CRIMINAL PROCEDURE
Class Six
Today’s Topics: Fourth
Amendment
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Standing
Derivative Evidence
Independent Source
Inevitable Discovery
Good Faith
Alternatives
Today’s Topics: Fifth
Amendment
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Privilege Against Self Incrimination
Policies
Scope
Compulsion
Holder
Non-Testimonial Evidence
Records & Required Documents
STANDING
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Issue: Who can claim 4th Amd
violation?
STANDING
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Challenging party’s relationship to
search conducted or thing seized
Current Supreme Court view more
limited than past
Personal rights
No vicarious assertion
Target Standing
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Defendant does NOT have standing to
raise 4th Amendment claim merely
because he was target of search that
netted evidence gov’t now wants to
introduce against him at trial
Rakas v. Illinois
Standing Principles
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D must have reasonable or legitimate
expectation of privacy in area searched
D’s interest does NOT have to reach
level or recognized property interest
Ownership & Standing
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Possible to have possessory interest in
property seized while failing reasonable
expectation of privacy requirement
Co-Conspirators & Standing
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No co-conspirator exception to standing
requirements of Rakas
EXCLUSIONARY RULE
Theories of Admissibility
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Derivative Evidence & Attenuation
Independent Source
Inevitable Discovery
Use in Non-Criminal Proceeding
Use for Impeachment
Good Faith Exception
Derivative Evidence
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Fruit of the
Poisonous Tree
Evidence “derived
from” particular
illegal search or
seizure
Attenuation
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Concept: What is the connection
between the illegal search and the
proffered evidence
Query: Has the causal chain been
broken?
Application in Confession
Cases
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Brown v. Illinois: Was confession fruit
of illegal arrest or was taint attenuated
by Miranda warnings?
Dunaway v. New York
Application in Confession
Cases
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Taylor v. Alabama
Rawlings v. Kentucky [statements
“spontaneous reaction” to discovery of
evidence]
New York v. Harris [custody not
unlawful]
Independent Source
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Concept: Allows evidence discovered
during unlawful search if that evidence
is discovered later through an untainted
source
Hint: Imagine parallel lines of
investigation that never intersect
Relation to “Rediscovered”
Evidence
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Murray v. United States
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Restrictions
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Decision to seek warrant not prompted by
what saw during initial entry
Information obtained during illegal entry
cannot form any material part of basis for
search warrant
Inevitable Discovery
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“Hypothetical independent source”
Prosecution must show illegally
obtained evidence would have been
discovered through legitimate means
that were independent of official
misconduct
Example
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Nix v. Williams
Critical feature:
Gov’t obtained no
benefit from
constitutional
violation
Inevitable Discovery, cont.
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Is doctrine limited to situations where
officers acting in good faith?
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Who has burden of proof?
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What is the standard?
“Other Uses” & E/R
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Concept: Exclusionary rule generally
will operate to prevent introduction of
illegally obtained evidence during the
gov’t case in chief
Exceptions exist: Inevitable discovery,
independent source, good faith
Issue: Is evidence “excludable” in
scenarios other than prosecution’s case
in chief?
Use in Non-Criminal
Proceedings
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Grand Jury
Civil Tax
Civil Deportation
Habeas Actions
Sentencing
Use in Criminal Trial
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Issue: Although illegally obtained
evidence cannot be used to establish
essential element of offense, can it be
used for other purposes in a criminal
trial?
Impeachment
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D opens door [e.g., “I’ve never, ever
been arrested before.”]
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Rationale: E/R should not be used as
license for perjury
Cross-examination of D raises issue
Limitation:Cross-examination of defense
witnesses
Good Faith
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Exception to general rule that illegally
obtained evidence cannot be used
during prosecution’s case in chief
Usually encountered when search
warrants are found defective, but
Supreme Court has extended further
Good Faith Reliance on
Defective Warrant
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Issue: What goal of exclusionary rule is
furthered by prohibiting evidence
obtained by officers relying on search
warrant ultimately found not to be
supported by probable cause?
