Crim Pro Outline

CRIMINAL PROCEDURE OUTLINE – CALDWELL – SPRING 2007 IV Amendment – People have the right to be secure in their persons, houses, property, & effects against unreasonable searches & seizures. No warrants can be issued unless supported by probable cause, and supported by evidence given through oath or affirmation demonstrating the presence of probable cause SEARCH I. Was it a Search? Two Prong Katz analysis A. Did He have an actual (subjective) expectation of privacy as to the world w/ respect to the evidence being used against him? B. Was this subjective expectation of privacy objectively reasonable? 1. If there was no search, or if search was rx, the evidence is useable. 2. Katz v. U.S. - police tapped telephone booth, that was deemed a search. 3. Abandoned Property – can’t have an expectation of privacy to this. Abandonment can be explicit or implicit. II. Reasonableness Clause // Warrant Clause A. A search is reasonable w/ a warrant. A search w/o a warrant is not always unreasonable b/c there are exceptions. III. Enhancement Device A. Is that device common? 1. If device is common and conduct is not otherwise a search, then evidence is usable as long as it’s used in a common way. 2. If device is uncommon, that will render the conduct a search. B. Is it used in a common way? 1. Kyllo - treat the home as a castle --> thermal imaging device used to find marijuana being grown in home = search 2. If common device is used in an uncommon way, that = a search C. Important question to ask = whether the technology is reasonable in the use that it is being put to, not whether the public widely knows about it. IV. Open Fields Doctrine A. If it's in an open field, you can't create an expectation of privacy where none exists. Open Fields don’t constitute effects under 4th Amendment, so you can’t have an expectation of privacy in it 1. Aerial surveillance ≠ a S/S B. Open Fields does not extend to curtilage; if Cops violate curtilage it = search ** CURTILAGE – Inhabitance of the dwelling used as the people go about their daily life** only associated with the home - Outside looking in is fair game - there is a heightened expectation of privacy here 1. Four factors used to determine curtilage – a. Proximity of area to home b. If area was included in an enclosure surrounding the home (i.e. fence) c. Nature of uses of the area 1 d. Any steps that the individual took to protect the area from observation 2. California v. Greenwood – Once you take property out of the cartilage and put it in the public domain, there is no rx expectation of privacy to it. (i.e. trash). So if police go through it, it’s not a search. 3. Standing outside curtilage & looking in does not constitute a search b/c there is no reasonable expectation of privacy if the public can look in a. But a trespass to curtilage is a search 4. If an individual is subject to scrutiny by society, then they have no legitimate expectation of privacy that would bar the same activity by the gov’t B. Oliver v. U.S. - Growing marijuana in open field useable, even though police trespassed on the ground to find it. C. Dashboard VIN – Looking at VIN ≠ search b/c it was never intended to be concealed. D. Per se activities occurring in open fields don’t have an expectation of privacy 1. Normally happen in an open field SEIZURE I. If it turns out that a Cop seized a person for the search, then you have to ask whether it was a reasonable seizure. If it's not a seizure then the evidence is admissible. It is reasonable if there is probable cause or reasonable suspicion. II. Test: Would a reasonably innocent person feel so intimidated by police conduct that he would not feel that he could simply turn and walk away? (from Delgado Rehnquist) A. Mendenhall Factors: (apply when person complies with police officers' requests) 1. Threatening presence of more than one officer 2. Display of a weapon 3. Some manner of physical contact 4. use of language or tone indicating whether compliance might be compelled. B. Bostick – bus ride at short layover – Police stood over him and asked to look in his bags  found contraband: seems like Court thought it wasn’t a seizure. C. California v. Hodari - Hodari kept running when police demanded he stop, so he wasn't seized because he felt at liberty to leave. (apply Hodari to people who don't comply with Police officers' requests) 1. Test = point of seizure is when a person submits or is tackled III. TYPES OF SEIZURE A. Detention 1. To justify a detention seizure, the police officer needs reasonable suspicion - an assessment of the whole picture by those versed in the field of law enforcement must yield a particularized suspicion that the particular individual being stopped is engaged in wrongdoing. 