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LexisNexis Area of Law SummaryCriminal Procedure

Chapter 1

OVERVE! O" "O#R$% A&EN'&EN$ PRNCPLES

( 1)*1 $ext of the "ourth Amendment

The Fourth Amendmentreads:

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 Warrantsshall issue, but upon probable cause, supported by Oath or affirmation, andparticularly describing the place to be searched, and the persons or things to beseized.

( 1)*+ Persons and Actions Co,ered -y the "ourth Amendment

.A/ 0People

The Fourth Amendmentis not specifically limited to citizens. For Fourth Amendmentpurposes, the word people! encompasses non"citizens who have developed sufficientconnection! with the #nited $tates to be considered part of the national community.!United States v. Verdugo-Urquidez, %&% #.$. '(&)*&&+.

-n Verdugo-Urquidez, the ourt assumed, but did not rule, that undocumentedimmigrants living voluntarilyin the #nited $tates have accepted some societal

obligations! and thus possess Fourth Amendment rights. -t declined to resolve the/uestion of whether a nonresident alien, involuntarily detained in the #nited $tates for ane0tended period of time, has sufficient connection with the country to be afforded FourthAmendment rights.

.2/ Standin3 to Raise "ourth Amendment Claims

Fourth Amendment rights may only be asserted by one who is sub1ected to anunreasonable search or seizure. The rights may not be vicariously asserted. Thus, adefendant cannot challenge a search against a co"defendant. 2Seehapter 3, $tanding toAssert Fourth Amendment laims.4

.C/ 4o,ernmental Action

The Fourth Amendmentonly applies to actions by the government. Actions underta5enby private persons acting in the capacity of an agent of the government are also coveredby the Amendment. Whether a private person is deemed an agent of the government is

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determined by the degree of government involvement in the situation and the totality ofthe circumstances.

The Fourth Amendmentis not limited to police activity and covers conduct by otherpublic employees, such as firefighters, public school teachers,and housing inspectors.

$earches by non"police government actors are generally of an administrative, notinvestigatory nature, and are controlled by different standards. 2Seehapter (,Administrative and 6on"-nvestigatory $earches.4

.'/ Extraterritorial Searches and Sei5ures

The Fourth Amendmentdoes not apply to activities of foreignlaw enforcement officersacting outside the #nited $tates. Thus, evidence secured by a foreign officer that is turnedover to the #nited $tates may be admitted against the victim of the search in a criminaltrial. 7owever, if there is sufficient #.$. involvement in the e0traterritorial search of anAmerican citizen, the Fourth Amendment applies.

-n contrast, nonresident aliens located outside the #nited $tates or its territories, as wellas those who are temporarily and involuntarily in the country, are not protected againstforeign searches, even if conducted by #nited $tates government officers. United Statesv. Verdugo-Urquidez, %&% #.$. '(&)*&&+.

( 1)*6 0Persons7 %ouses7 Papers7 and Effects

.A/ 0Persons

For Fourth Amendment purposes, person! includes:)* the defendant8s body as a whole )as when he is arrested9 )' the e0terior of the defendant8s body, including his clothing )as when he is

patted down for weapons9) the interior of the defendant8s body )as when his blood or urine is tested for

drugs or alcohol9)% the defendant8s oral communications )as when his conversations are sub1ected

to electronic surveillance.

.2/ 0%ouses

7ouse! has been broadly construed to include:)* structures used as residences, including those used on a temporary basis, such

as a hotel room9)' buildings attached to the residence, such as a garage9) buildings not physically attached to a residence that nevertheless are used for

intimate activities of the home, e.g., a shed9)% the curtilageof the home, which is the land immediately surroundingand

associated with the home, such as a bac5yard. 7owever, unoccupied and undeveloped

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property beyond the curtilage of a home )open fields! falls outside of the FourthAmendment.

Factors relevant to determining whether land falls within the cartilage are:)* the pro0imity of the land to the home9

)' whether the area is included within enclosures surrounding the house9) the nature of the use to which the area is put9 and)% the steps ta5en by the resident to protect the land in /uestion from observation.

United States v. Dunn, %;+ #.$. '&%)*&;ffects! encompass all other items not constituting houses! orpapers,! such as clothing, furnishings, automobiles, luggage, etc. The term is lessinclusive than property!9 thus, an open field is not an effect.

( 1)*8 0Search

.A/Katz v. United States

-nKatz v. United States, ;& #.$. %


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The Fourth Amendmentprotects private conversations where no party consents to thesurveillance and?or recording but does not protect conversations where one partyconsentsto such activity. Thus, under the doctrine of false friends,! no search occurs ifa police informant or undercover agent mas/uerading as the defendant8s friend, businessassociate, or colleague in crime, reports to the government the defendant8s statements

made in the informant8s or agent8s presence. United States v. White, %+* #.$.


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using high"intensity lamps to grow mari1uana inside his home. #se of such technologyconstitutes a search if it enables the government to gather evidence from aconstitutionally protected area to which it would not otherwise have access without awarrant.

.E/ Aerial Sur,eillance

Aerial surveillance by the government of activities occurring within the curtilage of ahouse does not constitute a search if the surveillance:

)* occurs from public navigable airspace9)' is conducted in a physically non"intrusive manner9 and) does not reveal intimate activities traditionally connected with the use of a

home or curtilage.California v. Ciraolo, %


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Fourth Amendment terms when there is some meaningful interference with anindividual8s possessory interests in that property.!

.2/ Sei5ure of Persons

A Fourth Amendment seizure of a person occurs when a police officer, by !eans ofphysical force or show of authority, in so!e way restrains the liberty of a citizen,&erryv. 'hio,&' #.$. *)*&3;, or put another way, when in view of all of the circumstancessurrounding the incident, a reasonable person would have believed that he was not freeto leave.! United States v. Mendenhall,%%3 #.$. (%%)*&;+.

>0amples of activities that constitute a seizure of persons include:

arrests.

physically restraining or ordering a person to stop in order to fris5 or /uestion him

on the street.

ta5ing the person into custody and bringing him to a police station for /uestioning

or fingerprinting. ordering a person to pull his automobile off the highway for /uestioning or to

receive a traffic citation.

stopping a car by means of a roadbloc5.

7owever, brief "uestioning by itself is unli#ely to a!ount to a seizure . (.g., )lorida v.*osti!+, (+* #.$. %'&)*&&* )brief /uestioning during a bus sweep! not a seizure9mmigration and aturalization Servi!e v. Delgado, %3+ #.$. '*+)*&;% )brief/uestioning about citizenship during a factory sweep! not a seizure.

.C/ 0&ere E,idence Rule

#nder the mere evidence! rule, only certain categories of evidence could be seized:)* a fruit! of a crime )e.g., money obtained in a robbery9)' an instrumentality of a crime )e.g., the gun used to commit a robbery, or the

car used in the get"away9 or) contraband )e.g., illegal narcotics.

