prohibition against unreasonable search and seizure
privilege against compulsory self-incrimination
prohibition against double jeopardy
Right to speedy Trial
Right to Trial by Jury
Right to confront witness
Right to assistance of counsel
prohibition against cruel and unusual punishment
-death penalty/prisoner rights
remedy of American constitutional procedure whereby someone who has been the victim of an illegal search or coerced confession can have the product of that illegality excluded from any subsequent criminal prosecution
What type of court proceeding does the Exclusionary Rule not apply?
to grand jury proceedings or civil proceedings
What must occur in order for the exclusionary rule to apply?
search must either violate the federal constitution or a federal statute
What type of evidence rule does the Exclusionary Rule not apply?
ALL illegally sized real or physical evidence may be admitted to impeach the credibility of the defendant's trial testimony not other defense witnesses
Is the Exclusionary Rule available remedy for violations of the "knock and announce rule"?
Fruit of the Poisonous Tree Doctrine
excludes illegally seized evidence AND also all evidence obtained or derived from police illegality
Does the Fruit of the Poisonous Tree Doctrine apply to Miranda violations?
No- Unless the police acted in bad faith in obtaining such information
Three ways that the government can break the chain between the original, unlawful police action and some supposedly derived piece of evidence?
1. Independent Source for the evidence
2. Inevitable discovery
3. Intervening acts of free will
Will a conviction be overturned because improperly obtained evidence was admitted at trial?
The court will apply the harmless error test- a conviction will be upheld if the conviction would have resulted despite the improper evidence
What must an arrest be based on?
When is an arrest warrant required?
non-emergency arrest of an individual in his home
public place- generally not required
Police have authority to briefly detain a person even if they lack probably cause to arrest. In order to make such a stop, the police must have a reasonable suspicion supported by articulable facts of criminal activity
Depends on the Totality of Circumstances
Automobile stops require
Reasonable suspicion that the law has been violated
Exception: Check point road blocks
Traffic Stops and Police Dog Requirements
During routine traffic stops, a sniff is not a search so long as the police do not extend the stop beyond the time needed to issue a ticket or conduct normal inquires
Search & Seizure Analysis
1. Government Conduct?
2. Reasonable Expectation of Privacy?
3. Did the police have a valid search warrant?
4. If the warrant is not valid, does an officer's good faith reliance save the defective warrant?
5. If warrant is invalid and cannot be saved by the good faith defense or if police had not warrant at all- Exceptions to the Warrant Requirement
Search and Seizure Analysis: What constitutes Government Conduct
a. publicly paid police- on or off duty
b. private individual acting at the direction of the public police
Examples of privately paid police
store security guards, subdivision police, campus police
Search and Seizure Analysis: Reasonable Expectation of Privacy?
owned premises search, live on premises, Overnight Guests
If you own the property seized you have standing only if you have a reasonable expectation of privacy in the item or area searched
Reasonable Expectations of Privacy: No standing Areas
Anything held out to the public:
1. sound of your voice
2. style of handwriting
3. paint on outside of your car
4. account records at bank
5. monitoring location of care (public street/driveway)
6. Anything that can be seen across the open field
7. odors emanating from luggage or car
8. garbage set out on curb
Must are the two core requirements for a facially valid search warrant?
Probably cause for search warrant
fair probability that contraband or evidence of a crime will be found in the area searched
Particularity for search warrant
state with particularity the place to be searched and the things to be seized
Warrants and the use of informants
determined by totality of circumstances
An informant's reliability/credibility and basis of knowledge are all relevant factors in making this determination.
