law shool essentials – riminal...

LAW SCHOOL ESSENTIALS – CRIMINAL PROCEDURE PROFESSOR LAURIE L. LEVENSON

LOYOLA LAW SCHOOL

CHAPTER 1: BASIC PRINCIPLES OF THE FOURTH AMENDMENT: SEARCHES AND SEIZURES

A. General Fourth Amendment Principles

Covers both ______________________________and _________________________________

Fourth Amendment rights are _______________________________________________ - the

individual challenging the action must have __________________________________________

in order to raise a challenge.

Example 1: You and your best friend go out and steal something. You leave it

in your best friend's house. The police come in without a warrant, search the

house, find the stolen goods, and link them to both of you. Your best friend can

bring a motion to suppress because there was no warrant for the search. But,

you cannot bring a motion to suppress because none of your Fourth

Amendment rights were violated.

What happens if there is a violation of the Fourth Amendment rights?

o The __________________________________________________________

How it works - If the police obtain evidence in an illegal way, that evidence cannot

initially be introduced by the prosecution in a trial.

There is an _____________________________________________________________ standard.

o _________________________________ will decide whether there was a violation of

constitutional rights.

The Fourth Amendment only applies to _____________________________________________.

States can have broader rights than are granted by the U.S. Constitution.

B. Arrests/Seizures

The Fourth Amendment provides that people should be free from unreasonable

______________________________________________.

When is a person seized?

o Objective test: when a reasonable person would not feel

______________________________________________.

o There has to be some actual submission.

2 | © 2014 Themis Bar Review, LLC | Law School Essentials Criminal Procedure

Example 2: If the officer says, "Stop, in the name of the law!" but the

defendant keeps on running and drops some cocaine out of his pocket, there

was no illegal seizure because the defendant was not actually seized.

o How do you determine whether there was a seizure?

Practical standard: ________________________________________________________

o The detention has to be ____________________________________.

o If an officer stops a car, the driver and all passengers are seized.

1. Three types of encounters with the police

1) _______________________________________________________________________

A reasonable person would feel free to leave.

No suspicion is needed.

2) _______________________________________________________________________

Also known as a "stop and frisk" or a Terry stop

The officer must have at least

_____________________________________________________.

The officer cannot do full search of person or person's belongings.

The officer can do a pat down to make sure they are safe and can ask questions to

see if crime is afoot.

3) ________________________________________________________________________

Police officers need to have _____________________________________________.

o This means a fair probability that a crime was committed and you committed

the crime.

Police officers will be able to do a _________________________________________

incident to that arrest.

2. Requirements for an arrest

o Ordinarily, they should have an _________________________________________________.

Must be issued by a _______________________________________________________

magistrate

Must be supported by ____________________________________________

This is a showing that based upon the totality of the circumstances there is evidence

that a crime has taken place.

o Arresting a suspect in a home


Police can enter the suspect's ________________________________ with the arrest

warrant; they do not need a search warrant.

However, if police go into a third party's home to arrest that person, then they need a

search warrant for the third party's home.

3. Warrantless arrests

o When crimes occur in a __________________________________________

o If the crime is a __________________________________ and the officers have

__________________________________________________ that the felony has taken

place, the officers can make the warrantless arrest, even if they did not witness the crime.

_________________________________________________ - officers have to see the

violation.

4. Illegal arrests

o It does not mean the case gets thrown out.

o Any evidence that comes from the illegal arrest is going to be

_________________________________________________.

C. Defining "Search"

1. Katz standard – two-part standard:

1) Did the individual have a subjective, sincere belief and

____________________________________________________________________?

2) Was that expectation of privacy __________________________________________?

2. Jones standard

o The case involved a drug dealer and law enforcement placed a GPS device on his car to

follow him. Law enforcement followed him on the public streets for a month.

o The Supreme Court, however, stated that even though the movements were on public

streets, there was a search.

o Rule: If you have a _________________________________________________________by

the police on private property for the purpose of obtaining information, it may also

constitute a search.

o Dog Sniffs of Homes: Under the Supreme Court's recent Florida v. Jardines decision, a drug-

sniffing dog on a homeowner's porch constitutes a search because it is a trespass.

D. Areas Protected Against Government Searches

1. The home

o Police need a ____________________________________ or an

____________________________________________ to the warrant requirement.


o The Supreme Court has expanded the right of privacy to

__________________________________________. In determining whether the area is

protected as curtilage, a four-factor test applies:

1) How close is the area to ___________________________________________?

2) Is it within an __________________________________ around your home?

3) What happens in that area; is it for private use?

4) What steps have been taken to _____________________________________ the area?

o There is no reasonable expectation of privacy in open fields.

o Houseguests: An __________________________________________________________ will

be able to argue an honest and reasonable expectation of privacy.

2. Motel rooms

o You can have a reasonable expectation of privacy in a motel room.

o The motel operator cannot give access to the police without

______________________________________________________ or some other exception

to the warrant rule.

3. Business premises

o Occupiers of business premises have Fourth Amendment rights

4. Jails or prisons

o Inmates do not have a reasonable expectation of privacy.

o Jail administrators may strip search all arrestees who go into general population even if

there is no reasonable suspicion that arrestee has a concealed weapon or contraband.

Florence v. Board of Chosen Freeholders (2012).

E. Objects Sought

1. Papers and effects

o The Fourth Amendment, by its terms, protects "papers and effects."

o Bond case – police went onto a bus and started groping the luggage. In that case, the police

were searching the effects.

o Smells: Dogs or officers smelling things are

_____________________________________________________ a search.

o Items found in another person's possession: If something of yours is found in another

person's bag, you cannot contest that. You do not have a reasonable expectation of privacy

in someone else's bag.


2. Automobiles

a. In General

Automobiles are protected under the Fourth Amendment.

Police only need __________________________________________________________

to stop an automobile. That is, they have to be able to articulate

_______________________________________________________________ that made

them suspicious that there was some illegal behavior by the car.

b. Checkpoints

Checkpoints are permissible under the Fourth Amendment.

The primary purpose of the sobriety checkpoint is ______________________________

________________________________, not to do a law enforcement search.

Contrast with drug interdiction stops: If police are stopping cars to look inside to see if

there are drugs, that is an __________________________________________________.

