Raechelle C. Yballe

Bar Review

CRIMINAL PROCEDURE

Exclusionary Rule           

• remedy whereby fruits of illegal search will be excluded in subsequent criminal prosecution
• LIMITATIONS
  • Does not apply to the conduct of grand juries (e.g. grand jury W may be forced to testify based on illegally searches/seizures)
  • Not available in civil proceedings
  • To qualify for exclusion, search/seizure must violate federal statute or federal constitution
  • Not available in parole revocation proceedings
  • Good Faith Exceptions
    • Good faith reliance on one opinion changed by a later opinion
    • Good faith reliance on a statute or ordinance later declared unconstitutional
    • Good faith reliance on a defective search warrant   UNLESS
      • Affidavit underlying warrant is so lacking in probable cause that a reasonable officer would not rely on it                                                     OR
      • Warrant is invalid on its face (e.g. failure of the warrant to state with particularity the place to be searched and the things to be seized)                        OR
      • Police officer lied to or misled the magistrate                  OR
      • Magistrate has wholly abandoned its judicial role
  • ALL illegally seized evidence can be used to impeach D’s testimony (and only D’s testimony, not other defense Ws)

Fruit of the Poisonous Tree Doctrine

• Exclusion of all evidence derived from illegal search/seizure
• Breaking the Chain
  • State may show they have an Independent Source
  • Inevitable Discovery
  • D’s Intervening Acts of Free Will

ARREST

• Generally, warrant not required if arrest in a public place
• Non-emergency arrest of D in his own home requires an arrest warrant
• Station house detention
  • Requires probable cause to compel you to come to the station for either
  • Interrogation  or fingerprinting

SEARCHES AND SEIZURES

• See p. 5 of Mini-Review = flow chart
• Model Analysis
  • Does the person have a 4th Am. right? 
    • Is there state conduct?
    • Does the person have a reasonable expectation of privacy?
  • Did the police have a search warrant?
  • Was the search warrant valid?
    • If warrant is good à search is good
    • If warrant is no good à does it fall under a good faith exception?
  • Does the search fit into 6 exceptions to warrant requirement?
• Does the person have a 4th Am. right?
  • State conduct
    • Publicly paid police on or off duty
    • Any private individual acting at the direction of the public police
    • Privately paid police are not state actors UNLESS deputized with the power to arrest
  • Reasonable Expectation of Privacy (highlighted portions are likely on the bar)
    • Standing – no standing = no reasonable expectation of privacy
      • Standing to object to legality of search – Automatic Standing
        • You own the premises searched
        • You live on the premises searched regardless of ownership interest
        • Overnight guests have standing to object
      • Sometimes you have standing if you own the property seized
      • Sometimes have standing if you are legitimately present when the search occurs
        • Passengers in cars who do not own the car or the property found under the passenger seat seized from the car do NOT have standing to object to the legality of the search
        • An individual (drug dealer) briefly on the premises of another solely for the business purpose of cutting up drugs for sale does NOT have standing to object to the search
    • Public Items – no right of privacy = no reasonable expectation of privacy
      • Sound of your voice
      • Style of your handwriting
      • Paint on the outside of your car
      • Account records held by a bank
      • Monitoring the location of car on a public street or on your driveway
      • Anything that can be seen across open fields
      • Anything that can be seen from flying over a public air space
      • Odors emanating from luggage
      • Garbage left on the curb for collection
• Did the police have a valid search warrant?
  • Requires a showing of probable cause
    • Police do not have to rely on their own observations à use hearsay is ok
    • Informers
      • you can have a valid warrant based in part on an informer’s tip
      • even though that informer is anonymous
      • totality of circumstances = a common sense evaluation of probable cause
  • Warrant must be precise on its face
    • State with particularity the place to be searched and the things to be seized
    • Must be issued by a neutral and detached judicial officer (i.e. cannot be issued by prosecutors, attorneys general, etc.) such as
      • Court clerks (violations of city ordinances)
      • If magistrate was no neutral à no good faith (see above)
  • If invalid search warrant à good faith defense?
• If no good faith defense, does this search fit into an exception?
  • Search incident to a lawful arrest
    • Arrest must be lawful
    • Search must be contemporaneous in time and place of the arrest
    • Geographic scope
      • the person
      • the areas where he can reach (wingspan rule)
        • when a person is validly arrested in a car, their wingspan always includes the entire interior of the car but not the trunk of the car
  • Automobile exception
    • If police have probable cause to search the car
    • Then police may search the whole car, the trunk, any package/luggage/container
    • Container must reasonably contain the item they were searching for (e.g. cannot open a wallet if searching for hot TVs)
    • Probable cause can arise after the car is stopped but before anything/anyone is searched
  • Plain view
    • Police officer must be legitimately present where (s)he does the viewing
    • If no authority at all, no plain view seizure
  • Consent
    • Consent must be voluntary and intelligent
    • Claims of having a warrant negates consent
    • Police do not have to warn that you have a right NOT to consent
    • Authority to consent – where 2 or more people have an equal right to use a piece of property/premises, any 1 can consent to its search
  • Stop and frisk
    • There must be reasonable suspicion to stop
      • Reasonable suspicion is something less than probable cause
    • Weapons are always admissible so long as the stopping was reasonable
    • Police officer may pat down a suspect
    • If evidence of crime but not a weapon à how much like a weapon or contraband could it have seemed from the outside?
  • Hot pursuit, evanescent evidence –
    • Evanescent evidence  - evidence that might go away if we took the time to get a warrant
      • Scraping under D’s fingernails
      • Blood alcohol or other evidence of intoxication
    • Hot pursuit of a fleeing felon – may enter anyone’s home
• WIRETAPS and EAVESDROPPING
  • All wiretaps and eavesdropping require a warrant
  • The Unreliable Ear – everyone runs the risk that the person to whom you are speaking will either consent to the state monitoring the conversation or is wired