2 a. ** Ask whether, as law abiding citizens, we would want the police to stop and make a brief, further inquiry as to what's going on. b. If there was no reasonable suspicion, the detention is invalid and all evidence coming forth from it is not usable. c. If basis of detention is reasonable suspicion, then the inquiry must be reasonably related in scope to the circumstances which justified the initial stop. 1) i.e. if detaining for narcotics, probably not rx to look for weapons on him d. Summers v. Michigan – mere association without more can lead to rx suspicion, but can never lead to PC 2. When in doubt, start with detention and work up to custodial arrest. a. Terry v. Ohio (1) Once Cop has reasonable suspicion that criminal activity is afoot, he has a right to detain to briefly further the investigation. (2) If cop has reasonable suspicion that suspect is armed and dangerous, he has a right to frisk so that he can be safe while briefly furthering the investigation. (a) we are not going to demand that every frisk look like the standard one - Adams v. Williams (b) can include a brief "frisking" of the car, where cop opens glove compartment. Long v. Mich. (c) we only ask whether conduct was reasonable given the information that he had b. Flight from Cop ≠ going about one’s business  rx suspicion 3. Informant tips a. Anytime there is 3rd party information, run it through two tests: 1) Credibility 2) First hand knowledge - Aguillar – Spinelli test – Now we use Gates (for known and anonymous)…So these are just factors we can use to establish reliability  Look at totality of the circumstances b. Anonymous tips - If an anonymous tipster can predict future movements / actions of suspect then it will be given more support. Illinois v. Gates c. Known informants - If informant is known to be reliable, their tips can be sufficient to give rise to PC. Do cops need to corroborate? Adams v. Williams; Draper – snitch was a special employee in the bureau of narcotics. d. Use totality of circumstances approach to see if info gives PC 4. Investigative Detentions must be no longer than necessary to effectuate the purpose of the stop. a. United States v. Sharpe – In assessing whether a stop is too long, 3 examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant. Brief furthering is flexible, it can last a while. Here it was 20 minutes. Factors to consider: 1) whether police are acting in a swiftly developing situation 2) Court should not indulge in unrealistic second-guessing = hindsight analysis b. When Police have probable cause, they can do whatever they want, doesn’t matter if it’s fair… i.e. taking off panels, punching through dry wall, etc… c. Dunaway v. NY – can’t detain someone for a prolonged period to question / interrogate them w/ only rx suspicion d. Hayes v. FL – Taking suspect from home to police station to finger print him w/o PC or prior judicial authorization = exceeding bounds of Terry. 5. Highway Checkpoints a. International border – You have no 4th Amendment protection b. Non border fixed checkpoint – intrusion = rx limited time that you are pulled over. Sitz – sobriety checkpoint legal b/c of public policy outweighing limited intrusion c. If set up for the sole purpose of discovery and interdiction of ordinary criminal wrongdoing, then it is illegal. Edmonds – searching for illegal narcotics. d. Traffic Stop – If pulled over for traffic violation, Cop has PC. But it is not a custodial arrest, so Cop can’t do all the things he would be able to do in a custodial arrest. 1) Caballos – Cops used a search dog in a usual way (enhancement device). The traffic stop wasn’t extended beyond the time necessary, so no search, evidence admissible. 2) If cop’s conduct wasn’t unrx court usually turns a sympathetic eye B. Custodial Arrest 1. Need Probable Cause - Based on facts within the personal knowledge of the officer or affiant sufficient to convince a reasonably cautious person that an offense has been committed or is in the process of being committed by the accused. a. Analysis - would a reasonably prudent judge have signed an arrest warrant at that point? b. Mistakes are ok with PC as long as conduct was rx under Miller ARREST I. A police officer can make an arrest w/o a warrant in a public place for: A. a misdemeanor or felony committed in his presence 4 B. a felony not committed in his presence if there was PC for making the arrest notwithstanding adequate opportunity for procuring a warrant. 1. But felony suspect has an absolute right to a preliminary hearing w/in 10 days so the neutral magistrate can make a factual decision as to whether there is PC to keep him in jail. 2. Corollary for misdemeanors is a probable cause hearing – judge can look at police reports and subject to that determine whether there is PC. C. Gerstein stamp – If a cop puts this on his police report, the magistrate can consider his report given under oath and use it to determine whether there was PC. But most cops don’t include it and thus, the magistrate has nothing to consider since the cops aren’t usually in the courtroom. In that case, Judge must cut suspect loose before his hearing date. SEARCH WARRANT MECHANICS AND THEIR EXECUTION I. Knock and Announce Rule – Cops must knock, alert residents that you are there, tell them who you are and why you are there … then wait a rx amount of time before entering. Wilson v. Arkansas. A. Primary reason behind the rule is to avoid violence. B. EXCEPTIONS: 1. When Cop’s safety would be compromised, OR 