crim pro final outline

8/4/2019 Crim Pro Final Outline

http://slidepdf.com/reader/full/crim-pro-final-outline 1/19



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y O pen Fields Doctrine

o Ar eas outside the cur tilage of a home ar e consider ed to be held out to the

pu blic so searches of such ar eas do not violate the Four th Amendment

Factor s used to determine cur tilage:

y Ar ea¶s pr oximity to home

y Existence of enclosur e ar ound the ar ea

y The natur e of the use to which the ar ea is put

y The pr ecautions taken to exclude other s fr om the ar ea

o Out buildings could be consider ed pr otected by the cur tilage of the house

de pending on the natur e of the use of the building

y Fly-over s

o Items that can be viewed fr om legal air s pace ar e su bject to warrantless

searches even within the cur tilage

Vision Enhancement:

y USSC has ALLOWED warrantless use of powerf ul

cameras (that ar e generally available to the pu blic) to take

photographs fr om legal air s pace of industrial fields y USSC has PR OHIBITED the warrantless use of sense-

enhancing technology (i.e. thermal imaging cameras) to

gain inf ormation fr om the interior of a home that could not

other wise have been o btained without physical intr usion

y The use by officials of devices which aid their investigation

by enhancing the senses does not constitute a search so

long as the devices do no mor e than aid the police in

o btaining inf ormation that they could have o btained

thr ough their own sensory perce ption

o Factor s to consider:

Was the inf ormation o btained using

technology such that could not be o btained

other wise without being physically pr esent

in the home?

Was the technology r eadily available to the

general pu blic?

y Contraband

o Ther e is no legitimate ex pectation of privacy in contraband

o Ther e is no unconstitutional searc

h when contraband in luggage is sniff ed

out by a narcotics detection dog

o An ex ploratory manipulation of a bag may be consider violative

Searches Conducted Pur suant to a Warrant

Warrant R equir ement:

Warrant is needed f or a search or seizur e (unless the action is within one of the

established exce ptions)

To be valid, the warrant must:



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y Be based on pr o bable cause

y Be su ppor ted by oath or affirmation

y Describe with par ticularity what is to be searched or seized

y Be issued by a neutral and detached magistrate

Pr o bable Cause R equir ement:

No warrant may be issued until a neutral and detached magistrate has determined that

ther e is pr o bable cause to issue the warrant

Exists if the facts and circumstances within the officer¶s k nowledge and of which they

have r easonable tr ustwor thy inf ormation ar e sufficient in themselves to warrant a man of

r easonable caution in the belief that an item su bject to seizur e will be f ound in the place

being searched

Elements:

y (1) A sufficient likelihood that something that is pr o perly su bject to seizur e by the

government

o Must be seizable and in the place they ar e going to search

EX: contraband; fr uits, instr umentalities, or evidence of a crime

o Issue of staleness: The mer e passage of time is likely to diminish the pr o bability that

an item that was in a par ticular place still r emains in that location

No longer sufficiently su ppor tive of the conclusion that the sought

item is curr ently located in the place to be searched

y (2) Is pr esently

y (3) In the s pecific place to be searched

Pr eciseness R equir ement:

A warrant must describe with r easonable cer tainty and par ticularity the items to be seized

It is not sufficient that such detail is in the affidavit underlying the warrant

A r easonable err or in the description will not necessarily invalidate the search

Execution of a Warrant:

Must execute a warrant r easonably

Must k nock and announce their authority and purpose unless they have a r easonable

sus picion based on facts s pecific to the par ticular case, that k nock ing and announcing

would danger ous or f utile, or that it would inhibit the investigation

y Exigency circumstances must be s pecific to the situation

Per sons on the pr emises may not be f ully searched but may be detained

The search cannot go beyond the sco pe of the warrant, but an o bjectively r easonable err or

in execution does not invalidate a search

Exce ptions to the Warrant R equir ement:

Search incident to arr est (SITA)

y The police may search a per son without a warrant af ter a lawf ul arr est

y Such a search may be conducted pur suant to any custodial arr est, even f or minor

violations of law

y Sco pe of the Search:



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o The search can be of the per son arr ested and their lunge ar ea (ar eas within

the per son¶s immediate r each)

Lunge ar ea can include closed container s and is not aff ected by

whether the per son is in r estraints or not

o Pr otective Swee p:

If the police r easonably believe that danger ous accomplices may

be pr esent, they may conduct a pr otective swee p of the entir e ar ea

to assur e their saf etyo Automo bile occu pants:

Af ter arr esting an automo bile occu pant, police may search the

entir e passenger compar tment

y Search must be Contemporaneous:

o The search must be contemporaneous to the time and place of arr est

o A search conducted at a diff er ent location and hour s af ter the arr est

generally cannot be justified by the arr est exce ption

y Gant Exce ptions:

o Can search the passenger ar ea of the automo bile if the arr estee still has

access to it; OR

o If ther e is r eason to believe that ther e is evidence of the crime inside

Evidence of the crime of arr est

Must still be r easonably contemporaneous

Inventory

y Needs to be conducted pur suant to a r outine or standardized police pr ocedur e

y Cannot be conducted f or investigatory purposes

y If pur suant to an arr est involving an automo bile occu pant, the automo bile must be

impounded legitimately

y The individual must have been lawf ully arr ested

y Inventory of a Per son:

o As soon as the arr estee r eaches the police station, an inventory of the

per son is done

o Deter s false claims and inhibits thef ts or car eless handling of ar ticles taken

fr om the arr ested per son

Arr ested per sons have been k nown to injur e themselves, or other s,

with items lef t on their per son

Able to inventory bags of the per son as well

o A strip search would be unr easonable under the Four th Amendment

Automo bile Exce ption

y Must have pr o bable cause to search the vehicle

y Automo bile must r eadily mo bile

y If car is within the cur tilage of your home, then the privacy of your home will

pr otect the car

o Must be in a pu blic ar ea or on a pu blic str eet

y Gant Exce ptions:



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o Can search the passenger ar ea of the automo bile if the arr estee still has

access to it; OR

o If ther e is r eason to believe that ther e is evidence of the crime inside

Evidence of the crime of arr est

Must still be r easonably contemporaneous

y Acevedo Exce ptions:

o Search of the vehicle will be limited to the natur e of your pr o bable cause

o If officer s have pr o bable cause to search only a container within a vehicle,they may search only that container

Plain View Exce ption

y If officer s ar e legitimately on the pr emises, they may lawf ully seize items that

they discover on the pr emises in plain view that they have pr o bable cause to

believe ar e contraband or fr uits or instr umentalities of a crime

y The items must be IMMEDIATELY IDE NTIFIABLE as contraband

y Test: Would a r egular per son be lawf ully situated in the same situation that the

police officer would be?

Terry

Sto p (

Sto p and Frisk

Exce ption)

y Investigative detention based on an ar ticulable, r easonable sus picion that criminal

activity is af oot

o The criminal activity has occurr ed or is about to occur

o JUSTIFIES THE STOP ONLY

y Totality of circumstances analysis used in deciding whether to sto p and frisk a

per son

y Detention of a per son

o Length of time it takes to diligently confirm or dis pel your sus picion

Length of time: r easonable amount of time

y R easonable Sus picion

o Pr esence in a high crime ar ea alone will not suffice

Pr esence plus almost anything else will be sufficient

o Dir ect flight will be sufficient to trigger r easonable sus picion

y Seizur e

o Occur s when the police conduct is such that a r easonable per son would

believe that they ar e not fr ee to leave

If the per son is not fr ee to leave but voluntarily put themselves in

that position, then it is not the fault of law enf orcement that the

per son is seizedy EX: sitting on a bus

o Occur s when ther e is use of physical f orce or a show of authority and

su bmission ther eto

o Becomes mor e ak in to a de facto arr est if:

The per son gets moved

Investigative detention extends f or a longer period than that which

is necessary to confirm or dis pel sus picions



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y Frisk

o A Terry Sto p does not automatically include a frisk

o Only permitted if the officer has a r easonable ar ticulable sus picion that the

individual is armed or pr esently danger ous

o Limited to the outer surfaces only (pat down)

Cannot r each into pocket or o pen a bag

Can only r each into garments if he f eels a r eadily identifiable

weapon

y Traffic Sto ps

o If the police have lawf ully sto pped a vehicle f or a traffic violation, they

may search the passenger compar tment f or weapons if they believe the

occu pant is danger ous.

o They may also order the occu pants out of the vehicle and frisk any

occu pant they r easonably sus pect to be armed and danger ous.

