cause to search.

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Container: Must have probable cause that item you are looking for could reasonably be found in container (drugs search the container; TVs cant
(3)
search the container).

Hypo: A police officer has probable cause to believe that a car is being used to transport a stolen 27 plasma tv. Cop can search the entire vehicle. But he cant open a backpack in the trunk b/c too small to house a 27 tv. If cop had probable cause to search for drugs then he could search backpack in truck since drugs fit easily into backpack. Traffic stops and Auto Searches Sometimes what begins as a routine traffic stop results in a search of all or part of the vehicle. Probable cause can arise after the car is stopped but must arise before anything or anyone is searched.
(4)

Hypo: A car is pulled over for speeding. When the officer runs the license plate through the computer, he discovers that the car has been linked to drug trafficking activity through ongoing police surveillance. He returns to the car and proceeds to search it, finding a 5 ib bag of cocaine in spare tire in trunk. Search is lawful. Officer could not have lawfully searched car before he ran the license plate.
5. Exception 5 Plain View commonly tested.

Three Requirements for seizure of an item in plain view: A. Lawful access to the place from which it can be plainly seen. B. Lawful access to the item itself; and C. The criminality of the item must be immediately apparent. Hypo: A police officer enters a residence in hot pursuit of a fleeing felon. The officer enters an upstairs bedroom and opens a closet door to see if the felon is hiding inside. He is not. Noticing a backpack on the floor, the officer opens it and finds a baggie containing a white, powdery substance labeled heroin. He seizes it. The seizure of heroin is invalid under plain view doctrine b/c while cop had lawful access to bedroom and closet and seized what he knew was contraband (criminality apparent), he did not have lawful access to backpack since felon could not fit inside.
D. NEW YORK: Plain view seizure of obscene material required prior judicial

authorization. 6. Exception 6 Inventory: A. Inventory searches most commonly occur in 2 contexts: a. Arrestees when they are booked into jail. b. Vehicles when they are impounded. B. Inventory searches are constitutional, if the regulations governing them are reasonable in scope and the search itself must comply with those regulations.
7. Exception 7 Special needs: Special needs of law enforcement, government

employers and schools officials beyond a general interest in law enforcement. A. *Random drug testing: the Supreme Court has allowed warrantless, random drug tests in a variety of contexts:
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Railroad employees following an impact accident. Customs agents who are responsible for drug interdiction; and Public school children who participate in ANY extracurricular activities.
BUT Suspicionless drug tests are not permitted where their primary

purpose is to gather criminal evidence for use by law enforcement. Example: The involuntary drug testing of pregnant women was deemed invalid where SC found that their primary purpose was to coerce patients into rehab program through threat of criminal prosecution.
B. Government Employees desks and files: Warrantless searches of government

employees desks and files are permitted to investigate work related misconduct.
C. Students effects in public schools: Warrantless searches of the effects (purses,

backpacks) of public school children are permissible to investigate violations of school rules (prohibition of smoking on school grounds).
D. Border searches: Neither citizens nor non-citizens have any 4th amendment rights

at the border with respect to routine searches of persons and effects.

8. Exception 8: Terry Stop and Frisk

First, Terry Stops: A. Terry Stops: is a brief detention or seizure for the purpose of investigating suspicious conduct. Reasonable suspicion of criminal activity but short of probable cause. Note: Terry stops can take place ANYWHERE (street, car, airport, bus, etc.)
B. When are you seized for 4th Amendment purposes?: a. An individual is seized for 4th amendment purposes when, based solely on a

totality of the circumstances test, a reasonable person would not feel free to leave or to decline an officers request to answer questions. b. In evaluating whether an individual has been seized during questioning by law enforcement consider: 1. Whether an officer brandishes a weapon; 2. The officers tone & demeanor when interacting with the individual questioned; and 3. Whether the individual was told she had rights to refuse consent.
C. Police Pursuit and Seizure: When being pursued by a police officer, an individual

is seized only if he submits to the officers authority by stopping or if the officer physically restrains him.
NEW YORK: police pursuit is a seizure in and of itself.

