Federal and Texas Criminal Procedure- MBE
MBE- Federal and TX criminal procedure
Terms in this set (93)
Once jeopardy attaches, the D may not be retried for the same offense.
second prosecution NOT barred if
first prosecution ended before jeopardy attached
What is an acquittal?
note- acquittals are always final- no second trial permitted
1) any finding that "evidence is insufficient" made by trial or appellate court
2) conviction of a lesser included offense is an implied acquittal of a charged crime
exceptions that permit retrial after attachment
second trial permitted if:
1) the first proceeding ended in a mistrial declared for "manifest necessity"
2) the first proceeding ended in mistrial declared on motion of defendant (not constituting an acquittal on merits)
3) first trial ended in a conviction reversed on appeal because of procedural error
4) second prosecution is by a different sovereign jurisdiction
*insufficient evidence admitted against D- can't retry
*evidence improperly admitted against him-can't retry
when does jeopardy attach? federal constitutional law
a) jury trial: when jury is sworn in
b) bench trial: when first witness is sworn
when does jeopardy attach? Texas law
a) jury trial: when jury is sworn in (same as federal)
b) bench trial: when both
1) the parties have announced ready and
2) the defendant pleads to the indictment
manifest necessity-exception double jeopardy
manifest necessity- a trial may be discontinued and the defendant re-prosecuted for the same offense when there is a manifest necessity to abort the original trial
example- hung jury
procedural error exception to attachment rule- double jeopardy
e.g.- Conviction reversed because of an error in the judge's jury instructions.
successive prosecutions for different offenses
successive prosecutions for different offenses are barred only if one offense is a lesser included offense of the other. apply BLOCKBURGER test.
A defendant can be subjected to successive prosecutions if the two crimes do not constitute the same offense. this occurs if EACH CRIME REQUIRES PROOF OF AN ADDITIONAL ELEMENT that the other crimes does not require, even though some of the facts may be necessary to prove both crimes.
if each offense contains at least one element not contained in the other, then neither is a lesser included offense of the other and successive prosecutions are permitted.
Application of Blockburger
These do NOT constitute the same offense:
1) manslaughter with an automobile and hit-and-run
2) reckless driving and drunk driving
3) reckless driving and failure to yield the right of way; and
4) uttering a forged check and obtaining money by false pretenses by using the forged check
successive prosecutions- collateral estoppel rule
Acquittal!!!! of one offense bars second prosecution for different but related offense if D shows both:
a) precise factual basis for acquittal in first proceeding and
b) that fact also controls in second prosecution
one proceeding/convictions for several offenses
convictions for several related offenses in one proceeding are barred only if the legislature did not intend to authorize convictions for all.
rule- if one offense is a lesser included offense of another, it is a rebuttable presumption that the legislature did not intend conviction for both.
different sovereign jurisdictions
multiple prosecutions and/or convictions permitted if done by separate sovereign governments.
state and federal governments
-Thus, a person may be tried for the same conduct by both a state and the federal government or by two states, but not by a state and its municipalities.
DOES NOT INCLUDE STATE AND CITY OR COUNTY
Under TX law, what ways are available for D to raise her claim that her second trial is barred by double jeopardy?
she can either:
a) file a pre-trial application for the writ of habeas corpus
i) judge would decide the issue
ii) issue would be resolved before trial
iii) if she loses, she can immediately appeal
b) file a special plea of former jeopardy
i) jury would resolve contested issues of fact
ii) she would raise it during trial
iii) if convicted, she would appeal at that time
privilege against self incrimination - who can assert privilege?
any natural person may assert privilege, not corporations or partnerships. can be asserted by a D, witness, or party only if the answer to the question might tend to incriminate him.
self incrimination, terry stop
being required to furnish one's name after a Terry stop generally does not violate the 5th amendment because disclosure of one' snake generally poses no danger of incrimination
scope of protection- self incrimination
Testimonial but not physical evidence- 5th am. privilege protects only testimonial or communicative evidence and not real or physical evidence. Thus, state can require person to produce blood samples, handwriting exemplars, voice samples without violating 5th am.
self incrimination privilege
authorities cannot compel a person to engage in self-incriminating "testimonial" behavior.
