Criminal Procedure w/ NY Distinctions

Question 1

EXCLUSIONARY RULE
What is the definition of the “fruit of the poisonous tree” doctrine?

Answer 1

Fruit of the Poisonous Tree

In addition to excluding evidence which is seized illegally, the doctrine ALSO excludes evidence that has been obtained or derived as a result of the initial search.

Question 2

EXCLUSIONARY RULE
What are 5 situations where exclusionary rule doesn’t apply to exclude evidence?

Answer 2

Limitations on the Exclusionary Rule

(5 situations where evidence is NOT excluded despite the fact that search or seizure was unconstitutional:)

 Grand Juries

 Any Civil Proceeding

 Parole Revocation Proceedings

 Good Faith Reliance (judicial opinion, warrant (but see NYS), statute, or ordinance)

 Impeachment of Criminal Δ.

• o Otherwise voluntary confession

Question 3

ARRESTS
On the MBE, what does PD need to initiate an arrest?
A stop-and-frisk?

Answer 3

Arrest: is a seizure for purposes of the
4th Amend, requiring PC

Warrant for Arrest:
 Not needed for public arrests.
 Is needed for non-emergency arrest of a person in their own home.

Only RS Needed for Stop-and-Frisk
 Duration and Scope
 Includes Property Seizure

Question 4

EXCLUSIONARY RULE
How can the chain between PD action and illegally seized evidence be broken to allow introduction of that evidence?

Answer 4

3 Ways to Break Chain Between Illegal PD Action and Derived Piece of Evidence

 Independent Source of Evidence
 Inevitable Discovery of Evidence
 Δ’s Intervening Act of Free Will

Question 5

SEARCH & SEIZURE
What is government conduct?

Answer 5

4th Amendment Protections are for Government Conduct

 Government-paid PD (on/off duty)
 Private individual acting at PD direction
 Unless deputized, private police are NOT engaged in government conduct.

Question 6

SEARCH & SEIZURE
Flow Chart for Legality of Search/Seizure Under the 4th Amendment

Answer 6

Question 7

SEARCH & SEIZURE
When does a person NOT have a reasonable expectation of privacy?

Answer 7

NO reasonable expectation of privacy in things that a person holds out to the public everyday.

“Patty Achieved A Glorious Victory Over Her Opponents”

• Paint Scrapings
• Account Records
• Airspace (can be seen below while flying)
• Garbage
• Voice
• Odors (**MBE: **coming from your car or luggage)
• Handwriting
• Open Fields (seen in or across)

Note: Everything has here has knowing exposure to Third Parties

No Expectation: (1) passengers in car, where passenger doesn’t own car or property seized; (2) drug dealer on premises solely for business purpose of cutting up drugs

Question 8

SEARCH & SEIZURE
When does a person have standing to object to
the legality of a search?

Answer 8

A person has standing when they have a reasonable expectation of privacy.

ALWAYS have a reasonable expectation:
 On premises you own.
 Where you live
 Where you are an overnight guest

Though PD are supposed to have arrest warrant to arrest a Δ in a 3rd party’s home, Δ has no standing to challenge, because the warrant is to protect the 3rd party’s privacy right.

If PD have PC to arrest, but no warrant, but arrest Δ in his home (viol)a later confession at the station house is OK (NOT fruit of unlawful arrest).

Question 9

EXCEPTIONS TO WARRANT REQUIREMENT: SEARCH INCIDENT TO LAWFUL ARREST
What are the requirements of
the search incident to a lawful arrest warrant exception?

Answer 9

_Requirements for
Search Incident to a Lawful Arrest Exception:_

• Arrest is lawful (PC)
• Justifications: (1) Officer and (2) Need to Preserve Evidence
• Timing of Search: Contemporaneous in time/place w/ arrest
• Search of the person - Areas within arrestee’s wingspan
• • Wingspan includes passenger compartment BUT NOT trunk for arrest in car.
    
    • MBE: Person includes: Body, Clothing, and Any Containers w/t arrestee’s Immediate Control in
    • NYBE: To search containers w/t wingspan, PD must SUSPECT that arrestee is armed

(But PD can search anywhere in car where PC takes them.)