Hypo: As Martha quickly exits Macys, Officer Alice thinks she looks shifty and orders her to stop. Martha runs and Alice chases her. Martha collides with a pedestrian, causing the contents of her purse to spill just as Officer Alice approaches. Alice sees baggie labeled Marthas pot. Alice seizes it. Martha moves to suppress the drugs, claiming that she was unlawfully seized by Alice. If
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we assume that Alice lacked reasonable suspicion to justify ordering Martha to halt, does Marthas claim have merit? Under federal/MBE standard: No. Martha was never seized since she did not submit to Alices authority. In NY yes. Martha was seized when her purse emptied since Alice had ordered her to halt and Alice was pursuing Martha.
D. Seizure and Traffic Stops: In a traffic stop, both the driver and the passengers are

seized, such that either can challenge the legality of the stop. a. Dog sniffs permissible provided the sniff does not prolong the stop unreasonably. Second: Terry FrisksA. Terry Frisks: Is a pat down of the body and outer clothing for weapons that is justified by an officers belief that a suspect is armed & dangerous. B. What can be seized? i. Weapons (always during a terry frisk) ii. Contraband NOT requiring manipulation of object.
NEW YORK: officers can seize an item ONLY if it feels like a weapon. Hypo: When Office Adele pulls Frank over for speeding, he storms out of his car and begins screaming about how she is wasting his valuable time and that he has messed with people for less. Afraid that he might have a weapon, Adele frisks Frank. In his coat pocket, she detects what she immediately recognized to be a crack pipe. She seizes it.

Under federal (MBE) standard, seizure is justified b/c she did not physically manipulate before seizing it. In NY, no since she did not believe it was a weapon.
C.

Car Frisks: When conducting a traffic stop, if an officer believes that a suspect is dangerous, he may search the passenger cabin of the suspects vehicle, limited to those areas in which a weapon may be placed or hidden.

Third, Evidentiary Standards: a. Evidentiary Standards: What evidentiary standard applies to Terry stops and frisks? Require reasonable b. Terry stops: Requires specific and articulable facts that inform an officers belief that criminal activity is present.
c. Terry frisk--Requires specific and articulable facts that suggest that a suspect is armed and

dangerous. A Terry frisk is justified by a concern for officer safety only, it is not a general search for criminal evidence. Hypo: Police spot 2 teenagers pushing a baby carriage down the street at midnight in a desolate commercial area. Observation justifies Terry stop b/c teenagers conduct provided reasonable
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suspicion of criminal activity. Terry frisk justified only if additional facts show that one or both teenagers is armed and dangerous. Recap Issues 1-3: Searches and seizures conducted by government agents satisfy the 4th Amendment if: 1) They are supported by a valid and properly executed warrant; or 2) (For MBE only) They are supported by a properly executed but defective Warrant saved by officers good faith; or 3) They are warrantless and comply with the requirements and limitations of one of the 8 categorical exceptions to warrant req. If any of these situations exists, evidence gathered is fully admissible and you do not need to move on to issue 4. But if none of these 3 scenarios applies to the facts, you are faced with an unconstitutional search and seizure. Move on to Issue 4. Question#4: To what extent can prosecutors use the evidence gathered in an unconstitutional search and seizure against the defendant in court? Exclusionary rule Prohibits introduction of evidence obtained in violation of Ds 4th, 5th and 6th Amendment rights in a criminal trial. 4th Amendment Limits on Exclusionary Rule 1. Case-in-chief v. cross-examination Unconstitutionally obtained evidence is excluded from the prosecutors case-in-chief only; it may be introduced to impeach the defendants testimony on crossexamination.
2. knock & announce violations a failure to comply with knock and announce does not require

suppression of the evidence subsequently discovered.

3. Officers reasonable mistakes rule does not apply to evidence erroneously obtained when executing a

search warrant, provided officers mistake was reasonable. Hypo: The police obtained a warrant to search Johns premises located at 20 Park Ave, 3rd Floor. Upon arriving at the location, officers found two open doors, and believing they were doors to a single, one-floor apt, they entered both. By the time they realized that there were two separate apts, they had seized drugs in Brads apt., which they had entered in error. Drugs are admissible b/c believe that there was only one apt. reasonable based upon what officers knew, and they stopped the search as soon as they realized their mistake.
4. Fruit of the poisonous tree derivative secondary evidence.

