Criminal Procedure
Professor Catherine Burnett
Final – 75% MC 45 questions (2hrs & 15 mins) and 1 essay (45 mins) 25% (No T/F questions)
Open book open note?
Intro
Competing Impulses of Criminal Justice System
● Crime Control (protect community)
o Focuses
▪ a) repression of criminal conduct
▪ b) operational efficiency
● E.g., speed, finality
● Due Process (protect defendants)
o Focuses
▪ a) protect the factually innocent while convicting the factually guilty
▪ b) ensuring reliability; preventing and eliminating mistakes
Stages of Criminal Proceeding
● Criminal Complaint and Investigation
● Arrest
● Arraignment and Bail
o Arraignment
o Bail
● Indictment and Preliminary Hearings
● Pre-Trial
o Discovery motions
o Negotiated plea deals
▪ 90-95% of cases resolved with guilty plea, usually negotiated plea deal
o Government and defendant can appeal dispositive rulings on pre-trial motions
● Trial
o SC said unanimous jury verdict is required
● Sentencing
● Appeal
Incorporation
● Certain things in the Bill of Rights also apply to the states through the Due Process clause.
● Approaches
o Selective/Partial Incorporation
▪ Select things in the Bill of Rights are applied to the states when the things in question are “of the
very essence of a scheme of ordered liberty.”
● I.e., when not applying it would violate a “principle of justice so rooted in the traditions
and conscience of our people are to be ranked as fundamental.”
● I.e., when not applying it violate those “fundamental principles of liberty and justice which
lie at the base of all our civil and political institutions.”
o Total Incorporation
▪ Today, almost everything in the Bill of Rights has been applied to the states. Adamson v. California
(Black, dissent); Duncan v. Louisiana
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Investigation Phase – Search & Seizure
Fourth Amendment
● The Fourth Amendment protects individuals (not places) from unreasonable search and seizure.
o Search Analysis
▪ 1) Is it a search?
● a) physical intrusion (by government) into constitutionally protected area; OR
o i.e., trespass
● b) individual had REP that was infringed by government action
▪ 2) Did the search comply with Fourth Amendment’s warrant requirement?
● Search may be unlawful if:
o Unreasonable
o Didn’t satisfy warrant requirements
o Didn’t qualify for exception
Searches
● A Fourth Amendment search occurs when the government obtains information by… Katz v. United States
o a) physically intruding into a protected area (if yes done it’s a search); OR
o b) violating a subjective reasonable expectation of privacy:
▪ Objective Prong
● Is society prepared to recognize a REP in these circumstances?
▪ Subjective Prong
● Did person believe he had an REP?
● Consider…
o a) amount and regularity of use
o b) permission
o c) efforts made to secure the space
▪ E.g., a person has no REP in something that he knowingly exposes to the
public, even in his own home or office.
o d) “justifiable reliance” on assumed privacy
● Reasonable Expectation of Privacy (REP)
o No REP in CABOTT
▪ Conversations with undercover agents.
● Rationale: defendants assume the risk when they confide in others
● Knock & talk requests are also okay
o i.e., when a police officer walks up to your door & asks to talk to you
o Officers intent does NOT matter - Jardines
▪ Aerial flyovers: Areas viewable to the naked eye in flyovers.
▪ Beeper hidden in container.
● Note: when beeper inside home = REP
▪ Open fields [Oliver]
● Not protected like curtilage or house
▪ Trash [Greenwood]
▪ Third parties: Information voluntarily disclosed to third parties.
● D argues justifiable reliance.
o Didn’t think there’d be global disclosure.
● Govt argues third party disclosure.
● Cellphone is NOT a voluntary conveyance to a 3rd party – Carpenter
o Court said cellphone is almost a “feature of human anatomy” that tracs nearly
exactly the movements of its owner
o
REP in BLTCLP
▪ Beeper in container inside home
● Note: when not inside home = NO REP
▪ Luggage contents
▪ Thermal Imaging: Govt using a device that is not in general public use to explore details of the
home that would previously have been unknowable without physical intrusion.
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▪
▪
▪
▪
▪
o
o
Curtilage of home
● Adjacent to the home
● Immediately surrounding the home
● Associated with the home
● Part of the home
● Balcony
Long-term tracking of your physical movements.
● GPS tracker on car for 28 days is too long. Also was a physical trespass.
Physical movements captured by cell site location information (CSLI). More than GPS tracker
because this is like wearing an ankle monitor.
Drug-sniffing dogs
● REP against using a drug-sniffing dog on a homeowner's porch to investigate the contents
of the home. Florida v. Jardines
o “Social license” theory: look to common customs to determine REP
● No REP in exterior of luggage.
● Airport
o Reasonable suspicion allows officers to conduct a “brief investigatory seizure.”
o Dog alerts = confirmed their suspicion.
o However, may not open the bag unless they have warrant or an exception for the
warrant requirement.
o If they stop somebody in a terminal, they can’t open the bag even with PC, but
may detain the bag in anticipation of a warrant (or request consent).
o If they wait for the bag to be placed in the taxi, they may open it without a warrant
ONLY after they establish PC.
No REP in car during traffic stop.
● Unless intrudes on D’s time.
Personal Communications
▪ REP (auditory) against unwarranted wire-tapping of a public phone booth when person is talking
on the phone inside the phone booth. Katz v. United States
▪ No REP when D discloses illegal activity to a police informant who is secretly recording the
conversation through a wire. United States v. White
● Rationale: defendants assume the risk when they confide in others
▪ No REP in information that the person voluntarily turns over to third parties. Smith v. Maryland
▪ No REP in telephone metadata. ACLU v. Clapper
▪ The U.S. government collecting bulk metadata from cellular and internet companies about hundreds
of millions of Americans violates REP. Klayman v. Obama
Property Surveillance
▪ Aerial
● No REP against aerial police observation of an enclosed area within the curtilage of a
home. California v. Ciraolo
o REP in “curtilage” of home as well. Ciraolo
▪ Could include yards
▪ Open field
● No REP
▪ Thermal Imaging
● REP against government’s use of a device that is not in general public use to explore details
of the home that would previously have been unknowable without physical intrusion. Kyllo
v. United States
● No REP in “open fields,” even on private property. Oliver v. United States
o Rationale
▪ Fourth Amendment protects “persons, houses, papers, and effects.”
● An “open field” is none of those things.
▪ Open fields do not provide the setting for those intimate activities of the
home.
▪ Dog Sniffs
● Background
o No REP in exterior of unopened luggage. United States v. Place
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o
o
o
No REP for drug sniffing dogs used during traffic stop as long as it does not
significantly extend the length of the stop. Illinois v. Caballes
o No REP for “Knock and Talk” Requests
● REP against using a drug-sniffing dog on a homeowner's porch to investigate the contents
of the home. Florida v. Jardines
o “Social license” theory: look to common customs to determine REP
Commercial Space
▪ Offices
● REP in an office.
● Social guests can claim constitutional right to privacy in protected areas owned or occupied
by others.
o Consider…
▪ a) amount and regularity of use
▪ b) permission
▪ c) efforts made to secure the space
▪ Commercial Curtilage
● It is possible for businesses to have REP in parts of their premises where they endeavor to
conceal their premises from view and law enforcement officers physically invade the
protected area. Dow Chemical
Public Movements
▪ GPS Tracking
● REP against the warrantless placement of a GPS tracking device on the undercarriage of an
individual’s vehicle in order to track the person’s movements on public streets. United
States v. Jones
o Majority: this was trespass, don’t need REP analysis
o Concurrence (Alito)
▪ Concerned with long term nature of tracking and data collection as the
government’s usage of that data progresses
o Concurrence (Sotomayor)
▪ Concerned with absence of judicial oversight to determine whether or not
gov gathering data is reasonable, and potential future use
▪ ‘GPS monitoring generates a precise, comprehensive record of a person’s
public movements that reflects a wealth of detail about her familial,
political, professional, religious, and sexual associations. The
Government can store such records and efficiently mine them for
information years into the future. And because GPS monitoring is cheap
in comparison to conventional surveillance techniques and, by design,
proceeds surreptitiously, it evades the ordinary checks that constrain
abusive law enforcement practices: “limited police resources and
community hostility.”’
▪ ‘Awareness that the Government may be watching chills associational
and expressive freedoms. And the Government’s unrestrained power to
assemble data that reveal private aspects of identity is susceptible to
abuse. The net result is that GPS monitoring—by making available at a
relatively low cost such a substantial quantum of intimate information
about any person whom the Government, in its unfettered discretion,
chooses to track—may “alter the relationship between citizen and
government in a way that is inimical to democratic society.”’
▪ “More fundamentally, it may be necessary to reconsider the premise that
an individual has no reasonable expectation of privacy in information
voluntarily disclosed to third parties.”
● Foreshadows the need to add an additional prong to REP test
and third-party doctrine rules
o Cases Cited in Jones
▪ REP Theory
● Oliver (open fields, no REP)
● Katz
● Soldal (forcible removal of trailer home, no REP)
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●
▪
o
o
o
o
Knotts (beeper in container outside home, no REP)
o Bc info gained (locations outside home) had been
voluntarily conveyed to the public
● Karo (beeper in container inside private places, REP)
Trespass Theory
● Silverman (spike mike, trespass)
o Bc physical intrusion into premises
● Olmstead (wiretaps attached to telephone wires on public
streets, no trespass)
● Goldman (listening device on exterior wall of office, no
trespass)
Discarded Trash
▪ No REP when placing garbage in plastic bags left curbside for pickup. California v. Greenwood
● Rationale
o Placed for express purpose of conveying to third party
o Readily accessible to others
o Police cannot be expected to avert their eyes from evidence of criminal activity
that could have been seen by any member of the public
▪ What if trash bags are not transparent?
Cell Phone Location Data (Cell-Site Location Information CSLI)
▪ REP against compelling wireless carriers to turn over data that tracks users’ movements for long
periods of time. Carpenter v. United States (2018)
● Rationale: REP in location and movements vs. disclosure to third parties
o Movement
▪ “After all, when Smith was decided in 1979, few could have imagined a
society in which a phone goes wherever its owner goes, conveying to the
wireless carrier not just dialed digits, but a detailed and comprehensive
record of the person’s movements.”
▪ CSLI goes even farther than GPS info, likened to wearing an ankle
monitor
o Third-Party Disclosure
▪ Smith
▪ Miller
Items in Automobile
▪ A passenger in a car belonging to someone else does not have a legitimate expectation of privacy in
the car or in items found in the car that do not belong to him. Rakas v. Illinois
● But he does have an REP in the items that do belong to him.
Etc.
▪ The constitutionality of computer searches that reveal the to/from addresses of e-mail messages and
the IP addresses of Web sites visited has not been determined by the Supreme Court. However,
in United States v. Forrester, 512 F.3d 500 (9th Cir. 2008), the Ninth Circuit held that a “mirror
port” similar to the one described in this example did not constitute a “search” under the Fourth
Amendment and thus was not unconstitutional. Making the comparison to the pen register in Smith
v. Maryland, the court reasoned that e-mail and Internet users have no expectation of privacy in the
addresses of their messages or the IP addresses of the Web sites that they visit because they should
know that this information is provided to and used by Internet service providers for the specific
purpose of routing of information. Furthermore, also like Smith v. Maryland, the court held that
e-mail to/from addresses and IP addresses do not reveal any more about the contents of
communication than do phone numbers. IP addresses, like certain phone numbers, may indicate the
underlying contents of communications, but the court in Smith and Katz drew a line between
“unprotected addressing information and protected content information.”
▪
The court in Forrester also compared the surveillance of e-mail messages to government
surveillance of physical mail. The Supreme Court has ruled that the government cannot search
sealed mail, but they can observe whatever information is on the outside of the mail because
that information is voluntarily transferred to third parties. See United States v. Jacobsen, 466
U.S. 109 (1984). The to/from content of the e-mail addresses is an outside, visible address and is,
therefore, not protected by the Fourth Amendment.
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▪
▪
Yes. Bugging and wiretapping are “searches,” as the term is used in the Fourth Amendment.
Therefore, absent exigent circumstances, bugging and wiretapping may not occur except on
probable cause, and with a warrant. In fact, a federal statute, so-called “Title III,” (18 U.S.C. §§
2510-20) prohibits all eavesdropping and wiretapping without a court order. So the bugging
here clearly violates both Title III and the Fourth Amendment, and Louie can keep his bugged
statement out of evidence.
No. The Supreme Court has held that “secret agents” — that is, people who engage in
conversations with a suspect, without the suspect’s knowing that the other party is a police officer or
informant — are not conducting “searches,” and thus cannot violate the Fourth Amendment. This is
true whether the agent is “bugged” or “unbugged.” See, e.g., U.S. v. White. Furthermore, the
prohibitions against bugging and wiretapping contained in Title III expressly exclude (and thus
permit) interceptions made by or with the consent of a party to the conversation. So even though
Harriet was a police officer, and Melvin did not know this, the recording of Melvin’s statement does
not violate either the Fourth Amendment or Title III. (However, if the bug had been used to record a
conversation between Melvin and someone else, at which Harriet was not present, then Title III
would apply and the statement could not be used — what makes the difference here is that Harriet
was a party to the communication being intercepted.)
How to determine if govt action?
Bank records?
Numbers dialed – no REP, likely the same for ip addresses. Address information is not protected but content is
Warrant Requirement (2nd prong of 4A)
● A valid search warrant must...
o 1) be issued by a neutral and detached magistrate;
▪ Can’t justify a search by what was found. Can only use what was in front of magistrate to determine
probable cause.
▪ What might make a magistrate no longer neutral & detached?
● Financial incentives
● Relationship with one of the officers
o 2) describe with particularity the place to be searched and the things to be seized;
▪ Information in an affidavit, but not included in the warrant itself, does not satisfy the warrant
requirement.
▪ Strict requirement
o 3) be based on probable cause
▪ Courts will find probable cause when there is a reasonable basis for believing that a crime may have
been committed (for an arrest) or that evidence of a crime or contraband will be found in the place
to be searched (for a search). – why is it more likely than not that the thing they are looking for
is going to be there (Burnett)
▪ Probable Cause Test
● Reliability
● Basis of knowledge
**a defect in one prong can be cured by being strengthened by the other prong** - Illinois v. Gates
▪ Major Factors that Can Contribute to Probable Cause
● a) suspect’s suspicious conduct;
o E.g., secretive conduct or flight when police approach
● b) suspect’s voluntary admissions;
● c) suspect’s criminal record;
● d) suspect’s presence in a “high crime” area;
● e) physical evidence of crime
o E.g., fingerprints matching the suspect to a crime scene
● f) reliable hearsay from informants
o The totality of the circumstances test is used to determine whether an informant’s
information constitutes probable cause for arrest.
