Criminal procedure:
Chapter 1: basic concept, arrests and seizures.
Constitutional protection only apply to government action
Even if governmental action exists, there still is no constitutional violation unless the
individual himself
1. had a reasonable expectation of privacy and;
2. either the police did not have a valid warrant or they executed an invalid
warrantless search.
Exception: private person under the direction of government
Exception: public and private defense counsel are government actors.
A state may grant broader rights under its own constitution than are granted by the federal
Constitution.
The Exclusionary Rule The primary remedy is the “exclusionary rule,” which prevents the
introduction at a subsequent criminal trial of evidence unlawfully seized.
This remedy is judicially created, not constitutionally mandated. The remedy provided by
the exclusionary rule generally applies to criminal trials
Approach in public place
Not to seizure, it is okay.
A reasonable person would feel free to
disregard the officer.
Seizure: not free to leave
Physically force or, show of authority to
infringe freedom of movement. (police
intentionally)
But not need to be detain the defendant
purposefully.
Whether a reasonable person feel free to
disregard the officer.
Types of Seizure:
Terry stop
Traffic stop
Arrest
Arrest with warrants
Warrantless arrests
Terry stop
Definition
Stop a person when officer has reasonable
suspicion based on articulable fact(more
than a hunch) to believe criminal behavior
engaged.
Content
Officer can pat down/frisk for weapon, not
for evidence.
Officer can seize the clear figure
contrabands during pat-down.
Probable cause arises during terry stop, can
make an arrest.
Unlawful stop_lawful arrest, ok for evidence.
Beyond a Reasonable Doubt → Conviction
Probable Cause (“more likely than not”) →
Arrest
Reasonable Suspicion (articulated and
particularized) → Stop
An officer’s reasonable mistake of law can
give rise to reasonable suspicion
Traffic stop
Arrest
Arrest Warrants
Warrantless arrests
Search incident to arrest
Inventory searches—When the police arrest
a driver and impound his car, it may be
searched for inventory purposes.
Special rule for cellphones—officers may
seize a cellphone during an arrest and check
the phone for dangers, but police need a
warrant to search the phone’s digital
information
Unlawful arrest_not ok evidence.
Reasonable suspicion to stop the car (easy)weapon
Not DUI(different)
Checkpoint: no need suspicion
Probable cause to believe a crime committed
Can be without the warrant
Pretext arrest: not the real motive to arrest is
acceptable.
Definition: authorize an officer to arrest a
person and enter home to arrest (no business
or other home). A police officer may not
arrest a person in another person’s home
without a search warrant, absent exigent
circumstances or valid consent.
Exception: consent from the owner.
Exigent circumstances.
Content: Issued by judicial officer.
Probable cause. (need name the person and
identify the offence)
In public place: for a crime (felony or
misdemeanor) committed in the officer or
private individual presence or
based on probable cause to believe crime
committed. (only for a felony)
Lawful arrest to search for person and his
surrounding area to:
1. Protect officer from weapon and
danger. or
2. Prevent the destroy of evidence and
concealment.
As long as the person has access to the area, it
is accepted.
Chapter 2: search
Definition
Occur when government conduct violates a
reasonable expectation of privacy.
Only unreasonable searches and seizures are
subject to the Fourth Amendment. A search
occurs when governmental conduct violates a
reasonable expectation of privacy.
Government:
Can be physical intrusion or not
Some techs are to be intrusion.
Privacy place
Privacy place
Homes of the defendant, backyard included
Hotel room (A motel clerk’s consent to a
search is insufficient).
Offices
Luggage
Overnight guest: at least as to the areas of the
home to which the guest has permission to
enter.
In determining whether the area is protected,
the following four-factor test applies:
i) The proximity of the area to the home;
ii) Whether the area is included within an
enclosure surrounding the home;
iii) The nature of the uses to which the area is
put; and
A search also may occur when the
government physically intrudes upon private
property for the purpose of obtaining
information.
May not have the standing:
May involve an individual with no
expectation of privacy, such as when
incriminating evidence is seized at another
individual’s home.
No private person
GPS or a dog near your house.
Dog sniff on public street are not.
Not privacy place
Public street
Open field (even over private flyover)
Abandoned stuff, garbage cans left in the
street
Short-term use of a home (e.g., several
hours) with the permission of the owner
A prison inmate in his cell
a pretrial detainee may have a limited
expectation of privacy in his cell.
a detainee’s cell may be subject to a routine
search, and the detainee’s person may be
subject to a strip search or a full-body search
after a contact visit with someone from the
outside.
iv) The steps taken by the resident to protect
the area from observation by passersby.
