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Exclusionary Rule a. Exclusionary Rule: i. Prohibits the introduction at a criminal trial ogf evidence obtained in violation of Defendant’s 4th, 5th, or 6th Amendment Rights. b. Limitations on Exclusion i. Exclusion does not apply to conduct to grand juries. 1. A grand jury may be compelled to testify on illegally seized evidence ii. Exclusion is not a available remedy to civil proceedings iii. In order to qualify for exclusion the search in question must violate the federal constitution or some state statute iv. Exclusion is not an available remedy in parole revocation proceedings. v. Good Faith Defense to Exclusion 1. Police have Good faith reliance on a judicial opinion later changed by another opinion 2. Good faith reliance on a statute or an ordinance later declared unconstitutional 3. Good faith reliance on a defective search warrant. a. EXCEPTIONS- police cannot get the benefit of the good faith defense if i. If the affidavit for an underlying warrant is so lacking in probable cause that no reasonable police would rely on it. ii. Warrant is invalid on its face (warrant fails to state with particularity the place to be searched and the things to be seized) iii. Police officer lied to or mislead the magistrate iv. The magistrate has wholly abandoned his judicial role. vi. Use of excluded evidence for impeachment purposes 1. confessions inadmissible only because of failure to comply with Miranda warnings can be used to impeach the credibility of the defendant.
2. All illegally seized evidence can be used to impeach the defendant (only the defendant, not defense witnesses)!!!****** c. Fruit of the Poisonous Tree i. Not only must illegally obtained evidence be excused, but also ALL evidence obtained or derived from exploitation ii. 3 exceptions: Government can break the chain 1. Independent Source 2. Inevitable Discovery 3. **Intervening acts of free will on the part of the defendant. a. D was illegally arrested on Friday not, on Saturday he was let out on bail, Monday he hired an attorney, and Tuesday he went to the police and confessed. All these intervening acts broke the chain. II. Arrest Warrants a. Arrest warrants are generally not required for an arrest in a public place b. Non-emergency arrest of a person in his own home requires an arrest warrant. c. Station House Detention: police need probable cause to arrest you to get you to come to the police station either for fingerprinting or for interrogation. Search & Seizure a. As many as 8 of the 13 questions are about the law of search & seizure b. (pg 5 of Conviser Mini-Review) c. TEST i. Does the person have a 4th Amendment Right? 1. Requirements a. Government Conduct b. Reasonable expectation of privacy ii. Do the police have a search warrant? 1. If the warrant is good, you have a valid search. 2. If the warrant is no good, look at exclusionary rules.
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d. Governmental Conduct? i. Police, on or off duty ii. Private Individual acting at the direction of the police. iii. Privately paid police are NOT government conduct UNLESS they are deputized with the power to arrest you. 1. i.e. campus police e. Reasonable Expectation of Privacy? i. Standing Requirement 1. 3 automatic categories of standing (if you show one of the following, you always have standing) a. Own the premises searched. b. Live on the premises searched, whether you have ownership interest or not. c. Overnight Guests 2. 2 categories where you sometimes have standing a. sometimes have standing if you own the property seized. b. Sometimes have standing if you are legitimately present when the search takes place. 3. No Reasonable expectation of privacy a. Items government wants to seize is a public item- held out to the public, seizure of which do not implicate a violation of your right of privacy. b. Public Items: i. Sound of your voice ii. Style of your handwriting iii. Paint on outside of your car iv. Account records held by a bank v. Monitoring the location of your car on a public street or in your driveway vi. Anything that can be seen across the open fields vii. Anything that can be seen from flying over in the public airspace viii. Odors emanating from your luggage ix. Garbage on your curb awaiting collection 4. 3 situations regarding standing on Bar***