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▪
o
An informant’s information, combined with police corroboration, must
indicate a “fair probability” that contraband will be found in the area to
be searched.
Factors to Determine Reliable Hearsay
▪
The informant is:
●
●
●
▪
▪
▪
Info is reliable [basis of knowledge]
● How does this person know?
Officer Experience
● An officer may rely on his experience in assessing probable cause. Johnson v. United
States
● If an officer has specialized training in the type of crime he is investigating, that allows him
to draw inferences about criminal behavior that officers without his specialized knowledge
could not legitimately draw. Brigoni-Ponce
But don’t get influenced by easily obtained facts
●
o
Credible (why should we believe this person?)
o Informant was somebody used in the past & was often
right
o Relationship with bad actors
o Reputation in the community
o What their profession is in relationship to what the
alleged crime is
o Risk of informing the police
Veracity (accuracy)
Reliability (how do they know?)
o Saw it
o Heard it
o Was there
o Background in crime
o Was apart of crime
Look for actions that are not easily predictable
o Unique facts + cooperation
▪ Independent cooperation of facts that are not easily predicted
▪ Cannot justify a search by what was found.
● *MC on exam*
4) be executed within a reasonable period of time after issuance
▪ Knock and Announce: Police must knock and announce themselves and wait 15-20 seconds before
entering with force.
● Exception:
o No knock warrants: Police officer must seek approval from magistrate by showing
that either
▪ 1) Police has reasonable suspicion that knock and announce would be
dangerous OR
▪ 2) that it would result in destruction of evidence.
● If police on scene deem circumstances above exist then may forego knock and announce
requirement
● Balances:
o Individual privacy interest
o Legitimate needs of law enforcement (investigation safety)
●
Exception: Good faith mistake. If the police make good faith mistake while executing search
warrant, mistake will not violate 4A.
●
Detention of People at the Scene of the Warrant Execution: When police detain suspect, that is a
seizure.
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o
o
o
o
o
o
o
o
▪
Search is not automatically triggered just bc suspect happens to be at location where
search is executed.
Detention has to be on the scene.
Police must search/ detain where search is happening—not miles away.
Justification: potential destruction of evidence and officer safety.
Officer safety
Preventing
Necessary for evidence preservation, officer safety, preventing flight
“Incremental” additional intrusion on personal liberty
▪ The police are already in your space in your house
o No particularized suspicion needed aka don’t have to have a reason to detain them
Exclusionary rule will not apply if police fail to knock and announce. The evidence will be
admissible because knock and announce is intended to protect one’s privacy enough to collect
themselves before answering the door. Knock and announce is not used to prevent the govt from
taking evidence described in the warrant.
Exceptions to Warrant Requirement (search occurred and govt did not obtain a warrant)
● Warrantless entry into the home is presumed unreasonable, and the following E.S.C.A.P.E.S. exceptions rebut that
presumption of unreasonableness.
o Exigent circumstances
o Search incident to lawful arrest (SILA)
o Consent
o Automobiles
o Plain View
o Evidence obtained from administrative searches
o Stop and frisk
● Warrant Exception – Exigent Circumstances
o The urgent nature of the situation makes it impractical for police to take the time to get a warrant. But an
officer still must have probable cause to search or seize, even when exigent circumstances are present.
▪ Time based
▪ Impractical for police to get warrant then come back
▪ "one time chance to act" concept
▪ Does not apply when:
● Entering a private home to make a routine arrest
● Collection of evidence at a murder scene
o Needs to be tied to situation
● Police create exigent circumstance
▪ Remember police cannot claim exigent circumstances based on the type of crime being investigated.
● Thus, police cannot claim preservation of evidence based on the fact they’re investigating a
drug crime.
o a) Hot Pursuit
▪
Must be permissible from the beginning
●
Federal law permits warrantless arrest in public place - Texas has diff requirement
▪
Fleeing suspect cant run into house to defeat what lawfully started [no "sanctuary"]
▪
Wont cure the error of a police officer's unlawful entry
▪
Felony
● Warrantless entry into a home is allowed when in hot pursuit of a felony suspect. Warden v.
Hayden
o From a public place to a private one. May search home if the search is for persons
or weapons to ensure safety.
o Police chase / search / seizure must be performed in a constitutionally acceptable
way throughout.
Misdemeanor
▪
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●
●
Warrantless entry into a home is generally NOT allowed when there is probable cause to
believe the fleeing suspect has committed only a minor crime. Welsh v. Wisconsin; Lange v.
California`
o b) Emergency Aid
▪ Warrantless entry into a home is allowed to render emergency assistance to an injured occupant OR
to protect an occupant from imminent injury. Michigan v. Fisher
● Emergency Aid Standard
o Requires “an objectively reasonable basis for believing” that “a person within is
in need of immediate aid.”
▪ Officer’s subjective intent does not matter.
▪ Seriousness of crime officers are investigating when the emergency
arises does not matter.
● Could be something a little as a noise complaint
▪ Doesn’t matter if officer did not call for medical help
o Person Who Needs Aid is NOT Suspect
▪ Crime Victim
● Standard: probable cause (crime has been committed or is
ongoing; emergency response needed)
▪ Accident
● Standard: reasonable basis (individual requires help; can’t wait)
o Friend doesn’t show up for plans, so police do a check.
o c) Evidence Protection
▪ Warrantless entry into a home is allowed to prevent evidence destruction.
▪ Evidence Protection Standard
● Specific case-based reason. Police must have probable cause to believe dangerous or
suspicious activity is currently taking place.
▪ Officer-Created Exigency
● If officers create exigency, the exigent circumstances exception does NOT apply. King
o Did officers create exigency?
▪ a) direct action or
▪ b) threat to engage in conduct that violates 4th Amendment.
● Citizens’ constitutional rights…
o a) refuse to open the door to police without a warrant
o b) open door; refuse to speak to police
o c) open door; speak to police
o d) refuse to allow police inside the home
o e) limit areas police are allowed to search
▪ “Blanket” Application
● Some crimes pose this risk more than other (i.e., drug cases) but just because it’s a drug
case doesn’t mean there will be an automatic exception
● No “blanket” application of evidence protection exception to specific types of crimes.
Mincey v. Arizona
▪ Blood Samples
● A warrantless, unconsented seizure of blood sample from a suspect is valid only if special
facts and circumstances render such conduct reasonable.
o Consider…
▪ a) need for procedure
▪ b) effect of delay
● E.g., time sensitive, likelihood of destruction of evidence,
danger to officers/community
▪ c) method
Warrant Exception – Plain View
o Warrantless seizure of an item in “plain view” is allowed if...
▪ 1) police are engaged in a constitutional activity (lawful conduct) when they come across the item;
and
● Consider...
o a) lawful vantage point AND lawful presence/access
o a) size of person or item the search is for
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▪ 2) it is immediately apparent to police that the item is crime evidence or contraband;
Plain View Standard
▪ Probable cause.
▪ But, if minimally intrusive AND operationally necessary, less than probable cause (e.g., reasonable
suspicion) may satisfy.
o Plain Touch / Smell
▪ Extends to plain touch and plain smell.
o If you see something outside the house you CANNOT go in based on plain view
o If a police officer lawfully stops a car & sees a gun on the floorboard he CAN take the gun
Warrant Exception – Search Incident to Arrest
o A warrantless search of a detainee is allowed during the course of a lawful arrest. Weeks v. United States
▪ Search Incident to Arrest Standard
● No separate probable cause requirement for search.
▪ Scope
● Search must be within the arrestee’s person and the area “within his immediate control.”
Chimel v. California
o E.g., area where he might gain possession of a weapon or destructible evidence
▪ Automobiles
● Applies to automobiles too. New York v. Belton
o But maybe only if the arrestee could still potentially access the vehicle at the time
of search. Still counts if next to car. Arizona v. Gant
o Can still search car for evidence related to arrest
o Can search car for weapons only if suspect is not fully secured and still has
genuine access to interior of car.
o Can search containers if have probable cause or think could be a weapon
o Trunk search only permitted if probable cause or consent.
▪ Cellphones
● Can’t search contents of cellphone incident to arrest. Riley v. California
Warrant Exception – Automobiles
o Warrantless search of a vehicle is allowed if there is probable cause to believe there is crime evidence
or contraband in the vehicle.
o Rationale
▪ a) inherent mobility (quickly/easily moved before warrant secured)
▪ b) lesser REP
● E.g., heavy regulation; some areas open to public view
o Containers in Vehicle
▪ Applies to containers within vehicle too even if locked.
● A container is anything capable of holding something else.
● The containers officers are allowed to search will depend on the type of evidence they have
probable cause to be searching for.
o E.g., consider size and type of evidence, etc.
o Search of Vehicle within Curtilage of Home
▪ Warrantless search of a vehicle within the curtilage of the home is not allowed. Collins v. Virginia
● But, since anyone, including police officers, are freely allowed to walk up someone’s
driveway and up to their front door, officers can record what they see in plain view.
o Mobile Homes
▪ Mobile homes are classified as cars for purposes of this warrant exception. California v. Carney
(1985)
● Rationale
o a) too hard to distinguish from “regular sedan”
o b) “lends itself easily to use as an instrument of illicit drug traffic”
o Summary of When Police May Search a Car from pg 215
▪ If located within private residence curtilage, only with a warrant.
▪ If impounded, search in accordance with the jurisdiction’s inventory policy, and any evidence
discovered may be used.
▪ Traffic offense citations do not give officers lawful authority to search the vehicle
o
●
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▪
▪
▪
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Interior and any containers in interior: Search with probable cause if the PC points to that area.
When applying the auto exception, the scope is what it would have been had the officer obtained a
warrant.
If the police have consent.
Pursuant to arrest but only if:
● The officer is searching for evidence related to the crime of arrest with reason to believe it
is in the car; or
● The person arrested has not been fully secured and still has genuine access to the interior;
● Trunk search allowed only with consent or with probable cause that the evidence the officer
is looking for is in the trunk. An arrest will never alone allow for a search of the trunk.
Warrant Exception – Consent
o A warrantless search of a place is allowed if police obtain the voluntary consent of someone they reasonably
believe to be an apparent authority.
▪ Voluntary Consent
● Test: “Would a reasonable person understand that they are free to withhold consent?”
o Standard: totality of the circumstances
▪ Look at ANYTHING that is a circumstance of the crime, the situation,
and the person/people involved (the criminal and the officers),
threatening
● E.g., Race/gender/age
o People of color have higher fatality rates
o This could impact coercion of consent
o Police are not required to proactively tell the search target that they are free to
withhold consent.
o The fact that a defendant does not know he can decline does not invalidate the
consent; consent must be voluntary but need not be “intelligent.”
▪ Apparent Authority
● Officers are permitted to rely on the consent of someone who they reasonably think has the
apparent authority to give consent.
o Objective test
▪ Was it objectively reasonable to think person giving consent had apparent
authority to do so?
o Consider…
▪ a) who owns the house?
▪ b) whose names are on the bills?
▪ c) does a person have a key?
▪ d) do they live there?
▪ e) how old is the person giving consent?
▪ f) does the person giving consent have any apparent mental limitations?
● Shared Premises
o One Common Authority Present; One Absent
▪ Consent of someone who has common authority over the premises or the
thing, is valid against the absent, non-consenting party. United States v.
Matlock
o Present, Disagreeing Common Authorities
▪ Consent not valid when present wife says “yes” but present husband
explicitly objects. Georgia v. Randolph
● Domestic Violence Exception
o Consent from wife valid after husband, who objected to
search when he was present, was arrested for DV and
removed from scene. Fernandez v. California
Warrant Exception – Inventory and other administrative searches
o Inventory of an impounded car is allowed as long as police officers...
▪ 1) follow standardized procedures/criteria;
▪ 2) act in good faith;
▪ 3) search on the basis of something other than suspicion of evidence of criminal activity
o Rationale
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▪
o
o
●
Inventory of a car is necessary to… South Dakota v. Opperman
● a) protect the owner’s property interests
● b) protect the police from claims regarding lost or stolen property, and
● c) protect the police from possible danger (such as a hidden incendiary or explosive device)
Inventory Standard
▪ Reasonable, doesn’t require a warrant or probable cause.
Administrative Inspections of Closely Regulated Industries
▪ A business in a closely regulated industry may be searched without a warrant so long as… New York
v. Burger
● 1) there is substantial government interest;
● 2) the search is necessary to further that interest; and
● 3) the authorizing statute serves the functions of a warrant
o I.e., the state law informs business owners of this type that there would be
inspections. Limits the scope, and puts the business on notice.
▪ E.g., mining, oil fields, restaurants and bars, etc.
Warrant Exception – Special Needs
o General
▪ Warrantless searches/seizures are allowed in special need contexts.
● A special need is something that goes beyond the normal need for law enforcement (i.e.,
normal: investigation of crime, gathering evidence to prosecute crimes)
● The reason for the search is NOT to get evidence for a crime
● Look for:
o Nature of enterprise
o Reduced expectation of privacy because of the nature of enterprise
o Is warrant practical?
o Balancing of interest
▪
●
o
Person vs. government
Special Needs Contexts BEDSAP
o Border checkpoints
o Employees of government
o DUI checkpoints
o Schools
o Administrative inspections
o Prisons and jails
Border
▪ Border
● First time person or thing enters the country
o E.g., people, possessions, shipped items, letters mailed to other country
● Brief, warrantless, suspicionless searches at the border (actual or functional equivalent)
are allowed.
o E.g., border, international airports, international ports, etc.
o Must be conducted by border officials, not other officials who are simply at the
border.
● More extensive/invasive searches require reasonable suspicion of criminal activity.
o Reasonable = totality of circumstances
● Includes functional equivalent of borders like airports
▪ Fixed Checkpoints
● Brief, warrantless, minimally invasive searches/questioning at fixed checkpoints are
allowed as long as it balances…
o a) the legitimate government interest;
o b) the efficacy of the checkpoints; and
o c) the degree of objective intrusion
● Can briefly detain with no suspicion and check as far as the gas tank to find drugs with no
suspicion
● Allowed / Qualifies as Special Need
o E.g., question about citizenship
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▪
▪
●
o E.g., DWI checkpoints
o E.g., checkpoints designed to look for witnesses to crime
● Not Allowed / Doesn’t Qualify as Special Need
o E.g., a suspicionless roadside checkpoint established for the purpose of deterring
general criminal activity is unlawful under the Fourth Amendment. City of
Indianapolis v. Edmond
● Second checkpoints or more extensive/invasive searches require something less than
reasonable suspicion of criminal activity but more than no suspicion.