Private objects:
A person does not have a reasonable expectation of privacy with regard to a smell emanating
from his luggage, at least when the smell arises from an illegal substance.
When papers and effects are transferred to a third party, such as checks and deposit slips given
by a customer to a bank, a person no longer has a reasonable expectation of privacy in these
items. Similarly, financial statements maintained by a bank are bank records in which the
customer has no reasonable expectation of privacy.
Automobile privacy:
Officers must have an articulable, reasonable suspicion of a violation of the law in order to
stop an automobile. A call to 911 reporting erratic driving may give the police the reasonable
suspicion needed to make a traffic stop if the report is reliable.
Police may stop an automobile at a checkpoint without reasonable, individualized suspicion
of a violation of the law if the stop is based on neutral, articulable standards and its purpose is
closely related to an issue affecting automobiles.
When the purpose of the stop relates to the enforcement of immigration laws, any car may be
stopped on a random basis at the border of the United States without a reasonable suspicion
of wrongdoing.
The driver of a car does not have a reasonable expectation of privacy in the vehicle
identification number (VIN) affixed to an automobile. A police officer’s moving of papers that
obstructed his view of this number did not constitute a search under the Fourth Amendment,
and a gun found while doing so was admissible into evidence.
Person and attribute:
A demand for a handwriting or voice sample is not a search.
DNA identification of arrestees is a reasonable search that can be considered part of a routine
booking procedure
There is no reasonable expectation of privacy in conversations carried on with government
informants or undercover officers.
If one party to a telephone call consents to wiretapping or agrees to record the call at the
government’s request, such monitoring will not trigger the Fourth Amendment rights of any
other party to the call.
A person also runs the risk that a third party to whom she turns over information may disclose
such information to the government.
Methods of searching:
An inspection conducted from the air,
Fly over
whether by an airplane or a helicopter, does
not violate a reasonable expectation of
privacy
Attaching a device to a person’s body without
Device/ Flashlight
consent in order to track that person’s
movements is a search for Fourth Amendment
purposes
The use of a flashlight at night to illuminate
the inside of a car does not constitute a search
for Fourth Amendment purposes
Canine Sniff
Use of a trained dog to sniff for the presence
of drugs is a search if it involves a physical
intrusion onto constitutionally protected
property.
In the absence of a physical intrusion, the use
of drug-sniffing dogs does not violate a
reasonable expectation of privacy.
Field test of substance
A field test performed on a substance to
determine if the substance is contraband is not
a search for Fourth Amendment purposes.
Warrant requirement
Issued by neutral magistrate
Must be supported by oath or affidavit.
Must be based on probable cause to believe
they are fruits, instrumentalities or
evidence of crime
Must describe the property and places with
particularity.
Must executed properly.
Wiretapping:
1. Have probable cause and a warrant
2. Must have an end date
3. Must identify whose conversation are
to be intercepted.
1. Probable cause:
Police officer personal observation
Informant (totality of the circumstance)
Evidence seized during stops based on reasonable suspicion, in plain view or during
consensual searches.
Right to attach truthfulness of affidavit (preponderance of evidence) knowingly false info and
the false statement are necessary to probable cause.
2. Particularity of place and objects
3. Anticipatory warrant
Probable cause will trigger a condition that the condition does occur, the fair possibility that
contraband or evidence of a crime will be found in a particular place.
4. Third-party premises Could be issued
5. Execution of warrant
By whom: police officer
Timing: could be challenged subject to unreasonable delay.
Manner: knock and announce the purpose before entering.
Exception: exigent circumstances.
The exclusionary rule does not apply to evidence discovered as a result of a search conducted
in violation of the “knock and announce” rule, if the search was otherwise authorized by a
valid warrant.
Seizure of evidence not specific: only the place and person name in it. Evidence of crime.
Plain view contraband and instrumentalities or fruit of the crime may be seized.
Treatment of persons not listed in warrant:
Independent justification is needed to search persons not named in a search warrant. However,
in conducting a search for contraband pursuant to a warrant, any occupant of the premises to
be searched may be detained in a reasonable manner, which may include the use of handcuffs,
for a reasonable time while the search is conducted. Such a detention is only justified for
individuals within the immediate vicinity of the premises to be searched.