United States v. Leon
Exceptions to the Exception
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Magistrate misled by information affiant
knew or should have known was false
Issuing magistrate wholly abandoned
judicial role of neutral and detached
Affidavit so lacking indicia of probable
cause that unreasonable for officer to
rely on it
Profoundly facially deficient
Justifying Good Faith
Exception
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E/R designed to deter police
misconduct, not punish judge error
No evidence suggests judges &
magistrates inclined to ignore 4th Amd
No basis to believe exclusion will have
significant deterrent effect on issuing
magistrate
Application to Warrantless
Searches
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Issue: Can there be “good faith”
objectively reasonable warrantless
searches?
Illinois v. Krull (statute)
Arizona v. Evans (clerical error)
Alternatives to E/R
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Tort recovery
Criminal
Administrative
Exercise: Evaluating Proposed
Solutions
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Describe your understanding of each
alternative [tort recovery, criminal
prosecution, administrative action] and
be prepared to give a definition or
example of each
Identify a minimum of 3 problems with
each of the 3 proposed alternatives
Chapter Three: CONFESSIONS
Self-Incrimination and Confessions
Privilege Against Compelled
Self Incrimination
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Seen in variety of contexts:
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traditional confessions to police
trial testimony
subpoenas
production of records
The Debate: Con
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Inconsistent with values we teach and
prize in most of our relationships
Impedes assessment of truth
Stands in the way of convictions
Can prevent restitution to crime victims
Frequently protects the guilty
The Debate: Pro
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Cruel trilemma
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Protect the innocent
Unreliability of coerced statements
US preference for accusatorial system
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[self-accusation, contempt, perjury]
[cf inquisitorial systems]
Deter improper police practices
Fair balance between State & individual
Scope of Privilege
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Fifth Amendment
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Nor shall [any person] be compelled in any
criminal case to be a witness against
himself
Fundamental Questions
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What is criminal
Where [in what forum] can privilege be
asserted
Fifth Amendment Privilege: A
Quiz
When
Where
How
Quiz: In which forum can D
successfully assert?
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Forfeiture Proceeding
Grand Jury
Civil Trial
Criminal Trial
Bankruptcy Action
Administrative License Revocation
Quiz: “Criminal” under
Privilege?
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Probation Revocation?
Juvenile Adjudication of Delinquent Conduct?
Divorce?
Foreign Prosecution?
Forfeiture Proceeding?
Civil Commitment (sexual violent predator)?
Wrongful Death Action following Vehicular
Homicide?
Quiz: Sufficient Compulsion?
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You receive subpoena
You are threatened with contempt for
refusing to testify
You refused to testify and are offered
immunity
Quiz: Sufficient Compulsion?
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State law requires you to give
information as condition of maintaining
current contract and securing future
contracts
You are required to file annual IRS
return
Quiz: Sufficient Compulsion?
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Prosecution secures your journal, which
you have written in faithfully since
college
Your uncle is incarcerated as a sex
offender for a crime he did not commit.
He is offered “incentives” to participate
in sex offender program
Scope: “Criminal Proceedings”
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Boyd
Hitchcock
In re Gault
“Non-Criminal Proceeding”
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Murphy
Piedmont
L.O. Ward
Allen
Forum of Invocation
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Judicial?
Administrative?
Legislative?
Basis of Invocation
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To protect against use of incriminating
statements in subsequent criminal
prosecutions
Foreign Prosecution
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Issue: Does 5th Amd protect against
the risk of foreign prosecution?
Scenario: X is asked questions in
deportation hearing. X fears that
truthful answers will provide evidence
that could be used against him by other
nations
Potential Use in Foreign
Prosecution, con’t
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Balsys
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5th Amd does not provide personal
testimonial inviolability
“Conditional” protection [e.g. impact of
immunity]
When might be applicable -- stalking
horse
COMPULSION
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5th Amd protection against self
incrimination only triggered when self
incrimination is compelled by
government
Issue: How is compulsion shown?
Examples
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Contempt
Other state-imposed sanctions
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Contrast Lefkowitz v. Turley with McKune v.
Lile
Contempt Scenario: A Preview
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Question asked
Assertion
Responses to assertion, either
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honor, or
seek judicial determination that applicable
If not, witness must answer
If yes, 2 options
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Let stand on privilege
Apply for immunity
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If granted, refusal to answer may be contempt
Invocation & Consequences at
Trial
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Comment on invocation prohibited
[Griffin rule] --- Fact that D did not
take stand cannot be used as evidence
against him
Jury instructions re: adverse inferences
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Carter (required if requested)
Lakeside (can be given over D’s objection)
Invocation & Consequences,
con’t
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Adverse Inferences at Sentencing?