Roving Patrols
● Brief, warrantless, minimally invasive roving patrol searches are allowed.
o Requires reasonable suspicion of illegal presence in U.S.
o Example: ICE
Beyond the Routine Border Search
● More extensive/invasive searches require reasonable suspicion of criminal activity.
Employees of government
a. Standard: Reasonableness is needed both at inception and for scope!
i. Reasonable grounds to suspect that search will reveal evidence of work-related
misconduct OR needed for non-investigatory work-related reason (e.g., to retrieve
file).
ii. Reasonableness has to be reasonable at the start of the search (at the inception) and
how far you go (for scope).
iii. EX/ If you have a worker and you need to retrieve her file, that doesn’t justify going
through her physical address book—it has to be related and a logical connection or
nexus between my need and what I’m doing. Her address book would have nothing
to do with the search.
b. If blood/ urine test following fatal accident to uncover alcohol:
i. Govt need: Don’t want impaired train conductors and engineers.
ii. Workplace drug testing permitted.
c. If drug testing of employees applying for transfer/ promotion to positions involving drug
interdiction, use of firearms, handling classified documents:
i. Govt need:
ii. Workplace drug testing permitted.
d. If mandatory drug testing for all candidates for state political office, including blood tests to
show if you are pregnant or taking prescribed medication:
i. Govt need: Don’t want people in power positions to make decisions while impaired.
ii. Not permitted. Too much intrusion to satisfy state’s interest.
e. If search of desk, filing cabinets and employee suspected of improprieties:
i. Search requires reasonable grounds.
f. If search of text messages in city-issued pager:
i. Reasonableness standard.
g.
●
Standard: Reasonableness – both at inception and for scope.
i. Inception Example: Reasonable grounds to suspect that search will reveal evidence of
work-related misconduct OR needed for non-investigatory work-related reasons, like
to retrieve a file related to the need.
ii. Scope Example: Not excessively intrusive when considering nature of suspected
misconduct.
DUI checkpoints
a. Checkpoint should be pursuant to certain guidelines and uniformed police officers stop every
approaching vehicle.
b.
3-Factor Balancing Test: Balance state’s interest in preventing accidents caused by drunk
drivers, the effectiveness of sobriety checkpoints in achieving that goal, and the level of
intrusion on an individual’s privacy caused by the checkpoints
i. State’s interest
ii. Effectiveness of the means
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iii. Degree of intrusion (should be a slight intrusion)
1. Objective Intrusion: Red eyes, smell of alcohol on person, slurred speech
2. Subjective Intrusion: None needed.
c.
Drug Checkpoints
i. Unconstitutional! These involve standardless and unconstrained discretion. Their
primary purpose is ordinary law enforcement, rather than the immediate public safety
rationale at issue with sobriety checkpoints.
d.
Investigatory Checkpoints
i. Constitutional! The primary purpose is to elicit information rather than target motorists
for prosecution.
1. These information-gathering checkpoints are far less intrusive than other
checkpoints because they are less likely to provoke anxiety, they are brief,
and police likely will not ask questions designed to elicit self-incriminating
information.
ii. In the midst of an ongoing investigation, police may set up a checkpoint to search for a
suspect or potential witnesses who might have evidence regarding a recent crime.
●
Schools
a. Standard: Neither warrant requirement nor probable cause apply.
b. Search permitted if school officials had “reasonable grounds” to believe student violated law or
school rules. Search cannot be excessively intrusive.
c. Students have legitimate (although reduced) expectation of privacy.
i. EX/ Cannot strip search 13-year-old or pull-down student’s bra.
ii. EX/ Random drug testing of athletes permitted if demonstrated need and
test is not unduly intrusive.
●
Administrative inspections
a. Some industries are so closely regulated that periodic searches are part of the governmental
regulatory scheme.
● What makes a business closely regulated?
a. Something out of the ordinary of general commerce
b. License
c. Police book
● Note: for older businesses look at whether or not the business has been historically heavily
regulated
a. The inspections should have a primary regulatory goal, meaning a non-law enforcement goal,
but if regulatory violations are discovered, the target of the search might be subject to civil or
criminal penalties.
b. This warrantless inspection in the context of a pervasively regulated business will be deemed
reasonable if:
i. (1) There is a substantial government interest that informs the regulatory scheme
pursuant to which the inspection is made.
1. Business owners do have REP, but not as much as homeowners. Business
owners operating businesses in heavily regulated industries have an even
lesser REP than other business owners.
2. As a result, the balancing of interests required by 4A is shifted in favor of the
special need of the government to regulate some industries.
ii. (2) the searches are necessary to serve further that interest, and
iii. (3) there us a constitutionally adequate substitute (i.e., a statute) that serves the
functions of a warrant.
1. Statute must:
a. Give notice
i. Must be sufficiently comprehensive and
defined that the owner of commercial
property cannot help but be aware that his
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b.
●
property will be subject to periodic
inspections undertaken for specific purposes.”
Provide Scope
i. The statute must be “carefully limited in time,
place, and scope.”
Prisons and jails
a. Probationers
i. Administrative regulation authorized warrantless search if “reasonable grounds” to
believe contraband would be found.
b. Prisoners
i. They have reduced REP in their prison cells, but the cells can be tossed if there’s a
reasonable ground to believe there’s some other need.
1. Example: Spoons are missing after lunch, and those can be turned into shivs.
It would be reasonable to search cells to find the spoons.
b.
Summary: When are police constitutionally allowed to enter your house?
i. Consent
ii. Exigent circumstances—emergency aid, hot pursuit, preservation of evidence.
iii. Probable cause—search warrant
c.
Did a search occur via trespass or REP?
i. No. 4A does not apply.
ii. Yes. 4A applies, so was search reasonable?
● Did govt obtain a warrant?
a. Yes. Was warrant valid?
i. Neutral and detached magistrate.
ii. Probable cause
iii. Particularity
1. Yes. Search reasonable.
2. No. Does a warrant exception apply?
b. No. Does warrant exception apply?
i. Exigent circumstances
1. Hot pursuit
2. Emergency
3. Preservation of evidence
a. Yes. Search reasonable.
b. No. Search unreasonable.
Protective Sweep
What's the conduct? What does it NOT include?
● A quick and limited visual search of the premises to determine if there is any other individuals in the area
● Could open a closet but not a drawer
What justification to "sweep" area immediately adjacent to place of arrest?
● As a precautionary matter to protect the police
What justification for area beyond that?
● Must have a reasonable belief and articulable facts for inferences
How long can protective sweep last?
● The sweep lasts no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer
than it takes to complete the arrest and depart the premises.
Court found that no search warrant was required and that officers could, as a precautionary matter and without probable cause
or reasonable suspicion, look in spaces immediately adjoining the place of arrest from which an attack could be immediately
launched
Seizing People
● Test for Seizure
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o
o
A person is seized for purposes of the Fourth Amendment if the person’s freedom of movement is
restrained by… Torres v. Madrid
▪ a) physical force; or
● intent to restrain is still a seizure even if person does not submit and is not subdued
▪ b) submission to a claim of lawful authority
● Ex: Halt it’s the police, and the person stops
Analysis
▪ “Would a reasonable person under the totality of the circumstances believe that they are free
to leave?”
● Mendenhall Objective test, totality of the circumstances. Would a reasonable person
believe they are free to walk away? Don’t look to officer’s intent or subjective belief
● Factors
o a) number of officers present and/or in uniform
o b) weapon display
o c) physical touching
o d) language or tone of voice indicating compliance might be compelled
● Gov not required to tell suspect that they have the right to leave (but if they do, it is more
difficult for the suspect to say that they were seized later at a suppression of evidence
hearing).
●
●
o
o
●
Arrest
o
o
Factors the Court did NOT consider
o a) location
o b) age
o d) education
o e) socio/economic status; class
o f) race/cultural identity – and historic relationships with law enforcement
Profiling in Decision to Approach: Reasonable suspicion can come from profiling.
Factors include:
o “Source city” (Houston, Los Angeles, Miami, New York). Flying to and from
source cities raises alarm bells.
o How reservations made and tickets purchased. Paying in cash raises alarms.
o Nervousness
o Amount of luggage
o Presence of companions
o Timing of arrival
o “Drug courier” profile
Standards for “Seizure” Activities on a Continuum
▪ Consensual Citizen Encounter 🡪 completely allowed, no justification required, no 4th issue
● Must be free to leave
▪ Terry Stop / “Stop and Frisk” 🡪 requires reasonable suspicion (must be articulable)
● Can be based off officer’s experience and expertise
▪ Arrest 🡪 requires probable cause
● Based off if an objective officer would have probable cause
Note
▪ Not all seizures are arrests.
▪ All arrests are seizures so 4th amendment implications.
Legal arrests require probable cause to believe that the person is guilty of a crime.
▪ All custodial arrests, other than minor offenses, must be founded on probable cause.
▪ Don’t look to officer’s subjective intent, have to look if an objective officer would have PC.
▪ Misdemeanors: Warrant required for arrest, unless police personally witness the crime.
▪ Felonies: Police generally do not need a warrant as long as the officer has probable cause to believe
that the arrestee has committed a felony.
Arrests in Public
▪ A police officer may arrest a person in a public place if the officer has probable cause to believe that
the person is guilty of a felony. Watson v. United States
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●
●
If arrested without a warrant, officers have 48 hours to take the arrestee before a magistrate
judge to determine if there was probable cause. Gerstein v. Pugh (1975)
Reasons to get an arrest warrant instead of waiting for public arrest:
o Cover bases in case of bad arrest leading to suppressed evidence
o Helps to ensure arrest because other officers could make arrest if the guy going
missing but is pulled over in a routine traffic stop by someone else
o
●
Arrests in Home
▪ Suspect’s Home (talking about place of residence, not property ownership)
● Police are prohibited from warrantless and non-consensual entry into a home to make
routine felony arrest. Payton v. New York
● But, if there are exigent circumstances, warrantless entry is allowed.
● Can still search in grab area/ wingspan of suspect
▪ Someone else’s house
● Will also need a search warrant in addition to arrest warrant. Protects homeowner.
o Arrests of Multiple Suspects
▪ Arrest of multiple suspects is valid if the nature of the evidence suggests a “common enterprise”
among the people and a “reasonable inference” that each person had knowledge of, and the
opportunity to exercise dominion and control over, the contraband. Pringle
o Consequences of Illegal Arrest
▪ An illegal arrest does not bar a subsequent lawful arrest. Easy to fix bad arrest hard to fix bad search
▪ For search incident to arrest, plain view etc., the arrest must be lawful, so fix the arrest!
▪ Has serious evidentiary implications for...
● a) evidence being seized that will be used at trial
● b) confession
● c) search incident to arrest, inventory, anything else that flows from bad arrest
o Almost always going to fail attenuation of taint.
Terry Stop / “Stop and Frisk” (Terry v. Ohio)
o Warrantless, brief “stop & frisk” is allowed if officers have reasonable suspicion that they will find evidence
of a crime or contraband.
o Scope of Search: Weapons
▪ When it becomes an evidentiary search, it is no longer a terry search
● EX: If you're looking for weapons in somebody's purse then find a pill bottle in there you
cant grab it under a terry search
o Brought routine police stops under the 4th amendment umbrella.
o Terry Stop then either release or Probable cause develops, arrest, and search incident to lawful arrest. Only
long enough to dispel suspicion or probable cause for an arrest.
▪ Reasonable suspicion - Officers need “specific and articulable facts, which, taken together with
rational inferences from those facts, reasonably warrant that intrusion.”
● E.g., personal observation, reliable hearsay, profiling, flight in “high crime” areas
● E.g., for anonymous tips, consider…
o a) predictive value
o b) future threat
o c) ongoing criminal activity
o d) basis of knowledge
o e) reliability
● extended to passenger compartments in cars where weapons may be hidden. Quick and
limited premises search. Other parts of the residence if reasonable suspicion harbors
someone posing a danger.
▪ Only on the outside of clothing. Detention for a short time and a very limited search.
▪ Refusal to cooperate does not provide justification for detention or seizure
▪ Failure to Disclose Identity: An arrest for failure to provide identification does not violate 4A so
long as the request was reasonably related to the facts giving rise to the stop.
▪ Requests for identification during Terry stops are constitutional and serve important
governmental interests in effectively investigating crimes and protecting police and others from
dangerous suspects.
● Thus, a state may legally require a suspect to identify himself during a Terry stop.
● Interrogation relating to one’s identity or a request for identification by police does not, by
itself, constitute a 4A seizure.
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o
o
●
Anonymous Tips
▪ Reliability? Why is it reasonable for police to think crime is afoot? Predictive information that pans
out can sometimes show reliability. Not enough that it was only non-criminal activity that was
predicted.
▪ Apart from anonymous tip, officers may need reason to believe defendant was engaged in illegal
activity
Running person?
▪ High crime area and person runs can show reasonable suspicion.
● Watch out for innocent reasons for flight. They are red herrings and don’t matter.
Standing
o If someone has standing, they can challenge the admission of a piece of evidence or what the govt. did.
o Standing Test
▪ Do you personally have an interest (ownership/REprivacy) that the Fourth Amendment protects?
▪ Did a govt action infringe upon a reasonable expectation of privacy?
o
●
●
●
Passenger in Someone Else’s Car
▪ All parties in a car can challenge the seizure of themselves.
▪ Only the owner of the car can challenge the general search of the car assuming the seizure was
valid.
● If not a valid seizure, then all passengers could challenge search?
▪ Each person in the car can challenge the search of their own individual things.
o As long as there is probable cause that someone has engaged in a traffic violation the officers may stop the
car even if their motivation/subjective intent is improper. Bc the reason for the stop was legal.
Ok for dog sniffs with traffic stop (Illinois v. Caballes) but cant unduly prolong beyond the reasonable time it takes for
a traffic stop (Rodriguez v. US). Cant hold them forever till the dogs gets there. If driver’s fault of prolonged stop or
some other reason not the fault of the officer then stop can last longer.
MC questions: If the owner of the car had not only invited petitioners to join her but had said to them, “I give you a
temporary possessory interest in my vehicle so that you will share the right to privacy that the Supreme Court says
that I own.
