Criminal Procedure Outline _Caldwell_ Arameh

Arameh Z. Caldwell- Spring 2003 CRIMINAL PROCEDURE ► SEARCHES - 4th Amend. prohibits unreasonable gov‟t searches & seizures protects people, not places Determine if search occurred: ● Katz - cops recording phone booth conversation = search - Katz Test: 1. does the person have a subjective expectation of privacy as to his activity? 2. is society willing to believe the expectation of privacy is reasonable? => does the person have a reasonable expectation of privacy? if yes, search has occurred - expectation of privacy as to the world, not just police/gov‟t - if not a search => info usable - if search => must be reasonable pursuant to 4th Amend. executed by search warrant or backed by PC & exceptions Enhancement Devices ● Kyllo - thermal imagining device aimed at private home to detect heat(marijuana) 1. is it a common enhancement device? - dogs/flashlights/thermal imagining devices - anything society knows is used to enhance senses or is available to general public 2. is it being used in a common way? if answer to either is NO => conduct = search => 4th Amend. check [dog sniffing high school kids for drugs = search] - obtaining info re: activities in interior of home that would not have been obtainable otherwise w/out physical intrusion w/technology not in general public use = search - knowingly exposed to public not subject to 4th Amend. protection - no reasonable expectation of privacy as to utilities ● Oliver - “open fields doctrine” - permits cops to enter & search a field w/out warrant - no reasonable expectation of privacy even to marked private land can't create privacy where none exists - presumption that one does not have Rx expectation of privacy as to anything occurring outdoors (seen from the air ≠ no expectation of privacy) - trespass does not negate an observation -“curtilage”  land immediately surrounding & associated w/home direct extension of home; may not enter & search ● Greenwood - no reasonable expectation of privacy as to garbage left out for collection ► SEIZURES - occurs when officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen - 2 types of seizures: a) detention  initial Terry stop – need RxS; (always start here) b) arrest  need PC Determine if seizure occurred: ● Mendenhall-Delgado Test: are the surrounding circumstances so intimidating that the Rx person did not have ability to ignore police presence or turn around & walk away? if yes => seizure – (what kind of seizure? must be Rx) if no => no seizure – (info admissible) factors to consider (Mendenhall): i. threatening presence of multi-cop ii. display of a weapon iii. some manner of physical contact by cop iv. use of language/tone indicating that compliance may be compelled - absent these circumstances (some/all) Rx person would feel free to leave - Rx person standard supposes innocent legal person - if suspect walks away/refuses to answer, cop cannot use that info to establish RxS or PC - mere police questioning ≠ seizure [bc person is free to walk away] Criminal Procedure - 2 ● Florida v. Bostick - cops board bus for random drug checks & seek to search bags of anyone even w/out cause for suspicion ≠ seizure ● Hodari - issue of flight (applicable only when person fails to submit to cops) - cop chasing kid & yelling stop; kid throws cocaine rock out of his pocket - kid did not comply w/cop‟s show of authority (demand to halt) ≠ seizure cocaine rock admissible - not a seizure until cop physically tackles the person=> detention ► DETENTIONS – [RxS] - holding of person w/out arrest; need RxS - objective: w/less than PC want cop to be able to stop & investigate - RxS = a particularized & objective basis for suspecting person stopped of criminal activity does cop subjectively believe that criminal activity is afoot? cops experience comes into play ; based on common sense not very high threshold ● Terry v. Ohio - cop sees suspicious men walking up & down street checking out store finally cop asks their names, man mumbles (=> RxS) => cop grabbed Terry (seizure) & patted outside his clothing & felt a gun - Terry Stop if cop has RxS that criminal activity is afoot, he may stop/detain suspect & briefly further investigation for protection of himself/others briefly = Rx period of time given facts/circumstances if RxS dispels, cop must stop investigation if more info comes to light, may lead to PC - Terry Frisk if cop has RxS to believe detainee is armed & dangerous he may frisk the detainee limited to outer clothing patdown – must be least intrusive if he feels something that may be weapon, may seize item dwelling/manipulation of object not suspect = unRx search Dickerson – cop feeling soft packet (coc.) – not admissible - objective: exception that allows cops limited search not to discover evidence but to allow officer to pursue investigation w/out fear for safety Criminal Procedure - 3 Length of detention - if Terry stop takes too long, becomes arrest for which cop needs PC - must be Rx period of time necessary to investigate Vehicle Checkpoints - must be a