Illegally obtained evidence and all evidence obtained from that evidence must be excluded. Ex: If D was illegally arrested w/t probable cause and confessed, confession is excluded. To nullify fruit of the poisonous tree, prosecutors must show a break in the causal link b/t the original illegality and the criminal evidence later discovered. Three doctrines can achieve the required break. a. Independent Source Doctrine Evidence obtained from a source independent of the original illegality. Ex: A parallel process initiated by the other officers.
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b. Inevitable Discovery DoctrinePolice would have discovered the evidence whether or not they

had acted constitutionally. Ex: The body of dead girl, found by police through unlawful interrogation., would have been found lawfully by police who were presently conducting a grid search of the area in question.
c. Attenuation Doctrine Ds free will has been restored through the passage of time and

intervening events. Ex: D illegally arrested and released but then returned to station house later to confess. 2. Wiretapping and Eavesdropping a. Wiretapping 1. Four Major Requirements for valid wiretap warrant: (Screen Telephone Calls Carefully) A. Suspected persons: the warrant must name the suspected persons whose conversations are to be overheard. B. Crime: there must be probable cause that a specific crime has been committed. C. Conversations: the warrant must describe with particularity the conversations that can be overheard. D. Time: the wiretap must be for a strictly limited time period. b. Eavesdropping 1. Generally all wiretapping requires a warrant. 2. Exception: Unreliable Ear Doctrine and Assumption of Risk: If you speak to someone who has agreed to a wiretap or some other form of electronic monitoring, you have no 4th amendment claim; no guarantee that the other party will not keep your conversations private. Everyone assumes the risk that the person listening will consent to the government listening or is wired. 3. The Law of Arrest a. When does arrest occur? 1. An arrest occurs whenever the police take someone into custody against her will for prosecution or interrogation.
2. It is considered a de facto arrest when the police compel someone to come to the

police station for questioning or fingerprinting.

b. Standard of Proof for Arrests:

Probable cause.
c. Offenses that provide a 4th amendment permission for custodial arrest: 1. All offenses, even those punishable by a monetary fine only. d. When do you need a Warrant for arrest:

1. NOT for arrest in public place. 2. In personal home absent emergency warrant required. 3. Arrest in home of 3rd party arrest warrant and search warrant.
e. Common Enterprise Theory Page 15 of 26

In a traffic stop, where a police officer discovers evidence of crime that suggests a common unlawful enterprise behind the driver and his passengers, the officer may arrest any or all of them, based on the reasonable inference of shared dominion and control over the contraband. 4. Confessions a. Overview: Three federal Constitutional challenges that can be brought to exclude a confession: 1. 14th amendment due process clause 2. 6th amendment right to counsel 3. 5th amendment Miranda doctrine. NEW YORK: Defendants can also challenge a confession under New Yorks indelible right to counsel, which derives from the 6th amendment of the state constitution.
b. Excluding confessions under the Due Process Clause:

Standard for excluding a confession: Involuntariness means the confession is the product of police coercion that overbears suspects will. Hypo: Believing God has commanded him to do so, a man flies across the country to confess a murder he committed years earlier. Before officer takes his confession, officer gives the man his Miranda rights and obtains a waiver. In next 24 hours, suspect deteriorates mentally and becomes psychotic. A psychiatrist later testifies that he was psychotic at the time he confessed. Does admitting the confession at trial violate due process? No, confession voluntary + not overborn by police coercion.
c. Right to Counsel under 6th Amendment

1. Express constitutional guarantee. 2. Attaches when the defendant is formally charged not upon arrest. 3. This right is offense specific. This means it applies only to charges filed against you. Provides no protection for uncounseled interrogation for other uncharged criminal activity. Hypo: D charged with burglary. At bail hearing, public defender is appointed to represent him and he is remanded to custody. 2 weeks later, police interrogate him and about an unrelated murder w/t his lawyer present. Does this violate Ds 6th Amendment right to counsel? No, since D not formally charged w/ murder at time of interrogation.
a. NEW YORK Indelible Right to Counsel i. New Yorks right to counsel provides greater protection than the

6th amendment.
ii. Indelible right to counsel attaches not only at formal charging, but

also whenever there is significant judicial activity before the filing of the accusatory instrument (ex. Arrest) such that D may benefit from the presence of counsel.

