Criminal Procedure Outline

Criminal Procedure Outline

I. FOURTH AMENDMENT SEARCH & SEIZURE

a. Threshold Questions

i. Government Conduct

ii. Reasonable Expectation of Privacy

b. Text: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized

c. Reasonable Expectation of Privacy/Standing

i. Katz 2-prong test:

1. actual subjective expectation of privacy; AND

2. reasonable expectation of privacy as recognized by society

3. Rationale: 4th A. protects people, not places; governs seizure of tangible and non-tangible items

ii. Expectation must be personal to ∆ (i.e. standing) – Payner

1. Suppression may be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved by solely by the introduction of damaging evidence - Alderman

2. Standing should depend on whether the police action sought to be challenged is a search (i.e. violation of r.e.o.p.) with respect to the person challenging the intrusion - Rakas

3. Doctrine of Limited Immunity – testimony given by ∆ to establish standing may not thereafter be used against him at trial on the issue of guilt in the prosecution’s case-in-chief – Simmons

a. Testimony may come in as prior inconsistent statement to impeach

iii. Places Most Protected by Reasonable Expectation of Privacy

1. Residence → Business Premises → Street/Auto

a. Residence: hotel/motel same as residence

b. Business: The question whether public employees have a r.e.o.p. in their workplace must be addressed on a case-by-case basis; balance individual’s 4th A. interests against gov’t interests justifying the intrusion;

i. if r.e.o.p. had, then was search reasonable? - Ortega

c. Auto: Passengers, as well as the driver, had a r.e.o.p. when the vehicle was stopped by the police without probable cause; thus standing had as to passengers - Lionberger

iv. Generally recognized ways to establish reasonable expectation of privacy pursuant to a ‘Totality of the Circumstances’ analysis

1. Right to exclude others from the area searched

2. Continuing access to the searched premises AND possessory interest in the items seized

a. Possessory interest alone is not enough - Rawlings

3. Legitimately on the premises at the time of the search AND a possessory interest in the items seized

a. Note: no r.e.o.p. for first time visitors not staying the night and on premises for illegal commercial purpose; an overnight guest in a home may claim protection of the 4th A., but one who is merely present with the consent of the householder may not - Carter

4. Valid bailment

a. Not valid where ∆ put drugs in friend’s purse

5. ∆ is personally seized by the police (detention)

d. Search Warrants and the Probable Cause Standard

i. U.S. v. Rabinowitz - Majority: Fourth A. prohibits unreasonable searches; search incident to valid arrest is permissible → Reasonableness Rule

1. Frankfurter Dissent (eventual majority in Shimel): Must have a search warrant in order to search premises; if no warrant then search is presumed illegal

a. Narrow exceptions for necessity: (1) officer safety and escape prevention; and (2) to avoid destruction of evidence

b. Historic evil of general exploratory searches

ii. Probable Cause in Affidavit

1. Former 2-prong test – Aguilar-Spinelli

a. Basis of informer’s knowledge; AND

b. Reliability/veracity of the informer

i. Whether informant is reliable is for magistrate to decide, not the affiant, therefore conclusory statements are unacceptable - Spinelli

ii. Basis of knowledge lacking but minute particularity of tip corroborated an inference that information was obtained in a reliable way – Draper

iii. No warrant may issue on anonymous tips alone, must have corroboration; corroboration must go to ∆’s alleged criminal activity, not just general information – Higgason

1. Corroboration information to be given to magistrate before warrant issued

iv. Informer’s Privilege: identity protected if issue of probable cause; in camera questions submitted in writing – McCray

1. Identity not protected if issue of guilt – need for truthful verdict outweighs society’s need for the informer’s privilege

v. Information reliable from:

1. Victim-witness information

2. Suspicious conduct observed from the perspective of the reasonable, cautious and prudent police officer

3. Information/orders from official channels

2. Current Test – Totality of the Circumstances – Gates

a. Based on the totality of the circumstances, is there a fair probability that there is contraband presently at that location? (fluid test; more relaxed standard)

b. Factors: basis of knowledge, veracity, independent corroboration/pieces fit together, informant known, motive, detailed description – Upton

3. Probable cause for arrest: substantial probability that that a crime has been committed and that the person to be arrested committed it

a. Probable cause to arrest does not automatically constitute probable cause to search that person’s residence

iii. Stale information nullifies probable cause – must have fair probability that items are presently at place to be searched