If an individual is not in the immediate vicinity of the premises, then a detention of that
individual must be justified by some other rationale.
Exception to warrant requirement: ESCAPES.
Both probable cause and exigent
Exigent circumstances
circumstances. “totality of circumstances”
test.
Hot pursuit (only in felony) or imminent
danger (emergency)
Not apply when officer created the danger.
Police need a warrant for DUI blood draw
police may also secure the premises for a
reasonable time to enable officers to obtain a
warrant when the police have reason to
believe that the failure to do so could result in
the destruction of evidence.
Need to be lawful arrest. If the arrest is
Search incident to lawful arrest
invalid, any search made incident to it is
likewise invalid.
Time: take place promptly
Scope: The right to search incident to a
lawful arrest includes the right to search
pockets of clothing and to open containers
found inside the pockets. The right also
extends to containers “immediately
associated” with the person (such as a
shoulder bag or purse), so long as the
containers are large enough to conceal a
weapon or evidence of a crime.
Limit to the immediate area around the
individual: from which a weapon may be
concealed or evidence destroyed.
DNA sample could be collected.
If the arrest occurs in a home, it is
permissible to search “closets and other
spaces immediately adjoining the place of
arrest from which an attack could be
launched.”
Exception: the search incident to lawful
arrest exception does not extend to an
arrestee’s cell phone.
Already in the police car, cannot search the
car.
No need for officer to warn his right to refuse.
Consent
automobile
Plain view
Third party can consent when he has
apparent authority.
Officer cannot search over the objection of a
present occupant but can search when he is
not present and other occupant consent.
If the officer conducting the search
erroneously states that he has a warrant, then
permission given in reliance on that statement
does not constitute consent.
A third party has the authority to consent to a
search of property that she owns or occupies.
The defendant can generally suppress
evidence seized during third party consent
unless (i) an agency relationship exists
between the third party and the defendant that
gives to the third party the right to consent on
behalf of the defendant, or (ii) the defendant
otherwise gives the third party such rights
with respect to the property that the defendant
assumes the risk that the third party would
allow the property to be searched.
Parent consent:
When a child lives with a parent, the parent
has the authority to consent to a search of a
child’s room even if the child is an adult.
However, a parent may lack authority to
consent to the search of a locked container
inside the child’s room, depending on the age
of the child.
Scope of consent:
Although a search is limited to the area to
which the consent applies, the search may
extend to areas that a reasonable person
would believe it extends.
Could do inventory search of impounded
vehicle and within reach of passenger
compartment.
Could search when probable cause believe
has contraband, depends on what stuff
officer is looking for.
Only when legally present, no movement at
all.
(i)
the officer is on the premises for a
lawful purpose, and (ii) the
incriminating character of the item
is immediately apparent.
Evidence obtained from administrative
searches
Stop and frisk
Terry stop of a car
If the officer is not legitimately on the
premises, the plain view doctrine does not
apply.
1. Administrative warrants: no probable
cause required.
2. Warrantless administrative searches:
Example: airplane boarding, international
border, gun shop, liquor stores.
Public schools search.
Oral statements seized by wiretaps, when
matters of national security are at issue;
Vehicle checkpoints and roadblocks set up
to stop cars on the basis of a neutral
articulable standard and designed to serve a
limited purpose closely related to the problem
of an automobile’s inherent mobility
Terry stop:
limited and temporary intrusion on an
individual’s freedom of movement short of a
full custodial arrest.
Only reasonable suspicion, based upon
articulable facts.
Whether reasonable suspicion exists is based
on the totality of the circumstances.
Frisk:
Under the “plain feel” exception, if an officer
conducting a valid frisk feels an object that
has physical characteristics that make its
identity immediately obvious, then the officer
may seize the evidence. Police may also
briefly seize items if the officers have a
reasonable suspicion that the item is or
contains contraband.
Police also can require that the detained
person identify himself. Failure to comply
with this request can result in the arrest of the
detained person.
Pursuant to a lawful stop of a vehicle, police
may conduct a search of the passenger
compartment for weapons, if:
i) The police possess a reasonable belief that
the suspect is dangerous and may gain
immediate control of weapons; and
ii) The search of the passenger compartment
is “limited to those areas in which a weapon
may be placed or hidden.”