$o"called mere evidence,! items that have only evidentiary value in the apprehension orconviction of a person for an offense, could not be seized.

The $upreme ourt abolished the mere evidence rule in Warden v. ayden,;< #.$. '&%)*&3


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=robable cause is re/uired as the basis for:)* arrest and search warrants9 and)' all arrests )regardless of whether an arrest warrant is re/uired

6ot all searches and seizures need be founded on probable cause. A lesser standard @

reasonable suspicion! @ may apply where the intrusion is minor, such as a pat"down forweapons. Furthermore, where the intrusion on a person8s privacy is especially slight andsociety8s interest in conducting the search or seizure is significant, there may be no needfor individualized suspicion, such as for society and border chec5points and certainadministrative searches.

.2/ 0Pro-a-le Cause 'efined

=robable cause! e0ists when the facts and circumstances within an officer8s personal5nowledge, and about which he has reasonably trustworthy information, are sufficient towarrant aperson of reasonable cautionto believe that:

)* in the case of an arrest, an offense has been committed and the person to bearrested committed it.)' in the case of a search, an item described with particularity will be found in

the place to be searched.

=robable cause is an ob1ective concept. An officer8s sub1ective belief, no matter howsincere, does not in itself constitute probable cause. 7owever,in determining what aperson of reasonable caution! would believe, a court will ta5e into account the specifice0periences and e0pertise of the officer whose actions are under scrutiny.

.C/ 2asis for 0Pro-a-le Cause

=robable cause may be founded on:)* direct information, i.e., information the officer secured by personal

observation9 and)' hearsay information.

6o weight may be given to unsupported conclusory statements in probable causedeterminations.

.1/ 'irect nformation

#nless a magistrate has reason to believe that an affiant has committed per1ury orrec5lessly misstated the truth, the magistrate may consider all direct information providedby the affiant. The affiant8s information is considered reasonably trustworthy because it isprovided under oath.

.+/ %earsay =0nformant> nformation

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A magistrate may consider hearsay for purposes of determining probable cause, as longas the information is reasonably trustworthy. The informant8s identity need not bedisclosed to the magistrate unless the magistrate doubts the affiant8s credibility regardingthe hearsay.

The/guilar"S0inellitest for determining the reliability of informant tips controlled until*&;, when it was replaced by the $ates totality"of"the circumstances! test.

.a/guilar$Spinelli $est

7earsay information had to satisfy both of the test8s prongs below in order to be deemedsufficiently trustworthy to be included in the probable cause assessment:

)* the basis"of"5nowledge prong9 and)' the veracity prong, of which there are two alternative spurs:

)a the credibility"of"the"informant spur! and)b the reliability"of"the"information spur.!

/guilar v. &e1as,


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Chapter +

SEARC% !ARRAN$S

( +)*1 0Oath or Affirmation

The Fourth Amendmentprovides that warrants may not be issued unless they aresupported by Oath or affirmation.! An affidavit supporting a search warrant ispresumed valid. 7owever, in limited circumstances, a defendant may challenge a faciallyvalid warrant, after the search is conducted, on the ground that the warrant would nothave been issued but for the falsity in the affidavit. )ran+s v. Dela%are,%; #.$. *(%)*&


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specificity is re/uired regarding contrabandthan is re/uired for papers! and effects,!which the First Amendment protects.

( +)*6 Execution of Search !arrants

.A/ $ime of Execution

$ome 1urisdictions, by statute or rule of procedure, re/uire that search warrants bee0ecuted within a specified period of time from the date that the warrant was issued,often within ten days. $ome 1urisdictions bar night"time e0ecution of warrants, unlesse0pressly authorized by the magistrate.

.2/ ?noc9@and@Announce Rule

Benerally, the police may not forcibly enter a home to e0ecute a warrant, unless they first5noc5 at the door )or ring the bell, identify themselves, state their purpose for see5ing

entry, re/uest admittance, and are refused admission. Wilson v. /r+ansas, (*% #.$. &'


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Chapter 6

!ARRAN$LESS SEARC%ES

( 6)*1 0Reasona-leness 2alancin3 Standard

.A/ %erry v. &hio

&erry v. 'hio, &' #.$. *)*&3;, made constitutionally permissible warrantless searchesand seizures in limited circumstances. The $upreme ourt ruled that in determiningwhether the Warrant and =robable ause clauses of the Fourth Amendmentapply to agiven search and?or seizure, the central in"uiry is the reasonableness of thegovern!ent's activity under the circu!stances( reasonableness is assessed by

balancing the need to search or seize against the invasion the search or seizure entails .This is 5nown as the reasonableness balancing! test. 2SeeC .+' for further discussionof &erry v. 'hio.4

.2/ 0Reasona-le Suspicion

$uspicion is reasonable! if the officer can point to specific and articulable facts that,along with reasonable inferences from those facts, 1ustify the intrusion. Deasonablesuspicion that a crime has been or is being committed may be based on one or more ofthe following information:

the police officer8s personal observations.

reliable hearsay.

criminal profiles.

unprovo5ed flight.

.1/ %earsay

7earsay may support an officer8s reasonable suspicion of criminal activity where:)* the tip carriesenough indicia of reliabilityto 1ustify a &errystop. /dams v.

Williams,%+< #.$. *%)*&


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the informant8s description, but noted no suspicious conduct suggesting criminal activitywas underfoot.

.+/ Criminal Profiles

An officer8s observations may properly be supplemented by consideration of the typicalmodes of behaviors of certain 5inds of criminals. Fore0ample, in drug"traffic5ing cases,an officer8s suspicions can be buttressed by his awareness that the suspect8s conduct orappearance conforms to a so"called drug"courier profile,! which is a set ofcharacteristics purportedly often associated with drug traffic5ers, compiled by lawenforcement agencies.

.6/ "li3ht in 0%i3h@Crime Areas

#nprovo5ed flight, when coupled with other factors @ such as the presence of the policein a high"crime area @ can constitute reasonable suspicion to 1ustifying a search and?or

seizure, at least in the absence of circumstances that suggest the flight is motivated by anon"criminal purposes. llinois v. Wardlo%, ('; #.$. **&)'+++.

.8/ Suspects Race or Ethnicity

&erry stops based solely on the race of a suspect are impermissible. 7owever, race orethnicity, when coupled with other factors, may give rise to reasonable suspicion. Fore0ample, courts have sometimes treated racial incongruity! @ the presence of a person ofa particular race or ethnic group in a neighborhood where such group is not ordinarilyfound @ as one legitimate factor in evaluating the lawfulness of a stop.