1. 30 day limit

iv. Neutral and detached magistrate

1. No financial interest in issuing warrant; magistrate as a judicial officer, not executive/enforcement officer - Coolidge

2. 4th A. violated where judicial officer was part of the execution of an open-ended warrant [not neutral; and particularity violation] – LoJi

v. Particularity of place to be searched and items to be seized

1. Particular enough if the description is such that the officer with a search warrant can with reasonable effort ascertain and identify the place intended – Steele

a. Validity of warrant based on information the officers disclosed to magistrate, or had a duty to discover and disclose - Garrison

2. Once items named in warrant have been found and seized, the search must cease

a. Seizure if items not named in the warrant is allowed only if the items are in plain view or found inadvertently

b. Plain View Doctrine – such viewing need not be inadvertent - Horton

3. Generally possessed items – better to have a more particularized description; contraband itself permits a more general description; more particularity required when item is generally in lawful use in substantial quantities; great care in particularity required where seizure of innocent articles is of substantial effect (membership, attorney’s office)

a. Incorporate by reference to affidavit; if no incorporation or if affidavit does not accompany the warrant, the fact that the affidavit adequately described the things to be seized does not save a warrant from facial invalidity - Groh

4. Persons on premises

a. Probable cause must be particularized with respect to the person to be searched or seized; probable cause had that all three vehicle occupants possessed the drugs where cocaine was in back seat after legal stop and consensual search (common enterprise) – Pringle

b. Person’s mere nearness to others (i.e. a warrantee) who are independently suspected of criminal activity does not, without more, give rise to probable cause to search that person – Ybarra

c. Detention of persons on premises fine because probable cause had if warrant had; detention only requires reasonable suspicion - Summers

vi. Execution of warrant

1. Time – general rule that warrant is good for 10 days; serve between 7am-10pm – common law and statutes

a. Search in absence of occupants – must show reasonable necessity and give notice within reasonable time; list in warrant that search to occur in absence of occupant - Berger

2. Knock-notice/announce rule: knock, announce that warrant had, wait a reasonable amount of time [15-20 if exigency/30-45 generally], if no response police may kick in door or window

a. Purpose – safety of officers and occupants (prevent violence)

b. Knock-notice exception if police have reasonable suspicion as they are approaching the door that occupants will be violent or evidence will be destroyed

c. Evidence still admissible even if knock-notice violation; cost to society in evidence lost outweighs deterrent benefit; deterrence by civil suits, professionalism and internal police punishment – Hudson

vii. Good faith exception when police execute what an objective, reasonable well-trained officer would believe to be a valid warrant issued with probable cause - Leon

1. Police should not be punished for magistrate’s error; purpose of exclusion is to deter police misconduct

2. Exception applies:

a. where there was an objectively reasonable basis for the officer’s mistaken belief that the magistrate was going to fix the warrant form error – Sheppard

b. where supreme court later invalidated warrant statute – Krull

c. Good faith exception cannot be raised for the first time in appeal - Higgason

3. Exception does not apply if:

i. Lies/reckless information in affidavit

ii. ∆ to proffer facts re falsehoods → hearing with burden on defense by preponderance → judge to excise and reweigh → if no probable cause remains, exclude fruits of search/seizure – Franks

b. Non-neutral or non-detached magistrate

c. No reasonable officer could have believed that there was probable cause in this affidavit (fails reasonable standard)

d. Warrant is facially deficient

i. lacking particularity re what is to be seized - Groh

e. The Exclusionary Rule

i. All evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in court

1. Purpose – to deter intentional police misconduct

a. Judicially created remedy

b. Balancing test: deterrence v. withholding reliable/probative evidence from trier of fact

2. Applies in federal and state courts by incorporation – Mapp

ii. Cases

1. No r.e.o.p., thus no warrant required, in: garbage bags left on public curb (Greenwood); numbers dialed on telephone (Smith); backyard as viewed from plane at 1000 ft. (Ciraolo); inmates in cells and their possessions (Palmer)

a. No r.e.o.p. in VIN number, but yes r.e.o.p. as to interior of car, thus reaching in to move papers is a search, but in this case a reasonable one – Class

b. Luggage – bus passengers expect their bags to be handled/moved but they do not expect that the bags will be felt in an exploratory manner, thus r.e.o.p. – Bond

i. Different standard in airports

2. Dog sniff does not constitute a search; minimally intrusive – Place & Caballes

3. Obtaining by sense-enhancing technology any info regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area constitutes a search where the technology in question is not in general public use; in home all details are intimate - Kyllo