Police may order occupants out of a vehicle
that they have lawfully stopped.
When police lawfully detain a driver or a
passenger after a traffic stop, they may frisk
the person if there is reasonable suspicion that
the individual has a weapon.
The police may search anywhere in a car that
they believe there to be contraband, including
the trunk and locked containers, so long as
they have probable cause to do so.
Any other evidence observed in plain view
may also be seized.
Automobile related:
Car frisk
When conducting a traffic stop, if an officer believes that a suspect is dangerous, he may
search the passenger cabin of the suspect’s vehicle, limited to those areas in which a weapon
may be placed or hidden.
2. Traffic Stops - Three important principles:
(a) In a traffic stop, both the driver and the passenger are seized, such that either can challenge
the legality of the stop.
(b) In a traffic stop, the officer may, in her discretion, order both the driver and the passengers
out of the car.
(c) Dog sniffs at traffic stops are permissible provided the “sniff” does not prolong the stop.
Search incident to arrest in automobile:
PERMISSIBLE SCOPE: interior cabin, including closed container, but not the truck.
“SECURED”VERSUS“UNSECURED”ARRESTEES: Once an officer has “secured” an
arrestee (by, for example, handcuffing him and placing him in the squad car), the officer can
search the arrestee’s vehicle only if she has reason to believe the vehicle may contain evidence
relating to the crime for which the arrest was made.
Inventory search is okay to the impound car.
Warrantless search: automobile exception
Standard: Police officers need probable cause to believe that Weapon or contraband will be
found in the vehicle.
Where can police officers search? The entire vehicle and they may open any package,
luggage, or other container that may reasonably contain the item(s) for which there was
probable cause to search.
Traffic stops and auto searches: Sometimes what begins as a routine traffic stop results in a
search of all or part of the vehicle. For the search to be lawful, an officer does not need
probable cause to search the vehicle at the time the car is pulled over, provided he acquires it
before initiating the search.
Chapter 3: Interrogations
Fifth amendment: no person shall to compelled to incriminate himself.
Scope of privilege:
1. Natural person: no corporation
2.Only to testimonial evidence. Not physical evidence.
3. Apply to testimony would be a link in the chain leading to a prosecution or conviction.
4. Some given the immunity for the statement, can nor continue refuse to answer.
A defendant waives the privilege by taking the witness stand; a witness waives the privilege
by disclosing self-incriminating information in response to a specific question. Having taken
the stand, the defendant cannot assert the privilege in response to the prosecution’s proper
cross-examination of his testimony, including impeachment questions.
The statement must be made by the individual to the government.
Miranda: The Fifth Amendment in a Police Interrogation Context
Receive Miranda must before custodial
interrogation.
Interrogation
Miranda warning:
Exception:
1. When public safety is at risk
2.The “routine booking question” exception
allows police to ask a suspected drunken
driver routine biographical questions and to
videotape the driver’s responses without first
giving the driver Miranda warnings.
Custodial: has been arrested or is not free to
leave.
Must be in custody or no warning is required.
Any statement can be used.
Traffic stops generally are not considered
custodial.
Either asking question or conduct that will
elicit a response.
Dos not include volunteered statement. Does
include induced statement.
Does not include routine booking questions.
Before conduct custodial interrogation.
Must ask whether understands or not.
If the police have no intention of questioning
the individual, or if the individual is not in
police custody, then the Miranda warnings
are not applicable.
Once a custodial interrogation begins,
anything the defendant says is inadmissible
until the defendant is informed of the
Miranda rights and the defendant waives
those rights knowingly and voluntarily.
3.Miranda warnings are not required if the
suspect being questioned is not aware that the
interrogator is a police officer.
Police must cease question if
Interrogation tactics:
Confession must be voluntary.
Confession can be product of fraud or deceit.
Confession obtained by threat is inadmissible.
Consequences of fifth amendment violations:
Involuntarily obtained statement
Never admissible against defendant.
Whether to overturn: harmless error standard
Evidence is fruit of poisonous tree
Chapter 4:
Sixth amendment v. fifth amendment
5th
Must be affirmatively invoked by the D
Apply to custody interrogations
The failure to give a suspect the Miranda
warnings does not require suppression of
physical fruits of the suspect’s “unwarned but
voluntary statements.”
The warnings, which must be given before
interrogation begins, need not be a verbatim
repetition of the language used in the Miranda
decision.