the privilege is violated ONLY WHEN THE PERSON'S COMPELLED STATEMENTS ARE USED AGAINST HIM IN A CRIMINAL CASE.
an intentional communication of one's thoughts.
eliminating privilege of self incrimination
a witness may be compelled to answer questions if granted adequate immunity from prosecution.
transactional immunity- gives the person immunity from prosecution in its entirety for any offense arising out of the transaction about which she testifies under the grant of immunity. (includes any crimes related to the transaction about which the witness testifies)
use immunity- gives the person no protection from prosecution. But if she is prosecuted, the government cannot use against her as evidence her testimony or any evidence that the government obtained
fourth amendment- search
search is any official action that intrudes upon a person's reasonable expectation of privacy
search and seizure- generally
general rule- evidence obtained as a result of unreasonable search or seizure cannot be used to prove a criminal defendant's guilt.
examples of activity that are NOT a search
1) aerial surveillance of fenced yard
2) examination of trash left in yard/curb
3) determining numbers dialed from residential home (pen register)
4) having a dog sniff luggage in airport
5) dog sniffs at traffic stops
(note *** during routine traffic stop, a dog "alert" to the presence of drugs can form the basis of probable cause to justify a search of automobile)
examples of activity CONSTITUTING A SEARCH
rigorous squeezing of luggage in bus overhead rack
thermal imaging scan of residence
attaching a tracking device to a vehicle and using it for long-term monitoring of the vehicle's location
dog sniff around curtilage
these constitute searches which require a warrant or exception to warrant requirement.
officers merely exercise their right to engage in plain view and do not search if:
a) they reach a location without violating the 4th am. and
b) simply look at something in open view
offers who go upon any unoccupied or undeveloped are of land not part of the curtilage of a dwelling do not search.
curtilage- area surrounding and used in connection with a residence.
reasonableness of search
for a search to be reasonable, two general requirements:
a) must be pursuant to valid search warrant (with exceptions)
b) must be based on probable cause
facts from which a reasonable person would conclude that there is a fair probability that seizable items will be found in the premises
seizable items provide basis for probable cause
fruits of the crime
instruments of the crime
evidence that the crime was committed or that the particular person committed it.
4th am. search warrant
search warrant is a judicial order authorizing search and seizure
must be issued on information constituting probable cause- affidavit must set out facts from which issuing magistrate can make independent judgment what probable cause exists.
warrant must describe specifically both:
place to be searched and
items to be searched for and seized
warrant- no knock entry
general rule: before entering premises, officers must "knock and announce" and give occupants opportunity to admit the officers.
no knock entry permitted where officers have REASONABLE SUSPICION THAT occupants would
a) resist the officers by using force; or
b) remove or destroy items for which warrant issued.
search limited to:
a) place described and
b) within that place, those locations were item described might reasonably be expected to be located.
what can officer seize with warrant?
items reasonably believed to be those described and
other items in "plain view" during search if probable cause exists to believe they are seizable.
rule- officers executing a warrant can seize some undescribed items they discover in plain view during the search.
*however, the plain view seizure rule does not apply if when officers come upon an item in plain view, they are searching improperly.
how to successfully challenge a search warrant based on inaccurate facts set out in an affidavit?
To successfully challenge a search warrant based on inaccurate facts in the affidavit, a defendant must show:
1) the affiant misstated certain facts
2) the affiant did this intentionally or at least with reckless disregard for whether the stated fact was accurate and
3) the misstated fact was material, which means that without that fact the affidavit was not sufficient to support the search warrant.
TX search warrant requirements
1) a statement that it runs in the name of "The State of Texas"
2) a specification of the person, place or thing to be searched
3) specification of the items to be seized
4) an endorsement of the date and hour it was issued; and
5) the signature of the issuing magistrate
* a regular search warrant may be issued by any magistrate
Note- only the written affidavit can be considered by the magistrate (no oral explanation)
TX- Four Corners Rule
In Texas, a court may only consider the information within the "four corners" of the written affidavit in determining whether a warrant was validly issued.
search warrant time limitation- TX
A search warrant must be executed within three days, exclusive of the day of issuance of the warrant and the day of the execution of the warrant. (which effectively means "five days"- three days in between the day issued and the day searched).