4. Open Fields Doctrine: the special protection accorded by the 4th A. is not extended to open fields; not society-recognized r.e.o.p. – Oliver

a. Overflight photos of chemical plant akin to open fields (non-residential) – Dow Chemical

5. Curtilage: land immediately surrounding and associated with the home; warrants 4th A. protections attached to the home

a. Factors – proximity to home, inclusion within an enclosure surrounding the home, nature of use, steps taken by resident to protect area from observation – Dunn

b. Cases closely decided on their facts

i. Helicopter not violating FAA regs, thus no 4th A. intrusion – Riley plurality

iii. Illegally obtained evidence may NOT be used at:

1. Trial to prove guilt in prosecutor’s case-in-chief

2. Civil forfeiture hearing (quasi-criminal)

a. Exclusion where party to be deterred is the same sovereign that intentionally violated ∆’s rights, violation was not in good faith, and exclusion will deter future violations; or

b. Exclusion where violations are egregious, offender is seeking to profit from its wrongdoing, and deterrent value outweighs interest in admission of relevant evidence

iv. Illegally obtained evidence may be used, even if suppressed at trial, at:

1. Grand jury hearing

2. Sentencing hearing after conviction

3. Probation/parole violation hearings

a. Lesser standard – mere preponderance of evidence

b. If probationer has made all reasonable efforts to pay the fine or restitution, and yet cannot do so through no fault of his own, it is fundamentally unfair to revoke probation automatically without considering whether adequate alternative methods of punishment other than imprisonment; automatic commuting of fine to imprisonment violates Equal Protection Clause - Bearden

4. Deportation hearings

5. Searches/evidence obtained by private persons; exclusion only applies to agents of the government

a. Totality of the circumstances test to determine if a person is a government agent; factors include: motive, compensation or benefit, advice/direction/participation by government

v. California statutes

1. Bring motion to suppress after arraignment, before trial

2. Denial of motion to suppress may be reviewed prior to trial if motion is made within 45(misd)-60(fel) days of arraignment

f. Fruit of the Poisonous Tree

i. Evidence seized during an unlawful search cannot constitute proof against the victim of the search – Wong Sun

1. Exclusionary rule applies to direct and indirect products of such invasions

a. Exclusion reaches down all branches of the poisonous tree

b. But cannot convict on a mere confession (corpus rule)

c. Statements and evidence admissible against ∆ if they were not the fruits of his unlawful arrest

ii. Attenuation Doctrine: evidence as a result of police illegality is admissible if the connection between the illegality and the challenged evidence has become so attenuated as to dissipate the taint - Wong Sun

1. Factors (NOT a ‘but for’ test; keep deterrent purpose in mind):

a. Passage of time – the less time the more likely the taint

b. Intervening events

i. Generally – the more intervening events the less likely the taint (low deterrence value)

ii. Independent act of free will (i.e. returning to station to give statement)

1. Miranda warnings alone are not necessarily sufficient to attenuate the taint of an unconstitutional arrest - Brown

iii. Statement obtained after unlawful entry to a home

a. where police have probable cause to arrest a suspect, the exclusionary rule does not bar the State’s use of a statement made by the defendant outside of his home, even though the statement is taken after an arrest made in a home in violation of Payton(prohibiting police from effecting a warrantless entry into a suspect’s home to make a routine felony arrest) – Harris

b. ∆ in lawful custody when he left the house (probable cause to arrest); policy is to protect the home

c. Flagrancy of the violation – rather than accidental; egregious police misconduct results in greater poison

d. Nature of the derivative evidence

i. Verbal evidence more likely to be admissible than physical evidence

iii. Inevitable Discovery

1. Question is not whether police actually acquired certain evidence by reliance upon an untainted source, but whether evidence in fact obtained illegally would (not could/might) inevitably or eventually or probably have been discovered lawfully

a. Police investigation underway when ∆ led police to body, thus body would have been found anyway and in short order – Nix

i. Prosecution not in any better position than it would have been if no illegality transpired; thus little basis for deterrence

iv. Independent Origin Test

1. Exclusionary rule has no application when the government learned of the evidence from an independent source – Wong Sun

2. Case application

a. Illegal arrest did not infect the victim’s ability to give accurate identification testimony in court – Crews

b. Items not observed during an initial illegal entry where discovered the next day pursuant to a warrant. The legality of the initial entry had no bearing on the admissibility of the challenged evidence because there was an independent source for the warrant – Segura

c. Witness independent act of free will in deciding to make a statement serves to attenuate the illegally obtained evidence – Ceccolini

v. Poisonous Trees:

1. 4th A. violation

2. 5th/14th A. due process violation

3. 6th A. right to counsel violation

4. But NOT a Miranda violation

g. Warrantless Searches – must have probable cause

i. Detention, Stop & Frisk, and Temporary Seizures

1. Stop & Frisk

a. Limited “frisk” is permissible where the officer has specific and articulable facts indicating that the suspect is presently armed and dangerous (objective standard) – Terry

i. Purpose of frisk is officer safety

ii. Frisk must be justified at its inception AND be limited in scope to a mere outer clothing pat down

1. Must cease at point officer determines that the lump is not a weapon - Dickerson

2. Detention

a. Former Test - Mendenhall: Detention occurs when a reasonable person no longer feels free to leave

i. Court held that suspect on bus was free to leave after police asked him about his luggage – Bostick

1. Illegal detention where passenger intimidated and police could potentially turn driver’s car over to passenger (not ripe) - Spicer

b. Current Test – Hodari D.

i. Physical force used upon suspect by police; OR

ii. Suspect has submitted to the officer’s assertion of authority

1. No detention until officer has suspect under control where suspect running and police chasing – Hodari D.

c. Detention standard: reasonable suspicion that a crime has been committed or is about to be committed

i. Inchoate hunch does not equal reasonable suspicion to order ∆ outside nor probable cause to reach into ∆’s pocket – Sibron

ii. Anonymous tip does not equate reasonable suspicion – J.L.

iii. Terry stop applies to ongoing crime or to crime already committed; different societal interests to balance – Hensley

iv. High crime area as a factor for police to consider

1. Flight is enough to start a temporary detention in order to resolve the ambiguity – Wardlow

v. Cannot detain a class of 25 people because they match a description - Davis

d. Potential problem if the detention was justified at its inception but then becomes overly prolonged

i. Look to whether police diligently pursued a means of investigation that was likely to confirm or dispel suspicion; reasonableness determined on a case-by-case basis - Sharpe

ii. Where luggage searched for 15 minutes the situation had escalated to an investigatory procedure in an interrogation room so that ∆ was essentially under arrest – Royer

iii. Too prolonged when vehicle code infraction stop lasted 20-25 minutes – McGaughan

iv. Same limitations re detention of luggage as re detention of people; luggage kept for weekend is too prolonged – Place

v. De facto arrest when police invited suspect to station and kept him there for 6hours in a confined area with no probable cause - Dunaway

e. Balancing Test: government/public interest v. nature and scope of the intrusion – Mendenhall

i. May be overly intrusive to take suspect back to crime scene; better to bring eyewitness to suspect – Harris

ii. Duration of time justified by traffic stop; dog sniff not a search (plain smell doctrine) – Caballes

1. California: reasonable traffic stop 20-25 minutes

iii. No warning requirement, (i.e. “you have a right to refuse”) – Robinette

ii. Warrantless Search of Premises

1. Search incident to lawful arrest may generally extend to the area and containers that are considered to be in the immediate control of the arrestee’s person (officer safety and to prevent concealment or destruction) – Chimel

a. Cannot search entire house (general exploratory search)

b. Search may be incident to arrest only if it is substantially contemporaneous with the arrest and is confined to the immediate vicinity of the arrest; arrest on the street cannot provide its own exigent circumstances to justify a warrantless search – Vale

c. Unreasonable delay where officer made a warrantless entry, secured the premises, and came back 19 hours later with a warrant – Segura

d. Officer went to get warrant after wife told police her husband had drugs under the couch; one officer stayed → permissible because husband likely to destroy evidence and limited duration of time - McArthur

2. Where arrest made for crime involving an accomplice, even without probable cause or reasonable suspicion, police may search closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched (officer safety) – Buie

3. Warrantless entry of premises will be permissible incident to and following an arrest elsewhere; officer, as matter of routine, may monitor the movements of an arrested person following arrest- Chrisman (where arrestee had to return to dorm for i.d. and drugs in plain view)

4. Officers entered premises from where weapon was fired; they then observed and moved stereo equipment → lawful entry because of exigent circumstances; illegal search to move equipment - Hicks