.C/ Len3th of the 'etention

The 1ustifiability of a seizure on less than probable cause is predicated in part on thebrevity of the detention, although there is no bright"line time limitation to a &erry"typeseizure. Com0are United States v. la!e, %3' #.$. 3&3 )*&; )&+"minute detention ofperson suspecting of carrying narcotics in his luggage in order to sub1ect the luggage to adog"sniff test was held e0cessive in length %ith United States v. Montoya de ernandez,%


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At issue in &erry was a pat"down of a suspect that the officer observed apparentlycasing! a store in order to rob it. The ourt found that the brief restraint and pat"downdid constitute a search and seizure. 6e0t applying the reasonableness balancing test, theourt weighed society8s interest of effective crime prevention and detection @ which

would be impaired if the police could not confront suspects for investigative purposes onless than probable cause @ and the police8s legitimate immediate interest in ensuring thatthe suspect is not armed, against the invasion of the suspect8s personal liberty. The ourtheld that the police conduct was constitutional, stating that when an officer has reasonto believe that the suspect is ar!ed and dangerous, the officer has the constitutional

authority to conduct a search for weapons without probable cause or a warrant.

.2/ !eapon Searches of Persons

The purpose of the &erry search is limited to the sole purpose of determining whether thesuspect is ar!ed. While the appropriate manner of the protective search depends on the

specific circumstances, generally, the proper techni/ue, as approved in &erry, is asfollows:)* -f an officer feels no ob1ect during a pat"down, or feels an ob1ect that does not

appear to be a weapon, no further search is 1ustifiable.)' -f the initial pat"down @ with no further touching @ provides the officer with

probable cause for believing that an ob1ect felt is contraband or other criminal evidencesub1ect to seizure, he may pull out the ob1ect without a warrant, as part of the plain"touchdoctrine.

) -f the officer feels an ob1ect that he reasonably believes is a weapon, theofficer may conduct a search by removing the ob1ect from the suspect.

)% -f the ob1ect he pulls out is a container, he may feel the container to see if itmight contain a weapon inside.

)( -f his suspicions regarding the container are not reasonably dispelled by itssize, weight, and feel, the officer may, at a minimum, retain possession of the container.

)3 -f the container could not reasonably contain a weapon, it may not be searchedor seized.

.C/ !eapons Searches of Automo-iles

The police may search the passenger compartment of an automobile, limited to thoseareas in which a weapon may be found, if the officer reasonably believes that the suspectis dangerous and may gain immediate control of a weapon.Mi!higan v. 3ong, %3 #.$.*+')*&;.

( 6)*6 $emporary Sei5ures of Property

&erryprinciples apply to seizures of property as well as to seizures of persons. Thus, fore0ample, police officers may, without a warrant, temporarily seize luggage on the basis

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of reasonable suspicion that it contains narcotics, in order to investigate further, such asto conduct a dog"sniff test of the luggage. United States v. la!e, %3' #.$. 3&3)*&;.

( 6)*8 Searches and Sei5ures of the 2ody

The ta5ing of a blood, urine or breath sample, or sub1ecting the suspect to other intrusionsof the body, e.g., an 0"ray, may be permissible without a warrant if:)* the police are 1ustified in re/uiring the individual to submit to the test9 and)' the means and procedures employed are reasonable.

S!hmer#er v. California, ;% #.$.


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The search of an arrestee may include poc5ets of his clothing, and any containers foundtherein,as well as containers immediately associatedwith him, such as a briefcase orshoulder bag, that are large enough to conceal a weapon or evidence of a crime.

.+/ Area !ithin the Arrestees mmediate Control

.a/ 4enerally

Factors to consider in determining the arrestee8s grabbing area! are:

whether he is hand"cuffed in front or behind his bac5.

his size and de0terity.

the size of the space he is in.

whether containers within his reach are open or shut, and if shut, whether they are

loc5ed.

the number of officers relative to suspects.

.-/ Arrests !ithin a %ome or Other Structure

$ome courts apply a one"room! rule allowing a search of the entire room in which thearrest occurred, regardless of the other circumstances.

Aside from those areas within a residence to which the search"incident"to"arrest!e0ception applies, the police may not search the entire house without a warrant. Chimel v.California, &( #.$.


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A police officer !ay seize without a warrantanyarticle found during the search uponprobable cause to believe that it is cri!inal evidencerelated to the immediate or anothercrime, even though probable cause is not necessary to conduct thesear!h.

.C/ "ull Custodial Arrest

The search"incident"to"lawful"arrest rule applies to arrests in which the officer ta5es thesuspect into full custody, which includes transporting him to the police station forboo5ing. -t does not apply, however, when an officer temporarily detains a suspect.Kno%les v. o%a, ('( #.$. **)*&&;.

( 6)* Automo-ile Searches

.A/ Searches at the Scene

A police officer may conduct an immediate warrantless search of an automobile that theofficer has probable cause to believe contains contraband, fruits, instru!entalities, orevidence of a cri!eif:

)* the officer stops the vehicle traveling on a public road9 or)' the officer discovers the vehicle par5ed, but apparently capable of operation,

in a non"residential location, such as a public par5ing lot or gas station.

.2/ Searches Away "rom the Scene

A warrantless search of an automobile that would be valid if it were conducted at thescene, is also permissible if it ta5es place shortly thereafter away from the scene, such asif the police impound the vehicle and subse/uently conduct the search. The $upremeourt has authorized delays of a few days, United States v. "ohns,%3& #.$. %


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.A/ 0Routine Nature of the n,entory

A warrantless, suspicionless search of a car lawfully in police custody is not 1ustifiablemerely because it was conducted for administrative purposes. The inventory must be aroutine! or standard! procedure of the department conducting it.

-deally, the regulations authorizing an inventory should give no significant discretion tothe individual officer. 6evertheless, the $upreme ourt has upheld inventories thatpermit some police discretion if e0ercised according to standard criteria! and groundedon reasons other than suspicion of evidence of a crime. Colorado v. *ertine,%


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.A/ Validly O-tained Consent

A validly obtained consent 1ustifies an officer in conducting a warrantless search, with orwithout probable cause. -f the officer discovers evidence during a valid consent search,he may seize it without a warrant pursuant to the plain view doctrine. +onsent is validif

it is: )*given voluntarily@ The voluntariness! of consent is determined from thetotality of the circumstances. onsent that is the result of e0press or implied duress orcoercion is involuntary. The prosecutor bears the burden of demonstrating by apreponderance of the evidence that consent was freely given.

)' not based on an officer's assertion of authority to conduct a search on thebasis of a warrant, whether or not the warrant is valid.*um0er v. orth Carolina, &*#.$. (%)*&3;.

.2/ Scope of Search

A warrantless consent search is invalid if the officer e0ceeds the scope of the consentgranted.