Searches for witnesses: Under the Lidster case, the Supreme Court has said the police

can also stop cars to see if they have a witness who maybe saw a recent accident or

know where a missing child is.

Immigration law enforcement: ________________________________________

customs border stop - law enforcement is permitted to do a

____________________________________________________________. No suspicion

is needed.

3. Abandoned property

o Abandoned property is not protected by the Fourth Amendment.

o There is no reasonable expectation of privacy in abandoned property, such as

_____________________________________.

F. Persons and Their Attributes

Individuals do not have a reasonable expectation of privacy in their physical characteristics,

including handwriting and voice samples.

Police may take a DNA sample from an arrestee as part of the routine booking procedure. It is

like fingerprinting or photographing. Maryland v. King (2012).

Government informants: An individual also does not have a reasonable expectation of privacy

in conversations with others.

o This issue commonly arises when someone speaks with a government informant or

undercover officer.

o The use of that conversation by police is not considered a search under the Fourth

Amendment.


CHAPTER 2: SEARCH WARRANTS AND EXCEPTIONS TO THE WARRANT REQUIREMENT

A. Methods Used to Search

1. Fly-overs

o The Supreme Court has stated that an individual does not have a reasonable expectation of

privacy from _____________________________________________________or helicopters.

o This is not a search for purposes of the Fourth Amendment.

o However, drones that fly below the level of regular aviation may be a search.

2. Technological devices

o Kyllo case – police used a thermal imager to see what was going on inside a house.

Does that constitute a search? _________________.

Rule: If you have new type of technology being used on a home, and it is not in

______________________________________________ yet, that is considered a search.

o Canine sniffs: Not allowed if they are of the home and there is no warrant.

o Officer sniffs: Permitted; not like high-tech device.

3. Field test

o Determines whether a substance is contraband

o A field test ___________________________________________________a search.

B. Search Warrant Requirements

A valid search warrant must be:

1) Issued by a_________________________________ and

__________________________________________magistrate;

2) Based on a finding of probable cause;

3) Offered by an officer under oath or ______________________________________; and

4) Describes with particularity the _____________________________ to be searched and

what the officers are searching for.

The general rule is that you need a warrant but there are many exceptions.

1. Probable cause

o A ____________________________________________________________ standard applies

to information provided by an informant. Police need to corroborate this information.

o Facts supporting probable cause may come from any of the following sources:


1) A police officer's ______________________________________________________;

2) Information from a ________________________________________, known informant,

or an unknown informant where you have been able to verify some of their information;

and

3) Evidence the officer has obtained from the initial

________________________________________________.

All information goes into an affidavit.

o How can a defendant attack any showing of probable cause in a warrant?

Franks v. Delaware: if the defendant can show that (1) not only is the statement false,

but it was made with ______________________________________________________

___________________________________disregard for the truth and (2) that particular

falsehood was __________________________________________________to a finding

of probable cause, then that might be grounds for striking it out of the warrant.

If there is enough left in the affidavit apart from that false statement or if the officer just

made a mistake, then that is not going to be enough to challenge the probable cause

under the warrant.

2. Particularity

o This is a reasonable standard.

o The Supreme Court has instructed courts to look at the overall language that is set forth.

Language, such as "other fruits, instrumentalities, and evidence of this crime, at this time

unknown," does not automatically make a warrant invalid.

o The warrant must list where law enforcement is going to search

o If they make small mistakes but it is still reasonable that the officer's description will get

them to the right place, the warrant will survive.

3. Anticipatory warrant

o Anticipatory warrants are valid so long as the officers can show by their recitation of facts

that there will be ______________________________________________________at that

point that there will be evidence of a crime.

4. Innocent third parties

o Can the police get a search warrant for a third-party's premises even though they cannot

show the third party was involved in anything illegal himself?

______________________________________________________________


C. Execution of Warrants

1. Service

o A warrant can be served by officers.

o This may include other types of government officials, such as fire inspectors.

2. Timing

o The Constitution does not set a specific time limit – it is the reasonable standard.

o The Federal Rules of Criminal Procedure do have time limits, such as a 10-day limit for

search warrants.

3. Manner of execution

o The police are supposed to __________________________________________________.

o Exceptions: If the police can show exigent circumstances, that they have reason to believe

there are guns there or evidence will be destroyed, they do not necessarily have to knock

and announce.

o If the police do a search but do not knock and announce, the Supreme Court has stated it

will not apply the exclusionary rule.

4. The plain view doctrine

o Officers, if in a place that they are entitled to be, may seize

________________________________________________________ in plain view; police

cannot move or overturn objects to put things into plain view.

5. Detention of parties present at a search

o Officers can lawfully detain people that are on the premises when they are doing a search in

order to safely conduct the search.

o Persons detained must be in the "immediate vicinity" of the premises searched.

o If persons are within the vicinity, they may be detained in a reasonable manner, which may

include handcuffs, and may be questioned.

D. Exceptions to the Warrant Requirement

1. Search incident to a lawful arrest

o First determine whether there was a lawful arrest. If the arrest was illegal, the following

search is, as well.

o It must be an actual arrest, not just a

_______________________________________________.

o After the police have arrested someone, they have two concerns: (1) their

_________________________________________and (2)

______________________________________________.


o The Chimel standard, also known as the "grab area" rule:

The police have the right to search anything within the ___________________________

of the suspect.

If someone is arrested in their home, the police can search the

_________________________________, bags that might be near them, as well as

closets and _________________________________________, that are in that same

room from which an attack could be launched; can search pockets and open containers

within pockets.