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iii. If D is taken into custody for questioning on a charge and the

police are aware that he is represented by counsel on that charge and the police are aware that he is represented by counsel on that charge they MAY NOT question him about that charge or any other matter without his attorney present. Hypo: Police have been investigating Garys involvement in an armed robbery. During investigation, Gary has consistently referred all police inquiries to his attorney. After finding incriminating evidence in a search of Garys apt, the police secure an arrest warrant and remove Gary from his home to the station house for questioning w/t notifying his attorney. Interrogation violates NYs indelible right to counsel as to both armed robbery and murder since there has been significant judicial activity (search warrant, arrest warrant) + police know Gary has counsel.
iv. If a defendant is represented by counsel, waiver of the indelible

right to counsel must take place in the presence of the attorney.

b. 5th Amendment Miranda Doctrine i. Miranda rights are implied rights grounded in the self

incrimination clause of the 5th amendment.

ii. 4 Core Miranda Warnings

1. 2. law.
3. 4.

Right to remain silent Anything you say can and will be used against you in a court of Right to an attorney during interrogtation. If you cannot afford one, theyll give you one.

iii. When are Miranda Warnings Necessary?

Two Requirements a. Custody: a suspect is in custody, for Miranda purposes, if the atmosphere, viewed objectively, is characterized by police domination and coercion such that his or her freedom of action is limited in a significant way. Any conduct where police knew or should have known that they would get a damaging statement from D. Hypo: 3 cops entered Ds bedroom at 4am. Woke him up and started asking questions about his involvement in homicide. During course of interrogation D incriminated himself. Prosecution argued that interrogation was not custodial for purposes of Miranda doctrine. Not a good argument b/c while interrogation didnt take place in official setting, questions by 4 cops in Ds bedroom in the wee hours limited his freedom of action in a significant way.
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 NOTE: Miranda does not apply to incriminating statements made

spontaneously, since they are NOT the product of interrogation. Hypo: Cop, posing as an inmate, is placed in jail cell w/ a D, who is being detained pending trial on charge of aggravated battery. Officer befriends D and questions him about his involvement in an unrelated murder. In convo, D incriminates himself. Officers conduct did not violate Miranda rights b/c D thought he was talking to a friend, and Miranda triggered by atmosphere of police domination-not here. + No 6th Amendment violation b/c interrogation concerned uncharged criminal activity.
b. Public Safety Exception to Miranda in custodial

interrogation: If a suspect is subjected to custodial interrogation, the Miranda doctrine applies with one important exception: If custodial interrogation is prompted by an immediate concern for public safety, Miranda warnings are unnecessary and any incriminating statements are admissible against the suspect.
Unless public safety exception applies, incriminating

testimonial responses obtained through custodial interrogation are admissible only if police first obtain a valid waiver of a suspects Miranda rights. iv. A Valid Miranda Waiver 1. Two Core requirements a. Knowing and Intelligent: a waiver is knowing and intelligent if the suspect understands: i. The nature of the rights; and ii. The consequences of abandoning them.
b. Voluntary: a waiver is voluntary if it is not the

product of police coercion. c. Where D says nothing or shrugs, no waiver.

d. New York Parent/Child Rule: If the police use

deception or concealment to keep a parent away from a child who is being interrogated, the childs waiver may be deemed invalid. Burden of Proof: In proving a valid waiver, the prosecution bears the burden of proof by a preponderance of the evidence. a. Silence/Shoulder Shrugging: does NOT satisfy this burden.
2.

Hypo: Upon learning that Leigh has been arrested, her lawyer calls the station house and tells the desk sergeant that he wants to be present if she is interrogated later that evening. An house later, sergeant sees detectives take Leigh into an
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interrogation room, but he does not notify Leighs attorney and does not tell Leigh about her attorneys call. After receiving her Miranda rights, Leigh acknowledges that she understands that. She then signs a waiver form and confesses, in response to detectives questions. Leighs waiver of her Miranda right is: valid. She understood her rights and the consequences of her actions and was not coerced by the detectives.
v. Invoking Miranda Rights:

Invoking the Right to Remain Silent: Police officers must scrupulously honor a suspects request to remain silent.
1.