5. Arrest warrants

a. Cannot enter a home to arrest a felon without an arrest warrant, even with probable cause that felon is inside – Payton

i. Arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within

b. Cannot make warrantless entry into 3rd party’s home in order to find an arrest warrantee – Stegald (where 3rd party home contained plain view drugs)

iii. Automobile Exception

1. Rule: Citizens have a lesser expectation of privacy in their automobiles (extensive regulation)

a. Test: probable cause that contraband is inside AND mobility

b. If probable cause justifies search of a lawfully stopped car, then search of every part of the car and its contents is justified (including trunk) – Acevedo

c. If probable cause to search for contraband in car, it is reasonable for officers to examine packages and containers without a showing of individualized probable cause for each one; no distinction based on ownership - Houghton

2. Search incident to lawful custodial arrest

a. If probable cause to arrest then reasonable to allow officers to ensure their safety and preserve evidence by searching the entire passenger compartment including the glove box and under seats; but NOT trunk – Thornton

i. So long as arrestee was a recent occupant

3. Inventory search

a. Not a search for criminal purposes thus no need for probable cause – Bertine

i. Standardized procedure/policy required; purpose not to obtain evidence but to protect department from later claims of theft

4. Weapons search for officer safety

a. Where officers observed knife in car at scene of accident, permissible to search area within the immediate control of the suspect for officer safety purposes; seeing the knife permitted police to search the entire passenger compartment – Long

5. Consent justifies search without a warrant

iv. Administrative Inspections & ‘Special Needs’ Searches

1. Doctrine of permissible search in absence of showing probable cause – detention and searches based on complete absence of any individualized reasonable suspicion

a. Administrative warrants based on dilapidated building conditions issued for entire neighborhoods – Camara

b. Border searches – persons and luggage may be searched routinely without probable cause

2. Vehicle checkpoints

a. Permissible because primary purpose is for road safety as part of regulatory scheme, not for discovery of criminal conduct

i. Administrative standardized procedure; catching criminal activity incidental

ii. Factors: brief stops, limitation on discretion of field officers, advance notice

3. Search of students/drug testing

a. Constitutionally permissible because compelling state interest in safety of student athletes under custodial care of school - Vernonia

i. Balancing test of public interest v. intrusion

ii. Rule goes beyond scope of just student athletes - Earls

4. Parolees

a. Parolees can be searched without suspicion – Sampson (Cal)

i. Government interest v. privacy interest - substantial interest in reducing recidivism and lower expectation of privacy

II. LINEUPS & IDENTIFICATIONS

a. 6th Amendment Right to Counsel Implications

i. After indictment, ∆ entitled to have counsel present at any physical line-up, which is a critical stage of the prosecution – Wade

1. Critical because the ∆’s inability effectively to reconstruct at trial any unfairness that occurred at the lineup may deprive him of his only opportunity to attack the credibility of the witness’s courtroom identification

2. 6th A. right to counsel only attaches after adversary judicial proceedings have been initiated - Kirby

ii. No right to have counsel present at photo lineup; can be recreated at trial – Ash

b. 5th/14th Amendment Due Process Implications

i. Rule: Due process violation if the confrontation is unnecessarily suggestive and conducive to irreparable mistaken identification

1. Due process issues arise only when state action occurs – Moore

ii. Test: under a Totality of the Circumstances was the identification reliable even though the confrontation procedure was suggestive? - Manson

1. Factors

a. Opportunity for witness to view criminal at time of crime

b. Witness’s degree of attention

c. Accuracy of prior description

d. Level of certainty demonstrated at confrontation

e. Time elapsed between crime and confrontation

f. Extent to which ∆ fits description

g. Cross-racial nature of identification

2. Rationale: concerns with problems of eyewitness identification, deterrence, and the administration of justice

iii. ∆’s motion for a lineup

1. In appropriate cases, due process requires that ∆ should be afforded a pretrial lineup, but that right arises only when eyewitness identification is shown to be in material issue and there exists a reasonable likelihood of a mistaken identification which a lineup would tend to resolve – Evans

iv. ∆’s responsibility to request cautionary jury instruction regarding eyewitness identifications

1. ∆ may move for expert psychological testimony at trial – McDonald

v. Prosecution may use ∆’s refusal to cooperate in lineup as circumstantial evidence of consciousness of guilt

c. Independent Origin Test - ∆’s motion to suppress eyewitness identification

i. Defense must prove by a preponderance that the identification was tainted

1. Even if testimony admitted, counsel to challenge reliability at trial and in closing argument

ii. Prosecution must show by clear and convincing evidence that proposed in-court testimony has an independent origin from the tainted procedure