Police can do a ___________________________________________________________

to make sure no one is there. If they are making an arrest in a house and hear noises in

the house causing them to believe their safety is at stake, they can conduct a search. If

they see something in _________________________________________________, they

can seize it.

o Timing: The search must take place at about the same time as the arrest.

o Scope of the search:

Includes ______________________________________________________________

Can look inside ____________________________________________that might be in

the pockets

Anything that is immediately associated with the person (such as a shoulder bag or

purse), so long as the container could actually hold

_________________________________________________________.

2. Vehicle search incident to a lawful arrest

o Old rule (Belton): whenever there was a lawful arrest involving an automobile, the police

could automatically search the entire ___________________________________________.

o The Supreme Court's Gant decision changed this rule:

Now, if a search is incident to a lawful arrest involving an automobile, whether police

can search the entire passenger compartment depends on whether:

The suspect is still inside the car or outside of the car on the curb nearby and

therefore he might able to rush back into the car; or

o But if the suspect has been placed in

_________________________________________________in the back of the

patrol car, police cannot search the entire passenger compartment UNLESS

It is reasonable that __________________________________________________of

the arrest might be found in the vehicle.

o Look at the reason for the arrest.


Example 3: A person was arrested in their car on suspicion of possessing

drugs. If the suspect was arrested in his car, the search of the passenger

compartment is valid. If the suspect is put in the back of the police car, the

police could search the passenger compartment for drugs. If the individual was

stopped for driving with a suspended license and then put in the back of a squad

car, Gant wouldn't allow a search of the passenger compartment, as there

wouldn't be any evidence of the crime found there. (Note, though, that another

exception might apply.)

o Scope of searches incident to arrest

Only includes the passenger compartment

Does not include a ______________________________________________________.

This requires a separate exception - __________________________________________,

which only applies when you have probable cause that there is contraband in the car.

o Inventory search

Individual is arrested, brought to the station – the individual's car is taken down to an

impound station and inventoried.

So long as there is a routine policy that allows the police to take this inventory, police

are permitted to do this even if the car is locked or without the owner's consent.


CHAPTER 3: EXCEPTIONS TO THE WARRANT REQUIREMENT, CONT'D

A. Exceptions to the Warrant Requirement, cont'd

1. Exigent Circumstances

o Police need to have the right to seize evidence or it will be

_____________________________________________, someone will get hurt, or someone

will ____________________________during a hot pursuit.

o When are exigent circumstances present? ________________________________________

__________________________________________test.

o The police are NOT permitted to create their own exigency.

1) _____________________________________________ - This is when police are chasing

after somebody who just committed a crime.

2) Other emergency situations: If the police have reason to believe that somebody is in

immediate threat of serious harm, injury, or death, they are allowed to enter a house

under exigent circumstances.

3) In drunk driving cases, police can take a warrantless blood test but only when they show

that they did not have time to get a warrant. The reasonableness of the warrantless

blood test is determined on a case-by-case basis.

2. Stop and Frisk – "Terry stops"

o Police need ____________________________________________________ - individualized,

articulable facts that crime is afoot.

o Only a brief detention, and not a full search

o ________________________________________________________________ - in addition

to their experience, there could be a police bulletin, there could be an informant, etc.

Example 4: Police are in a high-crime area, person standing on the corner,

person takes off when police drive up, police have other reason to believe there

might be a weapon or other criminal activity – is this enough to constitute

reasonable suspicion? _______________________________________.

o If the police have reasonable suspicion, what can they do?

They can do a frisk, otherwise known as a _____________________________________.

The purpose is to see if there are weapons that can be used against the officers.

They cannot go into ___________________________________________________.

If police are patting someone down and it is very clear just by the

_____________________________________________ that the item is contraband,

usually a weapon, they can seize it.


BUT if they feel something and it feels squishy, could be baby powder or drugs, the

police are NOT allowed to reach in there and take it.

o There can be Terry stops of cars.

Law enforcement may stop cars if there is a reasonable belief that (1) there is a

dangerous suspect or (2) if they are involved in criminal activity.

Police can look around in the passenger area for any hidden weapons.

Officers can order individuals out of the car, including the passengers, and frisk them.

Subjective intent of the officer in making the stop does not matter.

Pretext stops are ok if there are objectively reasonable reasons to stop

The stop must be _____________________________________________.

3. Automobile exception

o Police need to have _______________________________________________ to believe

that the vehicle contains ______________________________________________.

o If they have this probable cause, they can look in all parts of the car that could hold that

contraband.

They can look in the passenger compartment, the ___________________________, and

also _______________________________________________________ in the trunk.

o Pre-textual stops

The Supreme Court has set a standard that does not really look at the

__________________________________________________________ of officers.

The focus is whether it was _________________________________________________

to do the search – the Whren case.

4. "Plain-view" doctrine

o Items in public view can be seized without a warrant.

o What about objects in a private area?

Plain view as long as the officers had a _____________________________________

_______________________________to be there.

Police can take anything that is __________________________________________by its

nature and they can see.

5. Consent searches

o Officers obtain consent from individuals to search their cars, objects, etc.

o Officers do not have to inform the individual of their right to say no.

o The standard is whether it is a voluntary consent.

o No suspicion is required.


How do we know whether it is voluntary? Look at the totality of the circumstances.

o Consent from third parties: A third party can give consent to search your house or your

items in two situations:

The third party has _______________________________________________________.

The third party has _______________________________________________________ -

the officer has reason to believe that the third party did have permission on your behalf

to give consent.

A landlord may have actual authority, but police should confirm.

o Jointly controlled property

People who share a premises (a co-owner) generally can give permission

Exception: When the other co-owner is also there and refuses to give permission for the

search.

Exception does not apply when co-owner denies permission but is later lawfully

removed from the premises by the police. [Georgia v. Randolph]

o A search is limited to the reasonable scope of the consent.

o The burden of proof is on the prosecution to show it was a valid, voluntary consent.

6. Administrative searches

a. Generally

These are health and safety inspections.

They can involve either residential or commercial property.

There is a probable cause standard but not the same as that for a criminal investigation.

A legislative scheme that directs how often or under what circumstances these

inspections can be made is sufficient to justify the inspections.

Examples of administrative searches:

____________________________________________________________________,

Highly regulated industries, such as _______________________________________,

gun shops, and _______________________________________________________.

b. Public officials in ________________________________________________.

Students have less constitutional protection than adults.

In a school, ______________________________________________________________

might be enough to search. It depends on what the officers are searching for and the

level of intrusion.