fixed checkpoint (strict parameters to control cop discretion) - balancing interests: state interest in curbing drunk drivers > minimum intrusion on motorists - limited use: policing border & ensuring roadway safety must have public policy objectives to validate checkpoints ► ARRESTS – [PC] - PC = based on facts w/in personal knowledge of officer or affiant sufficient to convince a reasonably cautious person that an offense has been committed or is in process of being committed by the accused dealing w/probabilities judged from hindsight knowing facts that officer had at the time, would a reasonably detached magistrate have issued a warrant if time had allowed? answer: if we could freeze time - pulled over for speeding on hwy non-custodial arrest, but cite-&-release arrest (cannot search person) - lose 4th Amend. rights post custodial arrest - even if police do not call it an arrest but treat you as such, then need PC ● Dunaway v. New York - arrest w/out PC (illegal seizure) => confession –> inadmissible - just bc arrest was illegal does not mean evidence obtained was inadmissible but it is very hard must show it would have been admitted anyways w/out tainted behavior Anonymous Tip - usually don’t produce RxS unless info is PREDICTIVE - once cop sees predictive info first hand => PC Spinelli Test: 1. is the informant reliable? presumption of reliability of citizen informants 2. does he have first hand knowledge? Criminal Procedure - 4 if both YES => PC if one fails => info alone cannot establish PC - totality of circumstances can fill in the blanks * (use Spinelli before totality-of-circumstances analysis) ● Illinois v. Gates - cops receive anonymous letter re: details of Gates‟ drug deals/practices cops follow Gates & confirm info affect of corroborated info => search warrant issued for house & car - ct rejects Spinelli & adopts totality-of-the-circumstances approach PC is fluid concept that deals w/probabilities facts/factors make common sense decision - methods by which evidence comes to light: i) direct observation through search (via Katz) or observation rd ii) 3 party informants ► ARRESTS & SEARCH WARRANT MECHANICS - if officer acts reasonably in making an arrest, then arrest & any evidence seized is valid & admissible - police officer is permitted to arrest w/out warrant in a public place for misdemeanor/felony committed in his presence or a felony not committed in his presence if there is PC for making arrest, notwithstanding an adequate opportunity to procure a warrant felony  potential for state/federal prison (over than 1 yr) misdemeanor  potential for jail (up to 1 yr) {DUI unless property damage} infraction  no time ● Gerstein - 4th Amend. requires timely judicial determination of PC as prerequisite to extended restraint of liberty following arrest - can't keep someone in custody w/out hearing - Gerstein stamp: cop signed/stamped report or cop must be present - up on information for less serious crime – at preliminary hearing magistrate looks to info to see if there is enough to keep person in custody - up on indictment detainee needs a hearing; serious crime w/grand jury Criminal Procedure - 5 - pre-trial procedures: 1) arraignment 2) preliminary hearing must show by preponderance of evidence i. crime was committed, & ii. detainee committed crime - felonies: w/in 10 days of being taken into custody D has right to preliminary examination misdemeanors: w/in 48 hrs ● Wilson v. Arkansas - police must „knock-and-announce’ before entering home (absolute rule) police must knock, identify themselves, identify purpose (warrant or not) must give Rx amount of time for response - rationale: security/privacy of people‟s homes prevent undue destruction of property - exceptions: 1) possibility of danger – safety jeopardized 2) destruction of evidence – purpose jeopardized 3) exigent circumstances – hot pursuit Search Warrants - carry presumption of validity (Rx under 4th Amend.) - PC for search warrant: substantial probability that certain items are the fruits, instruments, or evidence of crime - if search conducted w/warrant, burden on D to show it was unreasonable if search conducted w/out warrant, burden on P to show it was reasonable - must be sufficient connection of items sought w/particular place police must confine themselves to only those places where thing would be - search warrant must specifically describe place to be searched and things or person to be seized where/when/what description of place must lead officer to it w/Rx effort – address if search warrant is overly broad => exclusion of all evidence may be general about contraband items otherwise legal must be described w/particularity - Rx mistakes re: house to search or person to arrest may be ok Criminal Procedure - 6 Warrant Execution Timeliness 1) must be executed w/in 10 days of magistrate‟s signing 2) must still have PC at time of execution otherwise presumed stale & all evidence inadmissible Plain View - once police are searching pursuant to warrant & find other evidence or contraband in plain view, those