Can be based IN PART on an anonymous tip
"No Knock" entry permitted in the execution of search warrants IF:
knocking and announcing would be dangers, futile, or inhibit investigation
(destruction of evidence)
General Rule of Officer's Good Faith of warrant
Officer's good faith reliance on search warrant overcomes defects with the probably cause or particularity requirements
Four exceptions to good faith reliance on a defective search warrant:
1. affidavit underlying the warrant is so lacking probably cause that no reasonable police officer would have relied on it
2. affidavit underlying the warrant is so lacking particularity that no reasonable police officer would have relied on it
3. police officer or prosecutor lied to or mislead magistrate when seeking the warrant
4. If magistrate is biased
Exceptions to the Warrant Requirements:
1. search incident to arrest
2. automobile exception
3. plain view
5. stop and frisk
6. evanescent evidence/hot pursuit/special needs searches
Requirements for search incident to arrest
arrest must be lawful and contemporaneous in time and place
Search can include person and areas in which he can reach either to procure a weapon or to destroy evidence
Search incident to arrest & automobiles: the police may search the interior of the auto incident to arrest ONLY IF
a. arrestee is unsecured and still may gain access to the interior of the vehicle OR
b. police reasonable believe that evidence of the offense for which the person was arrested may be found in the vehicle
community caretaker exception
justifies a warrant-less search if an officer faces an emergency that threatens the heath/safety of an individual or public
Automobile Exception to search incident to arrest
If the police have probably cause BEFORE searching anything or anyone then they can search the entire car.
-included interior compartment/trunk/ any container which could reasonably contain the item they had probably cause to look for
Can probably cause necessary to justify the warrantless search of an auto under the automobile exception arise at any time?
Yes- even after car is stopped but BEFORE anything or anyone is searched
Plain View Seizure
police must be legitimately present at the location where he views the items seized and it must be immediately apparent that the item is contraband or a fruit of a crime
Consent for Search and Seizure
must be voluntary and intelligent
Third Party Consent Rule:
Where two or more people have equal right to use a piece of property either can consent to its warrantless search.
However, if both are present and one consents and the other does NOT consent- then the one who does not consent controls
Stop and Frisk Searched
Must be for purpose of investigating suspicious conduct
legal standard: reasonable suspicion (less than probably cause)
-pat down of the outer clothing and body to check for weapons ("terry frisk")
evidence that might disappear quickly if the police took time to get a warrant
Hot Pursuit of a fleeing felon
If the police are not within 15mins behind the fleeing felon, it is not a valid hot pursuit exception
before incarceration of an arrestee, police may search personal belongings and entire vehicle (does NOT include closed containers)
Public School Searches
-children engaged in extra-circular activities can be randomly drug tested
-warrantless searches of public school children's affect, such as purses and/or backpacks is permissible to investigate violations of school rules
Public School Searches will be held reasonable IF:
-offer moderate change of finding evidence of wrongdoing
-measures adopted to carry out the search are reasonably related to the objective of the search
-Not excessively intrusive
Does wiretapping and eavesdropping require a warrant?
Exception: "unreliable ear" and "uninvited ear"
Each person in society assumes the risk that the person to whom he is speaking will either consent to the monitoring or wiring of the conversation- speaker has not 4th Am. right if she makes no attempt to keep conversation private
Miranda Warnings language
right to remain silent
anything you say can be used against you in court
you have the right to an attorney
if you cannot afford one, one will be appointed for you
Trigger requirement for Miranda Warnings
1. Custody = not free to leave at time of interrogation (objective)
2. Interrogation= any conduct where the police know or should know that they might elicit an incriminating response from the subject
Are traffic stops custodial to trigger the Miranda warning?
neither are probation interviews
When are Miranda warnings not required?
Can Miranda rights be waived?
Yes- waiver must be knowing, voluntary, and intelligent
Courts will employ the totality of the circumstances test in making the determination
Invoking Miranda rights
Must be unambiguous
When can police re-initiate questioning after defendant has invoked the right to silence?
wait significant amount of time, defendant is re-mirandized, and questions are limited to crime that was NOT the subject of earlier questioning
If accused invokes his right to counsel, all questions must cease until:
given an attorney or accused initiates further questioning
Two basis for attakting Pretrial identification
denial of right to counsel
denial of due process
When is there a right to counsel for identifications?