"evidentiary" search warrant-TX
Evidentiary search warrant: warrant that issues for an item that is seizable only because it is evidence that a crime was committed or a particular person committed it.
Evidentiary warrant limitations- TX
1) evidentiary warrants may be issued only by:
a) a district judge, statutory county court judge, Court of Criminal Appeals judge, Supreme Court justice or
b) municipal court of record or county judge who is a licensed attorney.
EXCEPT: any magistrate may issue in county without a statutory county court or municipal or county judge who is an attorney.
***A justice of the peace is NOT authorized to issue this type of warrant.
personal writings- evidentiary warrants-TX
No evidentiary warrant may issue for a personal writing of the accused.
what can be seized with an evidentiary warrant-TX
while executing an evidentiary search warrant, officers may seize:
a) the items described in the warrant; and
b) items come upon in plain view for which a "regular" search warrant could issue.
BUT they may not seize items of mere evidence that are not described in the warrant.
subsequent evidentiary warrant-TX
An additional evidentiary search warrant may be issued for the same person, place or thing previously searched under an evidentiary search warrant ONLY BY A DISTRICT OR APPELLATE JUDGE.
warrantless search generally
1) requirement of search warrant has a number of exceptions, under which warrantless searches are "reasonable".
2) some, not all, are also exceptions to requirement of probable cause
warrantless search: Consent Search
consent searches require NEITHER warrant NOR probable cause
effectiveness of consent:
a) consent must be voluntary
b) consent must be from either
1) someone with a GENERAL RIGHT OF ACCESS to the premises (actual authority to give consent) or
2) someone reasonably believed by officers to have such access ("apparent authority")
scope of consent: consent covers what A REASONABLE PERSON IN THE SITUATION would understand the words used to mean.
warrantless search: consent search- joint occupants situation
1) Officers need consent from only one of several joint occupants
2) however, if a joint occupant at whom search is directed is present and actively objects, consent from the other joint occupants is ineffective.
warrantless searches of automobiles-vehicle exception
Vehicle exception to warrant requirement: Moving vehicles and those parked in public places can be searched without a warrant:
a) BUT PROBABLE CAUSE IS NECESSARY.
B) SEARCH CAN EXTEND TO ANY PLACE WHERE THE ITEMS MIGHT BE FOUND.
* includes containers within that vehicle that MIGHT CONTAIN THE OBJECT for which they are seeking.
warrantless searches of automobiles- search incident to arrest
custodial arrest of person in a vehicle (or immediately after getting out) permits a search as an incident of that arrest:
a) if there is reason to believe evidence related to the crime of arrest is located in the vehicle OR the arrestee is unsecured.
b) search of the passenger compartment compartment (including "glove compartment") but they cannot search the trunk.
warrantless search incident to incarceration or impoundment- Inventory Searches
**properly impounded vehicle may be "inventoried" pursuant to standardized procedure (includes entire vehicle, such as closed containers within that vehicle)
**the police may search an arrestee's personal belongings before incarcerating him after a valid arrest so long as the police officer follows an existing department policy in doing so.
containers in car- warrantless search
contents of containers in the car can be examined if the car can be searched.
plain view exception to warrant requirement
police may make a warrantless seizure when they are:
1) legitimately on the premises
2) discover evidence, fruits or instrumentalities of crime or contraband
3) see such evidence in plain view
4) and have probable cause to believe that the item is evidence, contraband, or a fruit or instrumentality of a crime.
exigencies- warrantless search
a warrantless search is permitted if officers have both:
1) reason to believe delaying the search to get the warrant would result in removal or destruction of the items; and
2) cops have probable cause to believe seizable items will be found.
*warrantless blood draws in DUI cases can be made under exigency rationale because blood alcohol content dissipates. BUT BUT BUT police can't automatically or always do it. Police must took to the TOTALITY OF THE CIRCUMSTANCES to see if reasonable for cops to get a warrant.