You can also have _____________________________________ searches, such as

random drug testing of students, because of the need for safety.


o Administrative searches also include inventory searches, routine international border

searches, vehicle checkpoints and roadblocks, and factory searches.

c. Government employees

If there is a reasonable expectation of privacy, they might only need reasonable

suspicion that some type of work-related misconduct is at play to search the employees'

desks.

d. Other

Detention of a traveler whom authorities have reasonable suspicion is smuggling

contraband in his stomach.

Parolees and probationers

Parolees - ________________ suspicion is required to search

Probationers - ______________________________________________ suspicion is

required to search

B. Wiretapping

Difference between wiretapping and consensual monitoring:

o Consensual monitoring: when an undercover law enforcement officer or informant is wired

and engages in a conversation with the suspect.

NOT a search

No reasonable expectation of privacy

Note 1: One party to a conversation recording the conversation without the other party's knowledge is not illegal under the Fourth Amendment.

o Wiretapping: when you are having a private conversation - neither party to the call knows

that it is being tapped into.

Need _________________________________________________________

Must get special wiretap warrant


CHAPTER 4: THE EXCLUSIONARY RULE AND THE FIFTH AMENDMENT

A. Exclusionary Rule

1. Generally

o The exclusionary rule applies to violations of the _________________________Amendment,

________________________ Amendment, and _________________________Amendment.

o If the police illegally obtain the evidence, it should not be used initially in the case in chief

against the defendant to prove guilt.

o The _________________________________________________________________doctrine

Not only the evidence that the police immediately obtained from their illegal behavior,

but anything it led to, the derivative evidence, should also be excluded.

2. Exceptions to the exclusionary rule:

o Remember that only the person whose constitutional rights have been violated have

standing to raise the exclusionary rule.

1) The _______________________________________________________________rule

The police illegally obtain evidence but they were going to find it anyway.

Example 5: The police illegally obtain a statement that tells them where they

might find a little girl who has gone missing. At exactly the same time, the

police are conducting a full blown search for the child and within a matter of

hours, they would have found her. The Supreme Court has said that it will not

throw out that evidence. Inevitable discovery would apply.

2) The _____________________________________________________________doctrine

As long as there is an independent, lawful source, it does not matter that there was

other illegal activity.

3) The ___________________________________________________ principle

Officers are not perfect and they can "____________________________" the taint.

Example 6: Officers illegally obtain a statement from a suspect. The suspect

then comes back to the station and says, "Let me tell you what really

happened." The defendant might argue that he never would have done that if

the officers had not been talking to him illegally in the first place. The Supreme

Court would state that the taint is too attenuated and this is not a situation

where the exclusionary rule will be used.

4) The ____________________________________________________ exception

If you have a warrant that is _____________________________________________

and it is not unreasonable to believe it is a good warrant, and it was not obtained by


fraud, and it is not improperly executed, then even though it turns out not to be a

good warrant, the exclusionary rule will not be used.

Herring:

o Warrantless use of the good-faith exception. Herring was arrested based on a

warrant from a computer check – police found contraband during a search

incident to arrest. Computer records were wrong – there was not a valid

warrant for Herring. The officers claimed good faith, relying on the computer

records.

o The Supreme Court allowed the good-faith exception to apply. The exclusionary

rule will not be applied unless there has been __________________________or

__________________________________________misconduct, or systemic

__________________________________________.

5) The "knock and announce" rule

6) In-court ________________________________________

3. Suppression hearings

o When do suppression hearings take place? How do you get evidence suppressed?

Defendant must make a motion before the trial, outside the presence of the jury.

Defendant has the right to testify.

If there was a warrant, the burden is on the ____________________________________

to show that ____________________________________________________________.

If there was no warrant, the burden is on the ___________________________________

____________________________________________.

o Obtaining evidence by questionable methods

Police do something that __________________________________________________.

Example 7: The police perform surgery to obtain evidence. However, cheek

swabs for DNA samples do not shock the conscience.

FINAL NOTE

o Fourth Amendment only applies if it is a search of the defendant's property; if property is

taken from third-party, like bank or phone records, it is not a search.

B. The Fifth Amendment

The Fifth Amendment provides that no person shall be compelled in any

_________________________________________________ to be a witness

_________________________________________________.


Only applies to ___________________________________________, not artificial entities, like

corporations or partnerships.

The Fifth Amendment only includes _______________________________________________

evidence.

o Testimonial statements can be written or oral, but they are NOT

_______________________________________________ evidence.

Breathalyzer test, handwriting exemplars, physical characteristics, urine sample – not

protected by the Fifth Amendment.

NOT ____________________________________________

Business papers are not protected by the Fifth Amendment.

However, a person can refuse to comply with a requirement to register or pay a tax if it

is directed at a select group of "inherently suspect criminal activities," such as an

occupational tax on bookies.

The testimonial evidence must also be ______________________________________________.

Personal diaries: the government may not compel production of a diary but diaries can come in

if obtained pursuant to a search warrant.

When do you have a Fifth Amendment privilege against self-incrimination? In

________________________________________________.

Assertion of that right cannot be used against you in a

__________________________________________________________________________.

The defendant has the privilege not to testify and the prosecution cannot comment on the

defendant's refusal to testify.

A defendant can waive the Fifth Amendment privilege by

______________________________________________________________________. Then the

prosecution can cross-examine.

Government can get around the Fifth Amendment by giving ____________________________.

If given immunity, the Fifth Amendment protection no longer applies.

C. The Fifth Amendment in a Police Interrogation Context

1. General Rule

o Miranda rights advise a suspect of his rights before being interrogated or making a

statement.

o Fifth Amendment applies to any statements, not just full confessions; it also applies even

though defendant intended statement to be exculpatory

o Only apply to custodial interrogations.


Example 8: The police have arrested an individual. That individual, without

being questioned, begins to give a confession. That is not a Miranda violation

because the person was ____________________________________________.

Example 9: A police officer walking down the street asks an individual a

question and the individual gives incriminating information. That person is not

in custody so the Miranda rights do not apply.

2. Custody

o It does not have to be at the police station, in the interrogation room.

It can be at the scene of the crime or someone's house.

o The standard is whether a ____________________________________________________

would feel ___________________________________________________.

Generally, this is a completely objective test.