If the nonowner were the spouse or child of the owner, would the Court recognize a sufficient interest? If so, would
distant relatives somehow have more of an expectation of privacy than close friends? What if the nonowner were
driving with the owner’s permission? Would nonowning drivers have more of an expectation of privacy than mere
passengers? What about a passenger in a taxicab? Katz expressly recognized protection for such passengers. Why
should Fourth Amendment rights be present when one pays a cabdriver for a ride but be absent when one is given a
ride by a friend?
Exclusionary Rule
● Exclusionary Rule – applies to both federal and state (Weeks and Mapp)
o The exclusionary rule prohibits admitting evidence (tangible and testimonial) at trial that…
▪ a) was acquired during an unlawful search or arrest;
▪ b) is the product of, or an indirect result of, an unlawful search or arrest
▪ Motion to suppress – hearing and the govt will have to justify the conduct, prior to trial. If ruling
favorable to the D, many states will allow govt to appeal if the evidence was dispositive.
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●
D’s burden to show violation, then burden shifts back to govt to show by preponderance of
the evidence that the exception to the exclusionary rule applies.
o
●
Purpose
▪ The sole purpose of the exclusionary rule is to deter state agents from unlawful conduct/abuse in the
form of…
● a) deliberate, reckless, or grossly negligent conduct; or
b) recurring or systemic negligence
Exceptions to exclusionary rule– Kind of like defenses the government can try to use, only need 1 to succeed
o Independent Source
▪ If the police discovered the evidence through an “independent source,” independent of the original
constitutional violation, the evidence is admissible at trial.
● Even if it is “rediscovered” by the same team of investigators during a search pursuant to a
warrant obtained independently from the illegal search. Murrary v. United States
▪ Factors… Murrary v. United States
● a) did officers decide to seek the warrant after they received information during the illegal
entry? Did they exploit or use anything seen during the illegal entry/search.
● b) was that information presented to the magistrate and did it impact the magistrate’s
decision?
● If answers to both questions are yes, independent source exception cannot apply.
▪ AKA Confirmatory searches
● Have probable cause to enter and is enough to already get a warrant then illegally enter to
confirm your probable cause before going through the procedure to get a warrant. Cant use
information from unlawful search to obtain the warrant.
o Inevitable Discovery
▪ If police would have inevitably discovered the evidence anyway, independent of the constitutional
violation, the evidence is admissible.
● Govt should be able to show by a preponderance of the evidence:
o What steps it would of taken
o What those steps could have been expected to yield.
● The exclusionary rule did not apply to a failure to knock and announce rule even though
search otherwise authorized by valid warrant. Hudson v. Michigan
o Attenuation of the Taint
▪ If subsequent conduct is sufficiently distinguishable from the taint of the illegal search/arrest, then
the evidence subsequently found is admissible.
● Consider… Brown v. Illinois
o a) Miranda warnings;
▪ Not enough, alone per se, to attenuate the taint.
o b) time between arrest and statement;
o c) presence of significant intervening circumstances;
o d) purpose and flagrancy of the official misconduct;
o e) voluntariness of statement or consent
o f) no single fact itself is dispositive to break the chain of taint
o g) Burnett thinks talking with a lawyer could be a big factor in her opinion
o h) Dissent – if flagrant violation need lawyer or judge to break chain (burnett says
this if what the country is moving towards)
● Sufficient to Attenuate the Taint
o E.g., illegal arrest, suspect released, came back voluntarily 3-4 days later,
confessed. Wong sun
● Government has burden of proof to show taint attenuated/statements were made based on
own free will.
o Good Faith
▪ If officers acted in objectively reasonable reliance on apparently legal authority to search or arrest
when they conducted the search or arrest, then the evidence is admissible.
● Consider…
o a) whose mistake
o b) degree to which officer knew or should have known
o c) how accidental
o d) Future role deterrence might play
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●
●
●
Examples of Good Faith by officers including instances of negligence.
o Objectively reasonable reliance on subsequently invalidated search or arrest
warrant due to…
▪ a) Judge’s ruling lacked probable cause… United States v. Leon
▪ b) clerical error… Sheppard
▪ c) database error… Arizona v. Evans
▪ d) a state statute that’s later deemed unconstitutional
● If the errors are systemic or widespread, the exclusionary rule should apply and the
evidence should not come in.
o EX/ If police have been reckless in maintaining a warrant system or have
knowingly made false entries to lay the groundwork for future false arrests,
exclusion of evidence would be justified.
● To trigger the exclusionary rule (exception doesn’t apply), police conduct must be…
Herring v. United States
o 1) sufficiently deliberate such that exclusion of the evidence can meaningfully
deter it; and
o 2) sufficiently culpable that such deterrence is worth the price paid by the justice
system
o If shown to be systemic, then bad faith. Aka grossly negligent
Exclusionary is ALSO applicable to:
o Direct appeal of state conviction
o Direct appeal of federal conviction
Exclusionary Rule is inapplicable to:
o Impeaching defendant’s direct testimony
o Civil suit
o Bail proceedings
o Federal habeas corpus review of state convictions
o Deportation hearing
o Grand jury proceeding
o Sentencing hearing
Investigation Phase – Confessions
Confessions – Role of Fifth and Sixth Amendments
● The Fifth Amendment privilege against self-incrimination protects suspects and witnesses from being
compelled to testify when their testimony could be used against them in a criminal prosecution.
o This can be invoked in… e.g., interrogation, at own criminal trial, another’s criminal trial, administrative
hearings, testimony before legislative body, etc.
o Can be asserted anytime a person may be subject to criminal liability including an appeal, reasonable fear
of criminal responsibility and not merely embarrassment etc. So if not incriminating then no right to remain
silent.
o For a confession to be admitted, it has to be…
o 1) communicative/testimonial in nature;
o 2) Voluntary; and
o 3) if in a custodial interrogation, given with the use of procedural safeguards effective to secure the
Miranda privileges (against self-incrimination and right to counsel)
▪
1) communicative/testimonial in nature;
● Examples of Non-Communicative
o a) fingerprints
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▪
o b) blood alcohol levels
o c) voice exemplar/voice sample
o d) handwriting sample
o e) How you walk/How you talk
o f) photo image of you
o g) appearance
2) voluntary; and
● Government cannot use unlawfully coerced confessions at trial, either directly or for
impeachment purposes.
o Test: totality of circumstances which can include:
▪ Denying right to counsel after suspect invokes the right
▪ Continuing interrogation after suspect invokes right to remain silent
▪ Suspect’s vulnerability to the pressures of police
● Juveniles
● Persons with diminished mental capacity
▪ Number of officers questioning suspect
▪ Length of time of interrogation
▪ Making suspect answer yes/no questions rather than saying what
happened in his own words
▪ Not allowing suspect to sleep
▪ Whether police timed the interrogation to maximize suspect’s fatigue
o On appeal, introduction of a coerced confession could be harmless error therefore
the conviction is not reversed.
▪ State has burden to show that admitting the confession did not contribute
to the conviction. If so much evidence that D would have been convicted
anyways then error was harmless.
●
Coercion could look like…
o a) actual or threatened physical force;
▪ E.g., credible threat of violence is sufficient
● Can come from third party or government actor/agent.
o Government must be using or perpetuating the threat
somehow.
o Ex: Govt spy got confession by using the knowledge of the
threats towards D by an inmate. Still counts cause used a 3rd
parties threats to coerce a confession.
o b) deception; or
▪ Generally, allowed to deceive suspect.
● But, look to totality of circumstances.
● E.g., too much deception when… Levra v. Dennis
o E.g., suspect was told he was coming in for treatment, was
instead hypnotized and interrogated while hypnotized
o E.g., interrogation lasted really long, did not let suspect sleep
o Can’t overbear someone’s will, basically making confession
involuntary
▪ Examples of deception that have been allowed to get a confession:
● Co-defendant has already implicated you
● Eyewitness at scene picked you from photo array
● Security camera at store across the street caught you on CCTV
● We retrieved your fingerprints from inside the car trunk
● You left DNA at the scene
● Your DNA is a match
● There’s sufficient evidence to indict your loved one
● DA will make a deal, but it expires today
o
c) psychological coercion
▪ totality of the circumstances – was the govt conduct sufficient to
overcome the person’s free will
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▪
▪
Confession not admissible if government conduct was “overreaching” in
a way sufficient to overcome free will.
▪ Govt action required
● E.g., NOT involuntary if psychological coercion came from third
party
● Your own mental illness and compulsion is not enough.
▪ It’s not the reliability of the confession that is the issue, its bc this is an
adversarial system and not an inquisitive system.
▪ Lack of reliability is not the deciding part of the equation
● Things that could negate the coercive nature of interrogation…
o a) short interrogation
o b) sleep breaks
o c) meals
o d) opportunity to speak with lawyer or family members
3) if in a custodial interrogation, given with the use of procedural safeguards effective to
secure the Miranda privileges (against self-incrimination and right to counsel)
● Confessions made during custodial interrogations are admissible only if...
o 1) Miranda warnings are given before the questioning; and
▪ Public Safety Exception
● Miranda warnings are not necessary before questioning a suspect
if the interrogation without warnings is due to the interrogator's
objectively reasonable concern for the public safety.
o 2) the suspect makes a valid waiver of his Miranda rights
▪ Heavy burden for the prosecution to prove waiver
▪ Can assert rights even after have already answered some questions
▪ Have to be clear when requesting counsel. “I think I want a lawyer” is
not good enough.
▪ Hard stop – if person says I don’t want to talk/I want my lawyer, BUT if
defendant re-initiates the conversation then statements are admissible
▪ Never good enough to show they knew their rights. Must be mirandized.
● Previous arrests don’t matter, education doesn’t, etc.
● Fruit of poisonous tree doesn’t apply to Miranda.
o Subsequent confessions after Mirandizing are good as long as can attenuate the
taint from previous pre Miranda confessions.
o A second confession after waiving Miranda (first being before) is only admissible
if there was long enough break to give a reasonable suspect the belief they
didn’t have to speak. The suspect may not understand that the first statement is
inadmissible, so they confess again because they don’t know any better.
o Court might apply poisonous tree if flagrant violation. Extremely narrow.
● Rationale
o To guard against the inherently coercive nature of police dominated environments.
o Prosecution can’t use good (exculpatory), or bad (inculpatory) statements
received pre-Miranda
●
Miranda does not apply when:
o Accused’s volunteered statements (walk into police station and confess)
o Questioning people not under restraint
▪ Suspect, citizen/witness
●
Custody (custodial part of miranda)
o Miranda warnings must be given when there has been such a restriction on a
person’s freedom as to render him “in custody.” Oregon v. Mathiason
▪ Test: whether a reasonable person in the suspect’s position would have
understood that he was free to leave or not free to leave.
● Subjective intent of officer is NOT relevant.
● Restricted movement is the determining factor
22
▪
●
●
●
E.g., NOT in custody when suspect voluntarily went to police station, he
was told he was not under arrest, the interrogation lasted about 5 minutes,
and he was allowed to leave when he wanted to
▪ E.g., IN custody when suspect was questioned in his home but wasn’t
free to leave
o Terry Stops / Stop and Frisk
▪ Miranda warnings do NOT have to be given when an officer who lacks
probable cause but whose “observations lead him to reasonably suspect”
that a person has committed, is committing, or is about to commit a
crime, detains that person briefly in order to “investigate the
circumstances that provoke suspicion.”
● E.g., officer may ask the detainee a moderate number of
questions to determine identity and confirm or dispel the officer’s
suspicions
▪ Seizure does not equal custody for Miranda purposes. Traffic stop.
o Statements Made by an Inmate to an Undercover Police Officer
▪ A voluntary statement made by an inmate to an undercover police officer
does not require a Miranda warning to be admissible in court. Illinois v.
Perkins
o Statements Made by a Defendant to a Government Agent
▪ A confession would be inadmissible if the interrogator “deliberately and
designedly” elicited the incriminating information from the defendant in
absence of a valid waiver of right to counsel (Sixth Amendment), even if
the interrogator is a lay person.
Interrogation
o Interrogation is questioning (express or functional equivalent) initiated by law
enforcement.
▪ Functional Equivalent of a Question
● The functional equivalent of a question is words or actions that
police know is reasonably likely to elicit an incriminating
response from that suspect.
o Consider...
▪ a) length of commentary
▪ b) how evocative
▪ c) comments directed at or to suspect
▪ d) subjective component of suspect, easier or
harder to elicit a response from them.
▪ Questions normally attendant to arrest and custody don’t count as
interrogation.
● E.g., identity, etc.
▪ “Subtle compulsion” is not necessarily equated with interrogation.
▪ Potential trick is officers merely talking to each other with no intent to
elicit a response then D volunteers information. Information would be
admissible.
Invocation
o A person can invoke their right to silence or counsel at any time.
▪ Even if they have previously given information voluntarily or waived
their right to silence or counsel.
o Invocation of right to silence and counsel must be explicit, clear, and
unequivocal/unambiguous.
▪ Saying “I think I want a lawyer” is not good enough.
▪ Remaining silent is not good enough.
Resuming Interrogation
o After Invoking Right to Silence
▪ Police can question a suspect who previously invoked his right to silence
as long as the suspect’s right to end questioning has been scrupulously
honored. Miranda v. Arizona
▪ Totality of the circumstances; Consider… Michigan v. Mosely
23
●
o
●
a) length of time between questionings
o E.g., here, two hours was enough for same crime, if the 2 hr
break was 2am-4am then probably not good.
● b) same or different interrogating officer/department
● c) same or different location
● d) topic of questioning
o E.g., can question about different crime
● e) other factors that might break the coercive nature of the
interrogation
After Invoking Right to Counsel
▪ Once suspect invokes his right to counsel, officers can further interrogate
suspect/defendant only if…
● a) counsel has been provided to suspect;
o Counsel has to be with suspect at all times during
questioning.
▪ Officers cannot question suspects about other
offenses under Fifth Amendment.
▪ Officers can question defendants about other
offenses under the Sixth Amendment.
● b) suspect initiates contact for purposes of meeting with them for
questioning, OR
● c) a break in custody ends the presumption of involuntariness
o E.g., 14 days is the standard for the break, suspect
returned to normal life
o Doesn’t apply for Sixth Amendment purposes.
Waiver
o A confession is admissible only if the person validly waives their privilege against
self-incrimination (and right to counsel if applicable).
o Waiver has 2 components and can be implied
▪ Voluntary – free deliberate choice rather than coercion or deception.
▪ Knowingly – have to know and understand their rights then waived them
o Police may interrogate suspect who has neither invoked nor waived miranda rights
o Valid Waiver
▪ Express Waiver
● An express statement that the individual is willing to make a
statement and does not want an attorney, followed closely by a
statement, could constitute a valid waiver.
