Criminal Procedure Flashcards
Attorney-Client Privilege & Hiring 3rd Party
If a 3rd party is hired by an attorney to gather information in preparation for a criminal case, they would be considered a rep of the attorney and therefore any communications b/w the defendant/client and 3rd party are privileged & cannot be disclosed w/o a valid waiver from the def
How to Compel a Witness to testify if They Claim Self-Incrimination?
A witness may be compelled to answer questions if granted adequate immunity from prosecution. A criminal defendant may be compelled to produce documents that have testimonial significance if immunity is granted to the defendant.
Transactional immunity: broader form of immunity & completely protects the witness from future prosecution for crimes related to his/her testimony
Use and Derivative use immunity: This is narrower. It prevents the prosecution only from using the witness’s own testimony or any evidence derived from the testimony against the witness.
-SC has held that immunity from subsequent use of compelled testimony is sufficient to satisfy the privilege against self-incrimination.
ex: prosecutor can compel production of diary of criminal def only if the suspect is granted use & derivative use immunity from the act of production. Use & derivative use immunity sufficiently protects the suspect’s constitutional privilege against self-incrimination.
Detainee’s Invocation of Miranda Rights
As a general rule, police officers must scrupulously honor a detainee’s invocation of Miranda rights. If the invocation is not scrupulously honored, statements made by the detainee are inadmissible.
Prohibition against questioning a detainee after invoking Miranda rights lasts the entire time the detainee is in custody for interrogation purposes, plus 14 more days after the detainee returns to his normal life (which can include his “normal life” in jail)
To obtain Postconviction Relief for Ineffective Assistance of Counsel, claimant must show:
Claimant must show:
1) defense counsel’s performance was deficient AND
2) the Deficiency was prejudicial (that, but for the deficiency, the outcome of the trial would have been different).
-Def must point out specific deficiencies, not vague allegations of inexperience, that will not suffice: cannot base the claim on inexperience, lack of time to prepare, the gravity of the charges, the complexity of defenses, or accessibility of witnesses to counsel
BUT, if counsel admits their client’s guilt in the face of def’s clearly articulated desire to maintain their innocence during the sentencing phase of trial, this structural error mandates a new trial without any need to first show prejudice
Plea Bargain Cases – to make out a 6A ineffective assistance claim in a plea bargain case, the def must show deficient performance and a reasonable possibility that the outcome of the plea process would have been different with competent advice
-Atty’s failure to notify a def of a plea offer can constitute deficient performance if def can show that: 1) had the plea agreement been communicated, the def likely would have accepted; and 2) the plea likely would have been entered w/o the prosecutor’s canceling it
-Fact that the def subsequently has a fair trial (after turning down a pela offer) does not prevent the ineffective assistance claim
“that there is a reasonable probability the trial’s outcome would have been different if the atty ___”
Jury
Must be at least 6 jurors to satisfy the right to a jury trial under 6A & 14A. But, SC has held that when jury is composed of 6 ppl, their verdict has to be unanimous.
No constitutional right to have the final jury be a fair cross-section of the community. Constitution only requires that the jury be drawn from a fair cross-section of the community
Striking potential jurors on basis of race is a clear violation of the Equal Protection Clause
Burden in Criminal Trials
In all criminal trials, the gov’t has the burden to prove all the elements of a crime beyond a reasonable doubt.
Defendant has to prove all affirmative defenses by a preponderance of the evidence.
4A
4A prohibits unreasonable searches and seizures.
Warrantless Searches & Seizures
As a general rule, warrantless searches and seizures in constitutionally protected areas are per se unreasonable absent an exception to the warrant requirement.
Exceptions to Warrant Rqmt
1) Search Incident to Lawful Arrest
2) Automobile Exception
3) Plain View
4) Consent
5) Stop & Frisk
6) Exigent Circumstances: Hot Pursuit, Imminent Destruction of Evidence, Need to Prevent Escape, Prevent Danger to Community Police, Emergency Aid/Wellness Check
7) Admin Exceptions
Miranda Warnings
Includes: Right to remain silent, Anything said can be used against them in court, Right to atty, If person can’t afford atty, one will be appointed.
Miranda warnings are required during custodial interrogation. Need 1) Custody + 2) Interrogation
Custody: 2-step determination
1) Freedom of movement test → whether a reasonable person would feel free to terminate interrogation and leave (totality of circumstances) and
2) Whether the environment presents the same inherently coercive pressures as station house questioning
-traffic stops are noncustodial given their brief nature!!
Interrogation Requirement
-Interrogation → any words or conduct by police that they should know would likely elicit an incriminating response
-Spontaneous statements → Miranda warnings not required before spontaneous statements, q has to say statement was “blurted out”
Jury Selection
Jury selection is a critical stage of trial at which the defendant is entitled to be present.
Valid Arrest Warrant & Entry into Home?
When police have a valid arrest warrant, they are not authorized to forcibly enter the home unless there is probable cause to believe the person named is on the premises.
Contrast with valid search warrant → Forced entry into a home, with a valid search warrant, is permissible when the person is believed to be inside and no response occurs.
Pretextual Stops
Pretextual stops are constitutional (regardless of the officer’s subjective motivation) when there is probable cause to believe a traffic violation has occurred, such as speeding.
Ordering Driver & Passenger out During a Lawful Traffic Stop
When a police officer has lawfully stopped a vehicle, in the interest of officer safety, the officer may order the occupants (driver and passengers out of the car)
Guilty Plea
Court must establish that the guilty plea is voluntary and intelligent.