items may be seized Nighttime - as a general rule, warrants cannot be executed at night - must show need to execute at night & have magistrate sign off on it Individual Proximity ● Summers - proximity good enough to create RxS ● Ybarra - proximity NEVER good enough to create PC w/out other facts False Warrant Claim - if cop lies to obtain a search or arrest warrant, it does not per se invalidate the warrant if there is still PC notwithstanding the lies - once cops find what they are looking for => end of search ► EXCEPTIONS TO WARRANTS (allow cops to search w/out warrant) - absent exigent circumstances, threshold may not Rx be crossed w/out warrant (protecting sanctity of the home) 1) INCIDENT TO ARREST - search incident to an arrest only if it is substantially contemporaneous w/arrest & is confined to the immediate vicinity of the arrest ● Payton Exception - warrant founded on PC & reason to believe suspect is in dwelling, gives cops limited authority to enter & get suspect out - arrest warrant does not give police right to enter 3 rd party‟s home even if they believe suspect is in that home Criminal Procedure - 7 ● Robinson - D stopped for driving w/out license => arrested pat down search revealed object - cigarette packet w/heroin - subsequent to a custodial arrest, a cop can execute a full search of the entire person, anything associated w/person (including containers on the person), or anything w/in control of person - arrested person loses 4th Amend. rights – (no expectation of privacy) - rationale: 1) need to disarm suspect (cop safety) 2) need to preserve evidence - bright line test for cops that compromises some 4th Amend. rights - Robinson does not apply if cop intends only cite-&-arrest of suspect must have PC to know there is contraband in order to search suspect ● Chimel Radius - may search arrestee’s person & area ‘within his immediate control’ - area w/in lunging distance where arrestee may gain possession of weapon or destroy evidence - fictional requirement – doesn‟t matter if person actually has access - distance radiates from point of arrest, radius does not move w/D - applies only if search is contemporaneous to custodial arrest - rationale: 1) do not want suspect to get a hold of weapon to use against cop 2) do not want suspect to destroy incriminating evidence ● Chadwick Limitation - suspect in train station carrying heavy/locked trunk - once cops have reduced personal property not immediately associated w/person of the arrestee to their exclusive control & there is no longer any danger that the arrestee might gain access to the property to seize weapon/evidence, a search of that property is no longer incident of arrest - search must be contemporaneous to custodial arrest ● Edwards - cops have PC to want to examine paint chips on arrestee‟s clothing - even w/out PC police were entitled to search arrestee‟s clothing ● Murphy - respondent voluntarily arrives at police station police have PC re: blood under his nails, no warrant, no arrest cops took samples w/out consent – admissible bc of exigent circumstance need to preserve evidence Criminal Procedure - 8 ● Lafayette - police may remove & inventory property found on the person or in the possession of an arrested person who is to be jailed - no contemporaneous requirement - anything that comes to light during booking may be used against suspect 2) PLAIN VIEW - not so much exception as EXTENSION of what police can do once inside - subsequent to a justifiable prior intrusion, if the police are situated in a place where they have a right to be and come upon evidence, which they have PC to believe is incriminatory, they may seize same - cursory inspection (merely looking at what is already exposed) ≠ search therefore doesn‟t even require RxS - determine: 1. was there a justifiable intrusion? 2. are the cops situated in a place where they have the right to be? 3. is the criminality of the evidence apparent? 3) CONSENT - must be free & unconstrained choice by its maker question of fact to be determined from totality of circumstances test factors to look at (characteristics of accused & details of interrogation): 1. age of person 2. personality education, intelligence, timidness, experience 3. knowledge of right to refuse 4. environment custody (more difficult to get consent) vs. noncustody - if cop has reasonable belief that person has consented, then sustained use of police deception does not destroy voluntariness of consent per se unless deception is so fundamentally unfair as to violate due process - person may limit time/place of search & may end search at any time - consent given in custody subsequent to request for counsel is only valid if request for counsel is retracted & right to counsel is waived Criminal Procedure - 9 - tenant of house, occupant of room in a boarding house, guest in hotel room, guest in a private home => protected against unRx searches/seizures - all of the inhabitants of house have authority to consent to search of those places shared in common – not to places off limits to them - evidence