y Evidence Admissibility Standards:

o Evidence o btained during a Terry Sto p will be admissible if, based on its

plain f eel during th

e frisk , th

e officer could r easonablyh

ave identified it to be a weapon or contraband

Consent Exce ption:

y Police may conduct a search without a warrant if the consent was garner ed

k nowingly, voluntarily, and intelligently

o Totality of circumstances analysis will be used to determine whether

consent was given voluntarily

y Consent must not be coerced by: ex plicit or implicit means, implied thr eats, or

cover t f orce

y Trickery may not be used to o btain waiver of a right to search

y The search may extend to any o bject or container that a r easonable officer would

under stand to be within the sco pe of the consent granted

y Factor s R elevant to Voluntariness:

o Whether the per son consenting is in custody

o The pr esence of coercive police pr ocedur es

o The extent and level of the per son¶s coo peration with the police

o The per son¶s awar eness of his right to r ef use to consent

*Police ar e not r equir ed to inf orm the sus pect that he has a right to

r ef use consent

o The per son¶s education and intelligence

o The per son¶s belief that no incriminating evidence will be f ound

y Third Par ty Consent

o If a third par ty has access to or contr ol over a private ar ea, he or she is

consider ed to have an inde pendent privacy inter est, and the sus pect is

consider ed to have assumed the risk that the third par ty may lawf ully

consent to a search of that ar ea



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o A third par ty¶s access may be limited or conditional de pending on the

circumstances

o Marital R elationships:

Ther e is a pr esumption of common authority over pr emises jointly

occu pied by both s pouses

o Third Par ty must possess actual or appar ent authority

Appar ent authority r esults when police officer s r easonable believe

that the third par ty has authority to consent y Police officer s have a duty to make r easonable inquiries

r egarding the third par ty¶s claim of authority

y Sco pe of consent:

o Ambiguity r egarding sco pe of consent is constr ued against the sus pect

If an officer¶s interpr etation of a general or ambiguous consent is a

r easonable one, the r esulting search will be consider ed within the

sco pe of the consent

It is u p to the sus pect to clarify the sco pe of an ambiguous consent

A search that r equir es mutilation or destr uction of pr o per ty or

pr emises is consider ed beyond the r easonable sco pe of a general

consent

o Limiting the sco pe of consent:

If a sus pect ex plicitly limits consent, limitation cannot be

consider ed sus picious by the officer since the sus pect is mer ely

standing on his rights

o R evocation of consent:

Sus pect has a right to r evoke consent

y Cannot be r evoked r etr oactively af ter an officer has f ound

incriminating evidence Withdrawal or limitation of a consent cannot be consider ed a factor

in an officer¶s determination of r easonable sus picion or pr o bable

cause

R ef usal to give written consent does not constitute the r evocation

of an oral consent

y Good Faith Exce ption:

o The search will still be valid if law enf orcement r easonably and in good

faith r elied on the consent given

Exigent Circumstances:

y Still r equir es pr o bable cause to search

y No warrant is needed if officer s, in good faith, cannot o btain a warrant and need

to conduct a search f or the pr otection of other s or evidence

o EX: in hot pur suit of a danger ous sus pect, r ushing to the scene of a

homicide

o EXCEPTION EX: cannot chase an armed su bject I NTO HIS OW N

HOUSE if the officer k nows it is his house, must o btain search warrant



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No exigency would exist

y Involves a condition that leads to mak ing o btaining a warrant unr easonable

y Test:

o Likelihood that the government inter est will be fr ustrated

o The natur e and impor tance of that inter est

Electr onic Surveillance

Any f orm of electr onic surveillance, including wir etapping, that violates a r easonable

ex pectation of privacy constitutes a search

Warrant R equir ement:

To be constitutionally valid, a warrant must:

y Describe with par ticularity the conver sations to be heard

y Show pr o bable cause to believe a crime has been or will be committed

y Limit the duration of the wir etap

y Name the sus pects whose conver sations ar e to be over heard

Exce ptions to the Warrant R equir ement:

Police do not need to o btain a warrant:

y To place a pen r egister (a device that r ecords number s dialed fr om a par ticular phone)

y If the def endant made no attempt to kee p his communication private

y If the def endant assumes the risk that the per son with whom he is s peak ing is

unr eliable

o EX: government inf ormant

o False-friends Doctrine (Katz doesn¶t apply)

Searches in For eign Countries or at the Border

The Four th Amendment does not apply to searches and seizur es by United States officials in

f or eign countries when an alien is involved

Border searches:

Permissible without a warrant or pr o bable cause in order to enf orce national boundaries

Searches near the border may also be pr o per on a showing of less than pr o bable cause