.C/ $hird@Party Consent

onsent to a search by one who possesses common authority over property is validagainst another with whom the authority is shared. ommon authority! e0ists whenthere is mutual use of the property by persons generally having 1oint access or controlfor most purposes.! United States v. Matlo!+,%*( #.$. *3%)*&


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Chapter 8

ARRES$S

( 8)*1 4eneral Rules

#pon probable cause that the suspect has committed or is committing a felony, a policeofficer:)*!ay arrest a person in a public place without a warrant, even if it is

practicable to secure one9)' !ay not arrest a person in the person's ho!e without an arrest warrant,

absent e0igent circumstances or valid consent9 and) !ay not arrest a person in another person's ho!e without a search warrant,

absent e0igent circumstances or valid consent.2SeeC .+(, >0igent ircumstances, and C .**, onsent $earches.4

( 8)*+ Arrest in the %ome

The Fourth Amendmentprohibits the warrantless, nonconsensual entry into a suspect8shome in order to ma5e a routine! )non"e0igent felonyarrest.ayton v. e% 2or+,%%(#.$. (


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&ennessee v. $arner, %


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Chapter :

A'&NS$RA$VE AN' NON@NVES$4A$ORF SEARC%ES

( :)*1 2uildin3 nspections

.A/ !arrant Re0cept in the case of emergency or consent, a warrant is re/uired to enter a residential orcommercial building for the purpose of conducting administrative health and safetyinspections therein. 7owever, such warrant is not based on probable cause to believethere is criminal activity underfoot. Camara v. Muni!i0al Court,;< #.$. (')*&3


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outine border searches, without a warrant and in the absence of individualizedsuspicion of criminal conduct, are deemed to be reasonable. United States v. 4amsey, %*#.$. 3+3)*&


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A highway sobriety chec5point at which drivers were briefly detained )an average of '(seconds to search for signs of into0ication was upheld despite the lac5 of individualizedsuspicion of driving under the influence.Mi!higan De0artment of State oli!e v. Sitz,%&3 #.$. %%%)*&&+. The interest in eradicating drun5 driving was found to outweigh theslight! intrusion on drivers.

( :)*8 'ru3 nterdiction Chec9points

A highway chec5point established for the purpose of detecting possession and?or use ofillegal drugs has bee held to violate theFourth Amendment. City of ndiana0olis v.(dmond, (* #.$. ')'+++. As opposed to border and sobriety chec5points, which aredesigned primarily to serve purposes closely related to the problems of policing theborder or the necessity of ensuring roadway safety,! the drug interdiction chec5point wasaimed at detecting evidence of ordinary cri!inal activitynot related to the chec5point.Thus, when non"specific crime control is its aim, a chec5point !ust be based onindividualized reasonable suspicionof wrongdoing.

( :)*: License and Vehicle Re3istration nspections

$topping a vehicle solely for the purpose of chec5ing driver8s license and registration,without a reasonable suspicion that a motorist is unlicensed or the vehicle unregistered, isunreasonable under the Fourth Amendment.!Dela%are v. rouse,%%+ #.$. 3%;)*&


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)% procedures limit the ris5 of arbitrary application of the testing9)( care is ta5en to protect the dignity of persons tested in the specimen"collection

process9)3 a regime based on individualized suspicion would have been impracticable9)


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Chapter ;

S$AN'N4 $O ASSER$ "O#R$% A&EN'&EN$ CLA&S

( ;)*1 Nature of "ourth Amendment Ri3hts

Fourth Amendment rights arepersonal, not derivative. Thus, evidence seized in violationof one defendant8s Fourth Amendment rights may be admissible against a co"defendantunless the co"defendant has independent grounds to assert such claim./lderman v.United States,&% #.$. *3()*&3&.

( ;)*+ 0Le3itimate Expectation of Pri,acy Standard

.A/ 4eneral Rule

The modern test for determining whether a person has standing to contest a search onFourth Amendment grounds is whether the person who claims the protection of the

Amendment has a legiti!ate expectation of privacyin the invaded place.!4a+as v.llinois, %& #.$. *';)*&


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.C/ Examples n,ol,in3 Automo-iles

.1/ Automo-ile Out of Owners Possession

ourts are split on the issue of whether the owner of an automobile has standing to

challenge a search and seizure when the car is temporarily out of the owner8s possessionat the time of the police conduct. Host courts hold that when a car owner lends his-hervehicle to another, at least if for a short duration, the owner !aintains a legiti!ate

expectation of privacyin it and, therefore, can challenge a search of the car that ta5esplace in the owner8s absence.

A few courts have held that possession, and not ownership of the car is the 5ey.Therefore, an absent owner of an automobile lac5s standing to contest the search ofhis?her vehicle.Hore often, however, a court may rule that the owner lac5s standing ifthe owner gives another person co!plete control of the car and its contents for anextended period of ti!e, especially if the vehicle will be driven a considerable distance

away from the owner.

.+/ Search of Another Persons Automo-ile

A non"owner occupant of an automobile may have standing to contest a search, under thetest set forth in4a+as 2%& #.$. *';4. (.g., where the owner lends the car to theoccupant for a period of time and the occupant has complete dominion and control of theautomobile at the time of the search, the occupant may be found to have had a reasonablee0pectation of privacy in the automobile.

$ome courts have held that a passenger does not have standing to contest a search andseizure of a vehicle in which the passenger is traveling.

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Chapter

EGCL#SONARF R#LE

( )*1 4eneral Rule

>vidence gathered in violation of theFourth Amendmentis not admissible in a criminaltrial against the defendant.

( )*+ Exceptions to the Exclusionary Rule

.A/ Non@$rial Criminal Proceedin3s

-llegally seized evidence may constitutionally be introduced in a variety of non"trialcriminal proceedings including: grand 1ury proceedings, preliminary hearings,bailproceedings,sentencing,and proceedings to revo5e parole.

.2/ mpeachment at $rial

A prosecutor may introduce evidence obtained from a defendant in violation of thedefendant8s Fourth Amendment rights for the limited purpose of impeaching thedefendant8s: )* direct testimony9 or )' answers to legitimate /uestions put to thedefendant during cross"e0amination. 7owever, such evidence may not be used toimpeach other defense witnesses. "ames v. llinois, %& #.$. +


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) the warrant is based on an affidavit lac5ing sufficient indicia of reliability,e.g., if a warrant is issued based on a wholly conclusory affidavit9

)% the warrant is facially deficient in that it fails to particularize the place to besearched or the things to be seized.

.6/ mproperly Executed !arrants

The3eon 2%3; #.$. ;&


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>vidence that otherwise /ualifies as fruit"of"the"poisonous"tree may be admissible if itsconnection with the illegal police activity is so attenuated that it is purged of the taint.ardone v. United States, +; #.$. ;)*&&9 Wong Sun v. United States,


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Chapter D

PRVLE4E A4ANS$ SEL"@NCR&NA$ON

( D)*1 $ext and nterpretation of the Pri,ile3e A3ainst Self@ncrimination

The Fifth Amendmentto the #nited $tates onstitution provides in relevant part thatn/o person . . . shall be co!pelled in any cri!inal case to be a witness againsthi!self.!

.A/ 0Person

The privilege against self"incrimination applies only to natural persons. -t may beinvo5ed by witnesses as well as defendant)s. orporations,associations,partnerships,and other entities cannot avail themselves of the privilege )the collective entity!doctrine, but a sole proprietor may.