(FED Law)warrantless search- arrests/ incidental searches: If arrest made in pubic, officers automatically have right to:
search two places:
1) person of the arrestee (which includes pockets and items found on the person of the arrestee); and
b) possible area within reach of the arrestee
(FED Law) warrantless search- arrests/incidental searches: If arrest is made inside premises, officers AUTOMATICALLY:
1) officers automatically can look in immediately adjoining places where persons may be concealed
2) can do protective sweep of entire premises but only if officers have reasonable suspicion that dangerous persons are present.
requires probable cause to believe person committed felony
(FED Law) arrests and incidental searches- when warrant required
general rule: police generally don't need to obtain a warrant before arresting a person in a public place, even if they have time to get a warrant.
only required if premises are entered to search for suspect:
if entering suspect's own residence: arrest warrant is sufficient.
if entering other premises: search warrant is needed.
warrantless searches categories
1) automobile exception
3) incident to arrest (automobile/arrest)
4) inventory searches (automobile/arrest)
Texas Arrest Law
General Rule: An arrest must be made pursuant to a valid arrest warrant (or combination search and arrest warrant)
TX- no arrest warrant required if:
1) offense committed in officer's presence or view
2) probable cause to believe suspect committed a felony and reason to believe suspect is "about to escape"
3) suspect is found in a "suspicious place" and has committed a felony or breach of the peace
4) suspect omitted violation of a protective order
5) suspect injured another and danger of further injury to victim
6) suspect found with stolen property
7) suspect injured member of family or household or
8) probably cause to believe suspect committed a felony is based on admissible statement to officer.
TX- requirements in arrest warrant
there requirements of an arrest warrant include:
1) the name of the person to be arrested or physical description
2) the name of the offense the person is accused of committing
3) the signature of the issuing magistrate; and
4) the judicial office of the issuing magistrate
an arrest warrant extends to every part of the state
TX- when does an officer with a warrant have authority to break down the door of the residence to make an arrest?
1) arrest is for a felony; and
2) officer gives notice of the officer's authority and purpose; and
3) the officer is refused admittance
A capias is a write issued by a judge directed to a peace officer to arrest a person accused of an offense and to bring the arrested person before the court immediately or on a day specified in the writ.
police have authority to briefly detain a person for investigative purposes even if they lack probable cause to arrest. To make such a stop, police must have:
REASONABLE SUSPICION supported by ARTICULABLE FACTS (objective basis) of criminal activity or involvement in a completed crime.
*note- an anonymous tip is not enough if not adequately corroborated.
limitations on terry stop
1) cannot be too lengthy
2) suspect cannot be extensively moved (not to station house)
3) no automatic right to search
when search can be conducted during a terry stop
1) if probable cause develops during field stop, detention becomes valid arrest.
2) "weapons search" can be made if officer has reasonable fear for safety:
a) must initially be limited to pat down; and
b) permissible only to determine if the suspect has a weapon. (CAN'T USE TERRY STOP TO LOOK FOR EVIDENCE)
seizure of a person:
1) the officer physically restrains him or
2) the officer makes a show of authority and the suspect actually submits.
*police pursuit of a suspect is not a seizure in and of itself.
Lineup Law- right to have lawyer present
1) D has 6th am. right to lawyer present at lineup or show up if it is conducted AFTER JUDICIAL PROCEEDINGS HAVE BEGUN.
*** the right is simply to have an attorney present during the lineup so that the lawyer can observe any suggestive aspects of the lineup and bring them out at cross-examination.
a) not triggered by D's arrest
b) no right to lawyer at showing of photographs
c) can be waived by D
attacking identification on due process grounds:
A D can attack an identification as denying due process when the identification is UNNECESSARILY SUGGESTIVE AND there is a SUBSTANTIAL LIKELIHOOD OF MISIDENTIFICATION.
both standards have to be met for the D to win
**remedy for unconstitutional identification: prosecution cannot prove that identification- but witness can make an in-court identification of D if prosecution establishes that this would have an independent source- i.e. a source independent of the procedure.
confessions- 14th am. voluntary (FEDERAL)
for confessions to be admissible, the due process clause of the 14th am. requires that they be voluntary.
thus, involuntary if:
1) result of coercion or threats; or
2) on totality of circumstances officers' misconduct overcame D's will.
factors to consider:
1) deception of the suspect by officers
2) delay in presenting the suspect before magistrate; and
3) promise of a specific benefit made by person in authority
4) as well as suspect's age, education and mental/physical conduction, setting, duration
*note: a confession is not involuntary merely because it is the product of mental disease that prevents the confession from being of the defendant's free will.