2. Purpose of arrest would be frustrated if Cop had to knock and Announce 3. Exigent Circumstances – destruction of evidence- Payton v. NY 4. Hot pursuit II. If police only intend to arrest a person and not search the premises, both the arrest and the search implicate the same interests in preserving the privacy and security of the home … so once you break the threshold, you have to do 4th Amendment analysis. III. A search warrant makes search presumptively rx / valid. Puts burden on defense to prove unreasonable. Requirements: A. Probable Cause – B. substantial probability that certain items are the fruits, instrumentalities or evidence of the crime and 1. Must be sufficient connection of items sought w/ particular place C. that these items are presently to be found at a certain place. 1. Must describe sufficiently and particularly the place to be searched D. Court applies rule of common sense – there is nothing magical about the description, it just must be such that a rx officer could find the place given the description. 1. Per se contraband doesn’t need to be described w/ as much particularity as innocuous items i.e. stolen toasters IV. When there is no warrant, the burden is on the prosecutor to prove rx 1. BUT if search warrant is overly broad based on what the affidavit gave PC for, the Court will invalidate everything found. 5 2. Must describe with particularity things to be searched for or seized. If it’s not per se contraband (i.e. stolen refrigerators) you need to be as specific as possible. If it is drugs or automatic weapons, can be more general. 3. If cop finds something they were not looking for while acting rx and pursuant to the rules, it is admissible. E. False Information – If some facts in the affidavit prove to be lies, it won’t taint the whole warrant, you can just blue pencil out those lies. V. Timeliness A. Must execute a search warrant within 10 days. After that, it’s presumptively stale. B. Within the 10 days, i.e. 3 days after the issuance, still need PC at time the cops execute the warrant. C. Execution of warrant at night = presumptively unreasonable unless the magistrate authorized nighttime execution. Reasons: 1. escalated chance of violence 2. midnight terror 3. Cop / affiant would have to set forth reasons for nighttime execution and judge needs to sign off on it. EXCEPTIONS TO WARRANTS I. ARREST WARRANT A. Police have arrest warrant to arrest D (1) at Defendant’s home and (2) a good faith belief that he is home at the time. II. INCIDENT TO ARREST A. Search incident to arrest – once a person is placed under arrest, police can search anything on their person 1. Reasons: a. Cop Safety b. We don’t want suspect to destroy evidence leading to arrest 2. Robinson – Cop arrests Robinson for driving w/o a license… he’s arrested, frisked and Cop found cigarette pack folded weirdly. Heroin admissible . a. Even if there is a less intrusive way to accomplish 2 goals (a and b above), we don’t care b/c we don’t want lower echelon cops to make those distinctions on the field. b. Once a cop makes a custodial arrest, he has the right to monitor the acts of the custodial arrestee. c. If you can do jail time, the cop can make a custodial arrest 3. Chimel v. California – Extends the search police can do on the person when they are custodially arrested to everything within their reach / lunging radius. Also Belton. a. There is an artificial presumption that every person has control over a certain radius in their presence. b. Containers w/in radius can be opened as well, even if locked 6 c. Freeze at the point that Cop made custodial arrest to determine radiating point. 4. Functionally contemporaneous a. US v. Chadwick – Cops arrested two men at a train station carrying a footlocker – they took the locker under their exclusive control but didn’t search it until later. The reasons giving risk to the Chimel rule were no longer being fulfilled  they had to get a search warrant. b. BUT in US v. Edwards – waiting 10 hours to take suspects clothes to collect paint chips was a rx delay in the search incident to arrest and his clothes were never reduced to the exclusive control of the police. 5. Just b/c you have PC to make a custodial arrest doesn’t mean that cops can make a search incident to that PC, they need to actually make the arrest – Cupp v. Murphy – scraping fingernails – evidence ultimately let in under exigent circumstances. 6. Booking Search – Lafayette – During booking process, police have right to inventory the person; includes everything on his/her “person” a. Exception: If police officers were using the inventory rationale to get around the strict search rules, evidence won’t be admissible. III. PLAIN VIEW A. Not an exception, but an extension of the search allowed; allows police to do certain things once they’re past the threshold. 