.2/ 0Compelled

The Fifth Amendmentis violated when the government compels a person, by physical ormental force, to provide incriminating oral or documentary testimonial evidence, e.g.,forced confessions. 2Seehapter *+, onfessions.4

.C/ 0Criminal Case

One may invo5e the privilege against self"incrimination in any civil or cri!inalproceeding, whether formal or informal @ e.g., grand 1ury proceedings, trials,administrative hearings, police interrogations @ where statements could be used toincriminate him in a subse/uent criminal proceeding.3ef+o%itz v. &urley, %*% #.$.


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)*&&+, a drun5 driving case, the ourt held that an incorrect answer regarding the date ofthe suspect8s si0th birthday was testimonial as it supported the factual inference that thedefendant's !ental faculties were i!paired. )The ourt distinguished the incorrectanswer, which reflected his mental processes, from the slurred nature of his words ingeneral, which were deemed to be physical evidence.

The privilege generally applies to docu!entary evidenceas well if the documentsincriminate the person compelled to produce them. 7owever, as the privilege againstself"incrimination is personal, it may not be asserted by a third"party )e.g., a suspect8saccountant who is compelled to produce documents that incriminate another.

.+/ Physical E,idence

The Fifth Amendmentdoes not precludethe government from compelling a person toprovide real or physical evidence. S!hmer#er v. California, ;% #.$.


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( D)*6 Exceptions to the Pri,ile3e A3ainst Self@ncrimination

The privilege against self"incrimination applies to situations where the statements couldbe used in a criminal proceeding. Thus, testimonial evidence, even if incriminating may

be compelled in a variety of non"criminal conte0ts..A/ Remergency =rice ontrol Act, which re/uired certainlicensed businesses to maintain records of their business activities and to ma5e themavailable for inspection by the government upon re/uest9 California v. *yers, %+' #.$.%'%)*&


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Chapter

C#S$O'AL N$ERRO4A$ON

( )*10iranda v. rizona

The landmar5 case ofMiranda v. /rizona, ;% #.$. %3)*&33, resulted from theconsolidation of four cases on appeal. -n each case, the suspect was ta5en into custody,/uestioned in a police interrogation room in which the suspect was alone with theinterrogators, and never informed of his privilege against self"incrimination.

Miranda held that any statement, whether e0culpatory or inculpatory, obtained as theresult of custodial interrogationcould not be used against the suspect in a criminal trialunless the police providedprocedural safeguardseffective to secure the suspect8sprivilege against compulsory self"incrimination. ustodial interrogation! is defined inMirandaas /uestioning initiated by law enforcement officers after a person has beenta5en into custody or otherwise deprived of his freedom of action in any significant way.!

( )*+ 0Custody

A person is deemed to be in custody if he is deprived of his freedo! of action in anysignificant way. ustody! re/uires the e0istence of coercive conditions that wouldcause a reasonable person to believe, under all the circumstances surrounding theinterrogation, that he is not free to go.6ot all coercive environments e/uate to custody.! For e0ample, a police interrogationroom may be deemed a coercive environment but the totality of the circumstances mayindicate that a person is not in custody @ e.g., he came to the police station voluntarily,was informed prior to /uestioning that he was not under arrest, and he was free to leavethe police station at any time. See 'regon v. Mathiason, %'& #.$. %&')*&


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with the police.(d%ards v. /rizona, %(* #.$. %


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-n order to be valid, a waiver must have been given voluntarily, 5nowingly, andintelligently.!Colorado v. Connelly, %


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Chapter 1*

CON"ESSONS

( 1*)*1 Voluntary Confessions

A confession that is freely and voluntarily made, following properMiranda2;% #.$.%34 warnings, is admissible against the defendant at a criminal trial. The voluntarinessof a confession is to be assessed from the totality of all the circumstances, ta5ing intoaccount both the characteristics of the accused and the details of the interrogation.

( 1*)*+ n,oluntary Confessions

A confession that results from police coercion violates the Fifth Amendment privilegeagainst compulsory self"incrimination. The following factors may negate thevoluntariness of a confession.

.A/ Actual or $hreatened Physical "orce

A confession obtained by threatened or actual use of violence is inadmissible.onfessions have also been invalidated when the police have warned! a suspect that,unless he confesses, he may be the victim of mob violence or deadly attac5s from fellowprisoners.

.2/ 'epri,ation

onfessions have been suppressed in cases in which the police deprived a suspect offood, water, or sleep, for an e0tended period of time.

.C/ Psycholo3ical Pressures

Among the relevant factors that determine whether undue psychological pressure wasimposed on a suspect are:

length of custodial detention.

whether the interrogation was prolonged.

whether the /uestioning occurred in the daytime or at night.

whether the interrogation is conducted incommunicado.

the personal characteristics of the suspect )e.g., age, intelligence, level of

education, psychological ma5eup, and prior e0perience with the police.

.'/ Promises of Leniency

A confession is not necessarily a product of coercion where the police e0pressly orimplicitly promise leniency in e0change for the suspect8s cooperation./rizona v.)ulminante,%&& #.$. '


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)*;&


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Chapter 11

SG$% A&EN'&EN$ R4%$ $O CO#NSELH N$ERRO4A$ON

( 11)*1 $ext of Sixth Amendment

The $i0th Amendmentreads in relevant part: -n all criminalprosecutions, the accusedshall . . . have the Assistance of counsel for his defence.!

( 11)*+ !hen the Ri3ht Attaches

The $i0th Amendment right to counsel e0ists for criminal prosecutions.! Thus, the rightattaches only upon co!!ence!ent of adversary )udicial proceedings, such aspreliminary hearing, indictment, information, or arraignment.*re%er v. Williams,%+#.$. ;


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eliberate elicitation may be found where the government creates a situation li#ely toinducethe defendant to ma5e incriminating statements. For e0ample, in United States v.enry, %< #.$. '3%)*&;+, the FE- placed an informant @ who was to be paid on acontingent basis @ in the defendant8s 1ail cell after he had been indicted. The FE- advisedthe informant to be alert to any statement! the defendant made, but not to initiate any

conversations with the defendant or as5 him /uestions. 6evertheless, the informantengaged the defendant in conversation, during which he made incriminating statementsthat the government sought to introduce at his trial. Focusing on several factors,including that the paid informant had an incentive to elicit information from thedefendant, the ourt found that the government had created an opportunity for theaccused to incriminate himself, in the absence of counsel, thereby violating his $i0thAmendment right.

The government may be found to have unlawfully created an opportunity for the accusedto incriminate himself in violation of the$i0th Amendmenteven if the encounter withan infor!ant or undercover agent is initiated by the accusedhimself. -nMaine v.

Moulton, %


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only one, is whether each provision re"uires proof of a fact which the other does not.!*lo!+#urger v. United States,';% #.$. '&&)*&' )the test applied for double 1eopardypurposes, e0tended to the $i0th Amendment conte0t by Co##.