If the defendant voluntarily initiates
communication with the police after invoking
his right to counsel, a statement made by the
defendant, such as a statement that the
defendant spontaneously blurts out, can be
admissible because it is not made in response
to interrogation.
1. invoking the right to remain silent.
Must use affirmatively words.
After substantial period of time, police could
go back give the warning, ask again or
2. invoking right to counsel
all question needs stop unless either:
a.the lawyer is present or
b.the defendant initiates contact
police can not go back and ask again.
Miranda violation statements
Inadmissible to the case, can be used to
challenge the credibility.
Evidence obtained as a result of voluntary
statement is admissible.
6th
Automatically attach there is an indictment,
information, or other formal charges.
Unless a defendant knowingly and
intelligently waives the right.
Offense-specific, only for the offense he has
been actually charged.
Custody or not.
Cannot be questioned without the lawyer any
time.
Voluntary are not protected by Miranda.
All felony/ or misdemeanor prosecution jail
time is imposed.
All critical stages of the prosecution.
(hearing, post indictment line up,
interrogation and all of trial).
Not include: pre-indictment
Photo array.
Identification procedure
Photo array
D or his lawyer has no right be present
Line up
Pre-indictment lineup-no right to counsel
Post- indictment lineups: has a right to
counsel and the evidence must be excluded if
the right is violated.
Line up evidence at trial: Would be
impermissible subjective in a lineup and
excluded by the court.
In court identification: prosecution must
establish clearing convincing evidence.
Exclusionary rule and its exception
1. apply only at trial
2. must be D’s rights. (driver and passengers can both challenge)
3. Based on fourth, fifth and sixth amendment. Apply to violation of constitution and result of
initial violation.
4. exceptions: still admissible
a. knock and announce
b. inevitably discovery: would have been discovered through lawful means
c. independent source: relevant evidence on independent source
d. attenuation in the causal chain: intervening events
e. good faith:
a) An existing law that was later declared unconstitutional, or
b) A warrant that, while facially valid, is later found to be defective.
Unless:
a. The warrant was obtained by fraud
b. Warrant was defective on its face
c. The magistrate wholly abandoned his judicial role.
f. Negligence does not necessarily trigger the exclusionary rule unless the exclusion could
meaningful deter the sufficiently deliberate policy conduct.
If the question involves whether a conviction should be overturned (rather than simply
whether the evidence should be suppressed), apply the harmless error rule:
� Ask, if this piece of evidence had not been admitted, would it make a difference to the
outcome?
� Fourth Amendment: Was there a search? Was there a seizure? If yes, was there probable
cause?
� Fifth Amendment: Was there a Fifth Amendment interrogation violation? Was the
defendant in custody? Was there an interrogation? Was the defendant given warnings? Did he
invoke his rights?
� Sixth Amendment: Did the Sixth Amendment right to counsel attach? Was this a critical
stage?
Pretrial procedures:
Fifth Amendment’s Presentment Clause
Federal charge: must be initiated by indictment. Probable cause to believe D committed the
crime.
Unless waived by D.
State: indictment or information (probable cause by judge)
Grand jury:
Grand jury: evidence illegal and hearsay is okay
Prosecutor: no duty exculpatory evidence
Defendant: no right to testify
Witness: to right to counsel within the grand jury room
Secret proceeding/ not to be unanimous is okay
Competence to stand:
Comprehend the nature and assist the lawyer
Also can plead guilty and waive the right to trial.
Bail: no excessive bail. Not have to be offered.
No bail when flight risk or danger to community,
o There is a presumption in favor of release pending trial.
o Courts can impose pretrial release conditions on defendants, such as house arrest,
avoidance of particular people, or reporting requirements
o There is a presumption against release after conviction, pending appeal.
Guilty pleas:
Waive the trial rights.
Knowingly and intelligently waive.
Plea allocution: no force, promise, factual basis.
D entitled to competent assistance from counsel.
Trial process:
jury
Serious offenses, more than 6 month.
The Sixth Amendment right to counsel
attaches in misdemeanor cases only if a
sentence of incarceration is actually imposed.