1. Show that witness recognizes ∆ from the crime scene, not from the lineup

iii. Appellate review: harmless error if substantial evidence in record to support conviction even if identification admitted below - Fulminante

III. INTERROGATIONS, CONFESSIONS & MIRANDA

a. Miranda

i. Rule

1. If a suspect is taken into custody and subject to interrogation, the prophylactic Miranda rule applies and police must warn suspect; in order to protect his/her 5th A. privilege against self-incrimination

a. Right to remain silent

b. Anything you say can and will be used against you in a court of law

c. You have the right to speak to a lawyer and have her present with you while you are being questioned

d. If you cannot afford a lawyer, one will be appointed for you

2. 14th A. makes the 5th A. privilege against self-incrimination applicable to the states; privilege is governed by federal standards – Malloy

ii. Purpose of warnings

1. Demonstrate the use of procedural safeguards effective to secure the 5th A. privilege against self-incrimination

a. counteract the inherent compulsion present in custodial interrogation situations

2. Mid-question stream recitation of warnings after an interrogation could not effectively comply with Miranda’s constitutional requirement; a statement repeated after a warning in such circumstances is inadmissible – Seibert

a. A reasonable person in the suspect’s shoes would not have understood the warnings to convey a message that she retained a choice about continuing to talk

b. On other facts, a second statement made after warnings may be admissible

3. Warnings need not comply word for word; inquiry is simply whether the warnings reasonably convey to a suspect his rights as required by Miranda - Duckworth

iii. Application – to testimony only

1. Custodial requirement

a. Custodial usually means arrested; Not custodial if:

i. Where police merely questioning suspect on the street, in home or office

ii. Where suspect voluntarily accompanies police to station house; or where minor’s parents brought him in - Yarborough

iii. Where police question during traffic stop

b. Objective test as to whether reasonable man in suspect’s position would have understood his situation to be custodial – Berkemer

2. Interrogation requirement

a. Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent – Innis

i. Words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect

ii. Police sent wife to talk to ∆; no indication that she was sent to elicit incriminating information thus not interrogation – Mauro

b. Would an objective observer believe that the officer’s remarks were designed to elicit an incriminating response

3. Miranda right against self-incrimination is a fundamental trial right, thus violation of the clause only occurs when a statement is admitted in court rather than physical evidence (‘shall not be compelled to be a witness against himself’)- Patane

a. Complete warning interrupted, ∆ admitted there was a gun in the house, police seized the gun → gun admissible at trial

b. ‘Sixth birthday’ question requires a testimonial response - Muniz

iv. Waiver

1. Waiver must be knowing, intelligent and voluntary

a. At trial prosecution must prove by a preponderance that warnings were given and that they were k.i.v. waived

2. A suspect’s awareness of all possible subjects of questioning in advance of interrogation is not relevant to determining whether the suspect voluntary, knowingly and intelligently waived his 5th A. privilege – Spring

a. No extra warnings are needed if questioning shifts to a different crime

3. Courts presume non-waiver, but words and actions can imply waiver – Butler

4. Invocation and waiver are personal to the suspect

a. Events occurring outside the presence of the suspect and completely unknown to him have no bearing on his capacity to waive his rights – Moran v. Burbine

5. Post waiver trickery does not affect validity of waiver

v. Invocation

1. If suspect invokes right to remain silent or to have a lawyer present, the interrogation must cease

2. Invocation of right to remain silent

a. Admissibility of statements obtained after suspect has decided to remain silent depends on whether his right to cut off questioning was scrupulously honored – Mosley

i. Police may reinitiate contact after an interval based on factors:

1. passage of time, second line of questions were about an unrelated crime, different location, and different officer or agency

2. Advisable to give fresh set of Miranda warnings

b. Silence

i. Invocation of right to remain silent/post-arrest silence may not be admitted at trial for substantive purposes or to impeach

ii. Pre-arrest or post-arrest/pre-Miranda silence may be admitted to impeach (i.e. that ∆ did not step forward with info)