1. Subsequent to a justified prior intrusion 2. Place where cops have a right to be 3. PC to believe evidence they see is incriminatory  they may seize it w/o a warrant. B. Can only look for things where they would logically fit C. Can’t double back to look somewhere you’ve already looked except if rx. IV. CONSENT A. Reasonable belief that consent was the product of a free and unconstrained choice as viewed from the perspective of the officer 1. Would be consenter can limit what, where and when police search and can terminate consent at any time. B. Totality of Circumstances analysis - Factors to take into account (Bustamonte): 1. Age 2. Education 3. Intelligence 4. Environment 5. Custody / Non-custody C. Co-habitants 1. You can give consent to areas that you have control over 2. You can restrict access to parts of the areas that you let them search 3. If one physically present occupant denies consent, Cops can’t enter, even if other person says it’s ok. 7 D. Kids < 18 years old don’t have expectations of privacy in areas jointly shared E. Personal effects are not thought to be off limits to the other spouse. V. EXIGENT CIRCUMSTANCES A. Hot pursuit 1. Has to be fairly close time in proximity – 30 min = too long B. Evidence in process of being destroyed 1. ≠ exigent circumstances if nature of crime is de minimus. C. PC that contraband is there and will be destroyed imminently 1. Cops can freeze the premises and maintain status quo while they obtain a warrant. Need to show: a. PC that there is contraband or evidence of the crime b. Likelihood that it will be destroyed if police leave 2. When freezing premises, Cops can ask occupant to wait outside or if the person won’t, Cops can enter 3. Amount of time for freezing the premises has to be rx – Sharpe. D. Protective Sweep – Maryland v. Buie – rx suspicion that other criminals are on the premises and they pose a threat associated with the crime 1. Police can search in places that weapons might be on theory that suspect might double back and use the weapons. 2. If police linger longer than necessary, their conduct = a search 3. Once the limited goal is accomplished, Cop cuffs him and leave. E. Imminent threat to life 1. If there is PC to believe that there is an imminent threat to life, Cops can enter w/o a warrant. i.e. Cops see a 4 year old home alone. VI. VEHICLE SEARCHES A. Immediate Search w/ PC – Police can seize and search those places where they think evidence of the crime may be. Not limited to a radius as in Chimel. 1. Rationale: a. Mobility of the Car – almost an exigency model b. Lower expectation of privacy 2. RV – lower courts treat it as a vehicle rather than a home, Supreme Court hasn’t ruled on it yet. B. Later search w/ PC  Chambers v. Maroney – If there is PC that there is contraband in the car, there is no concurrent time requirement on it. C. Minor Violation Stop (Pretextual) – Whren – Subjective motivation of Cop doesn’t matter; a violation is a violation. D. Opperman Inventory – If an inventory is done pursuant to a pre-approved administrative procedure and Cops don’t bring any of their subjective skill to the scenario, evidence is admissible. Takes away Cop’s discretion. * Must probe intent here. 1. Rationale: a. Protects against claims of stolen property b. Protects owner’s property c. Protects police from potential danger 2. Containers w/in car can be inventoried. 3. Field Inventory – i.e. locking up a car on the side of the road – cops can 8 do it if it’s pursuant to a pre-approved admin. Policy. 4. Ruse – If Court uses bad faith in doing inventory to get around PC requirement, the fruits of his search won’t be admissible. E. Container w/in Vehicle (Acevedo) – if you pull a container out of the car, you can search it now or later b/c it’s part of the car. F. Search incident to Arrest 1. Right to make a custodial arrest doesn’t give the cop the right to search. 2. Simply b/c the Cop-suspect encounter takes place in a car doesn’t mean the vehicle exception will come into play. Knowles – Cop had PC that suspect was speeding, but not that he had drugs, so he can’t search. VII. MISCELLANEOUS SEARCHES A. Camara Warrant – Administrative inspections and regulatory searches in highly regulated industries. 1. Don’t need any cause to obtain the warrant – b/c of public policy 2. BUT it does protect persons as to when they can be searched 3. It also limits exactly what gov’t officials can do. 4. Skinner – under Federal Safety Railroad Act – we can authorize blood and urine tests b/c public policy concerns outweigh individual’s 4th amend. rights B. Schools – TLO 1. 4th Amendment does apply, but school officials only need rx suspicion to search, not PC a. Rationale – it’s not practical to require principal to get a warrant b. In loco parentis – school administrator / teacher = substitute parent at school 2. Cops on campus – court hasn’t told us which framework they would operate under, but it would probably be TLO and not business as usual BODILY INTRUSIONS I. Blood Samples = a search A. Schmerber – Petitioner in hospital after drunk driving crash – when police ordered nurses to take his blood sample w/o a search warrant, exigent search allows them to use that evidence – in process of being destroyed 1. In CA, when you get a license, you agree contractually to give a blood sample to a Cop w/ PC. II. In violation of 14th Amendment – evidence cannot be introduced where it