Jury size:
Federal: 12 members and unanimous
State: 6 or more. (not unanimous is okay)
6 must be unanimous
Selection:
Jury pool: fair cross section
Petit or petty through voir dire:
Challenge for cause: unlimited, deliberated
judgment
Peremptory challenge: made for anything
Exception: Baston doctrine: no race or gender
Limited number
Actual seated: impartial, not have to be cross
selection
Speedy trial rights
Statutes of limitation
Against delay:
Four factor:
Public trial rights
First and sixth amendment:
Confrontation clause:
Definition
Crawford doctrine
Burton category
Committed. End of the continuing offenses
Due process of fifth and fourteenth
Speedy trial of sixth(time of arrest or
indictment and trial)
1. length of the delay
2. reason for the delay
3. whether D asserts the rights to speedy trial
4.prejudice to D
Protect the rights of D (sixth) and the public
(first) to attend public trials
6 guarantee D the right to confront the
witness against.
Right to compulsory process to produce own
witness
Testimonial: 6 would bar if:
1.the declarant is unavailable and D had no
prior opportunity to cross examine the
witness.
non-testimonial: rules of evidence
A defendant’s own statements are always
admissible against him. This is true even if
the defendant does not testify at trial.
� If there are co-defendants, a non-testifying
co-defendant’s statements are inadmissible
against the co-defendant.
The government can place the burden of proof
with regard to affirmative defenses on D.
Judge
Prosecutor:
Prosecutorial Misconduct
No natural or apparent bias, no impair
impartiality
Brady doctrine: turn over all material
exculpatory evidence to defense.
1. show D is not guilty
2. D could use to impeach the credibility of
witness
material: could change the outcome.
P may not knowingly present false testimony
Prosecutorial misconduct that has a
reasonable possibility of affecting the verdict
may require a mistrial or reversal of a
conviction.
Other forms of prosecutorial misconduct may
result in discipline to prosecutor but generally
do not result in any consequence for a
defendant.
May not contact D outside the presence of his
counsel.
A prosecutor may not comment on a
defendant’s failure to testify at trial or make
unfair remarks about the defendant to the jury
(i.e., cannot violate the defendant’s Fifth
Amendment right to remain silent).
� A prosecutor may, however, comment on a
defendant's silence before his Miranda rights
attached.
Defense counsel
1. conflict of interest
2.effective assistance
Choice of counsel
Effective assistance of counsel at all critical
stages of prosecution
Joint representation, judge must warn
May be presumption of prejudice
Strivkland test, two- part test
1. performance: fall below the wide range of
objective reasonable conduct
2.prejudice: reasonable probability that the
result would be different if the counsel
performed effectively.
Cases that go to trial: Defendant must show
that there was a reasonable probability that he
would not have been plea guilty if the lawyer
had done a proper job.
Guilty pleas: Defendant must show that he
would not have pleaded guilty if his lawyer
had not given him bad advice or performed
ineffectively
If a defendant is denied effective assistance of
counsel, either at trial or in the guilty plea
process, his conviction must be reversed
because the defendant has already shown that
he was prejudiced.
Lawyer: admitted in the jurisdiction, available
for trial and no conflict.
A defendant who is denied the retained
counsel of his choice is entitled to have his
conviction reversed regardless of whether the
lawyer who actually represented him at trial
provided effective assistance of counsel.
Indigent defendants: not entitled to
appointment of the lawyer of your choice
As long as they receive competent assistance
at trial, they have received all the Constitution
guarantees them.
D can represent themselves. No back up
lawyer.
Sentencing:
Cruel and unusual punishment clause of
eighth amendment
Double jeopardy clause of fifth amendment
Apprendi line under sixth amendment
Supreme court gives government to any
length to any crime. Juveniles cannot be
sentenced to life without parole for nonhomicide crimes and mandatory LWOP
cannot apply.
Dealth is okay when victim dies.
No under 18. No suffer from mental
retardation
No insane at the time of execution.
State are different,
No unusual punishment:
Must be convicted of a crime/could be prison
condition
Same offense after acquitted, convicted,
multiple prosecution or punishment for same.
Blockburger test:
Different victims are not same.
Separate sovereigns rules are okay
Can be charged and tried with offense and a
lesser offense at the same trial but only
punished for one.
Attach: jury sworn in or first witness sworn
in.
Mistrial:
Manifest necessity: yes
No manifest necessity: no
The Sixth Amendment right to a jury trial
prohibits judges from enhancing criminal
sentences beyond the statutory maximums
based on facts other than those decided by the
jury beyond a reasonable doubt.
Exception: Sentence enhancement based on
prior criminal convictions need not be found
by a jury.