Question 10

EXCEPTIONS TO WARRANT REQUIREMENT: SUMMARY OF THE EXCEPTIONS

Answer 10

Exigent Circumstances:

•  Emergency Situations (circumscribed by the exigency)
•  Fleeing Suspects/Hot Pursuit
•  Evanescent Evidence
•  Community Caretaking

Plain View (fruits, instrumentalities, evidence of crime)

Automobile Exception (wherever PC takes them)

Arrests (public felony; misdemeanor in front of PD)

Search Incident to Arrest (person and area within control;
if in car, doesn’t include trunk, but if PD has PC, anywhere)

Multi-Unit Building: if police reasonably search the wrong unit in such a building = evidence found is admissible.

Question 11

EXCEPTIONS TO WARRANT REQUIREMENT: PLAIN VIEW
What is the key to the
plain view exception to
the warrant requirement?

Answer 11

The police officer must legitimately be present where she does the viewing.

Question 12

EXCEPTIONS TO WARRANT REQUIREMENT: AUTOMOBILE EXCEPTION
What is the standard for the automobile exception to the warrant requirement?

Answer 12

PD may search an automobile and containers within it w/o a warrant where they have PC to believe contraband or evidence of crime is contained.

• PD can search entire vehicle and they may open any package, luggage,or oter container they may reasonably contain the items for which there is PC to search.
• E.g. if PD has PC to believe illegal aliens in car, CANNOT search glove compartment

Question 13

EXCEPTIONS TO WARRANT REQUIREMENT: STOP & FRISK/TERRY STOP
What does the court
balance to determine if
a PD action is a Terry stop?

Answer 13

Stop & Frisk Only Requires RS

To determine if a seizure is a stop-and-frisk (Terry Stop), balance:

•  Nature & extent of government interest
•  Against privacy intrusion.

Question 14

EXCEPTIONS TO WARRANT REQUIREMENT: CONSENT

Answer 14

Consent must be (1) voluntary, & (2) intelligent

•  PD do NOT have to warn person re: right to refuse for it to be voluntary and intelligent.
•  HOWEVER, PD CANNOT lie and state that they have a warrant when they don’t.
•  3rd Party Consent: if +1 person has equal right to use property, any can consent

Question 15

EXCEPTIONS TO WARRANT REQUIREMENT: HOT PURSUIT

Answer 15

PD in immediate pursuit of a subject don’t need a warrant to make a search.

Moreover, once PD enter a home while in pursuit, there are NO other limitations:

•  NO wingspan limitation.
•  Can include anything they found, even if NOT related to fleeing felon.

Question 16

EXCEPTIONS TO WARRANT REQUIREMENT: EVANESCENT EVIDENCE

Answer 16

If the evidence would likely disappear if PD took the time to get a warrant.

Question 17

MIRANDA: 5TH AMENDMENT
RIGHT AGAINST SELF-INCRIMINATION
What circumstances require PD to give Miranda warnings?

Answer 17

Two Prerequisites to Miranda

 Custody

• Reasonable person in Δ’s position would have believed himself to be deprived of freedom in a significant way.
• Includes police station, hospital bed, but not probation interviews or traffic stops.

 Interrogation

• PD knew or should have known might solicit a damaging response.

(Most Terry stops do NOT implicate Miranda.)

Question 18

WARRANT REQUIREMENT
Does wiretapping
require a warrant?
What is the unreliable ear?

Answer 18

Wiretapping and eavesdropping generally require a warrant, EXCEPT:

• Unreliable Ear: no expectation of privacy in conversation with “wired” government informant, even in Δ’s home.

Question 19

MIRANDA: 5TH AMENDMENT
RIGHT AGAINST SELF-INCRIMINATION
What happens after a party asserts right to counsel?

Answer 19

USSC created 5th Amendment right to counsel as a prophylactic measure to protect against self-incrimination.

Once Δ asserts right, re-interrogation of Δ w/o his attorney violates the 5th Amendment:

• Not offense-specific.

Question 20

MIRANDA: 5TH AMENDMENT
RIGHT AGAINST SELF-INCRIMINATION
What is required to waive the Miranda warnings?

Answer 20

Valid Miranda Waiver:
Knowing, Voluntary, & Intelligent.

• Full awareness of both nature of the right being abandoned and the consequence
  
  • Silence/shoulder shrugging: NOT waiver
  • However, PD not telling Δ that his lawyer wanted to talk to him was OK.

Question 21

6TH AMENDMENT RIGHT TO COUNSEL
On MBE, what topics can
PD question a criminal Δ
on after she has asserted
her 6th Amendment
Right to Counsel?

Answer 21

6th Amendment Right to Counsel is offense-specific, so PD CAN question suspect about other crimes/subjects after invocation.

