Unit 4 Seminar

 Read chapters 7 and 8
 Complete the Unit 4 Essay
 Follow the Web Field trips and/or web resource links
 Post to the discussion board
 Take the Unit 4 quiz

 Read the case study
 In essay format, answer the 5 questions
 Paper must include cover page and list of references in APA format
 Internal citations must be included
 Pages should be double spaced and in 12 point font

 During unit 5 you will not participate in a a discussion forum, nor will you attend seminar
 You will complete the midterm exam
 The exam is timed at 2 hours
 There are 50 objective questions based on material covered in the first half of the course

In this week’s seminar we will discuss the three amendments to the constitution that specifically deal with defendant’s rights.
Those amendments include the 4th, 5th and
6th amendments.
We will focus specifically on the 5th and 6th amendment rights afforded to defendants.

 Freedom from unreasonable searches and seizures, including searches of persons and property
 Searches can occur with a warrant based on probable cause and narrowly tailored to the specific items to be located and the place to be searched
 Searches can also occur without a warrant if exigent circumstances exist (ex. motor vehicle search, hot pursuit, search incident to arrest, etc.)

Also known as the “fruit of the poisonous tree” doctrine
Evidence seized in violation of the 4th amendment can be excluded at trial.

“No person shall…be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without due process of law…”
United States Constitution, Amendment 5

 Right to remain silent
 Anything you say can be used against you in court
 Right to an attorney to be present during questioning
 If you cannot afford an attorney, one will be appointed to you
 You may terminate the interview at will

Landmark case:
 Miranda was arrested an taken to police station for questioning
 young and uneducated
 confessed after 2 hours of questioning
 confession was used as evidence during trial and Miranda was convicted
Issue: Whether the police should inform a suspect who is in custody and under interrogation of his/her constitutional right to be free from self incrimination and the right to counsel prior to questioning.

The court ruled that “when an individual is taken into custody or otherwise deprived of his freedom by the authorities and is subject to questioning, the privilege against self incrimination is jeopardized. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has a right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.
Opportunity to exercise these rights must be afforded to him throughout the interrogation.”
Miranda v. Arizona , 384 U.S. 436 (1966).

A suspect is in custody when s/he is under arrest or somehow deprived of his/her freedom.
This is determined based on the totality of the circumstances.
Would a reasonable person feel that s/he is unable to leave?

 When the police specifically ask questions that may incriminate the suspect.
 When the police create the functional equivalent of an interrogation.
“A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation…”
Rhode Island v. Innis , 446 U.S. 291 (1980)
In the Innis case, the court ruled that there was not interrogation. Two officers were speaking to each other in the presence of a suspect. They talked about how it would be terrible if one of the handicapped students from the school near the crime scene would find a gun and get hurt. The suspect then told of the location of the gun.

This is the case of the famous “Christian burial speech”.
Here the officers did not specifically question the suspect, but spoke to the suspect about how the parents of the missing girl should have the ability to give their child a proper Christian burial. As a result the suspect showed the officers where the body could be found.
Brewer v. Williams , 430 U.S. 387 (1977).

Comparison of
and
Innis case
 Officers talk to each other
 Suspect interrupted and gave confession
 Not considered the functional equivalent of interrogation
Brewer case
 Officers talk to suspect
 Appeal to suspect’s religious beliefs
 Police behavior was the functional equivalent of interrogation

 Waiver must be an intelligent and voluntary waiver
 Suspect must know what s/he is doing and understand consequences
 Must be competent to make the decision
 Can not be coerced into waiving rights
 Prosecutor must prove that the defendant made a voluntary and intelligent waiver

 Officer does not ask questions. No interrogation…no Miranda
 General questions are asked to investigate but not incriminate
 Suspect volunteers information before police ask questions
 Line up or photo array (not testimonial evidence)
 There is a threat to public safety
New York v. Quarles, 467U.S. 649 (1984)
The suspect ran out of the store after the victim just informed police that he had entered with a gun. Officers see suspect and when they notice an empty holster ask, “Where’s the gun?”. Court ruled that there was an immediate danger to the public.

 Right to fair trial with impartial jury
 Right to counsel
 Right to be protected from double jeopardy
 Right to confront and cross examine witnesses
 Right to speedy trial

 6th amendment does not require jury to be made up of
12 member. Minimum number allowed is 6.
 In federal criminal cases a unanimous verdict is required, but this is not required in all states
 Right to jury trial is limited to “serious” offenses or those for which more than 6 months imprisonment may be imposed
 Defendant can waive the right to jury trial
 Accused has the right to a fair trial by am impartial jury
(issues of pretrial publicity, change of venue, sequestering of the jury)

According to the 6th amendment to the constitution...“in all criminal prosecutions the accuse enjoy the right…to have the assistance of counsel for his defense”.
This right applies during every critical stage of the proceeding, and has been made applicable to the states since the landmark case of
(1963).
Gideon v. Wainwright , 372 U.S. 335

Proceedings in which the right to counsel has been afforded include:
 during a line up if formal charges have been filed (otherwise no right exists)
 arraignment
 trial
 sentencing
 appeal

Applies when:
1. The crime is a serious offense (as discussed under
) or
2. If the crime is a misdemeanor but there is a possible jail sentence.

Defendant must show:
1. Deficient performance on counsel and
2. There is a reasonable probability that the proceeding would have turned out differently but for the deficiency in counsel’s performance.
Strickland v. Washington , 466 U.S. 668 (1984)

5th v. 6th amendment right to counsel
Fifth Amendment
 Protects right against self incrimination
 Applies only during custodial interrogation
 Right is given by police
Sixth Amendment
 Provided to defendant for protection during critical stages of proceeding
 Applies both before, during or after trial
 Judge may assign attorney if defendant is indigent

 Defendant can not be tried twice for the same crime
 If one case is civil and the other is criminal, it is not double jeopardy
 Ok to be tried for same offense indifferent jurisdictions (ex. state and federal)
 Does not apply in mistrial or when defendant asks for new trial or appeal

 Applies to all criminal prosecutions, but not investigative proceedings (ex. grand jury)
 Includes right of defendant to be present in the courtroom during trial
 Defendant has the right to cross examine those witnesses against him/her

Based on:
 Length of the delay
 Reason for the delay
 Whether the defendant asserts the right
 Whether the delay could be prejudicial to the defendant
Barker v. Wingo , 407 U.S. 514 (1972)
All of the above factors are taken into consideration

Erego@kaplan.edu
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Office hours:
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