Police may not badger a suspect into talking. Plus police detectives must wait a significant period of time before reinitiating questioning and must first obtain a valid Miranda waiver. 2. Invoking the Right to Counsel i. Once a suspect asks for counsel, all interrogation must stop unless initiated by the suspect.
ii. The request for counsel must be sufficiently clear that a

reasonable officer in the same situation would understand the statement to be a request for counsel.
iii. Unlike the 6th amendment, the 5th amendment right to

counsel is not offense-specific; therefore, interrogation following a request for counsel under Miranda is prohibited as to all topics, outside the presence of the suspects attorney.
iv. The request for counsel expires 14 days after a suspect is

released from custody; waiver of the Miranda right to counsel obtained after this period is valid, provided it is knowing & intelligent and voluntary. *New rule based on 2010 SC Case.
vi. Limitations on evidentiary exclusion as applied to Miranda

Violations: 1. Incriminating statements obtained in violation of a suspects Miranda rights are inadmissible in the prosecutors case-in-chief but may be used to impeach Ds testimony on cross examination but NOT testimony of 3rd party witnesses. *Failure to give a suspect Miranda warnings does NOT require the suppression of physical fruits of incriminating statements, provided the statements are voluntary.
2.

Hypo: Jim confesses to killing his business partner and tells officer where he hid gun. Officer retrieves fun. Interrogation found to violate Miranda. Jim will be able to suppress statement but not weapons (physical fruit--Page 19 of 26

outside scope). If a statement is inadmissible due to a Miranda violation, subsequent statements made after obtaining a Miranda waiver are admissible, provided the initial, non-Mirandized statement was not obtained through the use of inherently coercive police tactics, offensive to due process.
3.

If testimonial evidence that should have been excluded as violative of Miranda was improperly admitted at trial and D was convicted, guilty verdict will stand if government can prove, beyond a reasonable doubt, that the error was harmless b/c D would have been convicted w/t tainted evidence. Rule also applies to improperly admitted physical evidence.
4. 5.

*Pretrial Identification a. Three Types of Pretrial Identification i. Line-ups: witness is asked to identify the perpetrator from a group. ii. Show-ups: one-on-one confrontation between the witness and the suspect. iii. Photo arrays: witness asked to pick out the perpetrator from a series of photos.
b. Two Substantive Challenges to Pretrial Identifications

i. Denial of the Right to Counsel 1. 5th amendment: there is no 5th amendment right to counsel under Miranda for pre-trial identification procedures.
2. *6th amendment: a right to counsel exists under the 6th

amendment at line-ups and show-ups that take place after formal charging; There is NO 6th amendment right to counsel at photo arrays.
3. NEW YORK

4. provides greater protection for suspects. NY you have the right to have an attorney present at a line-up conducted before the filing of formal charges if you are aware that you have counsel and you request counsel to be present. ii. Violation of Due Process 1. A pretrial identification procedure violates the due process clause of the 14th amendment when it is so unnecessarily suggestive that there is a substantial likelihood of misidentification.
c. Remedial Considerations: i. The remedy for constitutional violations in pretrial identifications

whether the right of counsel or due process is the same: exclude any in-court identifications.
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ii. Exception: Independent sourcewhere prosecution can show

ample opportunity apart from faulty lineup to identify D at time of the crime (Ex. Victim spent 40 minutes with D at gunpoint).
1.

iii. To make this showing, the prosecution can point to factors such as: The witnesses opportunity to view D at the crime scene; 2. The certainty of the witnesss identification; and 3. The specificity of the description given to the police.

6.

Grand Juries a. Grand juries issue indictments. i. Proceedings in private. ii. Most states do not use a grand jury iii. Exclusionary rules do not apply during grand jury. NEW YORK DOES: NY indictments must establish all elements of the offense and provide reasonable cause to believe that the accused committed the crime in question. Pretrial Detention a. Standard of Proof: Gov. needs Probable cause both to bind D over for trial and to detain him in jail before trial.
b. Detention hearings a hearing to determine probable cause (Gerstein

7.

hearing) is unnecessary to justify pretrial detention if: i. The grand jury has issued an indictment. OR ii. The magistrate has issued an arrest warrant.
c. The First Appearance: Soon after arrest, D must be brought before a

magistrate who will: i. Advises him of his rights. ii. Sets bail iii. Appoints counsel if necessary.
d. Bail Decisions on bail are immediately appealable.

8.

Trial Rights a. Evidentiary Disclosure: A prosecutor must disclose to a criminal D all material exculpatory evidence (Brady rule)
b. Judges: The right to an unbiased judge means two things: 1. Judge has no financial stake in the outcome of the case and 2. The judge has no actual malice towards the defendant.