▪ Implied Waiver
● If the suspect has been read his Miranda rights, stated that he
understood them, was given an opportunity to invoke them, and
still chose to answer questions, that can constitute an implied
waiver.
▪ Circumstantial Evidence
● No amount of circumstantial evidence will be sufficient to
demonstrate a waiver.
o E.g., person’s legal knowledge; prior interactions with
criminal justice system; silence after Miranda warnings are
given; person answering some questions or giving
information on his own prior to invoking his right to silence
or counsel
o Interrogation Without Counsel
▪ If the interrogation continues without the presence of an attorney and a
statement is taken, a heavy burden rests on the government to
demonstrate that the defendant knowingly and intelligently waived his
privilege against self-incrimination and his right to counsel.
● If rights explained to person (Miranda warnings), this is
assumed.
24
o
●
●
But, if police are aware that the person has some kind of
cognitive difficulty or language barrier, and they did nothing
to compensate for that and continued the interrogation, that
might show that waiver was invalid.
o Strong Evidence Against Valid Waiver
▪ A lengthy interrogation or incommunicado incarceration before a
statement is made is strong evidence that the person did not validly waive
his rights.
Waiver of Right to Remain Silent
o Where a defendant does not invoke his right to remain silent after fully
understanding his Miranda rights, he implicitly waives his Miranda rights by
making a voluntary statement to police.
▪ An implied waiver will suffice. An express waiver is not mandatory.
Examples of implied waiver:
● D aware of his rights and understood them
● D sat silent and then chose to answer
● No showing of police coercion
o Even where suspect waives his right to remain silent, the prosecution must still
establish by POE that suspect knowingly and voluntarily waived his right to
remain silent before the statement can come in at trial.
▪ Waiver does not depend upon the nature of the charges that were later
filed against the defendant
o NOTE: Defendant cannot give a valid waiver if police initiate a re-interrogation
after invocation to counsel
Waiver of Right to Counsel
o The right to counsel cannot be waived by silence!
o Waiver of counsel requires more than waiver of the right to remain silent, so CB
calls it “voluntary plus.”
▪ Special protection
▪ Needs to be a knowing and intelligent relinquishment of known
right/privilege
▪ Case by case determination, looking at background, experience, conduct,
etc.
▪ Additional safeguards: Subsequent waiver not shown if suspect responds
to additional police-initiated questions.
●
Exceptions to Miranda
o Testimony is admissible even without Miranda safeguarding measures if…
▪ a) impeachment – Miranda cannot be used to commit perjury
● State can’t introduce inadmissible statements under Miranda
● But, on defense case in chief, State may impeach defense witness
using voluntary inadmissible/defective statements under Miranda
due to their inconsistency during cross examination.
▪ b) emergency situations – police may ask questions pre-Miranda if:
● Public safety exception – if safety of officers or public is at risk
o Exigency that requires immediate action
▪ Questions have to be about emergency
o Subjective motivation of officer doesn’t matter
▪ c) routine booking – questions during routine booking are admissible
pre-Miranda
● Name, date of birth, address, citizenship, phone number, maybe
even if you have a car? etc. (not gathering evidence)
●
Evidentiary Consequences
o A suspect’s post-Miranda statement may still be admissible, even if he previously
made a Pre-Miranda statement, as long as the post-Miranda statement is
voluntary. Oregon v. Elstad
25
▪
o
o
●
It is only admissible if there are enough facts to support that a
reasonable suspect would have believed he had a right not to speak
with the officers after the initial unwarned confession. Missouri v.
Seibert
● E.g., here, post-Miranda questioning took place in the same
place, with the same interrogators, with a very short break
between statements, with very detailed pre-Miranda questioning,
and a deliberate two-part interrogation strategy (where
post-Miranda questions refer to answers to pre-Miranda
questions)
o Not allowed.
The “fruit of the poisonous tree” doctrine does NOT apply where there is a
technical violation of Miranda, but no violation of Fifth Amendment
voluntariness requirement. United States v. Patane
▪ Like in quarles if the statement of the gun is “over there” was
inadmissible the found gun would of still been admissible bc voluntary
statement.
False Confessions
▪ Found 25% of DNA exonerations had false confessions
▪ Vulnerable classes, age, intellectual, etc.
Immunity
o Immunity for who?
▪
o If government grants suspect immunity…
▪ a) suspect cannot refuse immunity; and
▪ b) suspect no longer has privilege against self-incrimination
● a person may still try to fight self-incrimination because against family, danger from
co-conspirators if put in jail with them.
o Types of Immunity
▪ Use/Derivative Use Immunity
● With Use/Derivative Use Immunity, a person can still be prosecuted for any crimes they
admit to, but the government cannot use the information obtained for investigatory leads
against that person. Theoretically, puts you back in the same place as before given
statement, so statement cant be used against you and cant use the statement as a way to lead
to more evidence.
o Use/Derivative Use Immunity is the minimum required type of immunity under
the U.S. Constitution.
▪ States may grant Transactional Immunity in certain cases if they want.
▪ This is a big change from prior immunity case law.
● POSSIBLE EXAM SHORT ANSWER: why the change? Why is
this good enough?
o Transactional is too broad.
o Government wants to be able to hold people accountable for
their crimes, but still wants to gain access to valuable
information that it wouldn’t have otherwise had about other
crimes.
o If the government wants to use the information against that person, they have the
burden of proof to show that they obtained it from an independent source.
▪ Transactional Immunity
● Immunity from any crime related to the compelled testimony.
● With Transactional Immunity, the evidence that a person provides cannot be used
against them in prosecution for that crime, and the evidence cannot be used for
investigatory leads against that person.
▪ Testimony given by a defendant during a suppression hearing
● Inadmissible against him in the actual trial.
● This rule is necessary to allow a defendant to provide testimony to support such a motion.
● Exception: Testimony may be used to impeach defendant if he testifies at trial Simmons v.
United States
26
●
Role of Counsel
o Fifth Amendment gives criminal suspects the right to counsel before criminal charges are brought against
them.
▪ NOT offense specific. Miranda right to counsel
o Sixth Amendment gives criminal defendants the right to counsel after criminal charges have been brought
against them.
▪ Does not apply if merely a suspect and not a defendant yet.
▪ Offense specific.
● E.g., same charge, same victim, same date, same location, etc.
● For an offense to qualify as different, each offense has to have an element that the other
offense doesn’t have.
Fifth Amendment vs Sixth Amendment – Miranda rights can attach earlier in a case, 6th only after formal proceedings
Pg. 667 Chart – on questions have to determine if the question is asking about a 5th am. Confession or 6th confession.
● Watch for custody for 5th – freedom of movement and arrest
o Interrogation can be anything you would be inclined to respond to, tend to make most people respond.
Express question or statement.
o Applies to all offenses once custodial interrogation begins
o Miranda doesn’t apply to undercover agents
o Fruit from miranda violations is not poisoned
o Police must stop interrogation as soon as rights are invoked
● Deliberate elicitation (6th) – doesn’t have to be a question. Could be the thing that sets you up to have a conversation.
o Strategic choice by govt where you are likely to speak not necessarily in response to anything
▪ Person put in you cell which the govt thinks you will speak to.
● Not some random that overhears you – passive listening post
o 6th can apply even if a person is not in custody
o Offense specific
Sixth Amendment – Right to counsel
● 6th Right to counsel – Massiah Test
o “… To have the assistance of counsel for his defense”
o The aid of counsel should apply to extrajudicial proceedings because critical stages of investigation
▪ Hard stop when 6th right to counsel attached, nothing else matters such as coercion/voluntariness.
▪ Right to counsel is established whenever the suspect becomes the defendant. Have formal
adversarial proceedings begun? The key that starts 6th right
27
●
▪
▪
Attaches when: Indictment, information, formal charge,
arraignment/magistration/preliminary initial appearance, preliminary hearing, bail hearing
● Think: state of Texas v. ___
● Doesn’t matter if prosecution isn’t there, or knows etc.
Offense specific – so can be questioned for other crimes in which you are a suspect and not a D
● Gets carried along with the case but does not attach to other things that are not formal
proceedings yet. Defendant in case X but only a suspect in Case Y. Cobb
● Doesn’t have to be a charged offense to qualify but must meet Blockburger test
o Whether each provision required proof of a fact that the other does not
o Rejects “closely connected factually” test used by TX court of criminal appeals
Deliberate elicitation after adversarial process has started – bright line rule Massiah Rule
● Different from interrogation and includes covert undercover agents.
● No invocation required.
● Purposefully set up an isolated situation to get information Brewer v. Williams
● Waiver
o Govt must show intentional relinquishment Or
o Abandonment of known right or privilege
▪ Knowing, voluntary, intelligent relinquishment
▪ NO IMPLIED WAIVER!
o Police can approach unlimited times and ask for waiver
● Similar to Pro Res rule, can’t talk to someone represented by an attorney.
Investigation Phase – Identification
Identification
o Identikit, composite drawing, photospread, show up (taken someone to show them to victim), lineup (corporeal),
exemplars (voice sample/handwriting sample), fingerprints, personal experience (already know the person or asking
general public if you know anything about this)
o Who and what are they testifying about? If so suggestive don’t want jury to even hear about it. Sometimes not allowed
to testify about the previous identification, but could testify as to identifying in court independent of previous ID.
o System variables – how are the identification procedures given, blinded officer vs investigating officer etc.
● 6th amendment Right to Counsel in Identification Procedures
28
o
o
o
o
●
Suspect – Fifth Amendment
▪ A suspect has the right to counsel before charging but does not need to have counsel present at
identification procedures for any crime.
▪ Check this.
Defendant – Sixth Amendment
▪ A defendant has the right to counsel after charging, and he has the right to have counsel at an
in-person line up/show up for that charged offense.
● May not be in a physical lineup without counsel after formally charged.
▪ Attaches only after formal adversarial proceedings have begun (the critical stage)
▪ Offense specific
▪ Only “physical identifications”
● No right to counsel for any other types of ID procedures (e.g., photo array).
● No right to counsel for in-person ID procedures for other charged offenses (unless invokes
right to counsel for those offenses too).
In-Court Identification after formal charges and Sixth Amendment Violation
▪ When a pretrial identification procedure violates the Sixth Amendment, an in-court identification is
permissible only if the prosecution shows, by clear and convincing evidence, that the witness
remembers the defendant from the crime scene and not from the tainted line-up or show-up.
● Gilbert – ID procedure in auditorium with 100 witnesses simultaneously, confirmation bias
o Needs to be individual lineup
● Stovall – brought 1 person to victim because victim would likely pass overnight
Rule for Identification Before Formal Charges: Under 6A, police may conduct an identification outside
the presence of counsel before a suspect has been formally charged with a crime.
▪ Abuses that occur during pre-formal charge identifications will be evaluated under the Due Process
Clause of 5A and 14A, not 6A.
▪ Also, Miranda doesn’t apply because being in a lineup is not testimonial, so it doesn’t go to
self-incrimination.
5th amendment Due Process in Identification Procedures (Totality of circumstances test)
o 5th applies whether or not:
▪ Physical lineup
▪ Before or after formal charges
▪ Counsel was present
o Due Process for identification is satisfied if the methods used for witnesses to identify suspect are…
▪ 1) reliable (conducive to mistaken identification); and
● I.e., does not create a substantial likelihood of irreparable misidentification
● Burden to show that in court identification after an improper out of court identification is
free of taint.
● Biggers Factors pg 716
o a) the witness’s degree of opportunity to observe the perpetrator when the crime
took place;
o b) Degree of attention
o c) the accuracy of the witness’s prior descriptions of the criminal, if any;
o d) the level of certainty the witness demonstrated at the identification;
o e) the amount of time between the crime and the lineup identification
▪ 2) not “unnecessarily suggestive”
● E.g., unnecessarily suggestive if witness subjected to seeing same suspect in multiple
lineups or photospreads Foster
● Suggestive does not always guarantee suppression, must be unnecessarily
● People need to look somewhat similar Ex: suspect is 5’4” and everyone else is 6’
● If time is critical there will be more grace. Look for facts that show real urgency or
emergency. Ex: Stovall – thought witness would die so brought just suspect then she
identified and was deemed admissible. One on one usually always unnecessarily suggestive
▪ Identification could still be admissible, even if the methods were unnecessarily suggestive, if it is
highly reliable. Manson
● Reliability (the linchpin)
o Biggers factors
● Deterrence
29
● ?
Unreliable but not suggestive Perry
● Due process clause is not violated unless there is improper police/activity, regardless of
how suggestive the procedure or conducive to misidentification
o Burnett says these court remedies are terrible:
▪ Focus on questions like “Are you sure that’s not the guy?”
▪ Can attack in opening and closing arguments
▪ Show that govt must meet their burden
In-Court Identification after Due Process Violation
▪ When a pretrial identification violates Due Process, an in-court identification is permissible only if
the prosecution can show that the tainted line-up or show-up did not create a “very substantial
likelihood of irreparable misidentification.”
▪
o
1.
Police Misconduct: The overly suggestive circumstances must be created by law enforcement.
a. DP is not violated unless there is improper police influence or activity, regardless of how suggestive the
procedure or conducive to misidentification.
b. Remember, there needs to be govt action, but not necessarily govt misconduct or bad action.
c. EX/ Perry. W’s identification of D was not the result of overly suggestive circumstances created by law
enforcement. Instead, W witnessed D breaking into cars.
Adjudication Phase – Sixth Amendment
Sixth Amendment
● Sixth Amendment rights apply to criminal defendants at any “critical stage” of the criminal prosecution from charging
on.
o Charging means “the initiation of adversary judicial criminal proceedings.”
● Sixth Amendment Rights (applies to federal government and states)
o a) right to counsel
o b) right to speedy and public trial
30
o
o
c) right to impartial jury of defendant’s peers
d) right to confront witnesses
Adjudication Phase – Charging
Prosecutorial Charging Decisions
● Prosecutors have a lot of discretion in charging.
o Decision TO charge 🡪 Limited Judicial Review
o If decide not to charge:
▪ Not legally reviewable
● Political and other pressure points
▪ Systemically, county may not charge for specific cases like small drug possessions
● May go the opposite way and say no probation for 1st degree felonies
o Challenges to charging decisions
▪ Selective Prosecution – violates Equal protection
● Selective prosecution on an arbitrary basis violates the Equal Protection Clause of the
Fourteenth Amendment.
o E.g., race, religion, gender, etc.