was procured by conduct so offensive that it was in violation of due process. Due process violation means that it is fundamentally unfair. A. Rochin – Cops enter house w/o PC, petitioner swallows two pills, 3 cops jump him, take him to hospital and make him vomit them up. Evidence not admissible. ** Pre-exclusionary rule case. III. Intrusive violation of body A. Winston v. Lee – bullet in chest of robbery suspect, prosecution wanted to surgically remove it. Court will allow the surgery if there is a compelling need for the evidence in the case. When there is a heightened violation of the 9 sanctity of the body, there will be an evaluation of the quality of the prosecution case. IV. Appearance / Voice / Handwriting  constantly exposed to the public, so no expectation of privacy as to these … no 4th or 5th Amendment violation here. A. BUT making a person w/ a stutter or who spells poorly say/spell the word that is used in evidence would be a violation b/c this is probing into how their mind works, it would be testimonial and could be a 5th Amend. Violation. ST TH 1 , 5 & 6TH AMENDMENT CONSIDERATIONS I. 5th Amendment - Everyone has a constitutional right not to be compelled to testify against himself. A. Rationale: 1. Compulsion is an evil in and of itself 2. Otherwise police could elicit untrustworthy material B. Testimonial, inside the thought process, probing = going beyond the physical manifestations that we expose to the rest of the world which fall w/in 5th Amend. 1. Stutter 2. Spelling the incriminating word wrong C. a search warrant wouldn’t violate, but a subpoena might b/c if they have to produce docs that just by producing incriminate them (b/c indicates that they have control over them) 1. Subpoena = less trustworthy th II. 6 Amendment - A search warrant for a lawyer’s office could violate attorney-client confidentiality  possible 6th Amendment violation – right to counsel A. Andressen v. Maryland – best to go w/ subpoena b/c otherwise, searching yourself will lead to 6th Amend. Violation. st III. 1 Amendment – Zurcher v. Stanford Daily – investigation of Vietnam protest A. Search warrant can issue against a 3rd party – doesn’t change analysis B. We don’t care about the 1st Amendment concerns b/c we assume the judge took this into account already when signing the warrant. EXCLUSIONARY RULE I. RULE: Evidence seized in violation of the 4th Amendment is inadmissible in Federal Court Prosecutions. A. Stated Policy – deter cops (not judges and magistrates) from future illegal conduct & preserve the sanctity of the law  rationale is that the Cop will care enough about losing the evidence that they will conform their behavior to the 4th amendment in the future. 1. Mapp v. Ohio – 1961 – officially ushered in the Warren Court revolution and finally adopted the exclusionary rule. B. Primary Criticisms of the Rule: 1. Not sure the rule deters police - doesn't necessarily accomplish the purpose of the rule 10 More than half of the time, police never learn that D’s motion to suppress has been granted  They can’t educate themselves and learn to do it better the next time around  Lack of communication b/w prosecutors and cops on the field 2. Dis-proportionality - minor violation leads to a dismissal of a serious prosecution. 3. lost prosecutions - sometimes we just can't go forward w/o the evidence that is being sought to suppress. 4. Public Hostility - public gets outraged when damning evidence can't be used to prosecute someone 5. Complicates the laws of search and seizure 6. Leads to cop perjury 7. operation of rule offers no protection to those individuals whose cases were never filed C. As long as Cops act reasonably, i.e. w/ a good faith belief that PC is there, we will admit the evidence. US v. Leon. II. STANDING A. Prerequisite to even raise a 4th Amendment issue; In order to invoke the exclusionary rule, your own 4th Amendment rights must have been violated. Political Decision that the Court has made to reel in the Exclusionary Rule. Rakas v. Illinois. Use Katz analysis here to determine whether 4th Am. violation  Can’t vicariously assert a violation  An expectation of privacy flows from 4th Amend. Violation suffered by the party 1. Ownership – helps somewhat in claiming a violation was suffered 2. Guests in another’s home a. Minnesota v. Olson – an overnight guest has an expectation of privacy and thus standing to assert 4th amendment violation b. Minnesota v. Carter – a guest that doesn’t stay overnight … if there for a few hours for commercial purposes, no standing. We don’t know about whether a social guest would have standing. III. FRUIT OF THE POISONOUS TREE A. If evidence seized was unlawfully obtained, all the following evidence is tainted and therefore inadmissible. B. EXCEPTIONS: 1. Independent Source - Search Warrant – you can strike information in a search warrant that was obtained illegally and if there is still enough to give PC, then it’s ok and evidence is admissible. 