walker outline part 2

Week March 24, 2014- March 28, 2014 In Class Criminal Procedure Lecture Notes

3/24/2014

Michigan v. Mosely o Issue 1: When can an officer resume interrogation or questioning of a suspect? o Issue 2: Whether the conduct of detective hill violated Miranda guidelines

because he did not cease questioning totally when respondent stated that he wanted to remain silent.

o Issue 3: Whether once a person has said that he wanted to be silent will all questioning be prohibited?

5th amendment question 5th amendment is not offense specific 6th amendment right to counsel is offense specific

o Rule of Law: Police must honor a person who is in custody decision to remain silent, however police are not prevented from starting new questioning with a new fresh set of warnings related to a different crime that has not been a subject of an earlier investigation; as long as the defendant has not requested an attorney or initiated the conversation with the police.

o Look for the statement that the defendant wants an attorney and the request must not be ambiguous.

o Examples of Ambiguous statements for counsel. Well, my momma told me before I talk to an attorney I need to get an

attorney I use to watch law and order and they use to say get a lawyer before they

talk to the cops. Improper reinterrogation (factors): after a momentary cessation

followed by the invocation of silence. Proper reinterrogation (factors): when police honor the first invocation

of silence, there is a time lapse, the questioning is to an unrelated crime, the defendant then receives a second set of warnings, and the second interrogation is conducted by a different officer.

Edwards v Arizona o Very important case o Sworn Complaint-adversarial proceedings had begun- so sixth amendment

attaches and the Fifth Amendment is applicable. o Issue: Whether respondents Miranda rights had been violated when the officers

returned to questioned him after he had invoked his right to counsel and whether the petitioner waived his fifth and sixth amendment rights when he voluntarily gave statements.

o Rule of Law: Once a respondent who is subject to interrogation has requested counsel, interrogation must cease until counsel has been made available or until respondent initiates further conversation or communication with the police.

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o If the defendant decides to remain silent, all conversation must cease, and then the police may come back later.

o His confession was not voluntarily, knowingly, or intelligently given. Oregon v. Bradshaw

o Whether the initiation of a conversation by a respondent would amount to a waiver of a previously invoked right to counsel?

o Rule of Law: After the right to counsel had been asserted by an accused, further interrogation of the accused should not take place unless the accused himself initiates further communication, exchanges, or conversations with the police.

o The general rule is that an initiation will be found whenever an arrestee engages in a generalized discussion of the investigation.

o Examples oOf what may be or may not be initiation by an arrestee who has invoked his right to silence or counsel:

Water- no Request to use telephone- no Bathroom request - no Polygraph- yes (Wyrick v. Fields initiation of dialogue when the

respondent requested to take a polygraph because it goes to the defendant guilt or innocence of the crime and is a part of the investigation.)

Arizona v. Roberson o Issue: Whether the Edwards rule should apply when the police interrogate a

suspect in a different investigation when a suspect requests counsel. o Rule of Law: After the right to counsel had been asserted by an accused, further

interrogation of the accused should not take place unless the accused himself initiates further communication, exchanges, or conversations with the police.

Minnick v. Mississippi o Issue: Whether the Fifth Amendment protection of Edwards is terminated or

suspended when the defendant requested a lawyer. o Just provided a lawyer o Came and got him, so the police initiated the conversation o Secret interrogation o Rule of Law: When an accused has expressed his desire to deal with police, only

through counsel he is not subject to further interrogation until counsel has been made available or until the defendant initiates further communications.

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3/26/2014

Problem 757 (test question on final) o Incarcerated for one crime as a youth, 6 months later they get information that he

was involved in a murder and robbery. Initially invoked his Miranda for an attorney for the cocaine charge.

o Issue: whether or not the invocation was vaJid for the subsequent charge of the murder? (Fifth Amendment right to counsel).

o Rigbt to have an attorney present during any interrogation or questioning by the state.

Davis v. United States o Issue: Whether he properly invoked the right to counsel when he stated "maybe I

should get an attorney?" (Ambiguous, and must explicitly assert the right to counsel.)

o Rule of Law: he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. If the statement fails to meet the requisite level of clarity, Edwards does not require that the officers stop questioning the suspect

o Standard for invocation after waiver: is that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.

North Carolina v. Butler o Issue: Whether or not your waiver explicit statement of waiver is necessary? o Rule of Law: A waiver does not have to be expressed or in writing. A waiver of

rights may be found even in the absence of an explicit statement if the suspect' s words or an action implicitly constitutes a decision to forgo his rights.

Tae;ue v. Louisiana o Factors for determining whether the defendant understood his Miranda

Rights: MentaJ capacity, age of defendant, illness, intoxication, don't understand English

o Burden on the state to prove that the defendant knowingly, intelligently, and voluntarily waive his rights.

o Rule of Law: If the interrogation continues without the presence of an attorney and a statement is taken, the government must demonstrate that the respondent knowingly, intelligently, voluntarily waived his privilege against self-incrimination and right to counsel.