● A defendant making a selective prosecution claim must demonstrate that the prosecutorial
policy…
o 1) had a discriminatory effect; and
o 2) was motivated by a discriminatory purpose
▪ E.g., can be demonstrated by showing that similarly situated individuals
of a different race were not prosecuted. In Armstrong, study didn’t show
percentage that weren’t charged compared to amount that were.
▪ Difficulty in showing the required pattern…
▪ Vindictive Charging or Punishment – violates 14A due process clause
● Generally, it’s permissible for state to charge up to the highest crime that the facts will bear.
● Prosecutors can up the ante. If D doesn’t take lower plea then can threaten to charge
higher and actually charger higher (up to the highest facts will allow).
o However, couldn’t do that after conviction and on appeal.
● Presumed vindictive with burden to show otherwise. If increase is in response to appeal
then likely vinidictive.
● A prosecutor’s decision to charge or increase punishment violates the Due Process Clause
of the Fourteenth Amendment if it has a real likelihood of being the result of
vindictiveness. Blackledge v. Perry
o E.g., increasing amount or intensity of charges or punishment in response to a
defendant exercising a Constitutional right
o For a judge not to be vindictive, findings of something new must be on the
record.
o E.g., NOT vindictive if increased charges or punishment is imposed based on
something new or conduct occurring after original charge or sentence
o E.g., NOT vindictive if increased punishment is imposed by a jury that was
unaware of the original sentence
Charging Procedures
● Initial Appearance
o If the defendant is in custody, he must first appear before a judicial officer (typically a magistrate) within
24-48 hours following arrest.
o The magistrate informs defendant of the charges against him and informs him of his rights in further
proceedings.
o The first appearance is typically (but not always) the time when the magistrate sets the terms for pre-trial
release (e.g., bail or other conditions).
▪ Bail
● Bail should be set at no more than an amount reasonably calculated to ensure that the
defendant will stand trial and submit to sentence if found guilty.
● Factors of Bail Amount...
o a) the nature of the crime;
31
●
●
o b) the circumstances of the crime;
o c) how strong the case is against the defendant;
o d) the defendant’s financial position;
o e) the defendant’s character
● The basic idea is that the amount should not be materially more than sufficient to ensure
the defendant's presence at trial and for sentencing.
o The initial appearance is considered a “critical stage” of criminal proceedings, triggering the defendant’s
Sixth Amendment right to counsel if the suspect is faced with a decision that could later affect his freedom or
be used against him.
▪ E.g., if bail is set
▪ E.g., if suspect enters a plea
Preliminary Hearing
o Screening mechanism to see if there is enough there to convict.
o A “preliminary hearing” (a/k/a a “preliminary examination”) is an adversary proceeding that generally takes
place a few days after arrest (and after the initial appearance before the magistrate). In it, a magistrate
determines whether probable cause exists to “hold” or “bind over” the defendant for prosecution.
o Like a mini trial, but not. Adversarial proceeding with judge, counsel, rules of evidence.
▪ Testimony will be on record so can use for later impeachment.
o Standard: probable cause to believe…
▪ 1) defendant committed the alleged crime; and
▪ 2) a reasonable jury would convict
● Much lower bar the BRD. Rare to be thrown at this stage.
o A “critical stage” of a criminal proceeding, triggers Sixth Amendment right to counsel.
o Once the case has been brought to a grand jury, you no longer need the preliminary hearing because the two
hearings perform the same function.
Grand Jury
o Investigative function
o Only prosecutor and grand jury are present. No judge, no defense attorneys. And kept secret.
o No rules of evidence. Who’s going to object?
o Grand jury valid even if…
▪ E.g., hearsay is basis. Costello v. United States
▪ E.g., evidence seized in violation of Fourth Amendment is basis. United States v. Calandra
▪ E.g., prosecutors fail to present substantial exculpatory evidence in grand jury proceeding. United
States v. Williams
▪ However, prosecutorial misconduct if break same misconduct standard for prosecutors in a trial.
o Results in “true bill” or “no bill.”
▪ Refusal to indict – no bill
o No double jeopardy protections. The prosecutor could just seek an indictment from another Grand Jury.
o Criminal defendants in federal courts are constitutionally entitled to a grand jury indictment.
▪ But not in state courts. States can decide.
▪ Evidence Admissible at GJ May Not Be Admissible at Trial
● Don’t confuse what’s admissible at trial with what prosecutors can present to the
grand jury!
●
●
●
●
●
●
●
●
No double jeopardy protections, so prosecutor can keep bringing charges to new grand
juries until they get an indictment!
No 4A exclusion of tainted evidence.
No 5A exclusion of self-incriminating statements.
No right of suspect to testify before the GJ.
No defense counsel.
State has no duty to tell anyone that they’re a suspect.
Evidence rules don’t apply, so GJ can indict based solely on hearsay.
Prosecutors need not present exculpatory evidence to the GJ.
o GJ is only an accusatory body, not an adjudicatory body
Joinder
▪ Prosecution: May try co-defendants together because jury can see the full picture of each person’s role in the criminal
enterprise.
32
●
●
Cannot do so to confuse the jury
May choose not to join cases so they can stagger prosecutions, having the first-tried D flip on the others.
▪
Defense: May want try all Ds together to show comparative culpability and relative moral blameworthiness, so your client
doesn’t look as bad as his co-actors.
● May not choose to join because negative halo effect could cause the others’ culpability to wash off on your client,
making him less sympathetic and easier to convict.
▪
Potential constitutional issues:
● D would need to file a motion to sever his case if he wanted his own trial. He would likely claim one of these
issues:
o Mutually antagonistic defenses: Each D is blaming the other, so they need to be tried separately to
properly raise their defenses.
o Confrontation clause: If co-actor gives a statement that implicates you, you can’t force him to take the
stand if you’re tried together because he has a 5A right not to incriminate himself at his own trial! You
would need to be tried separately so you could call him as a witness.
● Severance
● Once two or more defendants’ cases have been joined, severance should only be granted if there is a substantial risk
that trying the defendants together will infringe on a defendant’s trial rights or impair the jury’s ability to make a fair
judgment.
o Separate trials are not warranted just because it would be easier for D to get an innocent verdict.
o Burden on D to prove severance is necessary.
o When risk of prejudice is high, TC is more likely to determine that separate trials are necessary. But less
drastic measures, like limiting instructions, often will suffice to cure any lower risk of prejudice.
● If the state tries to enjoin multiple defendants, a defendant may be granted severance if he demonstrates that a joint
trial would… Zafiro v. United States
o a) result in unfair prejudice that cannot be offset by appropriate limiting instructions; or
▪ E.g., mutually antagonistic defenses – he did it, no he did it!, no she did it! Etc.
o b) most likely infringe on his constitutional right
▪ E.g., confrontation clause (can’t compel codefendant to testify because they have a Fifth
Amendment right against self-incrimination)
● Judge has discretion.
Adjudication Phase – Discovery
Discovery
● Exculpatory Evidence
o Under the Due Process Clause of the Fourteenth Amendment, the prosecution must turn over evidence
that is… Brady v. Maryland (Brady Violations)
▪ 1) favorable to the defense; and
33
▪
● Did they have an obligation to disclose?
2) If wasn’t disclosed, was it material to either culpability or punishment (regardless of good
or bad faith)
● Evidence is “material” when there is a reasonable probability that, had the evidence been
disclosed, the result of the proceeding would have been different.
▪ A reasonable probability means that the likelihood of a different result is great
enough to undermine confidence in the jury’s verdict, not that the defendant
would have been acquitted.
▪
Material to Guilt: Anything that undercuts or casts reasonable doubt on the
prosecution’s case, including evidence that D could be convicted of a lesser
included offense.
▪
o
●
●
●
Material to Punishment: Any evidence that could provide for lesser punishment.
E.g., evidence that might impeach the prosecution’s witness is material
exculpatory evidence. Giglio v. United States
▪ E.g., deals with witnesses (express or implied)
● EX: if prosecution’s eyewitness has a pending felony, this
should be disclosed
o E.g., witness’s previous statement to investigating officer (in contrast with trial
testimony) that he could not identify the assailant
o Includes anything the govt used to incentivize witnesses.
o It violates DP for prosecutors to present false evidence, allow unsolicited false
evidence to go uncorrected, or withhold material evidence favorable to the
defense.
o Remedy for Failure to Turn Over Exculpatory Evidence
▪ If the prosecution fails to turn over exculpatory evidence, defendant gets a new trial.
● This is a “team concept.”
o This includes everyone who touched evidence in the case.
o Actual knowledge is irrelevant.
o Good faith / bad faith is irrelevant.
o Use of Perjured Testimony
▪ Use of perjured testimony is always a due process violation.
Impeachment Evidence
o Same standard for impeachment evidence as exculpatory evidence.
Reciprocal Discovery
o The prosecution has to give defense Brady evidence regardless, but if defense asks for additional evidence
from prosecution, then defense has to disclose the evidence it has to the prosecution.
▪ Requiring a criminal defendant to give notice of an alibi defense and disclose his alibi witnesses to
the state prior to trial does not violate the Fifth and Fourteenth Amendments. Williams v. Florida
● Rule only requires defendant to accelerate the timing of his disclosure
● If either party doesn’t comply then its excluded.
● States can draw this line wherever to make certain pieces of evidence required to be
disclosure prior.
Destruction of Evidence – burnett said would be good essay question because arguable
o The failure of a state to preserve physical evidence that could have been useful to the defendant is a violation
of due process IF bad faith on the part of the state is shown. Arizona v. Youngblood
▪ To rebut bad faith: standard procedures and policies, what was motive?,
▪ Negligence is not bad faith, but if negligent so often then could argue bad faith. Systemic.
▪ Deportation: Due process requires potential witnesses possess no evidence favorable to Defendant
before government can make them “unavailable”
Adjudication Phase – Negotiated Pleas
34
Plea Bargains – (fun fact – 97.8% of convictions are guilty pleas. The percentage is lower for more serious crimes)
● A defendant’s guilty plea is valid under the Fifth Amendment if it is… Brady v. United States
o 1) voluntary; and
▪ E.g., must not be induced by threats, misrepresentation, coercion, or bribes
▪ E.g., possibility of heavier sentence at trial is not enough to show involuntariness
▪ E.g., threatening to indict defendant on past offenses if defendant doesn’t take plea deal for this
offense is not enough to show involuntariness
● Doesn’t violate due process rights (5th amendment).
● Isn’t vindictive because it’s not punishing the defendant for exercising a constitutional
right.
▪ More Severe Punishment After Successful Appeal
● *see prosecutorial charging discretion section*
▪ Selective Prosecution
● Only if some impermissible reason
● *see prosecutorial charging discretion section*
o 2) knowing, and intelligent (Rule 11 pg. 928)
▪ Defendant must...
● 1) understand the nature of the charges facing him
o E.g., must be advised of all “essential elements” of the offense
● 2) have sufficient awareness of the relevant circumstances and likely consequences
o E.g., min/max possible sentences
o E.g., immigration repercussions
o E.g., future schooling, jobs, govt housing (not required but good to ask client)
o However, need not be informed of every collateral consequence like a conviction
will enhance punishment of later cases
o Brady DOES NOT require impeachment evidence in the negotiated plea context
● 3) understand the constitutional rights he is waiving by pleading guilty
o E.g., right to jury trial, right to confront witnesses, privilege against
self-incrimination
o Note: in entering a plea of guilt the defendant does NOT waive: assistance to
counsel or State’s burden of proof
o 3) made with the effective assistance of counsel (unless defendant waives counsel)
▪ Sixth Amendment gives right to counsel for defendants. This includes during plea negotiations.
▪ Effective Assistance of Counsel
● E.g., attorneys are required to provide accurate advice concerning the potential deportation
consequences of a noncitizen defendant’s guilty plea to a crime. Padilla v. Kentucky
● Collateral Consequences
o Immigration Collateral Consequences
▪ Attorneys are required to provide accurate advice concerning the
potential deportation consequences of a noncitizen defendant’s guilty
plea to a crime. Padilla v. Kentucky
o Generally, counsel doesn’t have to advise of other collateral consequences.
▪ E.g., housing, employment, voting, right to bear arms, etc.
● Plea Negotiations
o The Sixth Amendment requires defense counsel to communicate to a defendant
all formal plea offers from the prosecution. Missouri v. Frye
▪ To show IAC for this, client has to show…
● 1) a reasonable probability that he would have accepted the
plea offer had he been afforded effective assistance of counsel;
● 2) a reasonable probability the plea would have been entered
without the prosecution cancelling it; and
● 3) a reasonable probability that the judge would have accepted
the plea
▪ The Sixth Amendment guarantees effective assistance of counsel during
the plea-bargaining process even if the defendant ultimately receives a
fair trial. Lafler v. Cooper
● E.g., bad advice leading defendant to reject plea offer is IAC
o Standard: totality of circumstances
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●
●
●
●
Prosecutor can up the ante in the plea phase. Not vindictive prosecution to say if you don’t accept my plea ill
charge the max sentence.
Remedy for Invalid Plea
o Prosecutor is bound by a plea agreement but not required to offer one. Judge is not. Court can say no.
o Withdraw plea.
Pleading Guilty While Maintaining Innocence
o A defendant may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence
even if he is unwilling or unable to admit his participation in the acts constituting the crime. North Carolina
v. Alford
▪ I.e., Alford plea, nolo contendre plea
▪ Constitution allows but does NOT require. State may require it.
● This varies by jurisdiction & trial judge
6A: Right to trial by jury, cross-examination, confront witnesses, counsel at critical stage
o D waives his 5A right against self-incrimination and all of his 6A trial rights, except assistance of counsel, by
taking a plea!
Adjudication Phase – Right to Counsel
Right to Counsel
● Defendants have the right to counsel under the Sixth and Fourteenth Amendments in felony prosecutions (federal and
state). Gideon v. Wainwright overruled Betts v. Brady
▪ Ad hoc – appointed case by case, 1 attorney for 1 case
● Have to meet certain standards to be able to be appointed
▪ Contract – attorney has certain contract for being appointed
▪ Public defenders – organization specifically for indigent defendants.
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o
No indigent criminal defendant may be sentenced to a term of imprisonment (actual or suspended) unless the
State has afforded him the right to assistance of appointed counsel. Scott v. Illinois
▪ This concerns actual sentenced confinement, not simply the potential.
▪ Suspended sentences because they still have the possibility to be re-imprisoned if revoked.
Pro Se Representation
● Defendant has right to refuse counsel. Faretta v. California
o Decision must be knowingly and intelligently made.