MIRANDA WARNINGS

• the admissibility of any evidence obtained during custody/interrogation requires Miranda warnings
• Custody
  • A person is in custody if at the time of the interrogation he was not free to leave.
  • Probation interviews and routine traffic stops are not custodial
• Interrogation
  • More than the asking of questions
  • Any conduct where the police knew or should have known they might obtain a damaging statement
  • Spontaneous statements/admissions do not require Miranda warnings (e.g. blurting out)
    • Q. 28 (c)  p. 481
    • Police must give the warning and a waiver?
• No waivers of Miranda rights by silence or shoulder-shrugging

5th Amendment Right to Counsel

• once the D asserts his right to terminate the interrogation and requests an atty à re-initiation of interrogation by the police without his atty present violates his 5th Am. right to counsel
• this right arises when a person on hearing the Miranda warnings requests an atty
• is NOT offense specific
• all other times when right to counsel à invokes 6th Am. which is offense specific à atty need be present only if interrogation related to that specific case

PRE-TRIAL IDENTIFICATION

• this is a quick check to ensure V can ID D from crime not from this proceeding
• Two ways to challenge PT identification
  • denial of the right to counsel
    • post-charge line-ups and show-ups give rise to a right to counsel
    • no right to counsel for showing of photographs
  • denial of due process
    • so-me PT ID techniques are so unnecessarily suggestive that it is substantially likely to produce misidentification à they deny due process of law
    • e.g. V says suspect was white; D was the only white guy in the line-up
• REMEDY à exclusion of in-court identification
• State can defeat remedy if it can show adequate independent source – typically, ample opp’y to observe D at the time of the crime

BAIL

• bail issues are immediately appealable
• preventive detention is constitutional

GRAND JURIES

• States do not have to use grand juries as part of their charging process
  • Some states charge by information – a piece of paper state the charge
• REVIEW – exclusion does not apply to the conduct of grand juries
  • Grand jury witness may be compelled to testify based on illegally seized evidence
• Proceedings of grand juries are secret – D has no right to appear and no right to send Ws

BASIC RIGHT TO AN UNBIASED JUDGE

• bias = financial interest in the case OR an actual malice against the defendant

