Criminal Procedure

Question 1

Burden of Proof for Ordinary vs. Affirmative Defenses

Answer 1

Under the New York Penal Law (NYPL), all affirmative defenses must be raised by the defendant and proved by a preponderance of the evidence. However, the prosecution always bears the burden of proving the non-existence of an ordinary defense beyond a reasonable doubt, as well as proving each element of the crime beyond a reasonable doubt. An alibi defense goes to the elements of the crime and the burden is on the prosecution to disprove the alibi beyond a reasonable doubt. Under the NYPL, the defenses of insanity, duress, extreme emotional disturbance, and entrapment are affirmative defenses, but self-defense and alibi are ordinary defenses.

Question 2

Arrests: Probable Cause Requirement and when a Warrant is Required

Answer 2

Under the 4th Amendment of the U.S. Constitution, a person has the right to be free from unlawful searches and seizures by the government. Seizure under the 4th Amendment includes arrests. For an arrest to be proper, the police officer MUST have probable cause. Probable cause arises when the circumstances gives a police officer reasonable suspicion to believe that a crime has occurred. A police officer does not need firsthand knowledge to have probable cause; it can be based on the firsthand knowledge of another. If an arrest is conducted in a public place, probable cause is all that is required. But, if a police officer arrests someone in or at their home, a warrant is required unless exigent circumstances exist.

Question 3

Automobile Stops

Answer 3

A stop of a vehicle may be conducted properly so long as the police have some reasonable suspicion to believe that the law has been violated. The reasonable suspicion required for a valid stop does not have to rise to the level of probable cause. However, for a search after a traffic stop to be lawful, the police officer needs to acquire probable cause before initiating the search. Probable cause requires proof of a “fair probability” that evidence or contraband will be found in area being searched.

Question 4

Warrant Requirement for Searches

Answer 4

The 4th Amendment of the U.S. Constitution provides that everyone should be free from unreasonable searches and seizures. To assert one’s 4th Amendment right, there has to be government action and a defendant must have a reasonable expectation of privacy in the areas searched and the items seized. A police officer will need a warrant to conduct a search and to seize items. Evidence obtained without a valid warrant should be excluded unless it falls under the exceptions that permit a warrantless search and seizure.

Question 5

Warrant Requirement for Searches Exceptions

Answer 5

The warrant exceptions are:

(1) a search incident to an arrest;
(2) plain view doctrine;
(3) the automobile exception;
(4) consent;
(5) stop and frisk;
(6) inventory searches;
(7) exigent circumstances; and
(8) where the U.S Supreme Court has concluded there is a special need. A police officer’s good faith reliance on a defective warrant is irrelevant in New York because New York DOES NOT recognize the “good faith” exception to the warrant requirement rule.

Question 6

Exigent Circumstances

Answer 6

Exigent circumstances exist if:

(a) the evidence is evanescent (the evidence would dissipate or disappear in the time it would take to obtain a warrant) OR
(b) the police are in hot pursuit of a felon and the evidence is in plain view.

Question 7

Search Incident to Arrest

Answer 7

Under the 4th Amendment of the U.S. Constitution, a police officer who has probable cause to make an arrest can make a warrantless search incident to a lawful arrest. In this regard, he can search not only the suspect’s person, but also areas within the suspect’s “wingspan”. If the suspect is arrested in an automobile, the “wingspan” includes the passenger’s compartment.

In addition, pursuant to a lawful arrest, a police officer can make a warrantless search of an automobile if he has reason to believe it contains contraband. The police officer can search any containers found in the car that might contain the contraband. However, New York affords a suspect greater 4th Amendment protection in that after the suspect has been removed from the car, the police will need a warrant to search the car.

Question 8

Consent Exception to Warrant Requirement

Answer 8

Consent is an exception to the warrant requirement if it is given freely, voluntarily, and intelligently. A third person with possessory rights in property may consent to a search, but that person must have authority. If the police have reason to know that the person consenting might not have authority, and they continue the search, the search is unlawful.

Where two or more people share common authority over the residence or premises, any one of them may consent to a lawful search. However, a police officer may only search common areas of the residence and private areas of the person providing the consent. A warrantless search of private areas (i.e. bedrooms and locked areas) of persons not present is generally unlawful.

Question 9

Automobile Exception to the Warrant Requirement

Answer 9

The automobile exception allows a warrantless search of a car where the police have probable cause that either contraband OR evidence of a crime will be found in the vehicle. If there is probable cause, the police can search the entire car AND any packages, luggage, or containers that may reasonably contain the items for which there is probable cause. In order to search a vehicle after a traffic stop, the police officer would need to acquire probable cause prior to searching the vehicle. A police officer does not need firsthand knowledge to have probable cause; it can be based on the first hand knowledge of another.