Administrative Searches

Generally, a warrant is r equir ed f or a noncriminal- justice search, but the pr o bable cause standard

is r elaxed and is satisfied by the showing of a general and neutral enf orcement plan justifying the

warrant

Airpor t Exce ption:

No warrant is r equir ed to search airline passenger s bef or e boarding an airplane

Pu blic

School

Exce ption:

School officials need only r easonable sus picion to conduct searches in the school

R easonable gr ounds f or a search will exist if the school official r easonably believes that

the search will turn u p evidence that the student has violated a school r ule or the law

Random warrantless dr ug testing of students par ticipating in extracurricular activities has

also been u pheld

Dr ug Testing Exce ption:



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Wher e ³s pecial need´ is pr esent (i.e. a r eason beyond mer e dr ug interdiction) the USSC

has not r equir ed a warrant when the government perf orms or r equir es dr ug testing of

employees or when a pu blic school r equir es dr ug testing of students who par ticipate in

extracurricular activities

Inf ormants: The Use of Hear say

Aguilar -S pinelli Two-Pr onged Test:

Basis of Knowledge

y The Cour t must be able to discern how the inf ormant came by the inf ormation Veracity

y Ther e must be some underlying circumstance that leads the law enf orcement

officer to believe that the inf ormant is cr edible and can also lead the cour t to the

same conclusion

R eliability

y The natur e of the inf ormation and the per son pr oviding the inf ormation must be

r eliable

Test was later overr uled in favor of the Gates Totality of the Circumstances Appr oach

Gates

T

otality of C

ircumstances Appr oach

Aggr egate the tip and additional inf ormation to find pr o bable cause

Wher e a tip is corr o borated with actual police findings, a totality of the circumstances

appr oach is appr o priate f or determining pr o bable cause.

Arrests and Other Detentions

Arr est

A Four th Amendment seizur e occurring when a per son is taken into custody against their will

Pr o bable Cause R equir ement:

Exists when the facts and circumstances within the officer¶s k nowledge and of which

they have r easonable tr ustwor thy inf ormation that ar e sufficient in themselves to warrant

a man of r easonable caution in the belief that an off ense has been or is being committed

by the per son to be arr ested

Elements

y (1) A sufficient likelihood

y (2) That a par ticular individual

y (3) Has committed or is committing a par ticular off ense

Once you have pr o bable cause to arr est, ther e is no staleness issue

Eff ect of an Invalid Arr est:

An unlawf ul arr est, by itself, has no impact on a su bsequent criminal pr osecution,although evidence f ound during a search incident to an unlawf ul arr est will be su ppr essed

Arr est Warrant Not R equir ed Exce pt f or Home Arr ests:

A warrant not r equir ed to be o btained prior to an arr est in a pu blic place as long as ther e

is pr o bable cause

Arr ests in Pu blic Places:



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A police officer may make a warrantless arr est in a pu blic place when they have

r easonable gr ounds to believe a f elony has been committed by a par ticular per son or

when a misdemeanor has been committed in their pr esence

Arr ests in the Home:

Warrantless arr ests in the home ar e unr easonable and invalid under the Four th

Amendment unless exigent circumstances ar e pr esent or the arr estee consents

Hot Pur suit Exemption:

y If pr o bable cause exists, the police may, without a warrant, pur sue a sus pect into his home if necessary to pr event the sus pect¶s escape or destr uction of evidence

Knock and Announce R equir ement:

y A police officer must announce their authority and purpose bef or e using f orce to

enter a home to make an arr est

y Officer s must:

o Audibly k now or other wise make their pr esence k nown at the outer door

to give notice to the occu pants that officer s ar e pr esent

o Announce the identity of the executing officer s

³Th

is is th

e police´o Announce the purpose of the executing officer s

³We have a warrant´

o Delay f or a period of time sufficient to permit the occu pants to r each and

to o pen the door

De pends on size of the house, number of occu pants, etc.