( 11)*: !ai,er of the Ri3ht to Counsel

.A/ !hen the Accused Re


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.C/ Sufficiency of !ai,er

As with waiver of the right to counsel during custodial interrogation, a waiver of the rightto counsel prior to post"indictment interrogation must be voluntary and made 5nowinglyand intelligently.! 2Seehapter &, ustodial -nterrogation.4

( 11)*; Scope of the Sixth Amendment Exclusionary Rule

.A/ mpeachment

The ourt has addressed whether a statement secured in violation of the$i0thAmendmentmay be used for impeachment purposes in only a limited conte0t. -f thepolice initiate conversation with an accused who has re/uested counsel, in violation ofthe rule inMi!higan v. "a!+son, incriminating statements may be used for impeachmentif the accused subse/uently waived the right, despite the fact that the improper policeconduct precludes admission of the statements as part of the prosecution8s direct case.

Mi!higan v. arvey, %&% #.$. %%)*&&+.

.2/ "ruit@of@the@Poisonous@$ree 'octrine

The fruit"of"the"poisonous"tree doctrineapplies to violations of the $i0th Amendmentright to counsel. See i1 v. Williams, %3< #.$. %*)*&;%. 2Seehapter 0clusionaryDule.4

( 11)* Comparison of Ri3ht to Counsel 'urin3 nterro3ations #nder Sixth

Amendment and0iranda

The right to counsel under the $i0th Amendmentand the Fifth AmendmentMiranda 2;%#.$. %34 decision differ in the following ways:

)* $imin3@ The $i0th Amendment right applies only after adversary 1udicialcriminal proceedings have been initiated against the accused9 the Fifth Amendment rightattaches once the defendant is ta5en into custody.

)' Custody@ The Fifth Amendment right does not attach unless the suspect is incustody9 the $i0th Amendmentis not so limited, e.g., it applies when the accused hasbeen released from custody on bail or on his own recognizance.

) Nature of offense@ The $i0th Amendment right is offense"specific9 the FifthAmendment right to counsel applies to any and all offenses, once custodial interrogationcommences.

)% "ocus of in


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undercover officer9 the $i0th Amendmentapplies to deliberate elicitation by overt andcovert government agents.

)3 "ruit@of@the@poisonous@tree doctrine@ The doctrine applies to $i0thAmendment violations9 the doctrine does not apply to violations of the Fifth Amendmentright to counsel.

)


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Chapter 1+

EFE!$NESS 'EN$"CA$ON

( 1+)*1 Ri3ht to Counsel at Line@ups

An accused has a $i0th Amendment right to have counsel present at any corporealidentification procedureconducted after the commencement of an adversary 1udicialcriminal proceeding against him.This rule is 5nown as the Wade"Kir#ydoctrine) UnitedStates v. Wade, ;; #.$. '*;)*&3


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Where pretrial eyewitness identification is deemed unnecessarily suggestive andunreliable, the witness isprecluded fro! !a#ing an in$court identificationof theaccused unless the prosecution proves that the out"of"court identification procedure didnot create a very substantial li5elihood of irre0ara#le misidentification.! Simmons v.United States, &+ #.$.


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Chapter 16

EN$RAP&EN$

( 16)*1 Nature of Entrapment

>ntrapment is not a constitutional doctrine. -t is a cri!inal law defenseto policeoverreaching, recognized in all states and the federal courts. -n general, entrapmentoccurs when the defendant:

)* was induced to commit the crime by a government agent )typically anundercover police officer9 and

)' would not have otherwise committed such crime.

=roof of entrapment varies according to whether the 1urisdiction in which a case ispending applies the sub1ective! test )ma1ority approach or the ob1ective! test )minorityapproach advocated by the Hodel =enal ode.

( 16)*+ Su-Becti,e $est

The sub1ective test focuses on the defendant's predisposition, if any, to co!!it thecri!esolicited by the government agent. Sorrells v. United States, ';< #.$. %()*&'.A defendant need not be completely law"abiding in order to assert a defense ofentrapment9 a history of or predisposition to engage in unlawful activity unrelated to thecrime at issue does not preclude the defense.

>ntrapment re/uires more than that the government agent provided an opportunity to thedefendant to commit the crime, and generally involves repeated and persistentsolicitation. See, e.g., "a!o#son v. United States, (+ #.$. (%+)*&&' )defendant whohad purchased magazines that contained nude photographs of under"age males notdepicting any se0ual activity prior to the enactment of a federal law prohibiting thereceipt of such materials, and who subse/uently succumbed to more than two years ofgovernment solicitation to purchase child pornography, was not deemed to bepredisposed to commit such crime.

=redisposition may be proved by demonstrating the defendant's ready co!plaisance toco!!it the cri!e, with evidence of, for e0ample:

the defendant8s non"hesitancy to commit the crime.

the defendant8s ready 5nowledge of how to commit the crime.

the defendant8s comments prior to the commission of the crime that demonstrate

his propensity to commit the crime.

=redisposition may also be proved by reference to the defendant's character in theco!!unityprior to the time the government approached him, e.g., evidence )which isotherwise generally inadmissible of the defendant8s bad reputation in the communityand?or his prior criminal record, including arrests and convictions for related offenses.

#1

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-n 1urisdictions applying the sub1ective test, the issue of whether the defendant wasentrapped is deemed a /uestion of fact and is generally sub!itted to the )ury.

( 16)*6 O-Becti,e $est

The ob1ective standardfocuses on police conductrather than the predisposition of thedefendant. #nder the ob1ective test, the court considers the li5ely impact of the policesolicitation on a hypothetical innocent person,not the actual defendant. Thehypothetical person! standard may ta5e into account some of the characteristics of theactual defendant.

Hodel =enal ode C '.*)' provides that the entrapment defense should be sub!itted toa )udgerather than to the 1ury.

#2



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Chapter 18

R4%$ $O CO#NSELH PRE$RAL7 $RAL AN' POS$@CONVC$ON

PROCEE'N4S

( 18)*1 Pretrial Proceedin3s

#nder the $i0th Amendment,a defendant8s right to counsel attaches upon thecommencement of an adversarial criminal proceeding and may be invo5ed at any criticalstage.! Thus, prior to trial, a defendant is entitled to the assistance of counsel at:

)*post$indict!ent line$ups2Seehapter *', >yewitness -dentification.4)'post$indict!ent interrogation2Seehapter **, $i0th Amendment Dight to

ounsel: -nterrogation.4)psychiatric exa!inationsof the defendant to determine competency 2See

hapter *;, =retrial and Trial -ssues.4)% arraign!ents2Seehapter *(, harging the efendant.4)(preli!inary hearings2Seehapter *(, harging the efendant.4

)3 bail and detention hearings2Seehapter *3, =retrial Delease or etention.4)


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.1/ !ai,er of Counsel

-mplicit in the $i0th Amendmentis the right of a defendant to voluntarily and 5nowinglywaive his right to the assistance of counsel and to represent himself at trial, provided the

court deems him mentally competent to do so.)aretta v. California, %'' #.$. ;+3)*&


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.a/ Pretrial A,oidance of Conflicts

-f an attorney representing co"defendants ma5es a timely motion for appointment ofseparate counsel based on a potential conflict of interest, the trial 1udge !ust either grant

the !otion or at least conduct a hearingon the matter to ascertain whether appointmentof separate counsel is warranted. Failure of the 1udge to do so re/uires automaticreversal of any conviction. ollo%ay v. /r+ansas, %( #.$. %


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post"sentencingprobation hearings.

post"sentencingparole revocation hearings.