inadmissibility of confessions- grounds
1) involuntary (14th am)
2) product of delay in bringing arrested D before magistrate
3) Miranda violation
4) 6th am. right to counsel violation
5) produce of unlawful arrest or detention
6) TEXAS ONLY- TEXAS CONFESSION STATUTE ART. 38.22
Texas Rule- promise will render confession involuntary and inadmissible if:
1) promise will render confession involuntary and inadmissible if:
a) given by someone in authority;
b) definite (positive promise)
c) likely to cause an innocent suspect to make a false confession
2) confession given during improper delay in bringing D before magistrate inadmissible if D shows a "causal connection" between delay and making of confession.
miranda rights- confessions
when applicable: only if both:
1) suspect is in custody (arrested or equivalent)
* look for handcuffs, or weapons drawn
* does not apply to traffic stop, non arrest terry stop
under miranda, a person is not in custody just
because the person was detained.
2) suspect is subjected to interogation
*rule: under miranda, now warnings or counsel are required if the confession is VOLUNTEERED by the D without interrogation
confession to which Miranda applies admissible only if prosecution proves:
warnings were given and
suspect made voluntary and knowing waiver of:
1) the right to attorney during questioning (unless one was present) and
2) right to remain silent.
D's rights- Miranda
has a right to have counsel present DURING questioning
*interrogation can begin in absence of attorney only if suspect first WAIVES right to counsel.
suspect must be given warning that:
1) he had a right to remain silent
2) anything he says can be used against him in court;
3) he has the right to the presence of an attorney and
4) if he cannot afford an attorney, one will be appointed for him if he so desires.
reproaching witness- miranda rights
If suspect invokes only the right to remain silent, the suspect may be reproached if this is done very carefully.
If a suspect invokes the right to counsel, officers may not reproach the suspect unless an attorney is present.
however, if a suspect who has invoked the right to counsel spontaneously weeks to discuss the crime with officers, officers may seek a waiver of counsel and interrogate the suspect.
what constitutes an interrogation?
Any action which officer should reasonably know is likely o result in incriminating response is equivalent of questioning. (see if its the functional equivalent of questioning)
when questioning must cease-
A suspect can rescind a waiver of counsel by indicating a desire for a lawyer. The officers must then stop all interrogation.
However, questioning after right to counsel was waived must cease ONLY if suspect unambiguously requests counsel.
what happens if warning is given in middle of questioning?
general rule: warnings given in the middle of an interrogation cannot be effective.
If police accidentally fail to give warning and officials try to fix it, it will be admissible after the second admission/interrogation.
6th am. right to counsel -constitutional confession law
rule- in interrogation situations, the accused also has a 6th am. right to counsel if judicial proceedings have begun, and this provides more protection than Miranda does.
when it applies:
1) D has a right to counsel at questioning by undercover officer
2) D has a right to counsel at questioning even if not in custody; and
3) Police violate the right to counsel if they interfere with counsel contacting a client undergoing questioning.
Texas Confession Statute
1) Applies only to statements:
a) made while in custody; and
b) resulting from official interrogation
2) impeachment exception to all requirements: statement inadmissible to prove guilt can be used to impeach testifying D if it is voluntary.
3) Determining voluntariness of challenged confession:
a) initial determination must be made by judge at hearing out of presence of jury.
b) If this is resolved for the state, defendant sometimes has right to have issue submitted to the jury.
TX Confession Statute- face of the statement, it must be shown that:
No written statement made by an accused as a result of
custodial interrogation is admissible as evidence against him in any criminal proceeding unless it is shown on the face of the statement that:
(a) the accused, prior to making the statement, either
received from a magistrate the warning or received from the person to whom the statement is made
a warning that:
(1) he has the right to remain silent and not make any
statement at all and that any statement he makes may be used against
him at his trial;
(2) any statement he makes may be used as evidence against
him in court;
(3) he has the right to have a lawyer present to advise him prior to and during any questioning;
(4) if he is unable to employ a lawyer, he has the right to have a lawyer appointed to advise him prior to and during any questioning; and
(5) he has the right to terminate the interview at any time
Must also show that prior to the statement, person voluntarily waived rights.
TX Confession Statute- written statements
1) must be signed by D or
2) must be in accused's handwriting.