▪ Express statement on the record
▪ Literate, competent, and understanding
▪ Technical legal knowledge NOT relevant to assessment of defendant’s knowing exercise of right
to defend himself.
o Defendant must be made aware of dangers and disadvantages of self-representation.
▪ Needs to appear on record.
o Stand-by counsel – appointed to help pro se defendant and coach them. Also, ready to effectively step in if
defendant or judge decides to allow for attorney to take over the defense. Prohibited from doing anything that
would show the defendant is not in control of the defense.
▪ 6A permits (but does not require) the appointment of stand-by counsel
o Court may force lawyer representation if even though mentally competent to stand trial but not sufficiently
competent to represent himself (Standard to stand trial: competent to assist in own defense, very low bar).
Ineffective Assistance of Counsel
● Under the Sixth Amendment, there are certain “basic duties inherent in representing a criminal defendant.” Strickland
v. Washington
o a) loyalty (can’t talk with your friend prosecutor and say If you give 2 years for Jones, I’ll take 5 for Jim)
o b) avoid conflicts of interest
o c) advocate the defendant’s cause (general)
o d) consult with the defendant on important decisions (particular)
o e) keep defendant informed of important developments in the course of prosecution (particular)
o f) bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process
o g) Duty to consult with D on important decisions
● Consulting doesn’t mean D will follow the advice, but you must give them full and fair appreciation
of the circumstances.
● Think about Padilla and the lawyer not advising D of his certain deportation. That’s important!
o
●
●
h) Duty to investigate law and facts
● Strategic choices made after thorough investigation of law and facts relevant to plausible options are
virtually unchallengeable.
●
Strategic choices made after less than complete investigation are reasonable to the extent that
reasonable professional judgments support the limited investigation.
▪ EX/ Not good enough for lawyer’s factual investigation to only rely on the offense report.
He needs both sides of the story, and that report is written with an eye toward prosecution!
●
What D tells the attorney will shape what the attorney’s investigation includes.
▪ EX/ If D says they committed the crime, the lawyer wouldn’t need to investigate an alibi
defense because that would be perjured testimony.
▪ EX/ If D gives counsel reason to believe that pursuing a certain W would be fruitless or
even harmful, counsel’s failure to pursue that W may not later be challenged as
unreasonable.
o i) ABA Model Rules serve as a guide to determining what is reasonable.
Benchmark for IAC Claim
o The benchmark for judging any claim of ineffectiveness of counsel is whether counsel’s conduct or lack of
conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as
having produced a just result. Strickland v. Washington
Test for IAC Claim
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o
o
To establish the existence of ineffective assistance of counsel, a convicted defendant must show that…
Strickland v. Washington
▪ 1) Deficient performance - his counsel’s performance was deficient because the lawyer did not
act as a reasonably competent attorney; and
o Errors so serious it’s as if there wasn’t a lawyer there at all (sleeping attorney)
o What’s the reasonable standard in that jurisdiction?
o Reasonableness strongly presumed.
● Counsel is permitted to make a wide range of decisions.
▪ Representation is an art, and an act or omission that is unprofessional in
one case may be sound or even brilliant in another.
▪ The reasonableness of counsel’s actions may be determined or
substantially influenced by the defendant’s own statements or actions.
● E.g., information supplied by the defendant
● E.g., strategic choices made by the defendant
● High deference to trial court decision.
● Defendant has to overcome this.
o Strategic choices made after thorough investigation of law and facts relevant to plausible
options are virtually unchallengeable.
● Reliance on state’s offense report is NOT good enough of a factual investigation.
o ABA standards and state standards are guidelines, but not checklists.
● Almost no bright line rules.
▪ 2) Prejudicial impact - he was prejudiced from the deficiency because there is a reasonable
probability that, but for his attorney’s unprofessional errors, the result of the proceeding
would have been different
o Errors so serious as to deprive D of a fair trial
o A reasonable probability is a probability sufficient to undermine confidence in the
outcome.
o Prejudice is presumed when…
● a) defendant is actually or constructively denied the assistance of counsel
altogether (never appointed an attorney or appoint lawyer day before trial);
● b) counsel is burdened by an actual conflict of interest; or
▪ Defendant must demonstrate that…
● 1) counsel actively represented conflicting interests; and
● 2) an actual conflict of interest adversely affected his lawyer’s
performance
● c) various kinds of state interference with counsel’s assistance
o Was it Outcome determinative?
o Reasonable probability different result: lesser crime or less time
o In determining whether prejudice existed due to the judge…
● The assessment of prejudice should proceed on the assumption that the
decisionmaker is reasonably, conscientiously, and impartially applying the
standards that govern the decision.
● It does NOT depend on the idiosyncrasies of the particular decisionmaker, such as
unusual propensities toward harshness or leniency.
Court can consider the two prongs in any order they want.
Strategy
● Strategy – Defendant’s Province
o Refers to client’s objectives.
▪ E.g., how to plead; whether to waive jury trial; whether to testify, whether to appeal
● Trial Management / Tactical Decisions – Lawyer’s Province
o Refers to methods of achieving client’s objectives.
▪ E.g., whether to call particular witnesses; how to conduct cross-examination; what evidentiary
objections to raise, arguments to pursue, whether to stipulate evidence admissibility
o Structural Error
▪ Structural errors are errors affecting the entire framework in which the trial proceeds.
● It is pervasive and affects the entire trial.
● It goes way beyond a lapse or flaw in various decisions at trial.
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●
o
It is a structural error if the right at issue is designed to protect a fundamental legal
principle (not simply protect a defendant from an erroneous conviction).
● An error might be structural when its effects are too hard to measure.
o E.g., right to counsel, no lawyer is so flawed don’t have to make an assessment
▪ E.g., conceding guilt over a client’s objection violates the right to
assistance of counsel and constitutes structural error reversible without
showing prejudice. McCoy v. Louisiana
o E.g., judge’s failure to tell jury that it may not convict unless it finds the
defendant’s guilt beyond a reasonable doubt
▪ When a structural error occurs, the defendant automatically gets a new trial.
Constitutional Error in Trial Management / Harmless Error Standard
▪ When there is a constitutional error in trial management that doesn’t rise to the level of a structural
error, the government has to demonstrate beyond a reasonable doubt that the constitutional
error did not contribute to the verdict.
d. Plea Offers and IAC Claims
i. 6A right to effective assistance of counsel extends to the plea-bargaining process!
● Even if D has a fair trial, he may still have an IAC claim for the lawyer’s action/inaction
during plea bargaining.
● The advice that influences client decision making is the key takeaway.
ii. Failure to Communicate Plea Offers: Must make classic IAC claim, but to meet the prejudice
prong based on an un-communicated plea offer, D must also show a reasonable probability:
● (1) that he would have accepted the prosecution’s plea offer had it actually been
communicated to him,
● (2) that the plea offer would have been accepted by the trial court, and
● (3) that the prosecution wouldn’t have revoked the offer.
a. For (2) and (3), D could present evidence of how the judge and prosecutors
typically treat these types of cases, whether they tend to be lenient in these types
of cases, etc.
●
Note! It is difficult to prove prejudice. D will have to show that a different result was likely.
a. EX/ Lafler and Frye. D able to show prejudice when counsel failed to convey plea
offer. D able to show prejudice when counsel gave bad advice that caused D to
reject plea offer.
Adjudication Phase – Selected Trial Issues
Speedy Trial
● Under the Sixth Amendment, criminal defendants have the right to a speedy trial.
● Only applies to post charging delays.
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●
●
Clock starts when charged.
If Court finds that the defendant’s right to a speedy trial has been violated, the charges must be dismissed.
o E.g., but Court found that a delay of 5 years did not compel dismissal because the defendant never asserted
his right to a speedy trial
Trial Delay After Charging/Indictment
● To determine if a defendant’s right to a speedy trial has been violated, consider…
o a) the length of the delay;
▪ E.g., number of continuances
▪ E.g., defense-requested delays, including requests to prepare motions or prepare for trial, are
normally excluded from the calculation
▪ E.g., the constitutional clock does not run on a sealed indictment until it is unsealed, which has the
effect of placing sealed indictments in limbo for purposes of post-charging delays
▪ E.g., if a charge is dismissed and later refiled, the gap between them is not included in the delay
calculation
o b) the government’s reason for the delay;
▪ Second most heavily weighted factor
▪ Appropriate Delay
● Any valid reason
● E.g., missing witness
● E.g., government’s reasonable strategy
▪ Neutral – not that strong
● E.g., negligence, but negligence over a very long time starts to look like bad faith
● E.g., overcrowded courts
▪ “Sinister” – anything that doesn’t feel neutral
● E.g., deliberate attempt to delay the trial in order to hamper the defense
o Weighted heavily against the government
o c) whether and how the defendant asserted his right to a speedy trial; and
▪ If a defendant fails to assert his right to a speedy trial, it might be understandable if…
● a) he had incompetent counsel;
● b) a continuance was granted ex parte with no opportunity for defendant to challenge
o need knowing and intelligent waiver
o d) whether the defendant was prejudiced by the delay
▪ Most heavily weighted factor
▪ Best showing is that it impaired defendant’s defense
● Missing witness, destroyed evidence, etc.
▪ Prejudice should be assessed in the light of the interests of defendants which the speedy trial right
was designed to protect...
● a) to prevent oppressive pretrial incarceration;
o E.g., how long defendant was incarcerated during delay, impacts of that
● b) to minimize anxiety and concern of the accused; and
● c) to limit the possibility that the defense will be impaired
o This is the most serious
o E.g., a witness becomes unavailable
▪ E.g., death, moving out of state, memory loss, etc.
Delay Between Indictment and Arrest
o Same test
o An 8.5-year delay between indictment and arrest creates a presumption of prejudice. Doggett v. United States
▪ Here, government also failed to use due diligence to find and prosecute defendant.
Pre-Charge Delay
● No 6A Violation: 6A right to a speedy trial is inapplicable to delays that occur before an individual has been indicted
or at least arrested.
o The suspect is not a defendant yet! We look to his 5A rights!
● 5A Due Process Violation: A D alleging a DP violation must show (1) that the delay caused actual prejudice and (2)
that the reason for the delay was impermissible.
o The statute of limitations is the primary mechanism for addressing the permissibility of pre-charge delays.
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●
●
An investigative delay before charging does not violate the Fifth Amendment Due Process Clause, even if it resulted
in some prejudice to the defendant. United States v. Lovasco
Would be bad to force government to charge someone because the wrong people could get charged and waste money.
Might wait because could lead to finding the head honcho.
Jury Trial
● Under the Sixth Amendment, criminal defendants are entitled to a public trial by an impartial jury for all “serious
crimes” (federal and state). Duncan v. Louisiana
o Court does not give clear guidelines for what a “serious” crime is. Just says what is authorized.
▪ Federal: 6 months
▪ Majority of states: 1 year
▪ Historical: 6 months
● Potential/Authorized punishment, not what sentence was imposed
● The prosecution of a defendant in a single proceeding for multiple petty offenses does NOT
trigger the right to a jury trial even if the aggregate imprisonment for all offenses might
exceed six months.
o Right to jury trial is NOT required for petty crimes.
o Look to potential punishment range, not actual sentence.
o No constitutional right to jury of 12.
▪ Can be as few as 6.
o Sixth Amendment requires unanimous jury verdict in federal trials.
▪ But, rules for unanimity differ in state courts.
▪ Unanimity for a 6-member state court jury is required.
o Fourteenth Amendment requires unanimous jury verdict in felony criminal cases. Ramos v. Louisiana
Jury Selection
● Challenges for Cause
o Unlimited number available.
o Grounds
▪ Not Qualified in General
● E.g., insane; no ability to read or write; indicted; on probation
▪ Case Specific Disqualification
● E.g., relation to party or attorneys
● E.g., bias against certain type of person or offense
● Peremptory Challenges / Strikes
o Usually, fixed number by statute.
o Generally, can strike for “any reason” UNLESS deployed in an unconstitutionally discriminatory way.
▪ The Equal Protection Clause currently prevents discrimination in the jury selection process based on
race/national origin and gender.
● Any defendant can object.
● Equally applicable to government and defense strikes.
● Applies to civil suits as well as criminal prosecutions.
o To prove a prima facie case for discriminatory preemptory strike…
▪ Defendant (or govt) has to show facts and circumstances that support the inference of purposeful
discrimination… Batson v. Kentucky
● a) pattern of strike use in case
● b) nature of questions and statements
● c) comparison of struck and retained
▪ Lawyer needs to make this objection before the trial begins.
▪ Prosecutor (D) has burden (shifts) to offer proof of a neutral explanation for preemptory strike.
▪ Judge decides.
Publicity
● Pre-Trial Publicity
o Court can place a gag order on parties so they don’t discuss high profile case.
o A juror can still serve on a jury even if he has a preconceived notion of guilt or innocence as long as the juror
can lay aside his impression or opinion and render a verdict based on the evidence presented in court. Irvin v.
Dowd
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▪ It is not required that the jurors be totally ignorant of the facts and issues involved.
▪ Judge does not have to question jurors about details of pretrial publicity.
o Challenger has burden of proof to show prejudice as a result of publicity.
o Trial court’s determinations get deference.
● During trial – court can sequester the jury or change venue.
● Open Pre-Trials and Trials
o Members of the public have no constitutional right under the Sixth and Fourteenth Amendments to attend
criminal trials or pre-trials.
o Defendant can request, but can’t compel, a closed trial.
Confrontation Clause
● Sixth Amendment right to confrontation of witnesses applies to federal criminal trials (and state criminal trials
through Due Process clause).
o The central concern of the Confrontation Clause is the reliability of witnesses.
● To satisfy the Confrontation Clause witnesses against the defendant must...
o 1) physically testify at trial (or at prior proceeding where the defendant had the opportunity to
adequately cross examine);
▪ A witness does not need to testify in the presence of the defendant if the denial of physical
confrontation is necessary to further an important public policy.
● To demonstrate necessity in this context, the prosecution must demonstrate that...
o 1) the physical separation of witness and defendant is necessary to protect the
welfare of the witness;
o 2) any trauma to the witness would stem from the defendant’s presence, not from
the courtroom atmosphere; and
o 3) the trauma to the witness is more than de minimis – it is substantial
o 2) testify under oath;
o 3) be subject to cross examination; and
o 4) be subject to the trier of fact observing their demeanor
● Defendant Waiving Right to be Present at Trial
o A criminal defendant can waive his constitutional right to be present during trial by...