Judge must be sure that the defendant knows and understands:
1) the nature of the charges against him and the crucial elements of the crimes
2) the maximum possible penalty and any mandatory minimum
3) that he has the right to plead not guilty and that if he does plead guilty, he waives the right to trial.
If the defendant is not fully advised of each of his constitutional rights and/or does not knowingly and voluntarily waive each of those rights, the plea will be subject to a motion to set it aside.
Emergency Aid Exception
Emergency aid exception to the warrant requirement allows officers to enter in order to render emergency assistance to an occupant (like preventing them from committing suicide or further injuring themselves) OR to protect an occupant from imminent injury.
Cell-Site Data
Warrant (& with that probable cause) is required to collect extensive historical site-location data from a cell-phone provider
ex: 1 yr’s worth of site-location info → need a warrant or will be a violation of 4A
Standing for 4A Claim
Only those whose 4A rights are violated by a search have standing to suppress illegally obtained evidence against them at trial.
1) Govt action involved in search or seizure
2) individual had a reasonable expectation of privacy w/ respect to the place searched or items seized
(Totality of circumstances)
3) Was there a valid warrant issued?
4) Does an exception to the warrant requirement apply?
Automatic categories of Standing:
1) Person owned or had right to possess place searched
2) Place searched is person’s home
(no matter whose conversation is recorded, as long as illegally overhead convo is happening in your property, regardless if you were a party to the convo)
3) Person is overnight guest of owner
Sometimes category of standing: if person owned property seized → have standing ONLY if they have a reasonable expectation of privacy in the item or area searched
Stop & Frisk
Terry Stop – Officer can stop a person if he has a reasonable and articulable suspicion that the person is engaged in criminal activity or that criminal activity is afoot. Reasonable suspicion must be more than a hunch but is less than probable cause.
Reasonable suspicion is a totality of circumstances test!!
Frisk- if the officer also reasonably believes the person may be armed & presently dangerous, he may frisk the individual. Officer may conduct a protective frisk of the outer clothing of the individual. The officer may only reach into the persons clothing if he has probable cause to believe, based on plain feel, the object is a weapon or contraband. Officer may seize any item that officer reasonably believes, based on plain feel, is a weapon or contraband
If stop & frisk exception applies → evidence admitted at trial
If stop & frisk exception did not apply → evidence was obtained in violation of the 4A & is subject to the exclusionary rule.
Exclusionary Rule
Any evidence obtained in violation of the 4A is inadmissible as well as any “fruit of the poisonous tree” which is any evidence that is derived from the illegal govt action unless an exception to the exclusionary rule applies.
EXCEPTIONS to Exclusionary Rule:
Independent Source Doctrine: if the evidence was discovered by an independent source unrelated to the taint, then it is admissible.
Inevitable Discovery Exception: if the evidence would have been discovered through a legal means despite the illegal action, the evidence would be admissible. Govt has to prove by a preponderance of the evidence that the evidence would have been discovered (Ex: police could have obtained a warrant)
Attenuation: Connection b/w illegal police conduct and a relevant piece of evidence can become so attenuated as to dissipate the taint & such evidence may be admitted. (Wong Sun) Intervening independent act of free will, several days before came back to station, had opportunity to get counsel, and was read Miranda before made confession at station.
-Factors Used to Determine Whether Attenuated to Dissipate the Taint:
1) Length of time – time elapsed b/w initial illegality & seizure of fruit in question
2) Flagrancy of initial misconduct – more deliberate/flagrant the violations, the more courts are likely to exclude evidence. bad-faith violations, violations that involve more poison, take longer to dissipate than good-faith violations
3) Existence or Absence of intervening causes of the seizure of the fruit,
4) Presence or Absence of an act of free will by defendant resulting in seizure of fruit
Proper Remedy for Invalid Arrest
Dismissing the indictment is an improper remedy.
If police had no warrant that may indeed constitute a violation of their 4A rights. But, pay close attention to what the question is asking: dismissing the indictment would be an improper remedy. However, evidence collected as a fruit of an unlawful arrest may be inadmissible at trial.
Peremptory Challenge
Can exclude juror on basis of any reason.
Cannot exclude juror solely on basis of race or gender.
Challenges for Cause
Juror should be excluded for cause if juror’s view would prevent or substantially impair performance of duties
6A Right to Counsel
6A provides def w/ right to counsel, kicks in ONLY after indictment (after suspect has been charged w/ a crime)
Look for facts where indictment has been issued, information filed, or some initiation of judicial proceedings against the person.
Person who is arrested but not yet charged does NOT have a 6A right to counsel, but might have a 5A right to counsel under Miranda.
6A Right to counsel does exist for:
1) post-charge lineups
2) arraignment
6A Right to counsel does NOT exist at an initial appearance
6A right to counsel is offense specific, so only attaches for the charge on which def is being held
6A issue usually comes up in jail cell interrogations. Unlike Miranda, 6A protections apply regardless of whether person realizes he is talking to the police.
Ex: “Hey what happened dude why are you here?” Since the perp doesn’t know his cellmate is working for the police, no Miranda warnings are required if the person is questioned in his cell. BUT, if the person has been charged, his 6A right to an atty might have been violated
If def claims his right to counsel was violated under 6A, prosecution must show there was a valid waiver of the right.