However, the Supreme Court has recently said that you can take into account the

suspect's ______________________.

o Traffic stops are not considered to be custodial.

o Just because a person is in prison, it does not mean that he or she is "in custody" for

Miranda purposes. Courts will look at totality of circumstances.

3. Interrogation

o It can be any words or action that the police knew or should know are likely to elicit an

incriminating response.

o A statement must be voluntary to be used.

o Involuntary statements are __________________________________________________.

Example: beating a suspect until he confesses or threatening force.

Sometimes, using a great deal of deceit or fraud could cause a statement to be deemed

involuntary.

_________________________________________ to a suspect does not necessarily

make a confession _______________________________________________.

Look at all of the factors to see if it was unduly coercive.

4. Compliance with Miranda

o Officers must advise an individual of his procedural protections and suspect must voluntarily

waive those rights.

o If officers do not comply with Miranda, then the exclusionary rule

_______________________________________ and the person's statement cannot be used

against them.


However, if _______________________________________________ is found from that

statement, it is ____________________________________________________ as fruit

of the poisonous tree of that statement.

o Officers must generally cover all four bases of the Miranda rights:

1) The right to ___________________________________________________

2) Any statement made can be used __________________________________

3) The right to consult with an attorney and have the attorney present for the

interrogation

4) If the defendant cannot ________________________________ an attorney, one will be

__________________________________________

o These rights must be given _________________________________the interrogation begins.

If it is a lengthy interrogation, the warnings might have to be given again.


CHAPTER 5: THE FIFTH AMENDMENT, CONT'D, THE SIXTH AMENDMENT, AND PRETRIAL PROCEDURES

A. The Fifth Amendment in a Police Interrogation Context, cont'd

1. Invoking Miranda Rights

a. Right to counsel

o What if the suspect says, "I want my lawyer"? The interrogation must

____________________________.

However, "Maybe I should have a lawyer" is not enough

Under the Fifth Amendment right to ____________________________________, a

person must be very clear that they want their lawyer.

The person must make a specific, unambiguous statement asserting his desire to have

counsel present, then all interrogation must stop. [Edwards Rule]

Interrogation must stop, but police may still use spontaneous blurt outs by suspect

Also, if there is a 14-day or more break in custody, officers may return, re-Mirandize

suspect and try to interrogate again. This includes when an inmate is returned to

general population. [Maryland v. Shatzer]

b. Right to remain silent

o What if the suspect says, "I don't feel like talking to you"?

Invoking the right to remain silent

The police must "____________________________________________________" your

request but they can give you some time off, come back, give the Miranda rights again,

and ask if you feel like talking at that point.

Merely remaining silent does not invoke 5th Amendment right to remain silent

Invocation must be unambiguous

2. Exceptions to the Miranda requirement

o _________________________________________________________

o _________________________________________________________- putting someone

through booking, asking them, "What is your name?" "What is your height?" etc.

o Undercover officer or informant - Miranda was designed to deal with

___________________________________ questioning. It is not going to be coercive if the

suspect is not aware that the person questioning him is law enforcement. [Illinois v. Perkins]

3. Waiver of Miranda rights

o The prosecution must show that the defendant knowingly, voluntarily, and intelligently

waived their rights.


o It does not need to be a __________________________________ waiver or even an explicit

waiver; it can be an implied waiver.

4. No Miranda warnings given

o What if the police fail to give a suspect his Miranda rights and after the suspect confesses,

the police then advise the suspect of his Miranda rights – can the police question the

suspect again?

Siebert: The Supreme Court said if the failure to give Miranda rights was made in

_______________________________________, the police may not be able to question

the suspect again.

o Statements taken in violation of Miranda

If it is an involuntary statement, it cannot be used for any purpose.

If it is a statement in violation of Miranda, they cannot initially use it in their case in

chief but they can use it for _____________________________________________.

o Fruits of a tainted confession

______________________________________________ that comes from an illegal

confession can still be admitted.

Second confessions are not automatically suppressed.

Elstad: Suspect given Miranda rights but not properly. Confession that was given

was not proper. The police came back, correctly Mirandized the suspect, and got a

confession. The Supreme Court allowed the confession.

Siebert: The police had a strategy to give bad Miranda warnings or no warnings to

see if the suspect would confess and then come back and reaffirm the confession

after giving Miranda warnings. The Supreme Court suppressed the confession.

B. The Fifth Amendment in the Trial Context

Immunity can be given before there are charges or to other witnesses.

Different types of immunity:

o _________________________________________ immunity - no prosecution for the crime.

o Use and ______________________________________________ immunity - any statement

made or evidence it leads to won't be used against you (though you could still be

prosecuted).

If the state authorities give immunity, it will bind the federal courts as well.

Prosecutors cannot comment on a defendant's assertion of her Fifth Amendment right.

C. The Sixth Amendment

The defendant has the right to:


o A public trial;

o Confront witnesses against him;

o Cross-examine witnesses;

o Be present at his own trial; and

o Assistance of counsel for his defense.

The Sixth Amendment right to counsel applies in all _______________________________ cases.

o Also in any ___________________________________________case in which the suspect is

sentenced to incarceration, even if that sentence is suspended

The Sixth Amendment right to counsel applies at all ____________________________________

of a prosecution.

o Attaches at the initiation of the prosecution when you are formally charged, and continues

through the sentencing stage.

o The right to counsel attaches at the following critical stages:

Post-indictment ______________________ and ________________________________;

Post-indictment police interrogations;

Editor's Note 1: The Sixth Amendment applies to all post-indictment interrogations, whether custodial or not.

__________________________________________________ and preliminary hearings;

Plea bargaining

Guilty pleas and sentencing; and

Appeals _____________________________________________.

An individual does not have the Sixth Amendment right to counsel when it is not really an

adversarial proceeding.

o Examples: Photo identifications, taking fingerprints, handwriting exemplars,

_____________________________________________ , discretionary appeals, and post-

conviction proceedings. Not even for an in-person lineup if there have been

________________________________________________________________________.

A defendant can voluntarily and intelligently ________________________________the right to

counsel – Faretta.

o The court has the right to say a person is not competent to waive counsel.

o A defendant who has been formally charged may waive the right to counsel at post-charges

interrogation. [Montejo v. Louisiana]

o The Sixth Amendment right to counsel is offense-specific.