TX- oral statements
oral statements made during interrogation are inadmissible because they are oral and thus unreliable
J: statement was judicial (made in open court/ made before grand jury)
R: statement was res gestae of either a) the office/ or b) the arrest
R: statement was electronically recorded
C: the statement was corroborated, meaning: a) it contained at least one assertion of fact or circumstances; b) which was incriminating; and c) this was "found to be true" by reliable information developed after the statement was given.
TX: electronically recorded statements:
admissible only if prosecution shows:
1) recording is accurate and has not been altered
2) recording reflects that accused was warned of his rights.
3) during the recording the accused knowingly and voluntarily waived those rights
4) all material voices on the recording are identified
5) and defense counsel was provided with copies of all recordings made of D under the statute (must be provided at least 20 days before trial)
BUT D need NOT be told that the statement will be recorded!
applicability of TX confession statute and oral confession rule
apply only if there was:
1) custody; and
2) official interrogation
If either is lacking, the statute does not apply and oral statements made are admissible!
TX-statements obtained out of state or by federal officers
1) statement obtained in another star is admissible in TX prosecution if it was obtained in compliance with the laws of that state.
2) statement obtained by federal officer is admissible if obtained in compliance with the laws of the US.
TX procedure for Litigating Confession Issues
Duties of Trial Court where question his raised pretrial as to voluntariness of a statement:
1) Counsel should file pre-trial motion to suppress statement on the ground it is not voluntary
2) where such a motion raises the issue of the voluntariness of a statement, the trial court must hold a hearing, take evidence, and determine whether the statement is voluntary.
3) The judge must also make findings of fact.
TX-If voluntariness is submitted to jury, jury instructions:
1) jury is told that statement must be voluntary, what warnings are required, and when those warnings are necessary
2) jury told that prosecution has burden of proving beyond a reasonable doubt that any necessary warnings were given and that the statement was voluntary
3) instructed that if it has a reasonable doubt as to whether required warnings were given or whether the statement was voluntary, it should disregard statement and not consider it in deciding whether the prosecution has proved D guilty.
An exclusionary rule is a judge made doctrine that prohibits the introduction, at a criminal trial, or evidence obtained in violation of a defendant's fourth, fifth, or sixth amendment rights.
scope of exclusionary rule-TX and FED
"fruit of poisonous tree doctrine": not only must illegally obtained evidence be excluded, but also all evidence obtained or derived from exploitation of that evidence.
HOWEVER, fruits derived from statements obtained in violation of MIRANDA MAY BE ADMISSIBLE despite exclusionary rule.
*note- fourth amendment exclusionary rule does not apply to no knock violations
Exceptions to Federal Constitutional Requirement of Exclusion:
1) Attenuation of Taint: the number and nature of the links between the illegality and police acquisition of the evidence may be such that the taint becomes attenuated. (also applies in TX)
2) Good Faith: reasonable officer would believe that the actions taken were reasonable, because of:
a) a warrant; or
b) a statute later held invalid.
*** In Texas, good faith exception requires that warrant have been issued on actual probable cause.
3) impeachment exception to federal rule: a defendant who takes the witness stand can be impeached by some otherwise inadmissible evidence.
a) If evidence obtained in violation of Miranda or in an unreasonable search can be used to impeach
b) involuntary confession cannot be used to impeach (because unreliable)
TEXAS- no such impeachment exception.
4) inevitable discovery- admissible if both:
a) officers would inevitably have obtained that evidence if they had not illegally searched and
b) the evidence would have been obtained in a constitutional way.
Texas- no such inevitable discovery exception
standing- exclusionary rule
D must have "standing" in TX and FED.
reasonable expectation of privacy any time:
1) she owns or has right of possession of the place searched
2) place searched was in fact her home, whether or not she owned or had a right to possession of it.
3) she is an overnight guest.
*standing does not exist merely because a person will be harmed by introduction of evidence seized during an illegal search of a third person's property. (if business guest or social guest, no reasonable expectation of privacy)
exclusionary rule- what inadmissible evidence can be used to impeach?
voluntary confessions in violation of miranda
fruit of illegal searches (can only be used to impeach defendant)
exclusionary rule does not apply:
knock and announce rule violations: can't exclude evidence procured as a result of ineffective knock and announce.