gathered as result of police Rx mistake in thinking 3rd party had power to give consent is admissible would facts available to the officer at the moment warrant a man of Rx caution in belief that the consenting party had authority over premises? - minor never has expectation of privacy – parents may consent for minor minor cannot create expectation of privacy - cts split re: spouse prevailing thought that spouse may consent to search of everything 4) EXIGENT CIRCUMSTANCES (allow entry & search) - 4th Amend. does not require the police to delay in the course of an investigation if to do so would endanger lives or lead to destruction of evidence - as soon as exigent circumstances no longer present, 4th Amend. reinstated and the cops will need to get a search warrant 1. hot pursuit - can still be hot pursuit even if you briefly lose sight of suspect based on objective Rx standard - PC to believe person is in the house - no need for knock-&-notice - in course of search for suspect, cops can search house for weapons if PC that suspect is armed and if it is prior to or contemporaneous to arrest of suspect 2. destruction of evidence - if PC that contraband is in the process (not likelihood) of being destroyed => police can enter & seize - if PC that there is contraband in the premises & likelihood that evidence will be destroyed during process of obtaining warrant => freeze premises - cop must have good faith belief that he can get warrant - freeze ≠ seizure bc person can still turn around & walk away 3. imminent threat to human life - if officer has PC to believe someone will be hurt or is in process of being hurt, they can enter & search anywhere that person may be Criminal Procedure - 10 4. „protective sweep‟ - quick/limited search of premises, incident to arrest & conducted to protect safety of police officers & others - if during in-house arrest police have RxS that there are others in the house who are associates (connected w/criminal enterprise) and may pose a threat, then they may make a protective sweep [Buie – very limited exception] - ??? curtilage???? - sweep up to & contemporaneous to seizure of person - can look only where Rx that person would be hiding or Rx where weapon would fit 5) TRAVEL STOPS & VEHICLES if incident occurs in car, always discuss vehicle exceptions whether or not they apply 1. Immediate Search w/PC ● Chambers - PC to believe contraband are being carried in car allows search of car anywhere contraband would fit - existence of exigent circumstances to be determined at time automobile is seized - rationale: car is mobile & creates exigent circumstance (old) lower expectation of privacy as to car 2. Later Search w/PC - no contemporaneous requirement cops may search car at any time as long as they still have PC - rationale: cops already have possessory interest in car so the search is no more intrusive later - simply bc someone is arrested in their car does not give rise to PC for contraband 3. Minor Violation Stop ● Knowles - pulled over for speeding full search of car w/out PC or consent => discover contraband - will NOT extend Robinson bright-line rule (authority to conduct a full field search incident to an arrest) where concern for officer safety & loss of evidence is not present - balancing test only if arrest was unusually harmful or extraordinary ● Whren - if PC for minor traffic violation  stop (pretextual or not) if see drugs, need PC that there‟s more to search entire car Criminal Procedure - 11 4. Inventory Search ● Opperman - illegally parked car towed to police lot & inventoried evidence found is admissible - warrantless inventory search incident to care taking function is Rx if done pursuant to standard administrative police procedure - rationale: 1. protects owner‟s property 2. protects police from false claims of theft 3. protects police from potential danger - cop has burden to show inventory was Rx 5. Container Inside Vehicle ● Acevedo - cops may search an automobile & containers w/in it where they have PC to believe contraband or evidence is contained - once container is found, search must end 6. Search Incident to Arrest - if cop makes custodial arrest of driver or passenger, Chimel allows cop to search the car 6) MISCELLANEOUS SEARCHES ● Camara Warrant - limited 4th Amend expectation of privacy is extended to business owners if business owner refuses search, official must get warrant - no PC required - official must conform to established administrative plan - warrant is to give notice to owners & set forth limits of official‟s activity (who/what/when/where) Closely Regulated Business - gun,gambling,alcohol,auto junkyard - owners do not have right to request warrant - impliedly consent to regulatory searches by operating in industry - Burger School Officials (T.L.O.) - school VP searches through 14 yr old‟s purse after she is found & denies smoking in bathroom search => cigarette pack (should stop) => rolling papers => marijuana Criminal Procedure - 12 - 4th Amend applicable to school officials act like a cop, then going to hold cop