3. Invocation of right to see a lawyer (under 5th, not 6th, A.)

a. Invocation must be clear and unequivocal so the reasonable officer would understand the statement to be a request for an attorney – Davis

b. Request to see a probation officer is not the same as requesting a lawyer – Fare

c. Once right to counsel is invoked, the suspect may not be subject to further interrogation until counsel has been made available to him – Edwards

i. Police may not reinitiate contact about any crime – Roberson

1. Police can only communicate thereafter if counsel is present, even if suspect has consulted with counsel – Minnick

a. No other agency can initiate communications; even if warned and waived any statement is inadmissible; thus consequences of invocation are far-reaching

ii. Only suspect himself may reinitiate further communication with the police

1. Where suspect asked “what’s going to happen to me now” he was evincing a willingness and desire for generalized discussion about the investigation; therefore he initiated communication – Bradshaw

d. Anticipatory invocation – probably not permitted

vi. Exceptions

1. Merely investigatory stage exception

a. Police permitted to question person not in custody (including detained person during traffic stop) - Berkemer

2. Routine booking exception

a. Questions reasonably related to the police’s administrative concerns (i.e. biographical data) – Muniz

i. 6th birthday question not routine

3. Undercover agent exception

a. Warnings are not required when the suspect is unaware that he is speaking to a law enforcement officer and gives a voluntary statement - Perkins

i. Coercion is evaluated from the perspective of the suspect; thus police intimidation not a factor if undercover

4. Public safety exception

a. Overriding considerations of public safety justify the officer’s failure to provide Miranda warnings before asking questions devoted to locating the abandoned weapon (reasonable officer standard) - Quarles

vii. Remedy

1. Statements obtained without a k.i.v. waiver of Miranda rights are inadmissible for use in the prosecution’s case-in-chief

a. Such statements are admissible to impeach if ∆ opens the door

2. Miranda violation does not trigger a ‘fruit of the poisonous tree’ analysis – Elstad

a. Therefore if statement leads to physical evidence, the statement is excluded but the physical evidence is not

3. Miranda warnings do not necessarily cure an illegal arrest; case-by-case basis – Brown

4. Miranda is a constitutional decision, thus it cannot be overruled by an act of Congress; Miranda and its progeny govern the admissibility of statements made during custodial interrogation in both state and federal courts – Dickerson

5. Appellate standard: harmless error

b. Due Process Voluntariness – 5th/14th Amendments

i. Rule: Due process bars the use of coerced and involuntary statements in all criminal proceedings

ii. Test: under the Totality of the Circumstances, were police statements so manipulative or coercive that suspect’s free will was overborne – Fenton

1. Coercive police activity necessary predicate for finding that confession is not voluntary; must have state action – Connelly

2. Not a ‘but for’ test, but a question of whether the confession was a product of free choice - Fenton

iii. Purpose: a confession obtained by threats, coercion, serious deception or promises of leniency offends fundamental notions of fairness

1. Interests in: reliable, trustworthy evidence; preservation of freedom of choice; and deterrence of unfairness

iv. Factors

1. ∆’s age

2. Intelligence level

3. Experience or lack thereof with police and courts

4. Intoxication

5. Mental illness

6. Sleep deprivation

7. Religious beliefs

8. Threats against ∆ or threats to harm family members

9. Promises of leniency – promise must be a sufficient inducement to be the motivating cause of the confession

10. Length and duration of questioning

v. Cases

1. Involuntary confession where paid government informant in prison offered to protect ∆ in exchange for a confession – Fulminante

2. Involuntary confession where ∆ in near coma in hospital, stated he didn’t want to talk without a lawyer, police continued questioning - Mincey

vi. Standard of proof & Inadmissible for all purposes

1. Prosecution must prove by a preponderance that the statement was voluntary

2. Involuntary statements may not be used for substantive or for impeachment purposes

a. Involuntary statements inadmissible even if valid Miranda waiver exists

b. Statements made under grant of legislative immunity are automatically involuntary and may not be used for any purpose - Portash

vii. Third party standing permitted in California; open question federally

viii. Appellate review – excise and reweigh for harmless error – Fenton

1. Involuntariness of confession can be raised at any stage, even for the first time on appeal

IV. SIXTH AMENDMENT RIGHT TO COUNSEL

a. Rule: Right to counsel arises at the time of indictment/commencement of adversarial proceedings and continues thereafter – Massiah

i. Offense-specific, thus police can question a represented ∆ about non-charged crimes – McNeil

b. Imprisonment requirement

i. Absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor or felony, unless he was represented by counsel - Hamlin

1. Actual imprisonment, rather than threat of imprisonment, is the line defining the constitutional right to counsel – Scott

ii. A valid conviction without counsel (no imprisonment) may be relied upon to enhance the sentence for a subsequent offense, even if that offense entails imprisonment – Nichols