Question 10

Plain View to the Warrant Requirement

Answer 10

Under the plain view exception, the police may seize evidence without a warrant if:

(1) the police are lawfully present on the premises,
(2) the police have lawful access to the evidence, AND
(3) it is clear that the evidence is illegal by just looking at it.

Question 11

Stop & Frisk Exception to the Warrant Requirement

Answer 11

The police may make a request for information anytime except on “whim or caprice.” A police officer may stop and inquire if the police officer has reasonable suspicion that criminal activity is afoot. A stop and inquire allows only a brief detention for questioning, after which the suspect must be released.

A police officer may only stop and frisk a person if the police officer has reasonable suspicion that the person is committing, has committed, or is about to commit a crime. Under the plain feel doctrine, during the frisk a police officer may only seize items he or she reasonably believes is a weapon. Reasonable suspicion is defined as the quantum of knowledge sufficient to induce an ordinarily prudent and cautious person under the circumstances to believe that criminal activity is at hand. Courts use a sliding scale based on the particular factual circumstances to determine whether reasonable suspicion was present to conduct a stop and frisk.

Question 12

Exclusionary Rule

Answer 12

If a confession is obtained in violation of the defendant’s constitutional rights, such evidence is inadmissible under the exclusionary rule.

Question 13

14th Amendment Due Process Clause Protection

Answer 13

Under the 14th Amendment Due Process Clause of the U.S. Constitution, if a confession is the product of police coercion that overbears the suspect’s will, then confession is inadmissible.

Question 14

5th Amendment Protection

Answer 14

Under the 5th Amendment of the U.S. Constitution, a person has a right not to incriminate himself and must be given Miranda warnings. Those warnings include the right to remain silent and the right to counsel. Miranda rights attach when there is a custodial interrogation of a suspect.

However, Miranda rights do not apply to any spontaneous statements made by a person. In addition, a suspect may waive his Miranda rights.

Question 15

Custodial Interrogation

Answer 15

A custodial interrogation occurs when:

(1) the atmosphere, viewed objectively, is characterized by police domination and coercion such that a person’s freedom of action is limited in a significant way AND
(2) the police knew or should have known that their conduct was likely to elicit an incriminating response.

Question 16

6th Amendment (U.S.) Protection

Answer 16

Under the 6th Amendment of the U.S. Constitution, a criminal defendant has a right to counsel when formally charged. After a defendant is formally charged, he CANNOT be questioned without his lawyer present regarding the charges filed against him. If a defendant is questioned without his attorney after he is formally charged, any statements he makes are inadmissible, unless there is a valid waiver.

Question 17

6th Amendment (NY) Exclusionary Rule

Answer 17

Under the 6th Amendment of the New York State Constitution, a person has an indelible right to counsel, which attaches when:

(a) the person is subject to police activity overwhelming to a lay person and the person requests counsel;
(b) upon the filing of an accusatory instrument;
(c) upon arraignment; OR
(d) upon significant judicial activity.

After the indelible right to counsel attaches, if the police know that a person is represented by counsel on that specific charge, then the person CANNOT be questioned without his lawyer present regarding those charges, unless there is a valid waiver.

Question 18

Waiver of Right to Counsel

Answer 18

Under federal law, a waiver is only valid if it is knowingly, intelligently and voluntarily made.

However, New York has a much more defendant-protective right to counsel and provides for an indelible right to counsel. Once protection under New York’s indelible right to counsel attaches, a waiver MUST be made in the presence of counsel.

Question 19

Use of Defendant’s Silence by Prosecution

Answer 19

If a defendant has invoked his right to remain silent, the defendant’s silence cannot be commented on by the prosecution or be used to incriminate him.

However, if the prosecution improperly comments on the defendant’s invocation of his Miranda rights, such comment will not provide grounds for reversal (should the defendant ultimately be convicted) if the prosecution can prove that such error was harmless error.

Question 20

Harmless Error

Answer 20

A showing of harmless error requires the prosecution to prove that there was sufficient evidence for a finding of guilt beyond a reasonable doubt even absent the constitutional violation.

Question 21

Right to Counsel at Pre-Charge Lineup

Answer 21

Under the 5th Amendment of the U.S. Constitution, upon request a defendant is entitled to have counsel present during a pre-charge interrogation. However, the right to counsel under the 5th Amendment does not apply to pre-charge lineups because lineups are not considered interrogatory in nature as they are not likely to elicit a verbal response from the defendant.

Under the 6th Amendment of the U.S. Constitution, a person has a right to counsel after being formally charged with a crime. Therefore, the 6th Amendment mandates that a person has a right to counsel at a post- charge lineup. However, a person does not have a 6th Amendment right to counsel at a pre-charge lineup because the 6th Amendment right has not yet attached because the person has not been formally charged with a crime.