rules applicable to you - no search warrant required on school grounds neither practical nor efficient - no PC required need RxS that there was violation of school rules/law ● Skinner - railroad employees forced to provide blood & urine samples for toxicological testing - compelling FRA gov‟t interests would be hindered by requiring warrant gov‟t interest > individual‟s privacy concern ► BODILY INTRUSIONS ● Schmerber - balancing test: bodily intrusion requires balancing D‟s privacy interest against society‟s interest in obtaining the evidence - cop has PC to arrest driver for DUI & wants to force blood sample - a person has a Rx expectation of privacy as to bodily fluids => search - no warrant, but exigent circumstance – “destruction of evidence” - refusal to give blood after DUI stop => evidence may be used against you ● Rochin - cops battle w/D => D‟s stomach pumped to recover swollen capsules - police conduct shocks the conscience – offensive => evidence inadmissible – violates Due Process, exigent circumstances do not apply - (sets-up Mapp v. Ohio) - state cannot force suspect to undergo risky surgery to remove a bullet - person has a heightened expectation of privacy due to dangers - balancing test => state has a strong case w/out obtaining actual bullet - voice exemplar: no expectation of privacy as to sound of one‟s voice - handwriting: same as voice; 5th Amend. concerns re: misspellings ► 1st, 5th, 6th AMENDMENT CONSIDERATIONS - 1st Amend: considerations already embodied into PC requirements & 4 th Amend. protections - if a search warrant is valid, it is valid against all amendments Criminal Procedure - 13 - 3rd party may be issued a search warrant even if they are not involved in the crime - police search warrant to seize photographs from Stanford Daily - 5th Amend: testimonial protection - no person shall be compelled to testify against himself through direct testimony, evidence, or actions - rationale: - compelling someone to speak is an evil & fundamentally unfair - compelled testimony is inherently untrustworthy - self-incrimination test: 1) Katz expectation of privacy 2) is there additional nonverbal subtextual message being sent? - generally no 5th Amend. concerns when cops are executing search warrant - however, asking person to produce files from office => subtext that you control files, authenticating files - 6th Amend: - police may be compelled to use subpoenas instead of search warrant in law office only - attorney-client privilege outweighs all other privileges - search warrant required if attorney himself is suspect - search of one‟s office for records, their seizure & introduction into evidence does not violate 5th Amend. if pursuant to a search warrant based on PC - physical characteristics - if the physical characteristic is exposed to public view  no expectation of privacy & it is not self-incriminatory - i.e. – voice, lineup, handwriting ► EXCLUSIONARY RULE - Weeks Rule: in federal prosecution, 4th Amend. bars use of evidence secured through an illegal/unRx search & seizure – very limited application - 5th Amend remedy for error = exclusion - 4th Amend does not have such remedy - exclusionary rule is judge made – judges don‟t even like it ● Mapp v. Ohio - books & pictures unlawfully seized during unlawful search of D‟s home ct confronted w/another repugnant police abuse – (fake warrant, force) Criminal Procedure - 14 - all evidence obtained by search & seizure in violation of the Constitution will not be admissible in federal or state ct - if the constable blunders, the evidence is out - purpose of exclusionary rule: 1. deter police officers from future illegal conduct 2. judicial integrity – must sanction, not condone, police misconduct - costs of exclusionary rule: 1. lost evidence, lost prosecutions 2. loss of police integrity 3. disproportionate effects - people that are very guilty of serious crime may be let free because of police error 4. public hostility – rule operates only after all evidence is found 5. complicates law of search & seizure 6. does not achieve its purpose (deterrence) – cops blame system 7. cop perjury 8. offers no protection to those whose cases were never filed - limitations: - if police have Rx & objective good faith belief, evidence not excluded ● US v. Leon - evidence admitted bc police acted pursuant to a search warrant issued by magistrate – magistrate was at fault - not allowing evidence would go against purpose of rule ► STANDING TO ASSERT THE EXCLUSIONARY RULE - standing establishes the right to challenge the validity of a search/seizure must have personally suffered as result of police illegality to challenge it - 4th Amend. is assertion of PERSONAL VIOLATIONS - ct attempt to limit scope & application of exclusionary rule - standing does not touch upon substantive 4 th Amend. violation ● Rakas Test 1) Does person claiming 4th Amend. right have a legitimate expectation of privacy in the invaded place (Katz Test)?, OR 2) Do the items sought to suppress directly flow from the original illegality that violated D’s