Post-charge line ups and Post-charge show ups
** no right to counsel when police go out to show the victim/witness a photograph
Stages of investigation where there is no right to counsel:
taking of blood samples
taking of handwriting samples
brief recess during D's testimony at trial
taking of finger prints
parole and probation revocation proceedings
5th Amendment Right to Counsel
Arises when suspect invokes his Miranda rights and requires an attorney
Applies to Entire process of custodial police interrogation
6th Amendment Right to Counsel
Offense Specific- counsel would only need to be present if defendant was being questioned about specific case for which he retained counsel
Denial of Due Process for Identifications
pre-trial techniques are so unnecessarily suggestive and so substantially likely to product a mis-identification that they deny due process
Remedy for unconstitutional pre-trial identification
exclude the in-court identification UNLESS stat can show independent source of identification
(most common:adequate opportunity to observe D at time of the crime)
When are bail issues appealable?
Does Defendant have a right to appear at Grand Jury proceeding?
No- they are secret. D has no right to appear or to send witnesses
Failure to disclose exculpatory information by prosecution will constitute grounds for reversing a conviction IF
1. evidence if favorable to A
2. Prejudice has resulting meaning there is a reasonable probability that the result would have been different had the information been disclosed
having a financial interest in the outcome or having actual malice against the defendant
When does the constitutional right to jury attach?
Anytime the defendant is tried for an offense for which the mas sentence EXCEEDS 6 months
Minimum number of jurors
If a court uses this min, the verdict must be unanimous
Is there a federally protected right to unanimous jury of 12 persons?
What is the jury cross sectional requirement?
right to have the jury pool reflect a fair cross-section of the community, but no right to final empaneled jury to reflect the cross section
Constitutionality of Jury Preemption challenges?
unconstitutional to exclude persons from jury based on race or gender
Ineffective assistance of counsel
must be deficient performance by counsel and but for such deficiency the result of the proceeding would have been different
Must specify particular errors
Right to self-representation
right to defend so long as waiver of trial counsel is knowing and intelligent and he is competent to proceed pro se
When does the absence of face-to-face confrontation no violate the 6th Amendment?
serves important public purpose AND reliability of witness testimony is otherwise assured
Will the Supreme Court disturb guilty pleas after sentencing?
If D pleads guilty the judge must specifically address the following:
1. nature of charge
2. judge must tell D the max and min penalty
3. inform D of his right not to plead guilty and demand a trial
4. Must be on the record
Four good reasons for withdrawing a guilty plea after sentence:
1. involuntary plea
2. Lack of jurisdiction
3. ineffective assistance of counsel
4. Failure of prosecutor to keep agreed upon plea bargain
What type of death penalty is unconstitutional?
any death penalty statute that does not give the defendant a chance to present mitigating facts and circumstances
Statute may no limit mitigation factors or evidence
Can there be an automatic category for imposition of the death penalty?
Double Jeopardy attachment
jury trial = when jury is sworn in
bench trial = first witness is sworn in
Exceptions permitting retrial
1. Jury is unable to agree upon a verdict ("hung jury")
2. Mistrials for manifest necessity
3. Retrial after a successful appeal
Upon retrial can defendant be retried for a more serious offense?
How to distinguish the crimes when trying the D again?
Two crimes do not constitute the same offense if each crime requires proof of additional element the other does
If you are tried and acquitted for a crime, can the prosecution try you again for the lessor crime?
Similarly you cannot be tried for the lesser included offense and then retried for the greater offense
Double Jeopardy and Sovereigns
Double Jeopardy bars retrial for the same offense by the same sovereign
Municipality/city are the same sovereign
5th Amendment Privilege against self-incrimination
can be asserted in any type of case.
Must assert privilege the FIRST time question is asked or you waived the protection
Protects only compelled testimony not physical evidence
Can a prosecutor make comments about D's failure to testify or remain silent after given Miranda warning?
Can only mention if D's counsel asserts that D was not given opportunity to give his side of the story
Harmless Error test applies if prosecution does say something
5th Amendment privilege can be eliminated in three ways:
1. under grant of immunity
2. no possibility of incrimination
3. waiver (criminal defendant who takes the witness stand waives 5th amn. to all legitimate subjects on cross examination