RIGHT TO JURY TRIAL

• When does constitutional right to jury trial apply?
• Whenever D is tried for offense the max. authorized sentence exceeds 6 months
  • If up to or including 6 months à no right to jury trial
• If the sum of sentences for criminal contempt exceeds 6 months à entitled to jury trial
• Number and Unanimity of Jurors
  • Minimum number is 6
    • If 6 à must be unanimous
    • If 12 jurors à no unanimity required

CROSS-SECTIONAL REQUIREMENT OF A VENIRE PANEL

• right to have the jury pool reflect the community cross-section
• if the jury pool reflects the community make-up à if you pull all white old ladies
• no right to have your own jury reflect the community cross-section
• PEREMPTORY CHALLENGE – unconstitutional for prosecution or defense to exclude from jurors on account of race or gender

RIGHT TO COUNSEL

• Ineffective Assistance of Counsel (IAC) – relief typically denied
  • Claimant must show deficient performance by counsel
  • BUT FOR the deficiency, the result of the proceeding would have been different (OUTCOME DETERMINATIVE)

GUILTY PLEAS AND PLEA BARGAINS

• guilty pleas
  • are waivers of jury trials
  • SCt will not disturb guilty pleas after sentencing
  • SCt has pursued the K theory of plea bargaining
• Taking the plea
  • If guilty à on the record, judge must engage in a plea colloquy to ascertain the voluntariness of the plea
    • Must address D personally about
    • The nature of the charge
    • The maximum authorized sentence and mandatory minimum sentence
    • D’s right to plead not guilty and demand trial
    • By pleading guilty D waives trial and move directly to sentencing
  • If there is a mistake à D is entitled to withdraw his plea and plead again
• Basis for withdrawing guilty plea after sentence
  • Plea was involuntary
  • Lack of jdxn
  • Ineffective assistance of counsel
  • Failure of the prosecutor to keep an agreed upon plea bargain

DEATH PENALTY

• any death penalty statute that does not give D a chance to present mitigating facts and circumstances is unconstitutional
• there can be no automatic category for imposition of the death penalty
• the state may not by statute limit the mitigating factors; all relevant mitigating evidence must be admissible or the statute is unconstitutional.

DOUBLE JEOPARDY

• when does jeopardy attach?
  • At jury trial when jury is sworn
  • At bench trial when first W sworn
  • Does not attach during civil proceedings
• EXCEPTIONS – permitting retrial
  • Jury is unable to agree on a verdict (hung jury)
  • Mistrials for manifest necessity
  • Retrial after successful appeal is NOT double jeopardy
  • Breach of an agreed upon plea bargain by D
    • When D reaches plea bargain à plea and sentence can be vacated and original charge is reinstated
• Same offenses
  • Not the same crime if each crime requires proof additional
  • Same transaction
  • Lesser-encluded offense
  • Jeopardy f or greater offejse
  • BATTERY – where V dies

SEPARATE SOVEREIGNS

Privilege against compelled testimony – 5th Am. right

• applies to any kind of case
• asked under oath
• when can the privilege be claimed/asserted
  • in a civil proceeding to prevent use in all subsequent criminal cases
  • if you don’t assert the privilege à WAIVER
• Scope of protection
  • State may require hair samples, urine samples, etc.
  • State cannot force lie detector tests or undergo custodial police interrogation
• Unconstitutional for the prosecutor to make a negative comment on the D’s failure to testify or his remaining silent upon hearing Miranda warnings
• Can be eliminated
  • By grant of immunity (use and derivative use immunity) – state will not use immunized testimony à but may prosecute with evidence gained before grant of immunity
  • No possibility of incrimination – e.g. SOL has run on underlying crime
  • Waiver – as to all legitimate topics

HOT TOPICS IN CRIMPRO

• exclusion and its limitations
• fruit of the poisonous tree doctrine
• law of search and seizure
• Miranda (at least 2 Qs on MBE)
• PT Identification
• Right to jury trial
• Guilty pleas

ESSAYS – ineffective assistance of counsel; double jeopardy and 5th Am privilege against compelled testimony