a. overnight guests do have standing to object b. passengers in cars who don’t claim they own their car and don’t claim the property in the car DO NOT have standing just because they were present when the search took place. c. An individual briefly on the premises of someone else solely for the business of cutting up drugs does not have standing f. Do the police have a valid search warrant? i. Requirement: Warrant should issue on a showing of probable cause. 1. Probable Cause= legal standard in criminal procedure that is fact specific. ii. Use of Hearsay: 1. Police do not have to rely on their own observations 2. Use of Informers: you can have a valid warrant based on part on an informers tip, even though that informer is anonymous. iii. Requirement: Warrant must be Precise on its face, must state with particularity the place to be searched and the things to be seized. iv. Requirement: Neutral and detached magistrate requirement 1. magistrate that issues the warrant must be neutral from law enforcement. 2. Who is neutral? a. Not state attorney general b. Not US attorney general c. Court clerks are sufficiently neutral from law enforcement that they can issue warrants for violation of city ordinances. 3. Good Faith Defense not available if the magistrate is NOT neutral.*** IF the warrant fails because it was not issued by a neutral and detached magistrate, you cannot save the evidence with a good faith exception to the exclusionary rule g. Exceptions to Warrant Requirement
i. If warrant is no good, see if you can save the evidence with a Good Faith or if there is no warrant at all: see if there is an exception. ii. 6 Exceptions 1. Search incident to a lawful arrest a. If the arrest is unlawful, the search is unlawful b. The search must be contemporaneous with the time and place of the arrest. c. Geographic scope limitation- Grab Area i. Person and the places where he could reach. (wingspan) 1. cannot search the back bedroom if you are in the living room. ii. When a person is validly arrested in a car, the police can search the entire interior of the car, but not the trunk. Their wingspan includes the entire interior. 2. Automobile Exception a. If police have probable cause to believe that a vehicle such as an automobile contains contraband or evidence (fruits or instrumentalities) of a crime, they may search the vehicle without a warrant. b. ***They can search the interior compartment, the trunk, and any package, luggage, or any other container that could reasonably contain the item with which they had probable cause to look- whether it is owned by the driver or the passenger. c. This can arise after the car is stopped, but must arise before anything or anyone is searched. i. Police pulls over a car, gives a speeding ticket, police notices that driver and passenger fit description of people involved in an auto-theft. If
the magistrate had been there, he would have issued an arrest warrant. 3. Plain View a. Police officer must be LEGITIMATELY present where he is doing the viewing. A police officer with no authority to be in your home sees the marijuana, he is not legitimately present. 4. Consent a. Consent must be VOLUNTARY & INTELLIGENT. b. **Police saying they have a warrant NEGATES consent. c. Police do NOT have to warn you that you have a right not to consent. d. Authority to Consent i. Where two or more have an equal right to use a piece of property, any one of them can consent to a warrantless search. 5. Stop and Frisk a. Requirement = REASONABLE SUSPICION. b. Reasonable suspicion < Probable Cause c. Police observed two teenage boys pushing a baby-carriage at night with a typewriter in it. Then police can frisk- if they find a weapon d. Weapons are ALWAYS admissible as long as the stopping was reasonable. e. ***If frisk reveals evidence of crime is not a weapon- test is how much LIKE A WEAPON OR CONTRABAND could it have seemed from the outside. 6. Hot Pursuit & Evanescent Evidence a. Evanescent evidence = evidence that might go away if we took the time to get a warrant. Ex. scrapping under the D’s fingernails. b. Hot pursuit of a fleeing felon do not need a warrant to search.