Only applies to the specific charge you face

How do you know when you have the same charges? The Supreme Court uses the

Blockburger test: look at the ________________________________________________.


Note 2: Compare this to Miranda – you have Miranda rights whenever you are in custody and subject to interrogation.

The Sixth Amendment right to counsel applies, even if the interrogation is non-custodial.

Example 10: Defendant Dave has been charged with burglary and is out on

bail awaiting trial. The police also suspect Dave in an unrelated arson case, and

they bring him to the police station to question him about the arson. Dave is

given the Miranda warnings and waives his right to remain silent, but he asks to

see his attorney. The police do not call Dave's attorney but continue to

interrogate Dave until he confesses to the arson. While the police did violate

Dave's Fifth Amendment right to have an attorney present during questioning,

they did not violate his Sixth Amendment right to counsel, as the arson was

unrelated to the burglary.

D. Remedies for the Denial of Counsel under the Sixth Amendment

Can get an automatic _______________________________________of a conviction.

A bad plea can be __________________________________________.

Undercover informants

o Person is in custody and has been formally charged.

o Miranda still does not apply.

o But the person has a Sixth Amendment right – if the individual working for the government

starts questioning the person, it can be a violation of the Sixth Amendment right.

o Jailhouse informants may serve as listening posts, but cannot induce statements

Exclusionary rule under the Sixth Amendment

o The "fruit of the poisonous tree" doctrine is applicable to violations of the right to counsel.

o If the police initiate a conversation with an accused individual who has requested counsel,

any statement made to police in violation of this right can still be used for

_____________________________________________ purposes.

E. Ineffective Assistance of Counsel

The Supreme Court has set a pretty low bar under the Strickland standard.

Two requirements must be shown to reverse a conviction on the ground of ineffective counsel:

1) Counsel's representation fell below an objective standard of reasonableness (show

___________________________________________________); and

2) Counsel's deficient performance prejudiced the defendant, resulting in an unreliable or

fundamentally unfair outcome in the proceeding (i.e., must be

___________________________________________________).

One of the things that may impair counsel is a ________________________________________.


Example 11: The attorney represents both defendants, one of whom wants to

cooperate with the government against the other.

o The court, under Federal Rule of Criminal Procedure 44(c), has the responsibility to see if

there are any conflicts and it can actually disqualify a lawyer, even if the defendant does not

want the court to do so.

Right to effective assistance extends to plea bargaining stage

o Counsel must communicate plea offers and give adequate advice regarding accepting offer

[Missouri v. Frye; Lafler v. Cooper]

F. Eyewitness Identifications

Two rights to consider: (1) Right to counsel (post-formal charges only); (2) due process

1. Right to Counsel

o A distinction is made between __________________________________________________

identifications and _______________________________________________identifications.

o There is a Sixth Amendment right to counsel at a post-indictment,

________________________________________________________ .

o The right to counsel does not apply if (1) the witness is only looking at the suspect's pictures

or (2) it is a pre-indictment, pre-formal charge lineup identification.

But even then, there are ___________________________________________________.

2. Due Process

For any type of identification, there is always due process.

o Due process is violated when it was an ___________________________________________

identification _________________________________________________.

o It applies to both pre-formal charge and post-formal charge.

o The standard has two prongs:

1) The defendant must prove that the identification procedure was impermissibly

____________________________________; and

2) The court must determine whether the testimony was nonetheless

_____________________________________.

The burden may be on the prosecution to show that it might have been suggestive,

but the witness:

o Had an ________________________________________to view the defendant,

o Gave it a lot of attention,

o Gave an _________________________________________________________,

o Was really sure of it, and


o The length of time between the crime and identification was relatively short.

o If the court finds the procedure was impermissibly suggestive, it is going to keep out the

out-of-court identification.

This does not mean that the in-court identification is automatically excluded.

G. Preliminary Proceedings

1. Gerstein hearing

o Court determines whether there is probable cause to detain

o Not required if there is an arrest warrant

o Not an adversarial procedure

2. Initial appearance

o Opportunity to argue _______________________________

o Appointed counsel

3. Arraignment

o Defendant is informed of _________________________________________.

4. Detention hearing

o _________________________ hearing

o Court considers two factors: (1) ______________________________________________

and (2) danger to community

5. Grand jury

o Only applies to _______________________________________ prosecutions, unless state

chooses to have grand jury

This right has not been incorporated to states.

6. Preliminary hearing

o Mini-trial but no ______________________

o Both sides are present

o Judge will decide if there is _____________________________________________ to bind

the defendant over for trial.

H. Right to Bail

Right under the __________________________ Amendment

No absolute right to bail

If a defendant is entitled to bail, it cannot be

___________________________________________________.


There is a ____________________________________________in favor of bail.

o Whether the defendant is a _____________________________________ or danger to the

community are reasons to deny bail.

I. Competency

Different from ________________________________

Insanity asks what the defendant's state of mind was at the time of

____________________________________.

Competency asks what the defendant's mental ability is at the time of

____________________________________.

A defendant must be competent to stand trial.

o Dusky standard:

Whether the defendant understands the __________________________________of

the proceedings; and

Whether the defendant has the ability to _________________________________with

his lawyer.

If deemed incompetent, the defendant goes to a prison hospital where he can be medicated to

be made competent for trial.

J. Grand Juries

Composed of ______________people

Run by the prosecutors

Hear the evidence, listen to the witness, and decide whether there is probable cause for the

charges

Can issue ____________________________________ - lawful orders for evidence or witnesses

to be brought before the grand jury

Supposed to be secret

A wide range of witnesses can be called, and they can rely on hearsay.

Witnesses have ______________________________________________– have the Fifth

Amendment right to remain silent, but do not have right to have counsel present.

Defendant does not have the right to testify before the grand jury, to presentation of

exculpatory evidence, or to only have admissible evidence.

___________________________________________________ does not apply


CHAPTER 6: PRETRIAL PROCEDURES, CONT'D AND JURY TRIALS

A. Discovery / Exculpatory Evidence [Brady duties]

Evidence that goes to show the defendant is _______________________________________.