(Ex: Next time I see you, youre getting the max is not malice) c. Juries
i. Criminal Ds have the right to a jury trial when the maximum

sentence exceeds 6 months. ii. Up to and including 6 months no right to jury trial.
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iii. Fewest # of jurors allowed in criminal trial 6

iv. SC has recognized non-unanimous jury trials (10-2). NEW YORK REQUIRES 12-PERSON JURIES. D can waive requirement and proceed to verdict with only 11 jurors participating in deliberations.
v. Verdicts must be unanimous if only 6 jurors used; 12-person

need NOT be unanimous.

NY requires unanimous jury verdicts. vi. Cross-Sectional Requirement requires diverse juror pool cross-

section of the community. A jury of all white women over age 60 does not violate cross sectional requirement IF the pool from which it was drawn was appropriately drawn.
vii. Peremptory Challenges Allow both sides to exclude jurors w/t

stating their reasons for doing so, but they cannot be used by either side to exclude prospective jurors on account of RACE or GENDER.
d. Confrontation Right Ds right to confront adverse witnesses does not

apply when it conflicts with important public policy concern. Example: traumatizing a child witness.
e. Effective Assistance of Counsel Two prong test to prove ineffective assistance of counsel: 1. Counsels performance was deficient; and 2. But for deficiency, the outcome of the trial would have been different (prejudice requirement)

*Relief usually DENIED unless colorable argument that D would have been found NOT GUILTY. Example of strictness of deficiency standard: Insufficient showing of deficiency where attorney took cat naps during trial but was otherwise effective. Example of strictness of prejudice standard: Insufficient showing of prejudice where attorney slept through entire 15 minute testimony of a witness for the prosecution and couldnt do cross-examination; no prejudice b/c witness testifies on non-contested matters. 9. Guilty Pleas and Plea Bargaining a. Guilty plea= waiver of trial. b. For plea to be valid judge must establish that it is voluntary and intelligent. To make this showing, judge must address in open court and on the record:
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i. Nature of the charges including elements of the charged offense

and Consequences of the Plea (Ex: Max authorized sentence and any mandatory minimum sentences, right to plead not guilty and demand a trial).
c. A D may withdraw a guilty plea after sentencing only if: 1. The plea is involuntary (due to defect in what judge says) 2. Lack of jurisdiction (ex: wrong court took the plea) 3. Ineffective assistance of counsel. OR 4. Best Hope: The prosecutor fails to fulfill his/her part of the

bargain. Example: Prosecutor agrees to make no sentences recommendation but, at the sentencing hearing, he tells the judge to impose the maximum penalty. Remedy: D can withdraw plea and go back to square one. 10. Punishment a. 8th amendment does not allow punishments that are grossly disproportionate to the crime.
b. A death penalty statute would violate 8th Amendment if created an

automatic category for the imposition of the death penalty.

c. Statute cannot limit mitigating factorsall relevant mitigating evidence

must be admissible. Example: A statute provides that any conviction for 1st degree murder where the victim is a police officer requires the imposition of death sentence.
d. Jurors must consider all potentially mitigating evidence when deciding to

impose the death penalty.

e. 8th amendment prohibits the death penalty against:

i. Mentally retarded Ds ii. Ds who are presently insane. iii. Ds under 18 at the time of the relevant offense (not present age).
11.

Double Jeopardy: Tried for same offense twice. a. When does jeopardy attach? i. Jury trial: when jury is sworn. ii. Bench trial: when the first witness is sworn. iii. Guilty plea: when the court accepts the defendants plea unconditionally.
b. Double jeopardy DOES NOT apply to civil proceedings.

Example: If the SEC prosecuted civilly for insider trading, the US Attorney can later prosecute the same individual for securities fraud w/t implicating double jeopardy.
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c. Same Offense Requirement: i. Offenses NOT the same for double jeopardy purposes when each

contains an element the other does not. Consider these two statutes: Vehicular Manslaughter: 1. Causing death of another 2. Through the use of a car 3. Operated negligently. Hit and Run: 1. Causing bodily injury to another 2. Through the use of a car 3. Operated negligently 4. And unlawfully leaving the scene of accident. Vehicular manslaughter and Hit and Run are not the same offense for double jeopardy b/c VM requires proof of death and hit-and-run does not, and hit and run requires proof that D unlawfully left the scene which VM does not.
NEW YORK TRANSACTION TEST: In defining same offense, NY