1. Conviction itself valid; underlying conduct would come in anyway

c. Indigency

i. Right to aid of counsel is fundamental and essential to a fair trial

1. In adversarial system, any person hailed into court who is too poor to hire a lawyer cannot be assured a fair trial unless counsel is provided for him – Gideon

2. 6th A. incorporated and applies to states via 14th A.

ii. Right to appointed counsel on first appeal as a matter of right – Douglas

iii. Due process concerns

1. Filing fees and transcript fees paid by state - Griffin

2. When a ∆ demonstrates that his sanity at the time of the offense is to be a significant factor at trial, the state must, at a minimum, assure the ∆ access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense – Ake

a. Meaningful access to justice requires basic tools of adequate defense

d. Waiver

i. Waiver must be knowing, intelligent and voluntary

ii. An accused who is admonished with the Miranda warnings has been sufficiently appraised of the nature of his 6th A. rights, and the consequences of abandoning these rights, so that his waiver on this basis will be considered a knowing and intelligent one – Patterson

e. Government informants

i. After indictment and appointment of counsel, paid informant engaged in conversation with ∆ and incriminating statements made; 6th A. rights violated – Henry

1. ∆ must demonstrate that police and their informants took action, beyond mere passive listening, that was designed to deliberately elicit incriminating remarks – Kuhlman

f. Elicitation of information

i. Once adversary proceedings have commenced against an individual, he has a right to legal representation when the government interrogates him – Brewer (Christian burial speech designed to elicit incriminating information)

ii. Right of self-representation

iii. Right to defend is personal to the ∆ - Faretta

1. Must make timely request and

2. Must be competent as determined by court

a. If both prongs are met and court denies self-representation, the court has abused its discretion and effectuated a deprivation of counsel; remedy – automatic reversal

iv. Court may revoke pro-per status if ∆ is disruptive

v. No right to self-represent on appeal (no presumption of innocence on appeal; state interest in integrity and efficiency)

vi. Court may appoint standby counsel as long as:

1. ∆ retains actual control over the case he presents to the jury, and

2. Standby counsel’s acts may not destroy the jury’s perception that the ∆ is representing himself

g. Ineffective Assistance of Counsel

i. Rule: 2-prong test - Strickland

1. Deficient performance - ∆ must show that counsel made errors so serious that he was not functioning as counsel as guaranteed by 6th A.

a. Standard of reasonably effective assistance considering all circumstances at time of counsel’s conduct

b. Performance duties include: assist ∆, loyalty, avoid conflicts, advocate, consult, inform, skill (no checklist approach, though) – Rompillo

2. Prejudice – ∆ must show that counsel’s deficient performance prejudiced ∆ that he was deprived of a fair trial with a reliable result

a. Must show a reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding would have been different

ii. Decisions

1. Personal to ∆

a. Whether to waive a jury trial

b. Whether ∆ testifies at trial (waive right to remain silent)

i. If ∆ plans to commit perjury, counsel cannot draw out that testimony or refer to it in closing argument; allow narrative - Nix

c. Whether to waive right to trial and plead guilty or no contest

d. Whether to appeal the decision if ∆ is convicted

2. Left to Attorney

a. Whether to call certain witnesses

b. Potentially – which defense to present at trial

iii. Cases

1. High deference given to counsel’s strategic and tactical decisions

a. 6th A guarantees reasonable competence, not perfect advocacy judged with the benefit of perfect hindsight – Yarborough

2. Effective assistance required in both trial and sentencing phases

a. Counsel’s failure to investigate and present mitigating evidence of ∆’s dysfunctional background was unreasonable fell short of professional standards in light of what records showed – Wiggens

i. Strategic choices made after incomplete investigation are reasonable only to the extent that reasonable professional judgment supports the limitations on the investigation

b. Undiscovered mitigating evidence, taken as a whole, might well have influenced the jury’s appraisal of ∆’s culpability; sufficient to undermine confidence in the outcome - Rompillo

i. Sentence reversed

3. Right to counsel of choice – need not demonstrate prejudice; automatic reversal standard – Gonzales

4. More exacting standard if death penalty case

h. Admissibility

i. Statements obtained in violation of 6th A. right to counsel are inadmissible in prosecutor’s case in chief

1. Statements are admissible to impeach if ∆ opens the door

i. Appellate Standard

i. Harmless error for statements obtained in violation of 6th A

ii. Automatic reversal where

1. Complete deprivation of counsel

2. Biased judge

3. Unlawful exclusion of members of ∆’s race from grand jury or trial jury; or

4. Right to public trial violated

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