Question 22

PRETRIAL IDENTIFICATION
What are the two bases
to attack pretrial ID? Remedy?

Answer 22

Denial of Right to Counsel

• Post-charge line-ups and show-ups give rise to a right of counsel (NOT pictures, though).

Denial of Due Process of Law

• Line-up so unnecessarily suggestive (likely to produce misidentification).

Remedy: exclude, UNLESS prosecution
can show an independent source.

Question 23

EXCEPTIONS TO WARRANT REQUIREMENT: THE BASIC RULE
What is the basic rule regarding warrants?

Answer 23

Searches conducted outside the judicial process without prior approval by judge or magistrate are per se unreasonable under the 4th Amendment, subject to a few specifically established and well-delineated exceptions. Katz

However, the exceptions taken cumulatively make the exceptions largely the rule.

Question 24

BAIL

Answer 24

Bail issues are immediately appealable.

Preventative detention is constitutional.

Question 25

*TERRY* STOPS AND RS Compare RS and PC

Answer 25

**Reasonable/articulable suspicion** can be established by both: *  Less evidence than PC, and *  Less-reliable evidence than PC. But, **situations that do NOT alone**, establish RS: *  Anonymous tip w/NO familiarity w/person’s affairs & no prediction of future behavior *  Presence in high crime area, alone. *  Flight from PD, alone.

Question 26

WARANTLESS SEARCHES What are other situations where government can search without either a warrant or PC?

Answer 26

**_Searches w/Neither Warrant Nor PC_** *  Roadblocks for DWI, Immigration Near the U.S. Border (fixed); *  Consent Searches *  Schools (Balance Test Allows Drug Testing, Other Searches)

Question 27

WARRANTLESS SEARCHES What are the 4 ways PD can search a car, and with what level of suspicion?

Answer 27

**_Searching Cars_** ## Footnote _No Suspicion:_ Request Consent Search _RS:_ *Terry* stop _PC:_ search any area that PC takes PD _SITA_: wingspan (not including trunk)

Question 28

*MIRANDA*: 5TH AMENDMENT RIGHT AGAINST SELF-INCRIMINATION In which situations does Miranda not apply?

Answer 28

**_6 Situations Where Miranda Does NOT Apply_**  Non-Custodial Interrogations  Admissibility of Statements for Impeachment  Questions by Non-State Agents  Questioning of Suspects By Undercover PD (even where Δ is in prison)  Routine Questioning During Booking  Questioning By PD AFTER a Valid Waiver  Public Safety Exception (weapon in public)

Question 29

MIRANDA: 5TH AMENDMENT RIGHT AGAINST SELF-INCRIMINATION When can/can’t PD interrogate a suspect?

Answer 29

**_PD Interrogation Timeline_** ## Footnote  CAN: Prior to arrest/custody  CANNOT: After arrest, before warnings.  CAN: After warnings  CANNOT: After Δ invokes rights.

Question 30

RIGHT TO A JURY TRIAL When is there a constitutional right to a jury trial?

Answer 30

**_Maximum Authorized Sentence \> 6 Months_** If the maximum authorized sentence exceeds 6 months, then there is a constitutional right to a jury trial. Otherwise, no such right.

Question 31

6TH AMENDMENT RIGHT TO COUNSEL What are the characteristics of the 6th Amendment right?

Answer 31

 Attaches on commencement of formal adversarial proceedings.  Bars PD Action that is deliberate elicitation after commencement, but doesn’t require custody  Crime Specific (b/c only attaches once formal proceedings begin).  After Invocation, No PD Surreptitious Methods.

Question 32

RIGHT TO A JURY TRIAL Cross-Sectional Requirement for Juries

Answer 32

Jury pool must reflect a fair cross-section of the population, however no right for Δ’s particular jury to be so-representative. HOWEVER, preemptory challenges based on race or gender are unconstitutional, whether utilized by the Δ or the State.

Question 33

RIGHT TO A JURY TRIAL Number & Unanimity of Jurors

Answer 33

Minimum of 6 Jurors * Verdict Must be Unanimous. No Constitutionally Protected Right to a Unanimous 12 Person Jury * 9 – 3 was OK

Question 34

5TH AMENDMENT RIGHT AGAINST COMPELLED TESTIMONY What are the 3 situations where privilege against compelled testimony does NOT apply?

