Law School Resources

CRIMINAL PROCEDURE

I. Exclusionary Rule

A. Scope: judge-made doctrine that prohibits introduction of evidence obtained in violation of a DF’s 4^th [unreasonable search and seizure], 5^th [self-incrimination; double jeopardy], and 6^th [speedy, public trial by jury; right to confront witnesses; compulsory process; assistance of counsel] rights. 

B. Limitations on the Rule:

1. Inapplicable to Grand Juries, Civil Proceedings, Internal Agency Rules, and Parole
Revocation Proceedings.  The exclusionary rule is inapplicable to grand juries unless evidence was obtained in violation of federal wiretapping statute.  The rule is also inapplicable at parole revocation proceedings, or where evidence was obtained contrary only to agency rules. (Must violate Constitution or federal statute.)

a) Case law, even if later reversed

b) A facially valid statute or ordinance, even if later found unconstitutional, or

c) A computer report containing clerical errors not made by the police.

d) A defective search warrant, unless:

(1) The underlying affidavit was so lacking in probable cause that it could not reasonably be relied on,

(2) The warrant was defective on its face

(3) The affiant lied to or mislead the magistrate, or

(4) The magistrate has “wholly abandoned his judicial role.”

3. Use of excluded evidence for impeachment purposes – some illegally obtained evidence may still be used to impeach the DF’s credibility if he takes the stand at trial.  Specifically,

a) An otherwise voluntary confession taken in violation of the Miranda requirements is admissible for impeachment purposes, and

b) Evidence obtained from an illegal search may be used by the prosecution to impeach the DF’s but not other’s statements.

C. Fruit of the Poisonous Tree Doctrine: Illegally obtained evidence is inadmissible at trial, as is all “fruit of the poisonous tree,” i.e., evidence obtained from exploitation of the illegally obtained evidence.

1. Exceptions to the fruit of the poisonous tree doctrine:

a) Obtained from a source independent of the original illegality

b) Inevitable discovery: we would have inevitably discovered this evidence anyway.

c) Intervening acts of free will on the part of DF.  Ex: DF voluntarily returns to the police and confesses.  This is not a fruit of the poisonous tree b/c of the DF’s intervening acts.

II. Search and Seizure [8/13 of questions]

Search and Seizure

A. 4^th Amendment Right Requirements: (meet these first, then answer warrant Qs)

1. Question One: must be illegal search by the government

a) Government conduct

(1) Police activity – publicly paid police

(2) Private individual acting on direction of local police

(3) Privately paid police are not government conduct, unless they are deputized with power to arrest people (e.g., campus police, mall security)

2. Question Two: person in question must have reasonable expectation of privacy. No reasonable expectation if:

a) You have no standing to object to the search.  You always have standing if:

(1) You own the premises searched

(2) You live on the premises searched

(3) *Overnight guests have standing to object to the search of the place they are staying.

b) Where the item the government wants to seize from you is something you hold out to the public everyday:

(1) The sound of your voice

(2) The style of your handwriting

(3) The paint on the outside of your car

(4) Account records held by a bank

(5) Monitoring the location of your can on public street or in your driveway

(6)  Anything that can be seen across the open field

(7) Anything that can be seen by flying over in public airspace

(8) The odors emanating from your luggage

(9) Your garbage set out on the curb for collection.

B. Question Three: (If 4^th Amendment questions are met) Did they have a warrant?  Test validity by search warrant model (above)

1. If warrant no good, try to save evidence with good faith defense.

2. If cannot use good faith defense, see if it fits one of the 6 exceptions.

a) 2 requirements for warrants:

(1) Probable cause

(2) The warrant must be precise on its face, i.e., must state with particularity the place to be searched and the property to be seized.

(3) Must be issued by judicial officer/magistrate who is neutral and detached from law enforcement.  E.g., state attorney general is not neutral; the court clerk is.

b) 6 exceptions to warranty requirement

(1) Searches incident to lawful arrest – valid warrantless searches incident to lawful arrest requires:

(a) Arrest must be lawful

(b) Search must be contemporaneous in time and place with the arrest

(c) Geographic scope limitation – applies to the person and his wingspan, i.e. the area in which he can reach to hide a weapon, etc.  (blurry) Ex: if arrested in front hall, cannot search back bedroom.

(i) In 1981, the S.Ct. said when a person is validly arrested in a car, the wingspan includes entire interior of the car and everything in it, but not the trunk.  (NY v. Belton)

(2) Automobile search – just b/c the question contains a car, does not mean it involves this exception.  Very few cases apply. Requirements:

(a) Before the police search, they need probable cause that there is reason to believe the car contains fruits, instrumentalities, or evidence of crime.

(b) Once there is reasonable cause, the police may search the whole vehicle, including the trunk, and any package, luggage, or other container that might reasonably contain the object for which there is probable cause to search, whether owned by passenger or driver. (Ross)

(i) Probable cause can arise after the car is stopped, but must arise before the search.