2. Inevitable Discovery – Nix v. Williams – Cops would have found body anyway – Prosecutor must prove by a preponderance of the evidence (more likely than not) that they would have found evidence eventually a. Identification of perpetrator – if picture of perp. Was tainted but Victim can prove he would have been able to identify perp anyway, then the in court ID is admissible.  11 3. Attenuation – if the evidence sought to be suppressed is too far from the original taint, it will be admitted. Wong Sun v. US – A = initial violation, then that led to B, which led to C, who confessed later… couldn’t be suppressed. a. Created by intervening acts 1) Passage of Time 2) Independent Acts 3) Criminal Acts by D b. Factors in determining if there was Attenuation: 1) Miranda warnings are helpful but not determinative 2) temporal proximity of arrest and confession 3) Presence of other intervening circumstances 4) purpose and flagrancy of police misconduct RIGHT TO COUNSEL AND OTHER AIDS I. Distinguish b/w retained and appointed counsel A. Gideon v. Wainwright – in all felony prosecutions, whether state or federal, defendants have an absolute right to counsel. Grounded in 6th Amendment. 1. Indigent = decided solely by the discretion of the Court  someone who can’t afford a lawyer 2. Felony = punishable by more than one year; if it’s punishable by incarceration, but max = 1 year, it’s a misdemeanor; No potential for custody = infraction  if it’s a wobbler, look to see what the State filed it as 3. Wasn’t extended to misdemeanors b/c of financial burden a. BUT most states, including CA, will give lawyers to indigents for both felonies and misdemeanors B. Argersinger v. Hamlin – absolute right to a court appointed lawyer for a misdemeanor OR D can’t go to jail… can’t go to jail for a misdemeanor unless you were represented by a lawyer at trial. 1. Can’t suspend a sentence for a misdemeanor in absence of a lawyer C. APPEALS 1. In all cases (felony, misdemeanor, infraction) there cannot be a monetary impediment to bringing an appeal (i.e. filing fees, transcripts, etc…) otherwise this is a Griffen error. a. Right to hire psychiatrists, experts & private investigators? Ack 1) D lawyer must submit request to Judge other than trial Judge 2) Factors: A) Benefit to Defendant B) Cost to State C) Probable value to proceedings (Prosecutor shouldn’t be present here) 2. All indigents have an absolute right to a lawyer on the 1st appeal Douglas v. California a. Every appeal beyond the first is discretionary II. JOINT REPRESENTATION, PRO SE DEFENSE AND COUNSEL OF CHOICE 12 A. Faretta v. California – 6th Amendment grants defendants the right to proceed pro se. 1. D must make knowing and Intelligent Waiver. P has BOP. a. Aware of Nature of Charges against him b. Possible Penalties c. Dangers and disadvantages of self-representation * Prosecutor should inquire whether D apprehends the nature of the charges, offenses included w/in charges, allowable punishments, allowable defenses to charges, and circumstances in mitigation of the charges. 2. Unsolicited advice from stand-by counsel = violation of Faretta and will lead to new trial granted for D. a. BUT if D solicits the advice, that is exactly who he should be used. 3. Judge can terminate Faretta right if D is disruptive in Court B. Multiple Representation 1. Public Defender – No absolute constitutional ban on doing so, but it’s a really bad idea. Attorney's request for separate counsel based on her representation of conflict, judge must investigate whether the conflict is too remote to force the lawyer to continue as counsel for both or all Ds 2. Private Defender – Judge will make a motion sua sponte to inquire C. Counsel of Choice 1. Granting Defendant his counsel of choice as a court appointed defender is 100% within the discretion of the Court. So even if it will cost same as public defender and be better for D, Court can refuse to appoint. Black Panther Case. a. BUT a prior-relationship, lack of delay and lack of issue re: money will help mitigate the discretion. i.e. Harris case. III. EFFECTIVE ASSISTANCE OF COUNSEL A. Counsel must actually “assist” for the accused’s “defense” to be provided. If he does not, then the constitutional guarantee has been violated. 1. Policy Rationale – Accused has a right to receive a fair trial. B. Stickland v. Washington – Two prong test for IAC – (conjunctive, need both) 1. Performance of attorney fell below objective standard of criminal defense lawyer 2. Resulted in prejudicial error  would have affected the outcome. C. A tactical / strategic decision is almost never going to be found as providing ineffective assistance. D. Courts are more reluctant to find retained counsel ineffective than appointed E. Only when surrounding circumstances justify a presumption of ineffectiveness can a 6th Amendment claim be sufficient w/o inquiry into Counsel’s actual performance at trial. United States v. Cronic – 25 year old real estate lawyer appointed, Court said this alone doesn’t mean D received ineffective assistance. F. A D’s right to assistance of counsel is not violated when attorney refuses to cooperate w/ D in presenting perjured testimony at his trial. Nix v. Whiteside. 