R easonable time

y Officer s ar e only allowed to make a no-k nock entry if the officer s have a

r easonable belief that an announcement would:

o Endanger the officer s

o Pr ompt a sus pect¶s escape o Allow the destr uction of evidence

Third Par ty Pr emises:

y A search warrant is r equir ed f or the arr est of a sus pect in another per son¶s home

O btaining a Warrant:

y To o btain an arr est warrant, a police officer¶s affidavit, containing facts showing

the commission of an off ense and the accused¶s r es ponsibility f or it, must be

pr esented to a judicial officer who determines its sufficiency

Use of Force to Arr est a Fleeing Felon

Use of deadly f orce constitutes a seizur e and must be r easonable

Elements:

Must be necessary to pr event the f elon¶s escape; A ND

The f elon must be thr eatening death or serious bodily harm

When f easible, some warning must be given bef or e an officer may use deadly f orce

Sto ps and Other Detentions:

Terry Sto ps

SEE ABOVE



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Automo bile Sto ps

The police may not sto p a single vehicle f or the sole purpose of check ing the driver¶s

license or the vehicle¶s r egistration unless they have r easonable sus picion

Pr etextual Sto ps:

y If an officer has pr o bable cause to sto p a vehicle, the officer may do so even if the

officer¶s motive is to investigate whether some other law- f or which the officer

lacks r easonable sus picion- has been violated

R oadblocks:

y USSC has u pheld r oadblock searches that ar e made without individualized

sus picion that the driver has violated some law

y The r oadblock must sto p car s on the basis of some neutral, ar ticulable standard

o EX: every car, every third car, etc.

y The r oadblock must be designed to serve purposes closely r elated to a par ticular

pr o blem r elated to automo biles and/or their mo bility

o EX: Dr unk driving

Police that have lawf ully sto pped a vehicle may order the vehicle¶s occu pants to get in or

out of the ve

hicle

Police Station Investigations

Generally, police officer s must have pr o bable cause to bring a sus pect in f or questioning

or fingerprinting

Remedies for Fourth Amendment Violations

The Exclusionary R ule

o Pr ovides that evidence o btained in violation of a def endant¶s Four th Amendment rights must be

excluded fr om trial in both f ederal and state cour ts

o Is a cour t-made r ule designed to deter f utur e violations of the Four th Amendment, and a cour t is

not constitutionally r equir ed to excluded illegally o btained evidence

Standing to Invoke the Exclusionary R ule

o The standing r equir ement pr ovides that a def endant cannot o btain exclusion of evidence unless

his OW N per sonal Four th Amendment rights wer e violated

o R easonable Ex pectation of Privacy

Must determine whether a per son has:

y A legitimate ex pectation of privacy in the ar ea or thing that was searched; OR

y A legitimate possessory inter est in the thing that was seized

Burden on the Def endant:

y The def endant bear s the burden of pr oving that he had a legitimate ex pectationthat was violated by the challenged search and seizur e

Possessory Inter est in Items Seized is Insufficient:

y A def endant does not automatically have standing to contest the search of an ar ea

mer ely because the items seized ar e owned by the def endant

o Generally, will have a right to o bject to the seizur e even if the item is

being held by a third par ty

y Disassociation With the O bject of the Search:



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o Wher e a def endant disavows any k nowledge of or inter est in pr o per ty that

is being searched or seized, such an action is inconsistent with a

r easonable ex pectation of privacy, and the def endant will not have

standing to o bject to the police activity

y Co-cons pirator Status:

o The mer e fact that a search or seizur e has occurr ed with r es pect to

pr o per ty contr olled by a cons piracy does not mean that each co-

cons pirator has standing to o bject o Ther e is no joint ventur e exce ption to the principle that standing is

de pendent on a violation of one¶s own per sonal Four th Amendment rights

o Factor s to be consider ed when pr oving that a def endant¶s Four th Amendment rights have been

violated:

Pr o per ty owner ship

Whether the def endant has a possessory inter est in the thing seized

Whether the def endant has a possessory inter est in the place searched

Whether the def endant has the right to exclude other s fr om that place

Whether the def endant has exhibited a su bjective ex pectation that the place would r emain

fr ee fr om governmental invasion

Whether the def endant took normal pr ecautions to maintain privacy

Exclusion of the ³Fr uit of the Poisonous Tr ee´

o A def endant of ten seeks exclusion of the very evidence that was f ound in an illegal search or

seizur e

Called dir ect or primary evidence

o The def endant may also challenge the admission of evidence that was derived fr om an initial

illegality

Called derivative evidence or fr uit of the poisonous tr ee

o Exce ptions: Attenuation:

y The link between the illegal search or seizur e and the evidence o btained is so

attenuated that the evidence can no longer be meaningf ully consider ed tainted or

the fr uit of the poisonous tr ee

y Cost of excluding r eliable evidence outweighs the negligible benefit of deterr ence

y Determined on a case- by-case basis

y Test of Causation:

o To determine whether ther e is a sufficient connection between the

illegality and the derivative evidence so as to justify exclusion is:

Whether, under the totality of circumstances, the evidence has

been o btained by ex ploitation of the illegality or instead by means

sufficiently distinguishable to be pur ged of the primary taint.

y R elevant Factor s in Determining Attenuation:

o (Government has the burden of pr oving that the causal chain is sufficiently

attenuated to dissipate the taint of the illegality)

o The giving of Miranda warnings



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o The time between the illegality and the o btaining of the evidence

o The pr esence of intervening circumstances

o The purpose and flagrancy of the official misconduct

y Abandonment During the Cour se of an Illegal Search or Seizur e

o A sus pect¶s decision to abandon pr o per ty su bsequent to an illegal search

or seizur e may or may not be tainted by that illegality

o Factor s used to determine if abandon evidence is tainted:

Whether a def endant has sufficient time and o ppor tunity to make acalculated decision to abandon the pr o per ty

y Voluntary act serves to cut off any tainting eff ect of the

illegality

Whether the decision to abandon the pr o per ty was a s pontaneous

r eaction to the illegal activity

y The evidence would be fr uit of the poisonous tr ee des pite

the abandonment

y Testimony of Live Witnesses

o An illegal searc

h or seizur e may lead to t

he discovery of a witness w

ho

can give testimony against a def endant

o Generally, a witness¶ voluntary decision to testify against the def endant

will mean that the testimony is attenuated fr om the illegality

Inde pendent Source Doctrine:

y Evidence will not be excluded as the fr uit of the poisonous tr ee if the Government

can show that it was derived fr om an inde pendent legal source

y The inde pendent source exce ption admits the fr uits of illegally tainted evidence

when such fr uits ar e also f ound by legal means unr elated to the original illegal

conduct

y Under those circumstances, application of the exclusionary r ule would

impermissibly place the officer s in a wor se position than they would have been

absent any violation

Inevitable Discovery Doctrine:

y Allows fr uits of the illegal activity to be admitted at trial if the Government can

show that the challenged evidence would inevitably have been discover ed thr ough

means completely inde pendent of the illegal activity

y In essence, is a hypothetical inde pendent source exce ption

y Inevitability must be shown by a pr e ponderance of the evidence

y Focus on what WOULD have been done, not could have been done o Test: what the police would have done to r each the evidence by

inde pendent legal means

y Some cour ts r equir e the police to be actively pur suing lawf ul means at the time

the illegal search is conducted in order to invoke the inevitable discovery

exce ption

THE FIFTH AMENDMENT



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Privilege Against Self-Incrimination

Constitutional Basis:

The Fif th Amendment guarantees that ³no per son shall be compelled in any criminal case to be a

witness against himself´

Sco pe of the Privilege:

Applicable only to testimonial evidence

Eliminating t

he Privilege:

The privilege does not apply if ther e is no possibility of incrimination because the witness:

Has been granted immunity

The statute of limitations has r un

The privilege has been k nowingly, voluntarily, and intelligently waived

Confessions

Due Pr ocess ³Voluntariness´ Appr oach

o Statements of a def endant may not be off er ed into evidence f or any purpose at any time if they

violate the voluntariness r equir ement of the Due Pr ocess Clause of the Fif th and Four teenth

Amendments

o Application:

A judge must determine, by a pr e ponderance of the evidence, that the statement was

voluntarily made

Factor s:

y The def endant¶s per sonal characteristics (i.e. age, education, intelligence)

y The natur e of the detention (i.e. conditions of the confinement)

y The manner of interr ogation (i.e. length and number of sessions)

y The use of f orce, thr eats, pr omises, or dece ptions

o S pecific pr omises will be consider ed coercion If a coerced conf ession is err oneously admitted, a r esulting conviction will be over turned

unless the err or was harmless

Sixth Amendment Right to Counsel Appr oach

o Even if a statement is ³voluntary,´ it may be inadmissible if it violates the Sixth Amendment

right to counsel

o Ways to be violated:

Af ter the adver sarial judicial pr oceedings have begun (af ter indictment), the police

question the def endant outside the pr esence of counsel or without a valid waiver of the

right to counsel

The def endant is not ex plicitly questioned by a police officer, but the statement was

indir ectly secur ed by the police outside the pr esence of counsel

The def endant¶s attorney was not pr esent at the time of interr ogation

o Char ge-s pecific

o Massiah Elements:

The deliberate elicitation of statements by undercover police agents is not allowed

y But officer s can sit and listen as long as they don¶t initiate



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y Inf ormants can sit and listen as well as long as he doesn¶t ask questions

To conduct questioning:

y Police must o btain a Sixth Amendment waiver

y If police don¶t o btain a waiver they may not engage in deliberate elicitation of

incriminating statements

y Elicitation includes both ex pr ess questioning and other k inds of police statements

that ar e tantamount to interr ogation

Fif th Amendment Privilege Against Self -Incrimination Appr oach

o Miranda Warnings

Only applicable in situations involving custodial interr ogation

R equir es the police to:

y Inf orm the sus pect of his rights (to r emain silent and to counsel)

y Warn him of the consequences of waiving those rights (anything said can be used

against him at trial)

y O btain a waiver

o Other wise, generally any conf ession made by the sus pect is inadmissible

at trial to pr ove the sus pect¶s guilt Failur e to give warnings:

y Pu blic Saf ety Exce ption:

o A def endant¶s r es ponses to questions asked because of a r easonable

concern f or pu blic saf ety may be admissible in cour t even though the

def endant was in police custody at the time of questioning and should

have been given the warnings

y Su bsequent Conf ession:

o A valid conf ession given af ter Miranda warnings wer e given is

inadmissible if the ³question fir st, warn later´ natur e of the questioning

was intentional and intended to get ar ound Miranda r equir ements

y R outine Book ing Questions:

o Police officer s ar e not r equir ed to give Miranda warnings bef or e ask ing

r outine book ing questions

R eason: it is pr ocedur e and not designed or r easonably ex pected to

elicit incriminating evidence

If it leads to the sus pect saying something incriminating, then it

will still be admissible

Miranda warnings need not be given prior to interr ogation by someone whom the

def endant does not k now to be a government agent Custody:

y Miranda applies only if the def endant is in custody (def endant¶s fr eedom of

movement is limited by the police) when the statement was made

y Test:

o O bjective totality of the circumstances analysis

o Would a r easonable per son under the same or similar circumstances

believe that he was not fr ee to leave



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o Factor s:

The purpose of the investigation

The location and length of the interr ogation

The interr ogated per son¶s awar eness of their fr eedom to leave the

scene

The per son¶s actual fr eedom fr om a variety of f orms of physical

r estraint

The use of coercive interr ogation methods y Terry Sto ps:

o In their original limited f orm, Terry Sto ps wer e not consider ed to be

custodial, so no Miranda warnings wer e r equir ed

o A Terry Sto p that becomes mor e ex pansive and longer might r equir e

Miranda warnings de pending on the circumstances

y Traffic Sto ps:

o An ordinary traffic sto p does not constitute custody, so no Miranda

warnings ar e necessary

Interr ogation:

y A def endant¶s statements ar e su bject to Miranda only if given in r es ponse to

interr ogation

o Includes mor e than just straight questioning

o Fif th Amendment Interr ogation:

Questions or actions r easonably anticipated to elicit incriminating

inf ormation

o Sixth Amendment Interr ogation:

Deliberate elicitation of incriminating inf ormation

o Test:

Whether the police k new or should have k nown that their actions wer e r easonably likely to elicit an incriminating r es ponse

o EX:

Psychiatric exams to determine competency to stand trial =

custodial interr ogation

Grand jury question = not custodial interr ogation

R esumption of Questioning:

y If the def endant wishes to r emain silent:

o The r equest must be scr u pulously honor ed

The interr ogation must sto p immediately

Questioning may be r esumed only af ter the passage of a significant

period of time

y If the def endant r equests an attorney:

o If the def endant r equests an attorney, all questioning must cease, even

questioning r egarding unr elated off enses, U NLESS the def endant initiates

f ur ther discussion with the police

y Ambiguities in r equest:



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o If the def endant¶s r equest is ambiguous, police may continue questioning

the def endant

Waiver:

y Miranda rights may be waived

y The government must show by a pr e ponderance of the evidence that the def endant

k nowingly, voluntarily, and intelligently waived the privilege against self -

incrimination

o Totality of circumstances analysis

o Once the warnings ar e given, the cour ts usually find waiver s to be

k nowing and intelligent

o A waiver can be implied thr ough oral statements and conduct and does not

have to be in writing

o Silence is not enough

o The cour t may not r ely on a pr esumption that such an under standing exists

Impeachment:

y Voluntary statements o btained in violation of Miranda may be used at trial to

impeach

a def endant wh

o takes th

e stando Cannot use the def endant¶s statements to impeach a witness other than the

def endant himself

y Silence may not be used to impeach a def endant who later takes the stand

o Unless the silence occurr ed prior to arr est and prior to Miranda warnings

Non-testimonial Fr uits of an Unwarned Conf ession:

y USSC would admit physical evidence that was o btained as the fr uit of an

unwarned conf ession

THE SIXTH AMENDMENT

Right to Counsel

The Miranda warnings ar e sufficient to advise a def endant of bother his Fif th and Sixth Amendment

rights.