The prosecution has the ____________________________________________________ this

evidence, whether or not the defense asks for it.

o Prosecution must turn over evidence that either exculpates the defendant or impeaches

government witnesses.

Formal rule: Prosecution has due process duty to disclose any material evidence favorable to the

defendant and relevant to the prosecution's case in chief that would negate guilt or diminish

culpability or punishment – Brady v. Maryland.

1) Must be favorable to the ___________________________________________ (e.g., it

shows the crime wasn't committed, the defendant didn't do it);

2) It can go to either guilt or sentencing;

3) It must be _______________________________________________.

Must cause prejudice to the defendant

NOT really a violation unless it would have provided a different outcome

If all the other evidence would have been sufficient, there is no Brady violation

Has nothing to do with the good faith or bad faith of the prosecutor.

B. Jury

1. Background

o Guaranteed by the Sixth Amendment

o Only applies to charges that carry a ______________________________________sentence

of more than six months

o Defendant can waive the right to a jury trial (must be a knowing, voluntary, written waiver)

o Defendant does not have absolute right to bench trial

2. Size of the jury

o Only needs to be six people

o Does not need to be __________________________________________

Editor's Note 2: If the jury is composed of only six members, the verdict must be unanimous; otherwise, there is no specific requirement.


3. Composition of the jury

a. Jury venire

Look for a cross-section of the community

Cannot __________________________________________________________ people

without a basis (i.e., on race, religion, background)

Any defendant can argue that there has been a violation of the Sixth Amendment right

to a cross-section. To succeed, the defendant must show:

____________________________________________________ has been excluded;

The group was not ________________________________________________ in the

venire; and

There was a systemic exclusion for no good reason.

b. Jury selection

The individual jury that actually hears a case is called the petit jury

Voir dire--Judge asks questions of the potential jurors

Challenges for cause – you can see from the juror's answer that the juror will not be

unbiased.

___________________________________________ challenges – disqualify

potential jurors without the need to show cause.

o Limited amount of these depending on the case

o Neither side can use these challenges to ________________________________.

o Batson test:

(i) Moving party establishes a prima facie case of discrimination

(ii) Party who exercised the challenges can state a race-neutral reason for

the challenges

(iii) Court can decide whether the race-neutral reason was merely pretext.

Both sides are subject to the Batson rule.

C. Jury Trials

1. Right to an impartial jury

o A judge must perform questioning regarding the potential jurors' views on race whenever

race is "______________________________________________________________" in the

case.

o Death penalty - if a potential juror is opposed to the death penalty, he or she is not qualified

to sit on a death penalty case.


2. Sentencing

o Apprendi – Due Process states that a defendant cannot be sentenced for more than what he

has been convicted of.

o When enhancements are going to be imposed, there must be a jury finding that supports

the enhancements.

o That requirement does not apply to a judge's determination of concurrent versus

consecutive sentences.

3. Inconsistent verdicts

o An inconsistent verdict will not, by itself, invalidate the verdict.

D. Guilty Pleas

1. In general

o It is a __________________________________of all the rights the defendant would have

received if he had gone to trial.

o It is also an ______________________________ or ________________________________.

o Must be _______________________________ and ______________________________.

The judge must inform the defendant of:

The nature of ________________________________________;

Essential ____________________________________________;

____________________________________________________ of the plea,

including minimum and maximum sentences; and

The _____________________________ they are waiving.

o Factual basis: The defendant or the prosecutor lays out what happened.

o Bad guilty plea – it is ____________________________________ and the defendant faces a

trial or another plea.

o There is a right to counsel.

2. Plea bargains

o There is no constitutional right to a plea bargain.

o Prosecutors can put pressure on a defendant to take a plea bargain, such as threatening to

bring additional charges that are supported by probable cause.

o A plea bargain is a _____________________________________ between the prosecution

and the defendant.

In interpreting plea bargains, the judge evaluates what was in the agreement.

If either side does not perform, the judge applies contract remedies – such as specific

performance.

o The right to effective counsel in plea bargaining


The Supreme Court stated: while there might not be a constitutional right to plea

bargaining, there is a right to effective assistance of counsel at the time of plea

bargaining.

Two Supreme Court cases in 2012:

Missouri v. Frye – defendant was offered a plea bargain but his lawyer did not tell

him about it. Defendant ended up getting a much more serious sentence.

Lafler v. Cooper – defendant knew about plea offer but his lawyer gave bad advice

as to whether to accept or reject it. Defendant rejected it.

o The burden is on the _________________________________________.

E. Speedy Trials

Constitution guarantees the right to enjoy a speedy trial

Two relevant time periods:

o Between the crime and charging

Governed by ________________________________________________

Constitutional right is Due Process

Look to whether there was bad faith in not bringing the charges

o Between charging and trial

Speedy trial right applies to this time period

Courts use the Barker test to determine whether there was a violation of the right to speedy

trial.

o Barker Balancing test looks at:

_______________________________________________________________;

_______________________________________________________________;

Whether the defendant asserted the right to a speedy trial; and

___________________________________________________ to the defendant.

Remedy for violation is _______________________________________________________.

F. Public Trial

A defendant can ___________________________ this right.

First Amendment guarantees access to trials.

Courts must balance the defendant's Sixth Amendment right to a fair trial with the First

Amendment right to access.

o Must find there is a ____________________________________________________ to close

the proceeding and take the least restrictive alternative.


The right to access also includes jury selection, preliminary hearings, etc.

A trial must be public unless there is a _______________________________________________

of prejudice to the defendant.

G. Fair Trial

Must have an ______________________________________________

Fair prosecutor

o Examples of prosecutorial misconduct: lying, misstating the facts or the law, eliciting

information outside of the record, personally vouching for the case, making improper

remarks, commenting on the defendant's failure to testify, failing to disclose exculpatory

evidence, etc.

H. Right to Confrontation

Defendant has the right to confront witnesses.

This includes the right to see the witnesses and

_____________________________________________________________ them.

Face-to-face confrontation is not an absolute right.

o Child witnesses – courts can take steps to protect them from the trauma of testifying

directly face-to-face with the defendant.