13 PRETRIAL IDENTIFICATION I. LINEUP A. Post-indictment w/o a lawyer present violates 6th Amendment. US v. Wade – lineup was held post-indictment w/o notice to and w/o presence of counsel. 1. Wade – Gilbert Exclusionary Rule – No in-court identifications are admissible in evidence if their source is a lineup conducted in violation of this constitutional standard. a. Recognizes the reality that people don’t come off their IDs b. Look for attenuation, independent source, discrepancies (b/w description in lineup and pre-lineup). c. B/C this is a critical stage in investigation. Lack of Counsel is prejudicial b/c 1)Mere presence of lawyer will motivate Cops to do better lineup 2) If lawyer is present and can observe lineup, he is in a better position to reconstruct the problem later … able to raise issues as to whether or not the cop said something that might have tipped the lawyer off) d. This rule is not extended to pre-indictment lineups 1) Kirby v. Illinois – initiation of judicial proceedings is starting of adversarial justice when 6th Amendment right attaches. 2) When a person has not been formally charged w/ a criminal offense, use Stovall v. Denno - "Due process clause of 5th and 14th amendments forbids a lineup that is unnecessarily suggestive and conducive to irreparable mistaken identification." --> Court says this strikes the appropriate constitutional balance b/w the right of a suspect to be protected from prejudicial procedures and the interest of society in the prompt and purposeful investigation of an unsolved crime. 2. Post-Indictment – either information has been filed or indictment has been issued. B. When Wade doesn’t apply (i.e. pre-indictment), use due process analysis 1. Show fundamental unfairness, “shocks the conscience” 2. Can still argue due process violation even if a lawyer is present postindictment II. SHOWUP A. Just one person is brought in and shown to V. B. Look at whether it was too suggestive / substantial likelihood of Misidentification (FACTORS) Neil v. Biggers – Rape V IDs 7 months later 1. Opportunity of witness to view the criminal at the time of crime 2. Witness’s degree of attention 3. Accuracy of the witness’s prior description of the criminal 14 4. Level of certainty demonstrated by the witness at the confrontation 5. Length of time b/w crime and confrontation III. PHOTO LINEUP A. No right to a lawyer b/c reconstruction is possible (i.e. we can go back and look at it later on. Simmons v. United States. B. Wade Timeline doesn’t matter. CONFESSIONS I. DUE PROCESS A. In looking for a violation of due process (i.e. fundamentally unfair), look for: Trustworthiness: 1. Voluntariness 2. Police Tactics B. Spano v. New York – 12 hour interrogation, using a false friend to elicit confession, non-narrative nature of confession  many factors led court to say that there was a due process violation and the confession could not be admitted to evidence. 1. “Deliberately Eliciting incriminating statements from D in absence of his lawyers = a violation of D’s rights” C. Colorado v. Connelly – Mentally challenged person came up to cop and confessed to a crime, Cop mirandized him. To exclude the confession here would not fulfill the rationale of the exclusionary rule b/c the Cop did everything right here. 1. Coercive police activity is necessary to predicate the finding that a confession is not “voluntary” w/in meaning of due process clause of 14th Amendment. II. CONFESSIONS AND RIGHT TO COUNSEL A. RULE: Any post-initiation (indictment) statement in the absence of counsel that is deliberately elicited by the police is inadmissible 1. Massiah v. United States – police taping convo in Massiah’s friend’s car w/o Massiah’s knowledge post-indictment  couldn’t admit incriminating statement at trial b/c his right to have a lawyer at a critical stage of trial was violated. 2. Brewer v. Williams – Cop giving Christian Burial Speech deliberately elicited incriminating info from D and this is inadmissible even though he had been Mirandized b/c Cop didn’t tell D that he had a right to a lawyer at that time. B. RULE: Informant, either through prior arrangement or voluntarily, reporting incriminating statement to police ≠ violation of 6th Amendment. D must show that police and their informant took some action beyond merely listening, that was designed deliberately to elicit incriminating remarks. 1. Kuhlman v. Wilson - Cops had arranged informant in cell w/ D to listen, but instructed him to not ask any questions  no violation 2. probably if Cops just put D together w/ a friend expecting him to make an incriminating statement is not enough to be a violation 15 3. BUT Cop giving Christian Burial Speech deliberately elicited incriminating info from D C. RULE: 6th Amendment right is offense specific. D’s statements re: offenses for which he had not been charged with are admissible notwithstanding attachment of 6th Amendment. Doesn’t matter if the offenses are “factually related” 1. Texas v. Cobb – Offense = focus on what D is charged with. D. RULE: Standard is whether the police investigation has focused on a particular individual. If so, that means it’s a critical phase where lawyer’s presence would make a difference. No lawyer = 6th Amendment violation. Factors: 1. Investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect 2. Suspect has been taken into police custody 3. Police carry out a process of interrogations that lends itself to eliciting incriminating statements 4. Suspect has requested and been denied an opportunity to consult w/ his lawyer AND 5. Police have not effectively warned him of his absolute constitutional right to remain silent. Escobedo v. Illinois III. CONFESSIONS AND SELF-INCRIMINATION CLAUSE A. Miranda Rights - Prior to a Custodial Interrogation, accused must first be informed in clear and unequivocal terms of his right to remain silent. 