The New York approach is somewhat broader than the federal requirements discussed above. New York protects the indelible right to counsel whenever there is significant judicial activity in the case. In New York, the general rule is that before the defendant is formally charged with a crime, he has NO right to counsel at a pre-charge lineup. However, there is a narrow exception to this rule in New York. Where the police are aware that the defendant is represented by counsel AND the defendant makes a request for counsel, the police MUST provide it at a pre-charge line-up.

Question 22

Right to Refuse a Lineup

Answer 22

Generally, under the 5th Amendment of the U.S. Constitution, a defendant has a right against self-incrimination. This applies to testimony and conduct that can be construed as testimonial in nature. However, courts have held that pre-trial identifications (ex: lineups), blood tests, finger prints, and voice identification are NOT testimonial in nature and fall outside 5th Amendment protection. Since there is no 5th Amendment protection for lineups, a suspect in custody after an arrest may not refuse participation in a lineup.

Question 23

Exclusionary Rule & the Fruit of the Poisonous Tree Doctrine

Answer 23

Under the exclusionary rule, evidence MUST be suppressed if it was obtained illegally. The exclusionary rule DOES NOT apply to evidence erroneously obtained when executing a valid search warrant if the officer’s mistake was reasonable. Moreover, any “fruits” of the illegal search must also be suppressed, unless:

(a) it is shown that the police had an independent source for the secondary evidence (where there is a source for discovery and seizure of the evidence that is distinct from the original illegal source),
(b) the discovery of evidence would have been inevitable regardless of the illegality, OR
(c) through the attenuation doctrine (which admits evidence where a defendant’s free will has been restored through the passage of time and/or intervening events).

Question 24

Exclusionary Rule & Miranda Violations

Answer 24

In addition, there are limitations on the exclusionary rule as applied to Miranda violations. Statements obtained in violation of a suspect’s Miranda rights are inadmissible in the Prosecution’s case-in-chief. BUT, they may be used to impeach a defendant on cross examination. However, such statements cannot be used to impeach the testimony of third-party witnesses. In addition, the following exceptions apply to Miranda violations:

(1) Failure to give Miranda warnings DOES NOT require suppression of the physical fruits found because of the statements (as long as the statements are voluntary);
(2) Subsequent statements made after Miranda warnings are admissible, UNLESS a non-Mirandized previous statement was obtained through the use of inherently coercive police tactics offensive to due process; AND
(3) if the Harmless Error Rule applies – if evidence in violation of Miranda rights was improperly admitted at trial, a guilty verdict will stand if the prosecution can prove beyond a reasonable doubt that the error was harmless because the defendant would have been convicted even without the tainted evidence.

Question 25

Prosecutor’s Duty to Disclose Exculpatory Information

Answer 25

Under the New York Criminal Procedure Law, upon request by the defendant, the prosecutor in a criminal case MUST turn over certain relevant evidence to the defense. This includes past grand jury testimony, any reports (scientific or medical) the prosecution has in its possession, along with other materials, including the prior statement of a prosecution witness made to any law enforcement official to be used at trial, as well as statements in possession of law enforcement officials even if they will not be used by the prosecution at trial. This rule extends to ALL statements that the prosecutor has in his possession, as well as any statements he could obtain through reasonable efforts. In addition, under the Rosario doctrine, the prosecutor must turn over to the defense any relevant prior or recorded statements of persons to be called as witnesses.

Generally, a prosecutor’s failure to disclose material exculpatory evidence is grounds for overturning a conviction. However, a conviction may stand if the failure to disclose was harmless error. Harmless error occurs when the evidence against the defendant is overwhelming, such that the prosecution could and would have proved all of the elements of the crime beyond a reasonable doubt even if the potentially exculpatory evidence had been disclosed.

Question 26

Intentional Infliction of Emotional Distress

Answer 26

The prima facie elements of a claim for the intentional infliction of emotional distress are:

(i) an act by the defendant constituting extreme and outrageous conduct,
(ii) intent or recklessness by the defendant,
(iii) causation, and
(iv) damages amounting to severe emotional distress.

Question 27

Character Evidence & Evidence of Other Crimes, Wrongs, or Acts

Answer 27

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. The evidence the prosecution is seeking to admit is being offered only to show the defendant’s bad character and that he was acting in conformity therewith.

Question 28

Personal Jurisdiction in Federal Courts

Answer 28

FRCP 4(k)(1)(A) provides that a federal court’s personal jurisdiction is identical to the personal jurisdiction of a court of general jurisdiction in the state where the district court is located, except for a few exceptions.