rights? if yes => evidence is inadmissible Criminal Procedure - 15 - status as overnight guest is alone enough to show that D had Rx expectation of privacy in the home => D has standing ● Minnesota v. Carter - cop sees Ds bagging cocaine in an apart. through gap in window blinds - Ds were not overnight guests, present for a short business transaction, had no previous relationship w/owner of home - no Rx expectation of privacy as to conversation between other people - illegal arrest of A leads to seizure of narcotics in home of B and subsequent arrest of C at another location A can suppress narcotics found in B‟s house (directly flows); C cannot - A implicates B in illegal confession  B does not have standing - owner of a car has standing but passengers do not ► FRUIT OF THE POISONOUS TREE - Rule: Any evidence obtained from illegal cop action is inadmissible. Once evidence is deemed illegal, all evidence that stems from it is also inadmissible. Test: 1) but for illegality, the evidence would not have been obtained 2) check attenuating circumstances - EXCEPTIONS: 1. Independent Source - if there is a lawful independent source that is apart from the illegal activity that gives rise to PC, then evidence can be seized ● Wong Sun - cops enter home & arrest A w/out PC A accuses B of selling narcotics narcotics seized from B, B implicates C C illegally arrested, C later makes voluntary confession - policy – we have stretched so far from initial illegality that it doesn‟t make sense to exclude it anymore - is an accused ever free from psychological effects of arrest? - C has standing as to confession he made  inadmissible fruit - A has standing as to narcotics found in B‟s house 2. Inevitable Discovery - if prosecution can show by preponderance of evidence that it would have obtained the evidence w/out the benefit of illegally obtained evidence, then admissible even if it is fruit Criminal Procedure - 16 ● Nix v. Williams - D surrenders to police for kidnap/murder of young YMCA girl - cop “Christian burial” speech => D leads cops to victim‟s body - prosecution must show by preponderance of evidence that search team would have found body w/hours - body admissible  inevitable discovery D leading cops to body  fruit/inadmissible 3. Attenuation - if the causal connection between the illegal conduct and the evidence becomes attenuated as to dissipate the taint, the info is admissible - Taint Doctrine: the taint of initial illegality may be purged by an intervening act by D or 3rd party which breaks the causal chain linking the illegality & the evidence in such a way that the evidence is not in fact obtained by the exploitation of the D has the connection between the initial illegality & offered evidence become so attenuated as to dissipate the taint? - Factors: 1) Miranda warnings - Miranda is important, but alone is not enough 2) Temporal proximity - how much time has passed from time of the arrest to the fruit – the longer the better for prosecution 3) Presence of other intervening circumstances - i.e. – new crime; release from custody 4) Purpose & flagrancy of official misconduct - the worse the cop conduct, more likely excluded - if 5th Amend. violation - compelled to incriminate - attenuation analysis - if 6th Amend. violation - waiver of right to counsel - confession only allowed if full Miranda waiver ► RIGHT TO COUNSEL & OTHER AIDS - 6th Amend.  in all criminal prosecutions accused should enjoy the right to have the assistance of counsel for his defense Criminal Procedure - 17 Right to Appointed Counsel: 1) if felony 2) imprisonment - when does the state have a duty to give the poor person a lawyer? - file indigent status w/ct  usually take your word for it, unless murder - fundamental right to counsel ● Johnson - 6th Amend. right to appointed counsel for indigent in federal felony cases - felony = possibility of prison (worse case scenario) ● Gideon - 6th Amend. right to appointed counsel for indigent applicable in all federal & state felony cases ● Argersinger - no person may be imprisoned for any offense without counsel representation at trial - problem: if you refuse your right to counsel, you are bullet-proof – no jail states may now have incentive to decriminalize many crimes - cannot suspend sentence without first appointing lawyer for an indigent Appeals Right to Counsel on 1st Appeal - every indigent has a right to have a transcript of their trial provided free - any financial impediments to an appeal will be waived for indigents - state will pay for death penalty appeals to the very end ● Douglas - indigent has an absolute right to appointed counsel on first appeal ● Ross v. Moffitt - no right to appointed counsel for discretionary appeals - D needs attorney on appeal as a sword, not shield (trial) - most of the work is done by attorney who prepares 1st appeal - high costs to state - D must have a fair & adequate opportunity to present his own defense Basic Tools must be provided to indigents: 1) benefit of that tool to the D (subjective standard) 2) cost to state 3) probable