(3) Plain view – requirements:

(a) Officer must be legitimately present where he does the viewing

(b) Then see the fruits or contraband

(c) In plain view and

(d) Have probable cause to believe the item is evidence.

(4) Consent –

(a) Consent must be voluntary and intelligent, which is a fact specific determination.

(i) If the police tell you they have a warrant, that negates subsequent consent.

(ii) The police do not have to warn you of your right not to consent.

(b) Authority to consent: where 2 or more people have an equal right to use a piece of property, any one of them can consent to its warrantless search.

(5) Stop and frisk –

(a) Standard: must have reasonable suspicion (less than probable cause)

(b) Weapons are always admissible so long as stopping was reasonable

(c) Frisk is justified only if the officer thinks the suspect is a weapon

(i) How much like a weapon or contraband does it have to be to gain admissibility?  If the officer reasonably believes, based on “plain feel” that it is a weapon or contraband, it is admissible.

(6) Hot pursuit and evanescent evidence -

(a) Hot pursuit – must be hot pursuit.  How hot?  If they are not about 15 minutes behind the felon, it is not hot pursuit.

(b) Evanescent evidence – evidence that might go away before warrant obtained.  Ex: can scrape under fingernails for drug evidence.

(c) Once police pursue the fleeing felon, they may make a warrantless search and seizure and may even pursue into a private dwelling, even if not the felon’s home.

c) Wiretapping and eavesdropping

(1) All wiretapping or eavesdropping requires a warrant. 

(2) Exception: unreliable ear.  Everyone assumes the risk that the person listening will consent to the government listening or is wired.

III.    Miranda Warning

A. Defined: For an admission or confession to be admissible under the 5^th Amendment privilege against self-incrimination, a person in custody must, prior to interrogation, be informed, in substance, that

1. he has the right to remain silent;

2. anything he says can be used against him in court;

3. he has the right to presence of an attorney; and

4. if he cannot afford an attorney, one will be appointed for him if he so desires.

B. Person must be in custody, i.e., at the time of interrogation that person was not free to leave (may even be own home). 

1. probation interviews and routine traffic stops are not custodial, therefore the police can ask you questions and admit them into evidence without warning.

C. Must be given prior to interrogation by the police

1. Interrogation: more than the asking of questions; it is any conduct where the police know or should have known they might get a damaging statement.

2. spontaneous statements by suspect may be admitted without Miranda.  Ex: “I guess you are here about the stolen car.”

3. Ex; pg 481 Q28: if anyone “blurts” it is a spontaneous statement and is not the result of interrogation, so it is a Miranda waiver.

D. Waiver – a suspect can waive his Miranda rights, but the prosecution must prove that the waiver was knowing, voluntary, and intelligent.

1. What if Miranda is given and the suspect says nothing or shrugs his shoulders?  NO – waiver may not be by silence.

E. 5^th Amendment Right to Counsel

1. Once DF asserts his right to terminate interrogation and requests an attorney, reinitiating interrogation without an attorney present violates the 5^th Amendment right to counsel.

2. The S.Ct. has created 5^th Amendment right to counsel with only arises when someone, upon hearing Miranda, requests an attorney (otherwise right to counsel arises under the 6^th Amendment). This is the process of custodial police interrogation.

IV. Pretrial Identification

A.  Purpose – to make sure victim or witness remembers DF from the crime and not from the proceedings. (Just a final check)

B. 2 ways to attack pre-trial identification

1. Denial of right to counsel: post-charge lineups or showups (one-on-one) give rise to a right to counsel.  *There is no right to counsel when the victim or witness is shown photographs.

2. Denial of Due Process: some pretrial techniques are so unnecessarily suggestive and so substantially likely to produce misidentification, they deny DP.

a) If either of these is shown, we exclude the in-court i.d.; the victim or witness cannot i.d. the guy in court.  This remedy is not automatic.  Prosecutor can rebut the attacks by showing that the victim or witness had a valid, independent source of in-court i.d.  Prosecutor  usually argues that the victim or witness had ample opportunity to look at the guy close up at the time of the crime.  This insures that the victim or witness remembers the DF from the crime and not the proceedings. If this is shown, then the victim or witness can do an in court i.d.

V. Right to Jury Trial

A. When does constitutional right attach?  Whenever DF is tried for an offense and the maximum authorized sentence exceeds 6 months.  If up to or including 6 months, no constitutional right to jury trial.

B. Criminal contempt: if the sum of the sentences exceeds 6 months, the alleged contemptor is allowed to go back and have a jury trial.

VI. Right to Trial by Jury

A. Minimum number of jurors you can use is 6.  If only 6, must be unanimous.  No constitutional right for a unanimous 12 person jury. S.Ct. has approved non-unanimous verdicts of 10-2 and 9-3.