▪ a) voluntarily removing himself from trial; or
▪ b) continuing to engage in disruptive behavior after being warned that such conduct will lead to his
removal
● Shackling Defendant at Trial
o The use of visible shackles during the penalty phase of a capital trial violates due process. Deck v. Missouri
▪ Shackling must be specially justified by the circumstances.
● If Court fails to show this, it’s a per se due process violation.
o Defendant doesn’t have to demonstrate resulting prejudice.
▪ Personal Confrontations
● Rule: The Confrontation Clause can be satisfied without face-to-face confrontation where:
o (1) The denial of physical confrontation is necessary to further an important public policy and
▪ Must be case specific finding. No blanket rules for necessity.
▪ Merely being uncomfortable or anxious is not enough to meet necessity!
o (2) The reliability of the testimony is otherwise assured because
▪ (a) the witness testifies under oath,
▪ (b) is subject to cross-examination, and
▪ (c) can be observed by a jury
●
Necessity for Child Witness: Court must hear evidence and determine
o (1) whether use of closed-circuit TV is necessary to protect the welfare of the child,
o (2) the child would be traumatized by the presence of the D, and
o (3) that the emotional distress suffered by the child in the presence of the D is more than de minimis - it
is substantial.
●
●
Central CC Concern: Ensuring reliability of evidence by subjecting it to rigorous testing of an adversarial
proceeding before the trier of fact.
Testimonial vs. Non-Testimonial Hearsay Statements
▪ Testimonial Statement: Objective primary purpose of the statement is assisting a criminal
investigation. There’s an eye towards prosecution.
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●
● EX/ Calling to report neighbor getting robbed.
▪ Non-Testimonial Statement: Objective primary purpose is resolving ongoing emergency or reason
other than assisting criminal investigation.
● EX/ Request for emergency services is nontestimonial.
o Confrontation Clause DOES NOT apply to non-testimonial statements.
▪ For non-testimonial hearsay statements, States have flexibility in developing hearsay rules for them.
o Testimonial statements of witnesses not present at trial are admissible under the Confrontation Clause (except
for dying declarations) only if the declarant is unavailable and the defendant had a prior opportunity to cross
examine the declarant.
▪ Forfeiture by Wrongdoing
● If forfeiture by wrongdoing, you don’t get to keep out the witness’s hearsay statements
(prosecution or defense).
▪ 911 Calls
● The nature of 911 calls depends on the purpose of the call.
o Testimonial: statements made with the purpose of making an assertion for uses at
trial
o Investigative: emergency assistance, not being made to make a record of your
view of the case
Forensic Evidence
o An expert permitted to explain facts on which opinion was based without testifying to the truth of those facts.
Williams v. Illinois
Privilege Against Self-Incrimination
● The privilege against self-incrimination exists for both phases (guilt and sentencing) independently of each other.
● Prosecutorial Statements Concerning Defendant’s Silence
o It is a violation of the Fifth Amendment for the prosecution to comment on the defendant’s silence or
for the trial judge to instruct the jury that the defendant’s silence can be evidence of guilt. Griffin v.
California
▪ States are always free to offer more protection, but never less.
D is correct for slide question because have to have specific allegation of harm.
Double Jeopardy clause 5th amendment
● In general, a person cannot be tried/prosecuted twice for the same offense. Two convictions? Two trials?
Acquitted then tried again? No to all 3. Blockburger test
o To qualify as different offenses, each crime needs to require proof of a factual element that the other does
not.
▪ Test is satisfied even if there’s substantial overlap between offenses. Murder and manslaughter.
▪ WATCH OUT! Dependent on facts. If two different robberies, then can be prosecuted twice.
● If no new facts have to be proved between the 2 offenses, then the same.
o Joyriding and theft require same facts, 2 different robberies have different victims.
▪ Ex: 1st crime with elements ABCD, 2nd w/ ABC, 3rd w/ ABCE
● 1st and 3rd require proof of a unique element (not same), 2nd is lesser included offense
● No DJ bar for 1st and 3rd crime, but DJ bar against 2nd bc not a distinct crime.
● If convicted of 2 can’t be tried for 1 or 3! Prosecutors have to be careful with charge
o Can’t be tried of lesser offense OR greater offense, sequence doesn’t matter
▪ Trick: attempt and conspiracy are distinct crimes, not lesser/greater
o States can provide more protection, but never less.
o Typically move to dismiss before trial for double jeopardy
o Less frequent: first time on appeal if issue can be decided as matter of law of facts on record
o Trouble Spots
▪ Multiple Victims: Two victims = two offenses. No DJ bar.
▪ Continuous Criminal Enterprise: To be tried for criminal enterprise, you need a sequence of
underlying predicate offenses. The “criminal enterprise” charge is a new crime. No DJ bar.
● EX/ Cartel leader charged with “continuing criminal enterprise” because he made 3
different drug sales while engaged in organized crime.
▪ Civil/Criminal Actions: The civil remedy might feel like a criminal penalty, but they are separate.
No DJ bar.
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▪
▪
●
●
● EX/ D convicted of tax fraud. IRS can also levy hefty “civil fines” against D.
Mental State: If the new crime only requires a different mental state, not new facts, then DJ bars the
new prosecution.
● This demonstrates how Blockburger focuses on the crime facts, not the crime elements!
● EX/ Murder. 1D murder and 2D murder both require killing someone. 1D requires the
mental state of premeditation. 2D does not. Though these crimes have different mental state
elements, they are considered the same under Blockburger. 2D is a LIO of 1D.
● EX/ Auto theft required intent that joyriding did not. Joyriding still considered an LIO. DJ
bars prosecution.
Clear Legislative Intent to Authorize Multiple Punishments: Courts give this special treatment.
When Double Jeopardy is Triggered – questions commonly come from here
o Double jeopardy is attached when...
▪ a) in a jury trial, when a jury is sworn.
▪ b) in a bench trial, when the first witness is called
▪ c) when there is no trial (i.e., defendant pleads guilty, when the court accepts the plea
unconditionally)
When Double Jeopardy Applies
o Dismissal of Charges
▪ No DJ bar.
▪ Govt appeals pretrial motion to dismiss, DJ had not attached yet
o Grant of Pretrial Dispositive Motion
▪ No DJ bar.
o Plea Bargain
▪ SC has not ruled.
o Continuous course of conduct offenses – where D commits 3 predicate offenses
▪ No DJ violation
o Civil/criminal actions – when civil remedy might be equivalent to criminal penalty
▪ No DJ violation
o Mistrial for Hung Jury / Mistrial for Other Reason
▪ If judge dismisses the jury for manifest necessity 🡪 No DJ bar
● E.g., if judge dismisses because the jury can’t come to a decision, but they didn’t deliberate
that long, you can attack the manifest necessity claim by showing that the judge didn’t ask
them to deliberate longer.
o If can show no manifest necessity 🡪 DJ bars
o Consider…
▪ a) length of trial/testimony
▪ b) length of jury deliberation
● If you can show that the jury didn’t deliberate long enough, then
you might be able to challenge claim of manifest necessity.
▪ If defense calls for mistrial and the judge grants it 🡪 No DJ bar
● But if the prosecution does things to goad the defense into calling for a mistrial 🡪 DJ bars
o E.g., something pretty egregious, more than overreaching. Harassment not
sufficient, must have intent to push you into asking for mistrial.
▪ E.g., comment on defendant’s failure to testify (most common example)
o Conviction on Lesser Included Offense
▪ DJ bars.
▪ Sequence doesn’t matter.
● If you try the lesser one and get a not guilty verdict, you can’t then try the greater one, and
vice versa.
o After a Verdict (Guilty or Not Guilty)
▪ DJ bars.
▪ Acquittal bars the government from appealing.
o Reversal on Appeal
▪ Based on legally insufficient evidence 🡪 DJ bars
▪ Based on other legal reason, judge error (de novo, evidentiary, rulings on motions) 🡪 No DJ bar
o Tried for Same Offense in Different Sovereigns (dual sovereigns)
▪ No DJ bar if dual sovereigns.
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o
o
▪ E.g., State to state (different sovereigns, No DJ bar)
▪ E.g., federal and state (different sovereigns, No DJ bar)
▪ E.g., federal and tribal first nations (different sovereigns, No DJ bar)
▪ E.g., state, city, county (same sovereigns, DJ bar)
▪ E.g., federal and territorial (same sovereigns, DJ bar)
Same Offense, Different Victims
▪ No DJ bar.
Multiple Punishments for Same Offense
▪ DJ bars.
▪ Civil fine does not count as additional punishment for DJ purposes.
Adjudication Phase – Post Conviction
State Conviction Appeal Options
● a) direct review – appeal (if applicable)
● b) state habeas/writ
● c) federal writ
o Before you get to federal writ, you must have raise the claims that you’re going to raise in your federal writ
in your direct appeal or state writ.
Federal Conviction Appeal Options
● a) direct review – appeal (if applicable)
● b) federal writ
Direct Review – Appeals
● Constitutional Right to an Appeal
o Supreme Court has never held that the Constitution gives a right to an appeal.
▪ But, every state has some direct appeal structure as a state statutory creation.
● Right to Counsel in First Direct Appeal
o First direct appeal (as a matter of right) is a “critical stage” implicating right to counsel under the Sixth
Amendment.
▪ Don’t have right to counsel in discretionary appeals courts, unless they grant review.
● If they grant review, you’re still not entitled to it unless the state says you are.
● What Appeals Courts Can Review
o Appeals courts can only review cases based on questions of law, not fact, even when an issue is the
sufficiency of the evidence.
▪ Test: viewing the evidence in the most favorable to the prosecution, could a rational trier of fact
have convicted based on the admissible evidence at trial?
● Bound by the record developed below.
● Deferential to trial court fact findings.
● Types of Trial Errors Reviewed on Appeal
o Structural Error
▪ A structural error is an error that affects the entire trial from start to finish, not simply a normal
trial error.
● E.g., deprivation of right to counsel
● E.g., judge not impartial not
● E.g., unlawful exclusion of members of defendant’s race from a grand jury
● E.g., infringement on right to self-representation
● E.g., infringement on right to public trial
▪ Remedy
● Automatic reversal and new trial.
o Defendant doesn’t have to show harm or prejudice.
o Legal Insufficiency
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▪
●
●
An error of legal insufficiency occurs when, viewing the evidence in the light most favorable to the
verdict, no rational jury could have come to that conclusion.
● Consider if the state really met its burden of proof beyond a reasonable doubt.
▪ Remedy
● DJ bars.
o Plain Error
▪ A plain error occurs when counsel failed to follow procedural requirements to preserve issues
for appeal.
● Court reluctant to find plain error.
▪ Remedy
● Court may still allow you to appeal on these issues if you show sufficient cause and
prejudice.
o The error must…
▪ 1) be derived from legal rule;
▪ 2) be obvious under existing law; and
▪ 3) have affected substantial rights
Standard of Review on Appeal
o If the Court finds a constitutional error that does not rise to the level of a structural error, the prosecution
must prove beyond a reasonable doubt that the error did NOT contribute to the verdict in order to
keep the verdict in place.
Finality / Retroactivity
▪ Finality attaches when “direct review” is complete, meaning when
● SCOTUS affirms a conviction on the merits on direct review,
● SCOTUS denies a petition for writ of cert, or
● The time for filing a cert petition expires.
o A new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or
federal, pending on direct review and not yet final. Griffith v. Kentucky
▪ Not applicable to collateral review.
o On collateral review, new constitutional rules of criminal procedure cannot be applied retroactively.
Teague v. Lane
▪ But, very narrow exception for cause for procedural default and resulting prejudice.
Writs of Habeas Corpus
● State
● Federal
o Procedural Default
▪ Federal courts will almost never entertain a petition for writ of habeas corpus unless the petitioner
has preserved the federal issue in accordance with state procedural rules.
● But, if petitioner can show just cause for the default and prejudice resulting therefrom,
courts may allow writ.
o E.g., futility of raising claim (i.e., courts have rejected forever)
o E.g., IAC
o E.g., an attorney’s abandonment of a prisoner without notice
▪ Attorney negligence is not enough to establish cause for procedural
default.
o Exhaustion
▪ Principle of Comity
● Before you get to federal writ, you must have raised the claims that you’re going to raise in
your writ in your direct appeal or state writ.
● Petitioner must complete direct appellate process or pursue state habeas before seeking
habeas writ relief in federal court. Rose v. Lundy
▪ Mixed Exhausted and Unexhausted Claims
● A district court must dismiss habeas petitions containing both unexhausted and exhausted
claims.
o Amendment
▪ A defendant can always amend the petition to remove unexhausted
claims rather than return to state court to exhaust all of his claims.
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▪
o
e.
But, by invoking this procedure, the defendant would risk forfeiting
consideration of his unexhausted claims in federal court.
Exhausting all Claims
▪ Some district courts “stay” and hold in “abeyance” mixed petitions while
petitioners exhaust the remaining claims in state court so that the petition
could still be filed before the end of the limitation period.
● SC has upheld this procedure, but said it should be used
sparingly and in cases when there was good cause for the
petitioner’s failure to exhaust his claims first in state court.
o But, even if petitioner had good cause for this, the
district court should not grant him a stay if his
unexhausted claims are plainly meritless.
▪ AEDPA added a one-year limitations period in which you can bring
exhausted claims for collateral review.
Standards of Review
i. Harmless Error
● Won’t compel reversal or dismissal
● Constitutional Error: Prosecution must prove BRD that error did not contribute to verdict.
a. EX/ Fulminante. Introduction of involuntary confession was “trial error” rather
than structural error, so it was reviewed under harmless error standard.
● Non-Constitutional Error: How case was presented to factfinder and impact on outcome.
a. EX/ Didn’t get to shuffle the jury panel.
ii. Plain Error
● Must be derived from legal rule, be obvious under existing law, and have affected
substantial rights
● Not objected to at trial, but are obvious and affect substantial rights.
iii. Legal Insufficiency
● “No rational juror”
● Did state meet its burden of proof BRD?
iv. Structural Error
● Automatic reversal.
● Affects the trial’s entire framework from start to finish, rather than a simple error in the
trial process itself
● Effects often immeasurable
● EX/ Deprived of right to counsel or right to self-representation, judge not impartial,
unlawful exclusion of members of D’s race from the grand jury, deprived of right to public
trial.
v. Specific Types of Review
● Undermine confidence in result/reasonable probability that but for X, result of proceeding
would have been different
a. Brady violations
b. Ineffective assistance of counsel
● Outcome Determinative
a. More rigorous test that this would have changed the outcome.
b. Newly discovered evidence
At the very first preliminary hearing you go from being the suspect to the defendant
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