i. Cab driver with a radio heard the broadcast of a fleeing felon and saw the felon run into a building. Cab driver told the police, who went into the building, found him on the 3rd floor, and found evidence in the basement. Valid. ii. **Once the police enter someone’s home from a hot pursuit, there is no effective legal limit on the search. c. Police in hot pursuit may enter ANYBODY’S HOME, even if it is not the felon. h. Wiretapping & Eavesdropping i. All wiretapping and eavesdropping requires a warrant. ii. EXCEPTION: everyone assumes the risk that the person to whom he is speaking either consents to the government monitoring the conversation, or will be wired. IV. Miranda****** (essay) a. Warning i. Right to remain silent ii. Everything you say can be used against you iii. Right to an attorney iv. If you cannot afford an attorney, one will be provided for you. b. Requirements i. Custody 1. =Person is in custody if at the time of the Interrogation, he is not free to leave. 2. Probation interviews are NOT custodial 3. Routine Traffic Stops are NOT custodial. ii. Interrogation 1. = any conduct where the police knew or should have known they would get a damaging statement. a. more than the asking of questions 2. Miranda is not required prior to a spontaneous statement. c. Miranda Waiver
i. Waiver must be KNOWING, VOLUNTARY, and INTELLIGENT. ii. There can be no waiver from Silence or shoulder shrugging th d. 5 Amendment Right to Counsel i. Once the Defendant asserts his right to terminate the interrogation, and requests an attorney, re-initiation of the interrogation by the police without his attorney present violates his 5th Amendment right to counsel. ii. ARISES IN ONLY ONE CIRCUMSTANCE 1. when someone who hears a Miranda warning, says I want a lawyer. iii. Not offense specific*** 1. Police may not reinitiate an interrogation on ANY subject (different from 6th amendment right to counsel) th e. 6 Amendment Right to Counsel i. in all criminal proceedings, Defendant has a right to counsel. ii. OFFENSE SPECIFIC. 1. different offenses= each crimes requires proof of an additional element that the other crime does not. iii. Arises Post-charges filed. V. Pre-trial Identification a. Attacking a Pre-trial Identification i. Post-charged Line-ups and show-ups give rise to a right to counsel. 1. There is no right to counsel at the showing of photographs. ii. Violation of Due Process 1. if the lineup is suggestive, it is violative of due process. 2. i.e. only one white person in the lineup b. Remedy: i. We exclude the in-court identification. ii. Just because we show for the defense either a denial of right to counsel or due process, they state can still assert an INDEPENDENT SOURCE for the identification.
1. Independent Source= ample opportunity to look at the guy at the time of the crime. 2. If the prosecutor can show the independent source, we will permit the lineup, even though there has been a due process or 6th amendment violation. VI. Pretrial Issues a. Bail i. Bail issues are immediately Appealable ii. Preventative detention is constitutional b. Grand Juries i. States do not have to use grand juries as a part of their charging process ii. Grand Jury witness may be compelled to testify based on illegally seized evidence. iii. The proceedings of grand juries are secret. Defendant has no right to appear and no right to send witnesses.
VII. Right to Fair Trial a. Right to an unbiased judge i. Bias= Financial interest in the outcome of the case or some actual malice against the defendant ii. If judge says to defendant the last time she sentences, “next time you are back here, I’m giving you the maximum.” Judge is not biased. VIII. Right to Jury Trial a. Attaches any time the defendant is charged for an offense if the maximum authorized punishment exceeds 6 months. b. If the maximum is UP to or including 6 months, there is no right to a jury trial. c. Criminal Contempt i. If the sum of the sentences for criminal contempt exceed 6 months, you have a constitutional right to a jury trial. d. Number of jurors i. Minimum number of jurors must be 6. ii. If you use 6, they must be unanimous. iii. There is no constitutional right to a unanimous jury of 12 people. The supreme court has approved a nonunanimous jury of 9-3, 10-2, and 11-1.
e. Peremptory Challenges i. It is unconstitutional for the prosecution or the defense to exercise peremptory challenges to exclude from the jury on account of their RACE or GENDER. IX. Right to Counsel (essay) a. Right to counsel = right to effective assistance of counsel b. On essay, set out the standards, then deny them relief unless you really feel they are not guilty. c. Standards***(memorize) i. Must show deficient performance by counsel ii. But for such deficiency, the result of the proceeding would be different. Guilty Pleas & Plea Bargaining a. Guilty Pleas= waiver of the right to jury trial b. The Supreme Court will not disturb guilty pleas after sentencing c. Supreme Court has adopted the Contract view of plea bargainings adopt contract law. i. Plea agreement should be revealed in the record ii. Judge must address defendant personally ABOUT 1. nature of the charges 2. the maximum authorized sentence and any mandatory minimum sentence*** 3. his right to plead not guilty 4. (all this must be on the record) iii. If mistake in plea bargaining 1. Remedy= defendant may withdraw his plea and plead again. d. Collateral Attacks on guilty Pleas after sentence: i. General Rule: Supreme Court will not disturb guilty pleas after sentence. ii. EXCEPTION: 4 good basis for withdrawing guilty plea after sentence 1. Plea was involuntary (mistake with plea taking ceremony) 2. Lack of jurisdiction (court that took the plea lacked the jurisdiction to do so)
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3. Ineffective Assistance of Counsel (no claim less likely to succeed). 4. Failure of the Prosecutor to keep an agreed upon plea bargaining. a. Court will determine if the circumstances require specific performance of the plea agreement or whether defendant should be granted an opportunity to withdraw her guilty plea. XI. Sentencing a. *General rule: a defendant may NOT be given a harsher sentence on retrial after a successful appeal.