Cross-examination of witnesses

o Defendant can bring out any __________________________________ of the witness or any

problems in the witness's perception or memory.

o Crawford doctrine – right of confrontation applies to out-of-court

____________________________________________________ statements.

If an out-of-court statement is made to help law enforcement with an ongoing

emergency, it is ________________________________________________ and can be

admitted.

If the statement is just creating evidence for the prosecution to use at trial, the

admission of the statement would violate the Sixth Amendment, unless the defendant

was able to cross-examine the declarant.

o If the defendant kills a witness in order to make that witness unavailable for trial, the right

of confrontation is waived.

Bruton / Co-defendant rule

o A co-defendant has confessed and the confession implicates the other co-defendant.

o Admission of the confession can be a violation of confrontation rights, unless the prosecutor

redacts from the confession references to the defendant who could not cross-examine

about the confession.


CHAPTER 7: DUE PROCESS CONSIDERATIONS, CRUEL AND UNUSUAL PUNISHMENT, AND DOUBLE JEOPARDY

A. Due Process

Covers the right to testify

There is a presumption of ____________________________________________.

Can have ___________________________________ presumptions but not

_____________________________________ presumptions

Prosecution has the burden of proving every element of a case beyond a reasonable doubt.

The defense has the burden of proving affirmative defenses.

o Example: self-defense or entrapment

B. Cruel and Unusual Punishment

Prohibits ____________________________________________________ and

________________________________________________________________, including fines.

1. Non-death penalty cases

o _____________________________________________________ of incarceration

If there is proof that the prison officials actually knew of the unconstitutional conditions

and did nothing, it is a constitutional violation.

o Physical force: It is a constitutional violation to torture and beat inmates.

o Sentence proportionality

Courts will look at the sentence the defendant has received and determine if it is too

harsh.

Courts look to three factors:

1) __________________________________________________ of the offense

2) Courts will compare the sentence the defendant received for that crime with sentences

for ____________________________________________________________________

3) How ______________________________________________________punish the crime

2. Capital punishment

o The death penalty is not per se _________________________________________________.

o Must have procedures to ensure that it is a fair penalty.

o Two parts of the proceeding in death penalty case:


1) The jury determines if the defendant was guilty of the death qualifying offense; and

2) Sentencing

Prosecution will present ________________________________________________

factors.

The defense can present ____________________________________________

factors.

o If ____________________________________________, accomplice must have the intent to

kill

o If the defendant is _______________________________, cannot impose the death penalty.

o If the defendant is __________________________________________________________,

cannot impose the death penalty.

IQ of roughly 70, with other factors.

o The death penalty is unconstitutional as imposed on defendants who were under the age of

18 when the crime was committed – Roper v. Simmons.

o Life without the possibility of parole for __________________________________________

violates the Eighth Amendment – Graham v. Florida.

o _______________________________________________________________ without

possibility of parole for juvenile homicide offenses violates Eighth Amendment -- Miller v.

Alabama.

o If ___________________________case, even of child victim, cannot impose death penalty

o Lethal injection – constitutional so long as prison officials have been appropriately trained.

3. Inmate medical care

o Inmates have a right to adequate medical care.

o Only violates the Eighth Amendment if there is

__________________________________________________________________________.

C. Double Jeopardy

Fifth Amendment prohibition

Three things are protected by the prohibition against double jeopardy:

1) Second prosecution for the "same offense" after _______________________________;

Must be final verdict for acquittal

Acquittal on error of law is still an acquittal for double jeopardy purposes


2) Second prosecution for the "same offense" after

___________________________________________;

3) Multiple _______________________________________________for the same offense.

Example 12: A defendant robs a store and shoots and kills the store clerk. The

state prosecutes the defendant for premeditated murder. The defendant is

acquitted. The state then brings charges against the defendant for robbery.

The protection against double jeopardy does not apply because robbery and

murder each require the proof of an element that the other does not. Robbery

requires, among other elements, the proof that the defendant took the victim's

personal property; murder requires, among other elements, the death of the

victim.

Example 13: A defendant robs a store and shoots and kills the store clerk. The

state prosecutes the defendant for felony murder based on the robbery. The

defendant is acquitted. The state then brings charges against the defendant for

robbery. The protection against double jeopardy applies because the state, in

order to prove felony murder in the first trial, had to prove that the defendant

committed a robbery.

Note 3: "Same offense" means that the crimes require proof of the same elements. [Blockburger test]

Lesser-included offenses generally cannot be tried separately.

A conspiracy is considered different than the substantive crime.

When does jeopardy attach?

o Jury trial - when the ___________________________________________

o Court trial - when the _____________________________________________________

1. Dual sovereignty doctrine

Each sovereign (federal government and the states) is considered separate and can prosecute

for the same crime.

2. Subsequent civil suits

No double jeopardy violation if there is a subsequent civil suit.

3. Mistrial

o No double jeopardy violation

o There is ___________________________________________________________

o In cases of a hung jury, the case can be retried – does not violate double jeopardy.

4. Appeals

o The prosecution can appeal if jeopardy has not yet attached.


Example 14: An order dismissing an indictment or suppressing evidence

o Defendants can appeal – generally entitled to retrial with the fair procedures that they

claimed were denied in the first trial.

5. Collateral estoppel

Example 15: Several victims were robbed at the same time. The defendant is

initially tried for the crime with respect to only one of the victims. The sole

contested issue at the trial is whether the defendant was a perpetrator of the

crime. The defendant is acquitted of the crime. The acquittal prevents the

defendant's prosecution for the robbery with respect to any other victim. The

fact that the jury determined that the defendant was not a perpetrator of a

robbery estops the government from trying the defendant for robbery of any of

the other victims.

D. Writ of Habeas Corpus

Proceeding is civil in nature.

Defendant is attacking the conviction by challenging the lawfulness of their detention.

o Cannot be brought on Fourth Amendment Grounds

o Can be brought for ineffective assistance of counsel, Brady violations, prosecutorial

misconduct

Defendant can be in custody, or out on parole, probation, or bail.

No right to counsel

[END OF HANDOUT]

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