B. Cross-sectional requirement – you have a right to have a jury pool which reflects a fair cross-section of the community. No right to have your own jury reflect such.

C. Use of preemptory challenges for race/gender based discrimination – it is unconstitutional for prosecution or defendant to exercise preemptory challenges to exclude prospective jurors on account of their race or gender.

D. Guilty pleas and plea bargains:

1. Since the 70’s, the S.Ct. has pursued 2 agendas:

a) The S.Ct. will not disturb guilty pleas after sentencing.

b) The S.Ct. has adopted the k theory of plea bargaining: the terms of the bargain should be revealed in the record and both sides held to it.

2. When DF pleads guilty, the judge must on the record address the DF personally about

a) The nature of the charge,

b) The maximum authorized sentence and any mandatory minimum sentence,

c) DF’s right NOT to plead guilty and demand trial.

(1) DF may then withdraw plea and plea again.

3. 4 good bases for withdrawing guilty plea after sentencing:

a) a plea bargain was involuntary (including that the judge did not tell maximum sentencing)

b) court taking plea lacked jurisdiction

c) ineffective assistance of counsel

d) *failure of prosecutor to keep agreed upon plea bargain. Ex: breached agreed upon sentence by prosecution

VII. The Death Penalty

A.  There can be no automatic category for imposition of the death penalty.

B. Ex: death penalty statutes cannot say if you kill a police officer, you get the death penalty.  That is unconstitutional.

VIII. Double Jeopardy

A. When does jeopardy attach?

1. jury trial – when jury is sworn

2. judge trial – when first witness is sworn.

B. Jeopardy does not generally attach when the proceeding is civil.  Ex: criminal tax fraud, then civil case to collect taxes is okay.

C. 4 exceptions permitting retrial (not double jeopardy)

1. jury unable to agree on a verdict (hung jury)

2. mistrials for manifest necessity, ex: DF has appendicitis

3. retrial after successful appeal is not double jeopardy

4. *breach of an agreed upon plea bargain by the DF. Principle: when DF breaches plea bargain, his plea and sentence can be withdrawn and his original charges reinstated (Rickets)

D. Same offense to double jeopardy purposes: two charges are not the same offense if each charge requires proof of an additional element the other does not. 

1. Separate trials for MS and hit and run?  Not double jeopardy b/c each requires additional requirements: running and killing.  Same for reckless and drunken driving.

2. Lesser included offenses:  Ex: robbery and larceny.  That is double jeopardy – a trial for a greater offense precludes retrial for the lesser included offense.  Similarly, attachment of jeopardy for a lesser offense bars retrial for greater offense.  Exception: a retrial for murder is permitted if the victim dies after attachment of jeopardy for battery.

E. Separate sovereigns – the constitutional prohibition against double jeopardy does not apply to trials by separate sovereigns.  Thus, a person may be tried for the same conduct by both the state and federal governments or by two states, but not by a state and its municipalities.

IX. 5^th Amendment right against self-incrimination

A. Who may assert?  Anyone in any kind of case.  Any question the response to which might incriminate the witness can raise the privilege against self incrimination.

B. You must assert the 5^th Amendment right in civil proceedings or you waive the privilege in all subsequent criminal proceedings. If an individual responds to questions during civil proceedings instead of claiming the privilege, he cannot later bar that evidence from a criminal prosecution on compelled self-incrimination grounds.

C. Scope of the protection

1. The 5^th Amendment does not protect us from having the state use our body to incriminate us, e.g., hair, urine sample.

2. State cannot make us take a lie detector test or undergo custodial police interrogation.

3. It is unconstitutional for the prosecution to make negative comments on the DF’s failure to testify or his remaining silent on hearing the Miranda warnings.

4. 5^th Amendment privilege can be eliminated 3 ways:

a) Grant of immunity – cannot use immunized testimony or anything derived from it to convict you.

(1) “Use and derivative use” immunity sufficient: guarantees that the W’s testimony and evidence located by means of the testimony will not be used against the witness.  However, the W may still be prosecuted if the prosecutor shows that the evidence to be used against the W was derived from a source independent of the immunized testimony.

b) No possibility of incrimination (ex: statute of limitations)

c) Waiver – criminal DF by taking the witness stand waives the 5^th Amendment privilege to all legitimate subjects of cross-examination.

HOT TOPICS IN CRIMINAL PROCEDURE

1.                    Exclusion and the limitations of exclusion

2.                    The fruit of the poisonous tree doctrine

3.                    The law of search and seizure (flow chart)

4.                    Miranda Qs (usually 3)

5.                    Pretrial i.d. – no right to counsel at showing of pictures

6.                    Right to jury trial and guilty pleas (waiver of jury trial)

7.                    2 parts of the 5^th Amendment – double jeopardy and the privilege against compelled testimony.

[end]