o Waiver of Miranda under the Fif th Amendment waives both Fif th and Sixth Amendments¶ rights

to counsel

The Sixth Amendment pr otects against post-indictment questions and deliberate elicitation of

incriminating inf ormation.

o Once you have the right to an attorney, you have a right to that attorney at any cr ucial stage in

the judicial pr ocess

o Purpose: Def endant is not r equir ed to stand alone at any stage of the pr oceeding wher e absence

of counsel may harm them

Is Attorney¶s Pr esence R equir ed?

o It can be waived

Constitutional Limitations on Identification Evidence

Pr e-Indictment Identifications



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o The Sixth Amendment does not apply to identifications that occur prior to indictment or f ormal

char ge. However, if adver sary pr oceedings ar e deliberately delayed in order to evade the post-

indictment r ule, the r esulting counsel-fr ee identification will be invalidated.

o Char ge-S pecific

It is permissible to hold a counsel-fr ee line-u p f or an indicted def endant as to a diff er ent

char ge, since being indicted on one char ge is not a criminal pr osecution as to any other .

o Photographic Identification

A def endant has no right to counsel at a photographic identification conducted either pr e-or post-indictment

Post-Indictment Identifications

o A corpor eal, post-indictment line-u p conducted in the absence of def ense counsel, and without a

valid waiver of such counsel, violates the Sixth Amendment¶s right to counsel, which applies

during critical pr e-trial stages as well as at trial

o Per Se Exclusion:

Post-indictment identifications that take place absent counsel ar e ³per se´ excluded fr om

trial

Exclusion is r equir ed even if the state can show that the identification is in fact r eliable

o In-Cour t Identification and Inde pendent Source:

The same witness whose out-of -cour t identification is excluded fr om trial may make an

in-cour t identification if the pr osecution pr oves that, under the totality of circumstances,

the in-cour t identification stems fr om an inde pendent source sufficiently distinguishable

fr om the pr evious illegal line-u p

R elevant Factor s:

y The extent of the prior o ppor tunity to view the def endant other than at the illegal

line-u p

y Discr e pancies, if any, between the witness¶ description of the sus pect bef or e the

line-u p was conducted, and the def endant¶s actual appearance y The cer tainty of the witness¶ identification at the line-u p or, conver sely, the

witness¶ failur e to identify the def endant on prior occasions

y The lapse of time between the criminal act and the line-u p identification

y The degr ee of suggestiveness employed in the tainted pr e-trial lineu p

Due Pr ocess Limitations on Suggestive Identifications

o Wher e the Sixth Amendment right to counsel does not apply to an identification pr ocedur e, the

identification must still satisfy the Due Pr ocess Clause, which r equir es exclusion if police

suggestiveness cr eates a su bstantial risk of mistake identification.

o Two-Ste p Test:

(1) Must show that the identification pr ocedur e was impermissibly suggestive

(2) Must show that the identification was unr eliable under the totality of circumstances

o Exigent Circumstances:

Cer tain exigent or extraordinary circumstances can make suggestive police pr ocedur es

necessary and, thus, permissible

o R eliability:

An identification may be r eliable des pite police suggestiveness



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Suggestive pr ocedur es ar e consider ed in light of all the circumstances to determine

whether an inde pendent source exists f or a r eliable identification

R elevant factor s (not dis positive):

y The degr ee and natur e of police suggestions

y The extent of the witness¶ o ppor tunity to view the sus pect prior to the challenged

identification (i.e. at the scene of the crime)

y The witness¶ degr ee of attention to the sus pect prior to the challenged

identification

y The accuracy of the description of the perpetrator given by the witness bef or e the

identification

y The witness¶ level of cer tainty at the time of mak ing the identification

y The time between the pr e-identification o ppor tunity to view the sus pect and the

identification itself

y The character of the identifying witness

If the pr e-trial identification is excluded, at-trial identification is impermissible

crim pro final outline

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