uses transaction test which requires that a D be charged with all offenses arising from any single transaction unless: (1) Offenses have substantially different elements. (2) Each offense has elements not in the other and offenses vindicate different harms (3) One for possession, one for use; or (4) Each offense involved harm to a different victim.
ii. Greater and Lesser Included Offenses: Prosecution for greater

offense precludes later prosecution for lesser offense iii. Prosecution for lesser offense precludes later prosecution for greater offense unless victim dies and can be retried for murder. Consider the following statutes: Auto Theft1. Taking and operating auto; 2. W/t owners consent; 3. With intent to permanently deprive owner of possession. Joyriding1. Taking and operating an auto 2. W/t owners consent. Both offenses contain the first two elements but only Auto Theft has third additional element. Joyriding is a lesser-included offense of Auto theft. Example: A man steals a car from parking lot and is apprehended while driving it two weeks later. He faces charges for Auto Theft and Joyriding. If he is prosecuted for auto theft, can he later be tried for joyriding? No, prosecution for the greater offense precludes later prosecution for lesser-included offense.
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And if he is first tried for joyriding, he cannot later be prosecuted for auto-theft. Prosecution for the lesser offense also precludes later prosecution for the greater offense. d. The same sovereign requirement: Double jeopardy bars retrial for the same offense by the same sovereign only. Does not apply if D tried for same crime in different states, federal and state. Who are the same sovereign for purposes of the double jeopardy clause? State and federal government? No Different states? No States and municipalities w/n them? Yes
e. 4 Exceptions to double jeopardy that Permit Retrial

1.

Hung jury 2. Mistrial for manifest necessity Example: Retrial was permitted where a defect was found in the indictment during the trial that could not be cured by amending it.
3. Successful appeal (unless the reversal on appeal was based

on the insuffiency of the evidence presented by the prosecution at trial; or

4. Breach of plea agreement by D.

Hypo: Bill and Ted commit murder. Bill cooperates and is allowed to plead to 2nd degree murder in exchange for his testimony against Ted at Teds trial. Ted is convicted of 1st degree murder, based largely on Bills testimony, but Ted successfully appeals his conviction on other grounds. Bill refuses to testify at Teds retrial. Does double jeopardy prevent prosecutor from recharging Bill for 1st degree murder? No exception-Bill breached terms of the plea and can be recharged with murder 1.
12.

Pleading the 5th Amendment Taking the 5th a. Anyone may assert the privilege. Examples: Ds, witnesses, parties to civil proceeding. b. Privilege can be asserted in ANY proceeding in which an individual testifies under oath. i. NEW YORK cannot be asserted in a grand jury proceeding. Examples: Trial, administrative hearing, Congressional hearing.
c. *Privilege must be asserted at the first opportunity or it is forever waived. d. This is a testimonial privilege that protects us from compelled testimony

only (lie detector, custodial interrogation); it does not apply to the states use of our bodies (submitting hair, urine, blood or handwriting samples).
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e. The privilege disallows negative prosecutorial comment on either a Ds: i. Decision not to testify at his trial; or ii. The invocation of his right to silence or counsel after Miranda

warnings.
f.

3 ways to eliminate the privilege i. Grant of Immunity Prosecutors can grant use and derivative use immunity, which bars the government from using your testimony or anything derived from it to convict you.
NEW YORK transactional immunity broader that use &

derivative use; shields from witnesses from prosecution for any transaction testified about in their immunized testimony. Hypo: Erin testifies at Amandas trial that the two of them robbed a bank together. Through a different witness, the prosecutor introduces footage from banks surveillance cameras that clearly show Erin and Amanda perpetrating the crime. Can the prosecutor use this footage to convict Erin of bank robbery in a separate trial if her testimony is subject to: Use and derivative use immunity: Yes (footage not derived from Erins testimony) Transactional immunity? No (Bank robbery was the transaction Erin testified about. Note: An individual can be convicted based on evidence obtained prior grant of immunity.
ii. Defendant taking the Stand By taking the stand D waives the

ability to take the fifth as to anything properly within the scope of cross examination.
iii. Statute of Limitations: Privilege unavailable if the statute of

limitations has run since it would be impossible for you to incriminate yourself.

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