Answer 34

**_3 Ways 5th Amendment Priv. Can Be Eliminated_**  **MBE** _Grant of Immunity:_ use & derivative use  No possibility of incrimination: i.e. SOL  _**Waive**r:_ by taking witness stand criminal Δ waives 5th Amendment privilege.

Question 35

INEFFECTIVE ASSISTANCE OF COUNSEL What is required?

Answer 35

A claim for **_ineffective assistance of counsel_** (Strickland Claim): requires Δ to show: *  Deficient Performance By Counsel, AND *  But For Such Deficiency, the Result of the Proceeding Would Have Been Different

Question 36

GUILTY PLEAS What are sufficient bases for withdrawal of guilty plea after sentence?

Answer 36

**USSC:** Contract theory of pleas, and **Court generally unwilling to disturb** pleas. **4 Bases of Plea -**Withdrawal After Sentence * Involuntary * Court’s Lack of Jurisdiction * Ineffective Assistance of Counsel * Prosecutor’s Breach of Agreed-Upon Bargain

Question 37

GUILTY PLEAS What are the requirements for a finding of a valid plea?

Answer 37

On record, judge must engage in constitutionally-required colloquy with Δ to ensure: * Voluntariness, and * Intelligence **Requirements of Record:** * Address Δ Personally (NOT counsel) * Nature of Charge * Max. Authorized/Any Mandatory Min. Sentence * Right to Plead Not Guilty and Get Trial **Remedy**: Δ may withdraw plea and start again.

Question 38

DOUBLE JEOPARDY When does jeopardy attach in a jury trial? Bench trial?

Answer 38

Jeopardy **_Attaches:_ _Jury_** Trial: when the jury is sworn. **_Bench_** Trial: when the first witness is sworn. Jeopardy does NOT attach in civil proceedings, other than juvenile trials.

Question 39

DEATH PENALTY 4 Important Issues for Any Death Penalty Question

Answer 39

* Death penalty statute that doesn’t give Δ chance to present mitigating facts is unconstitutional. * There can be no automatic category for imposition of death penalty. * The state may not, by statute, limiting the mitigating factors; statute must allow all mitigating factors. * Jury, not judge, may determine the aggravating factors justifying imposition of the death penalty.

Question 40

DOUBLE JEOPARDY On MBE, what constitutes the same offense?

Answer 40

On MBE, 2 crimes are the “same offense” if each crime requires proof of an **additional element** that the other does NOT require. **Lesser/Greater Included Offenses:** if you are tried for one, you can’t be tried for the other * E.g. Larceny + Assault = Robbery * BUT, if you tried for battery, then victim dies, you can be tried for the murder.

Question 41

DOUBLE JEOPARDY What are the 4 exceptions permitting retrial for the same offense after jeopardy has attached?

Answer 41

**_Four Exceptions Permitting Retrial for Same Offense After Jeopardy has Attached_** * **Hung Jury:** jury unable to agree on a verdict. * Mistrial for Manifest Necessity (e.g. Δ gets sick); if case dismissed at behest of Δ, not on merits * Retrial After a Successful Appeal * Breach of an Agreed-Upon Plea Bargain by Δ * If Δ breaches bargain, the sentence can be withdrawn and original charges reinstated.

Question 42

DOUBLE JEOPARDY What is the general rule?

Answer 42

**_Double Jeopardy_** Under the 5th Amendment, a person may not be retried by the same sovereign for the same offense once jeopardy has attached.

Question 43

DOUBLE JEOPARDY What are separate sovereigns?

Answer 43

**_Separate Sovereigns_** * Two States Are NOT the Same Sovereign * State & Federal Are NOT the Same Sovereign * State & Municipality ARE the Same Sovereign

Question 44

5TH AMENDMENT RIGHT AGAINST COMPELLED TESTIMONY What does the privilege protect? What is outside its scope?

Answer 44

**Does NOT protect** Δ from using body to indict her * Real/physical evidence: not compelled testimony (e.g. hair, sample, fluids) * E.g. NYS Ct. App: okayed introduction of tattoos in hate crime prosecution (physical evidence). **DOES Protect** Δ from Compelled Testimony * E.g. lie detector or custodial police interrogation

Question 45

5TH AMENDMENT RIGHT AGAINST COMPELLED TESTIMONY Who can claim the privilege and in which proceedings?

Answer 45

Anybody can claim 5th Amendment privilege in _any_ proceeding (e.g. criminal, civil, congressional). ## Footnote However, it is waived if you don’t invoke it the first time you are asked the specific question under oath.