4oss v. Moffitt, %*< #.$. 3++)*&


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Chapter 1:

C%AR4N4 $%E 'E"EN'AN$

( 1:)*1 Complaint

After a suspect is arrested and boo5ed, a complaint is prepared by the police or aprosecutor and is filed with the court. A complaint is a written statement of the essentialfacts constituting the offense charged.! Fed. D. rim. =. . The complaint serves as theofficial charging docu!ent prior to the issuance of an infor!ation or indict!ent.

( 1:)*+ Pro-a-le Cause 45erstein6 %earin3

When the police arrest a suspect without an arrest warrant, a pro!pt )udicialdeter!ination of probable causemust ordinarily be made in order to continue to detainthe defendant where a significant pretrial restraint on libertyis involved. $erstein v.ugh, %'+ #.$. *+)*&


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-n most 1urisdictions, a preliminary hearing is held within two wee5s after the initialappearance before the magistrate, unless the defendant waives the hearing. Fed. D. rim.=. ()c.The primary purpose of a preliminary hearing is to determine whether there isprobable cause to believe that the defendant co!!itted a specified cri!inal offense.Fed. D. rim. =. (.*)a. i5e the $erstein2%'+ #.$. *+4 hearing, a preliminary hearing

is not re/uired if a grand 1ury previously returned an indictment.

#nli5e a $erstein2%'+ #.$. *+4 hearing, thepreli!inary hearing is adversarialinnature. efense counsel may be present, and the prosecutor and the defendant may callwitnesses on their behalf and cross"e0amine adverse witnesses. Hany 1urisdictionspermit the introduction of hearsay and evidence obtained in an unconstitutional manner atthe preliminary hearing. Fed. D. rim. =. (.*)a.

.A/ nformation Jurisdictions

-f the magistrate in an infor!ation )urisdiction@ i.e., a state in which an indict!ent by a

grand )ury is not re"uired * determines that there is sufficient evidence to bind over thedefendant for trial, the prosecutor files an information. An information states the chargesagainst the defendant and the essential facts relating to the charges and replaces theco!plaint as the for!al charging docu!ent.

-f the magistrate in an information 1urisdiction does not find sufficient evidence to bindover the defendant, the complaint is dismissed and the defendant is discharged. -f theprosecutor wishes to proceed with the dismissed case:

)* he may file a new complaint, in which case the prosecution begins anew9)' in some states, he may appeal the magistrate8s dismissal to the trial court9

and?or) in some circumstances, he may see5 an indictment from a grand 1ury.

-n anindict!ent )urisdiction@ states in which the defendant ordinarily cannot bebrought to trialunless indicted by a grand )ury@ the preliminary hearing functions aslittle more than an adversarial $erstein"type hearing. -ndeed, the !agistrate's probablecause deter!ination !ay be superseded by the grand )ury9 if the grand 1ury does notindict the defendant, he must be released, despite a finding by the magistrate thatprobable cause e0ists to believe that the defendant committed the offense.

( 1:)*: 4rand Jury Proceedin3

-n indictment 1urisdictions, a defendant may not be tried for a serious offense unless he isindicted by a grand 1ury or waives the right to a grand 1ury hearing. A grand 1uryproceeding differs from a preliminary proceeding in that:

)* the defendant is not per!itted to be presentduring the grand 1uryproceedings, e0cept if and when he is called as a witness.

)' the defendant )as well as all other witnesses !ay not have counsel presentwhile he testifies before the grand 1ury.

$0

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Chapter 1;

PRE$RAL RELEASE OR 'E$EN$ON

( 1;)*1 nitial Court Appearance

At a defendant8s initial court appearance )which usually occurs within '% hours afterarrest, the magistrate or 1udge determines whether the defendant may be releasedpending trial. The magistrate may:

)* release the defendant on recognizanceif the magistrate is confident that thedefendant will appear as re/uired at all criminal proceedings.

)' attach conditions to the defendant's release, such as placing him in thecustody of a designated individual or re/uiring the deposit of bail, in order to betterensure the defendant will appear as re/uired.

) order the continued confine!entof the defendant pending trial )preventivedetention! if the magistrate determines that no conditions will reasonably ensure thedefendant8s appearance as re/uired or that his release will 1eopardize the safety of others.

-n federal criminal cases, a defendant is entitled to representation by counsel at the baildetermination, and indigents are appointed counsel for such purpose.Fed. D. rim. =.%%)a. Hany state court systems, however, do not provide counsel to indigents for bailproceedings.

( 1;)*+ 2ail

.A/ Amount of 2ail

The >ighth Amendment, as well as all states, by constitution or statute,prohibits the

setting of excessive bail. Eail is e0cessive if it is set at an amount higher than isdeemed necessary to ensure the defendant8s appearance at trial.

-n determining the appropriate amount of bail in a given case, the magistrate is toconsider:

the nature and circumstances of the offense charged.

the weight of the evidence against the defendant.

the defendant8s character.

the financial ability of the defendant to meet the bail re/uirements.

The onstitution does not entitle an indigent to be released %ithoutbail if he cannot

afford to meet any financial conditions. Sta!+ v. *oyle,%' #.$. *)*&(*.

.2/ "ederal 2ail Reform Act

#nder the Federal Eail Deform Act of *&;%,*; #.$.. CC *%*@*(+, the magistrate isre"uired to release the defendanton his own recognizance or upon e0ecution of an

$2

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unsecured appearance bond in an amount specified by the court,!unless the magistrateconcludes that !ore restrictive conditions are necessaryto reasonably ensure that thedefendant will not flee the 1urisdiction and?or endanger others while released pendingtrial.

The magistrate may not set bail in an amount that is beyond the means of the defendantand therefore results in pretrial detention.*; #.$.. C *%')c)'. -f a 1udge determinesthat the defendant should be detained pending trial, he is re/uired to follow the detentionprovisions set out in the Act.

( 1;)*6 Pre,enti,e 'etention

.A/ 'etention %earin3

#nder the Federal Eail Deform Act,*; #.$.. C *%')f)*, the magistrate must hold adetention hearing on the motion of the prosecutor if the defendant is charged with:

a crime of violence. any offense for which the ma0imum sentence is life imprisonment or death.

a drug offense for which the ma0imum term of imprisonment is ten years or more.

any other felony committed by a person previously convicted of two or more of

the above offenses.