value to the proceedings (objective standard) Criminal Procedure - 18 ►JOINT REPRESENTATION, PRO SE DEFENSE & COUNSEL OF CHOICE Joint Representation - each D has a right to have his own attorney - conflict of interest: - D1 & D2 will point finger at each other - D1 testimony could deter D2 defense - plea bargain for one could compromise the other - if appointed counsel raises possibility of conflict, judge has obligation to inquire as to conflict of interest Pro Se Defense ● Faretta Waiver - D has a constitutional right to proceed w/out counsel & represent himself when he voluntarily and intelligently elects to do so - burden on prosecution to prove by preponderance of the evidence that D voluntarily/intelligently waived right - factors to determine knowing/intelligent waiver: i. age ii. physical & mental condition iii. education & experience iv. circumstances surrounding case - make Faretta waiver => waive ineffective assistance of counsel defense - a person can lose their Faretta right to self-representation at any point => judge appoints counsel - in every Faretta waiver case, a good judge will appoint advisory counsel - counsel who sits in on trial cannot interfere w/D‟s constitutional right to represent himself only Faretta D may initiate contact w/advisory counsel - if D loses his right to self-representation, advisory counsel brought in Counsel of Choice - trial ct has absolute discretion to appoint competent counsel for D indigent has no right to dictate who will represent him ► INEFFECTIVE ASSISTANCE OF COUNSEL (IAC) - system is balanced to have adversaries of equal footing fighting it out & hopefully leading to fairness reliability of system is better preserved if both sides have lawyers Criminal Procedure - 19 ● Strickland Test 1. D must show that counsel’s representation fell below an objective level of reasonableness, AND - viewed from perspective of lawyer under circumstances not from hindsight - must attack something substantive that lawyer did cannot just attack lawyer‟s strategy 2. Counsel’s deficient performance prejudiced D so as to deny him a fair trial - D must show that „but for‟ errors, outcome would have been difference - very difficult standard if prosecution has overwhelming case, D‟s counsel won't matter ● Nix v. Whiteside - counsel has no obligation to represent a D he knows is committing perjury - no right to counsel who will cooperate in planned perjury ► PRE-TRIAL IDENTIFICATION - eyewitness testimony is terrible  subject to frailties of human mind - 5th Amend: - generally no 5th Amend. violation because ID is not testimonial Wade-Gilbert Standard - 6th Amend: - there is an absolute right to counsel at any critical stage of the adversarial proceedings – includes post-indictment lineups/showups - violation of this right makes procedure & anything that flows from the procedure per se inadmissible - Critical Stage = any time when there is grave potential for substantial prejudice to the accused and the need for its reconstruction at trial i. presence of counsel raises standard of operation ii. counsel is in the best position to reconstruct events at trial iii. part of D‟s case upon cross-examination iv. concern w/reliability of the procedure - pre-indictment lineups/showups are not critical stages (no right to lawyer) - no existing commitment to prosecute the accused - Wade does not apply to showing of photos (no right to lawyer) - if critical stage, no attorney present => all product inadmissible Criminal Procedure - 20 - Exception: in-ct ID of D is admissible if prosecution can show independent basis for the ID - 3 factors that will allow eye witness from lineup to stand: 1) opportunity to observe during original occurrence - purse snatching vs. rape 2) existence of discrepancy between any pre-lineup description and D’s actual description - favors D if the 2 descriptions are so different 3) lapse of time between lineup & in-ct ID - the more time, greater chance of attenuation - if Wade-Gilbert does not apply (because not a critical stage)  Due Process analysis 1. unnecessarily suggestive 2. unreliability of lineup procedure i. opportunity of witness to view D at time of offense ii. witness’ degree of attention iii. accuracy of initial description iv. level of certainty about confrontation v. time between crime occurrence & documentation - if under the totality of the circumstances, the ID was the result of suggestive procedures & consequently unreliable, then the ID violates Due Process - Due Process transcends Wade-Gilbert ANALYSIS 1) Did the pre-trial ID take place post-indictment? yes  #2 no  #3 2) Was the D‟s counsel present? yes  constitutional no  inadmissible 3) Was the ID reliable? yes  constitutional no  inadmissible 4) Was the ID testimonial yes  inadmissible Criminal Procedure - 21 ► CONFESSIONS & ADMISSIONS (Due Process & Right to Counsel Approaches) - admission = anything said by the party at any point is an admission whether it is actually incriminating or not - confession = must be actually incriminating - Concerns: 1) Trustworthiness of