XII. Death Penalty a. Any question about the death penalty, recite verbatim: i. Any death penalty statute that does not give the defendant a chance to present mitigating facts and circumstances is unconstitutional. ii. There can be no automatic category for imposition of the death penalty. 1. “if you kill a police officer, you get death”= unconstitutional iii. The state may not by statute limit the mitigating factors; All relevant mitigating evidence must be admissible or the statute is unconstitutional. iv. Only a jury, and not a judge, may determine the aggravating factors justifying imposition of the death penalty. XIII. Double Jeopardy a. Jeopardy Attaches i. AT A JURY TRIAL WHEN THE JURY IS SWORN ii. AT A JUDGE TRIAL WHEN THE FIRST WITNESS IS SWORN b. Jeopardy does not generally attach when the proceedings is civil. (you can have a prosecution for smuggling and a civil proceeding to collect the smuggled items.) c. Exceptions Permitting Re-Trial i. Jury is unable to agree on a verdict (mistrial)
ii. Mistrials for Manifest Necessity 1. example: defendant gets an appendicitis while on trial. Discharge the jury and re-try Defendnat. iii. Retried after a successful appeal iv. *Breach of an agreed upon plea bargain BY the Defendant. 1. Rule: when a defendant breaches an agreed upon plea bargain agreement, his plea and sentence can be vacated and he can be retried. d. 2 crimes do not constitute the same offense if each crime requires proof of an initial element that the other does not. i. Manslaughter with a vehicle and Hit&Run do not require the same elements & therefore are not the same offense ii. Recklessness & Drunk Driving are not the same offense e. Lesser Included Offenses i. Being put in jeopardy for the greater offense bars retrial for the lesser offenses. ii. Being put in jeopardy for the lesser offense bars retrial for the greater offense robbery. iii. Exception****** 1. if tried for battery, and victim dies, you can be tried for Murder iv. i.e. Robbery = assault + larceny f. Separate Sovereigns i. You can have a separate prosecution under state and federal governments ii. Jeopardy does NOT attach because they are separate sovereigns. iii. States are NOT the same sovereign iv. State and a locality in the state ARE the same sovereign. XIV. Self-Incrimination a. 5th Amendment Privilege b. Who can assert? i. Anybody. A party, a witness. ii. This is true in Any kind of case. iii. Anyone asked under oath in any kind of proceeding can assert a 5th amendment privilege. c. If you do not assert a 5th Amendment privilege (even in civil proceeding), the response to which might incriminate you,
you must assert it the first time that question is asked, you have waived that privilege for all subsequent prosecutions, and you can’t bar that evidence. d. Scope of the Protection i. 5th Amendment does not protect us from using our bodies to incriminate us. ii. Only protects us from Compelled testimony iii. Cannot make us undergo custodial police interrogation or take a lie detector test. e. It is Unconstitutional for the prosecutor to make a negative comment to the jury about a defendant’s failure to testify or his remaining silent on his hearing the Miranda warnings. f. Eliminating the Privilege i. Immunity (Use and Derivative Use) 1. you can prosecute only on evidence you have before that immunity. ii. No possibility of incrimination (i.e. Statute of Limitations has already one). iii. Waiver 1. a criminal defendant by taking the witness stand waives the privilege as to all legitimate subjects of cross examination.
Hot Topics 1. Exclusion and its limitations & fruit of the poisonous tree doctrine 2 Search and Seizure: Flow chart on page 5 3. Miranda (at least 2 questions) 4. Pretrial Identification 5. Right to jury trial and guilty pleas 6. Ineffective Assistance of Counsel (essay) 7. 5th Amendment: Double Jeopardy and Compelled Testimony