1. Explanation That: a. Anything he says can and will be used against him in investigation b. Clearly informed that he has a right to consult w/ lawyer c. He will be appointed attorney if can't afford one d. Two questions must be at the end. 1) Do you understand your rights? 2) do you wish to give up your rights and talk to us? 2. After the warnings, if individual indicates in any manner and at any time prior to or during questioning that he wishes to remain silent, the interrogation must cease. (request for a lawyer = same rights) a. Exclusionary rule applies --> statements inadmissible after this b. Must be express waiver, not presumed simply by silence of accused 1) Cops can’t lie while attaining a waiver, but can lie during interrogation 3. Burden on prosecutor to prove that they understood/waived (preponderance of the evidence)  would be attacked by a due process argument B. Analysis: 1. State Action / Actor 16 2. Custodial a. Questioning initiated by law enforcement after a person has been taken into custody or otherwise been deprived of freedom of action in any significant way as viewed from rx objective from the suspect. (seems like Court was intending to apply same standard from Mendenhall) b. Was this person otherwise deprived of his freedom of action in any significant way? --> non-issue in custodial arrest. c. Mathiason 3. Interrogation a. Express questioning OR any words or actions on the part of the police other than those normally attendant to arrest and custody which the police should know are reasonably likely to elicit an incriminating response from THIS suspect. Innis – 1) Questions about booking procedures = normally attendant to custody. 2) "how much did you drink / where did you drink?" = normally attendant to drunk driving custody b. Christian Burial Case c. Testimonial – Testimonial if suspect is asked to communicate an express or implied assertion of fact or belief. 1) Penn. V. Muniz – Asking what year it was when he was 6 years old - Probing whether alcohol impaired mental rather than physical. (Physical evidence can’t be excluded) 4. Valid Waiver? a. RULE: once in interrogation post-waiver (past Miranda, acknowledgement of rights and waiver of rights), despite language in Miranda opinion, it takes an unequivocal invocation of right to silence or right to lawyer to be back w/in the Miranda protection. C. Reasons for Rule 1. worried about how police dominated atmosphere & compulsion affect the Trustworthiness of confessions (voluntariness & police tactics). 2. A police informant doesn’t need to Mirandize  if we excluded confessions to them, it wouldn’t fulfill rx for rule. Illinois v. Perkins. D. Take dialogue line by line b/c whether you’re under Miranda can shift during conversation IV. CONSECUTIVE CONFESSIONS A. Fruit of the Poison Tree – Exceptions: 1. Independent Source 2. Attenuation – Can do if initial Miranda problem is 5th Amendment (i.e. “I don’t want to talk”) BUT if initial violation = 6th Amendment violation (i.e. I want a lawyer) then the only way the 2nd confession is admissible is if: a. D has to reinitiate (chances of that happening = pretty remote) 17 AND b. Fresh Miranda & waiver Edwards Factors: a. Completeness & detail of q&a in first round of questioning b. Overlapped content of two statements c. Degree to which 1st and 2nd confessions are continuous d. ** deliberate nature of police failure to initially warn 3. Public Safety (health/risk) / Exigent Circumstances – If Cop is rx to demand a statement (i.e. where is the gun?) then it can come in despite Miranda violation. a. Statement leading to gun and gun itself both = admissible. b. If we have exigent circumstance, cop = rx, we let evidence in V. LIMITATION ON MIRANDA A. Non-testimonial evidence 1. United States v. Patane – Limitation on Miranda is that it doesn't exclude non-testimonial or physical evidence, even if that evidence technically a fruit of the poisoned tree by being led to from the Miranda violation. B. Impeach Testimony 1. Prosecution can’t present statements obtained in a Miranda violation as part of their case in chief, but it can use them to impeach the witness’s credibility when he’s testifying on the stand a. We don’t want him to shield himself behind Miranda in order to give perjured testimony. Harris v. New York. C. Invoking right to remain silent can't be used at trial to impeach his testimony (claiming he's not guilty & has an elaborate alibi). Doyle v. Ohio. 18