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Application to Civil proceedings
HOLDER
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Privilege against self-incrimination is
personal
Cannot be vicariously asserted
Belongs only to person who is himself
incriminated by his own testimony
“Holder” in the Business
Context
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Taxpayers & accountants
Taxpayers & lawyers
Partnerships
Sole proprietorship
Corporation
Corporation wholly owned & operated
by single person
What is protected
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Non-testimonial evidence outside scope
of privilege, including:
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blood sample
fingerprint
photograph
measurements
voice or handwriting exemplar
Analytical Key
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Communicative/testimonial
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Not physical characteristic
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Query: Does witness face cruel
trilemma in disclosing?
“Is it testimonial?”
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Tip: An express or implied assertion of
fact which can be true or false
Documents
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Contexts:
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Gov’t subpoenas evidence from third party
Gov’t uses D’s business records, seized
pursuant to valid warrant
Example: Fisher v. U.S.
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Subpoena of records
Aspects of potential incrimination
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Contents of documents
Act of production
Fisher: Contents
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Privilege inapplicable
Rationale:
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Subpoena does not compel oral testimony
Does not compel taxpayer to restate,
repeat or affirm truth of contents
Pre-existing documents; preparation
voluntary
No compulsion by gov’t to make
incriminating records
Fisher: Act of Production
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Communicative aspects [distinct from
what document itself might say]
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existence
possession/control
authenticity
belief that same
Facts here do not support claim
Recently: U.S. v. Hubbell
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Facts: Whitewater
Held: 5th Amd privilege applies
Rationale: Gov’t had shown no
independent, prior knowledge of
existence or whereabouts
Contrast: Fisher
Act of Production: People
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Bouknight: order to produce child
subject to protective order
Issue: Can mother claim act of
producing is potentially incriminating as
implicit communication of control over
child?
Required Records
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General rule: If voluntarily prepared,
no valid claim that “compelled” by gov’t
at time made
Issue: What if documents are prepared
at gov’t direction? Are they compelled
for 5th Amd purposes?
Required Records Doctrine
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Shaprio
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Critical fact: documents kept for legitimate
administrative purpose, which cannot be
focused solely on those inherently
suspected of criminal activity
Contrast, Marchetti, Haynes [targeting
group suspected of criminal activity]
Analyzing Legislation under
Required Records Doctrine
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Issue: When does law have noncriminal [regulatory] purpose and when
is it essentially criminal?
California v. Byers [compelled reporting
of accident]
Procedural Considerations
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Invoking privilege, followed by grant of
immunity
Waiver of privilege
Immunity
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Types
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Transactional: no transaction about which
witness testifies can be subject of future
prosecution against that witness
Use/Derivative: prevents use of testimony
or other information directly or indirectly
derived from it. Prosecution for transaction
still possible
Immunity & Constitutional
Limitations
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Kastigar
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Does 5th Amd require transactional
immunity?
If immunity granted and witness compelled
to testify, who has burden of proof to show
that evidence proffered by gov’t is free
from immunized statement?
Mechanics of Immunity
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Question asked
Assertion of
privilege by witness
Response:
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honor, or
seek judicial
determination
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If no privilege
found, witness must
answer
If privilege exists,
questioner must
either
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Let witness stand on
privilege
Apply for immunity
Judge’s Role in Immunity
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Typically limited to insuring that
procedural aspects of statute are met
Many statutes do not permit judge to
refuse to grant on grounds she believes
prosecutor’s decision to offer is
incorrect or not in public interest
Asserting Privilege
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Ohio v. Reiner
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Can privilege be asserted by someone
claiming that she is innocent?
Does witness’s assertion, standing alone,
establish risk of incrimination?
Waiver
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General rule: Person must refuse to
answer and rely on 5th Amd privilege in
order to invoke its protection
Once person answers, privilege against
self-incrimination is waived
Exercise
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Assume you are drafting a Policies &
Procedures Manual for a prosecutor’s
office. List at least 5 factors you would
include as items that should be
considered by a prosecutor in deciding
whether to offer immunity