A hearing is also re/uired on a motion of the prosecutor or on the 1udge8s own motion incases that involve an allegation of:

a serious ris5 of flight.

obstruction of 1ustice.

intimidation of a prospective witness or 1uror.

At the detention hearing, which ordinarily must be held at the defendant8s firstappearance before the magistrate,the defendant is entitled by statute to be represented bycounsel, to testify in his own behalf, to present witnesses, and to cross"e0amine witnessescalled by the prosecutor. Dules concerning the admissibility of evidence at criminal trialsdo not apply at the hearing, thus allowing the introduction of hearsay and evidenceobtained in violation of the onstitution.

The prosecutor or defendant may immediately appeal the magistrate8s order in thedetention hearing.*; #.$.. C *%(.

.2/ 'etermination of Release or 'etention

.1/ Rele,ant "actors

-n order to determine whether any condition)s will reasonably ensure the appearance ofthe defendant and the safety of others, the magistrate must consider:

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the nature of the offense charged.

the weight of the evidence against the defendant.

the defendant8s physical and mental condition.

the defendant8s ties to family and the community.

whether, at the time of the current arrest, the defendant was already on probation

or parole or on pretrial release from another offense.*; #.$.. C *%')g

.+/ Statutory Presumptions

The Federal Eail Deform Act of *&;% provides for two rebuttable presumptions indetention hearings.

The defendant ispresu!ed to be too dangerous to be releasedif the prosecutor proves:)* the defendant was previously been convicted of one of the enumerated

offenses that 1ustifies a detention hearing9

)' that the offense for which the defendant was convicted was committed whilehe was on release pending trial for another crime9 and

) five years have not elapsed since the later of the date of the defendant8s priorconviction or his release from prison.

-t may also bepresu!ed that no conditions of release will reasonably ensure that thedefendant will not flee or co!!it a cri!e, if the magistrate determines that there isprobable cause to believe that the current charge involves an enu!erated serious drugoffense or an the use or possession of firear!s. *; #.$.. C *%')e.

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The prosecutor may revo5e an offer, even after the defendant accepts it,prior to theentry of the pleaby the court. Ma#ry v. "ohnson, %3< #.$. (+%)*&;%. 7owever, theprosecutor may not breach the plea bargain once the court accepts it if the guilty plearests in significant part on the prosecutor8s promise. Santo#ello v. e% 2or+,%+% #.$.'(


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.a/ Nature of the Char3es

The defendant must be informed of and understand the critical ele!ents)e.g., mentalstate @ but not necessarily all elements @ of the crime to which he is pleading guilty.enderson v. Morgan, %'3 #.$. 3


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%0



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Chapter 1D

PRE$RAL AN' $RAL SS#ES

This chapter covers the following issues:

iscovery

ompetency to $tand Trial Dight to a $peedy Trial

Kury Trial

Dight to onfront Witnesses and =resent a efense

Koint Trials

$entencing

( 1D)*1 'isco,ery

.A/ Exculpatory E,idence

-n preparation for trial, the prosecution has a duty to:

disclose exculpatory evidencein its possession to the defendant,*rady v.

Maryland,


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)* the substance of any oral state!ent !ade by the defendant, before or afterarrest, in response to interrogation by a person the defendant 5new was a governmentagent9

)' any relevant written or recorded state!ent by defendant9) defendantLsprior cri!inal record9

)% any material docu!ents and ob)ectsthat the government intends to in its case"in"chief, or was obtained from or belongs to the defendant9)( reports resulting from anyphysical or !ental exa!inationsand tests9)3 written summary of any expert testi!onythat the government intends to use

in its case"in"chief.

#nder federal procedure, if the defendant re/uests the government to produce documentsand tangible evidence, reports of e0aminations and tests, or information about e0pertwitnesses, the defense must ma5e a reciprocal disclosure. Fed. D. rim. =. *3)b)*.

.C/ 'efendants O-li3ation to 'isclose nformation

The prosecution may be entitled by statute or procedural rule to obtain information fromthe defendant prior to trial, e.g., the names of alibi witnesses. See, e.g., Fed. D. rim. =.*'.*. -n such cases, the defense must be entitled to reciprocal discoveryfrom theprosecution pertaining to relevant rebuttal evidence. Wardius v. 'regon,%*' #.$. %


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defendant8s ob1ection, if the trial 1udge believes that the defendant may be incompetent.ate v. 4o#inson, ; #.$.


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statutory penalties )including fines are so severe that they clearly reflect a legislativedetermination that the offense in /uestion is a Jserious8 one.! *lanton v. City of orth3as Vegas,%;& #.$. (;, (%)*&;&.

.2/ Re


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from face"to"face confrontation without a determination as to the susceptibility of theindividual witness. (.g., Coy v. o%a, %;< #.$.*+*')*&;;.

.2/ %earsay E,idence 2NoteHAfter this section was written, the $upreme ourt decidedCra%ford v. Washington,(%* #.$. 3)'++%, differentiating between MtestimonialM and

MnontestimonialM hearsay and holding that the onfrontation lause bars the admission oftestimonial hearsay unless the declarant is unavailable and the accused has had a prioropportunity to cross"e0amine the declarant.4

-ntroduction of hearsay passes constitutional analysis where:)* the declarant of the hearsay statement testifies at trial, affording the defendant

the opportunity to cross"e0amine the declarant9)' a hearsay e0ception applies9) the statement is otherwise found to be trustworthy, based on the totality of

circumstances. daho v. Wright,%&< #.$. ;+()*&&+.

-f the hearsay consists of statements made at aprior )udicial proceeding, the statementmay be admitted if the declarant is unavailable to testify at the current trial and thestatement carries with it sufficient indicia of reliability. United States v. nadi,%


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The $i0th Amendmentgrants to the accused the right to co!pulsory process forobtaining witnesses in his favor, which includes the rights to subpoena witnesses and topresent a defense. The defendant must be permitted to introduce crucial evidence in hisdefense that has substantial assurances of trustworthiness, even if the evidence isotherwise inadmissible under local rules of evidence. Cham#ers v. Mississi00i,%*+ #.$.

';%)*&


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)*&; )life imprisonment %ithout 0ossi#ility of 0arole, imposed pursuant to the habitualoffender law, upon conviction of fraudulently passing a chec5 for N*++, was deemed toviolate the >ighth Amendment.

>ven in the absence of parole, a seemingly disproportionate punishment might be

permissible for aserious offense.armelin v. Mi!higan, (+* #.$. &(


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Chapter 1

%A2EAS CORP#S

( 1)*1 Nature of %a-eas Corpus

A habeas corpus proceeding is not a direct appeal but rather a collateral attac# of aconvictionby which the defendant challenges the lawfulness of his detention. 7abeascorpus is a civil re!edythat mandates the release from custody of an individual beingheld in violation of constitutional or federal law.reiser v. 4odriguez, %** #.$. %


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