statement - function of voluntariness of the confession & reliability of the situation 2) Police conduct/tactics - coercive conduct plays to integrity of system Due Process - 1) is the statement the product of FREE & VOLUNTARY choice? - 2) what kind of POLICE TACTICS were used during interrogation? - examine totality of the circumstances [age, mental state, env.] ● Connelly - D walks up to cop & confesses re: murder - D Mirandized, waives rights, discloses past mental condition - coercive police activity is a necessary predicate to finding that a confession is not voluntary w/in Due Process meaning - link between coercive state activity & confession - usually comes up at waiver phase of Miranda 6th Amend. ● Massiah - any post-indictment statement deliberately elicited by the police in the absence of counsel is inadmissible - application from Wade – absolute right to counsel at any „critical stage‟ of adversarial proceedings. violation makes the statements & anything that flows from the statements per se inadmissible - 14th Amend. not applicable – trustworthy, police conduct ok - may apply even if Miranda is initially waived (Nix v. Williams) - Application to multiple offenses - if a subsequent charge fits „within the four corners‟ of a previous offense that D is accused of, the two charges will be considered as the same transaction for 6th Amend. purposes Criminal Procedure - 22 - Transition to Miranda - when the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the interrogation of the accused is a CRITICAL STAGE and the accused has right to counsel (even before formal indictment) - stage when legal guidance was most crucial to D ► MIRANDA - applicable only prior to a CUSTODIAL INTERROGATION - accused must be informed in clear & unequivocal terms of right to: i) remain silent ii) consult a lawyer, if can't afford one, one will be appointed - any statements taken after privilege is invoked  inadmissible Miranda Analysis: 1. Is this a State Action? - make sure it is a police officer, or TLO – acting like officer? 2. Is the Person Actually in Custody? - a person is taken into custody for Miranda purposes when they are otherwise deprived of their freedom of action in any significant way (viewed from perspective of Rx accused) A) in physical custody, or B) otherwise deprived of freedom in a significant way (TARP) 3. Is there an Interrogation or Question Pending? ● Innis - Miranda comes into play whenever a person in custody is interrogated – subjected either to express questioning or actions on the part of police that the police SHOULD know are RX LIKELY to elicit an incriminating response from the suspect - standard = Rx police officer (objective standard) - cop motive is irrelevant – analyze ACTION - cop‟s conversation in car re: possibility of handicapped girls finding gun => D in car confesses to crime - D in custody, & waived Miranda & led cops to gun - holding: no interrogation – no express questioning of D subtle compulsion by cops is acceptable Criminal Procedure - 23 4. Was there a Valid Waiver? - must be clear, voluntary, unequivocal waiver Due Process Analysis - silence ≠ implied waiver - prosecution has burden to show by preponderance of the evidence (more likely than not) that D waived his Miranda rights - only time cops cannot use lies/trickery is to get Miranda waiver EXCEPTIONS: 1- questions normally attended to booking process are ok 2- Miranda not required when D is unaware that he is speaking to a law enforcement officer & gives a VOLUNTARY statement - agent placed in D‟s prison cell to inquire about another crime 3- FOLLOW-UP questions are admissible if they are deemed to be part of the voluntariness of D‟s statement & consistent to the facts D wanted/intended to divulge 4- EXIGENT CIRCUMSTANCE will allow cop to dispense w/Miranda after arresting a suspect & ask questions necessary to allay fears - i.e. – someone‟s life is in danger 5- shield provided by Miranda cannot be perverted into a license to use perjury by way of defense - INCONSISTENT STATEMENTS during confession may be used to impeach credibility of D 6- D‟s SILENCE at time of arrest & after receiving Miranda warnings may not be used for impeachment purposes – violates Due Process 7- Miranda not extended to require police to keep suspect abreast of status of his LEGAL REPRESENTATION 8- suspect‟s blur-out ≠ interrogation  admissible - Miranda protections invoked when physical nature of tests begins to yield testimonial statements testimonial = response requiring suspect to communicate an express or implied assertion of fact or belief - Miranda waiver remains valid for subsequent interrogations conducted w/RX period of time - once the accused has made a knowing & intelligent waiver of his Miranda rights, he may unequivocally invoke either 5 th or 6th Amend rights „I don‟t want to talk anymore‟  5th Amend - attenuation analysis – poisonous tree „I want my lawyer‟  6th Amend - only way to get this info in is if suspect reinitiates confession & there is fresh Miranda reading/waiver Criminal Procedure - 24