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Connecticut v. Barrett o Issue: Whether the defendant voluntarily waived his rights? (Yes) o Rule of Law: Miranda gives the defendant the choice between silence and speech.

So therefore if you speak it will be used against you. It does not have to be written.

o Custody: When you do not feel like you can leave. o Can be in custody if not in police department o Can be at house and be in custody.

Oregon v. Mathiason

3/28/2014

o Issue: Whether or not this was a custodial interrogation for purposes of Miranda (No)

o Factors the court looked at: he went voluntarily, officer informed him he was not under arrest, said that he could leave afterwards.

o Rule of Law: Custody: When you do not feel like you can leave.

Berkemer v. McCarty o Issue: Whether or not he was under custodial arrest for benefit of Miranda? o Rule of Law: For ordinary traffic stops, a person is not in custody and therefore is

not entitled to Miranda. o Equivalent to a Terry Stop and Frisk

Illinois v. Perkins o Issue: Whether or not Miranda is required when a suspect is unaware that he is

speaking to a law enforcement officer and gives a voluntary statement? o Hoffa Case- Misplaced Reliance Doctrine o Rule of Law: Miranda warnings are not required when the suspect is unaware that

he is speaking to a law enforcement officer and gives a voluntary statement o Look at if his waiver was Voluntary, intelligently, and knowingly given, he just

did not know whom he was saying it to. o If sixth amendment violation would have been thrown out, the sixth amendment

had already attached and the officers initiated conversation with him. Rhode Island v. Innis

o Issue: Whether the officers interrogated or initiated conversation with him or did the defendant do this voluntarily, intelligently, and knowingly waived?

o Rule of Law: o Factors to determine if an Interrogation occurred: briefness of conversation,

known susceptibilities, or compassion, whether it was directed at defendant, respondent was disoriented or upset.

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Problem 803-804 o Yes, the statement is admissible because it was knowingly, voluntarily, and

intelligently given. o Was told several times to talk to his lawyer. o Admissible because the officer reminded the defendant not to talk to him and he

was a colJege-educated man. o No bright -line rule o Will not trick us. o College educated and they did not initiate it then most likely admissible

New York v. Quarles (Public Safety Exception)

3/31114

o Issue: Whether or not if the officers were justified in not giving him his Miranda rights

o Exception to the 5th amendment right of the Public Safety Exception o Factors: officer safety, public safety, o Akin to exigent Circumstances in the 4th amendment o Rule of Law: if there is a danger to the police officer or the general public then

we can wait to give the Miranda rights until the situation has been neutralized.

Sixth amendment attaches when adversarial proceedings have begun such as indictment, formal charge, information ...

Exceptions to 6th amendment right to counsel: attenuation; independent source; and inevitable discovery

Brewer v. Williams


Maine v. Moulton o Issue: Whether respondent's sixth amendment right to assistance of counsel was

violated by the admission at trial of incriminating statements made by him to his codefendant, a secret government informant, after indictment and at a meeting of the two to plan a defense strategy for the upcoming trial?

o Rule of Law: The sixth amendment is violated when the state obtains incriminating statements by knowingly circumventing the accused rights to have counsel present in a confrontation between the accused and a state agent. (Brewer) Incriminating statements about crimes not yet charged but bought subsequently are not subject to exclusion, no judicial proceedings has been initiated, and thus no right to counsel has attached. (Moulton)

o Note 16 Incriminating statements pertaining to other crimes, as to which the Sixth Amendment right has not yet attached, are, of course, admissible at a trial of those offenses.

o Why is Miranda not Applicable- no custodial interrogation Kuhlmann v. Wilson

o Akin to the Hoffa Case as Well/ Misplaced Reliance/Assumption of the risk o Issue: Whether the respondent's constitutional rights were violated when the

jailhouse informant was placed in close proximity but made no effort to stimulate conversation about the crime charged?

o Rule of Law: Where the informant is merely a passive listener the sixth amendment is not violated. In order to make out a sixth amendment violation the defendant must show that the police and there informant took some deliberate action beyond listening to elicit some incriminating response.

Michigan v. Jackson {2 Sets of facts) o Police are contending that he waived his Miranda Rights, and started talking to

him. o Can you physically waive your 6th amendment right? Pg 843 the average person

does not know the difference between 5th and 6th amendment; should not be required to tell why or for what purpose he is requesting counsel. Simple fact of requesting attorney means you do not think they can handle questioning on their own. Therefore, it will be an invalid lawyer.

o In Edwards the court rejected the notion that after a suspects request for counsel, advice of rights sand acquiescence in police-initiated could establish a valid waiver. The court finds no reason for a different view under a sixth amendment analysis. Just as written waivers are insufficient to justify police-initiated interrogation after the request for counsel in a fifth amendment analysis, so too they are insufficient to justify police- initiated interrogations after the request for counsel in a sixth amendment analysis.

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o Issue: Whether or not the sixth amendment had attached in order to prevent the police from coming back to interrogate the defendants?

o Rule of Law: Any secret interrogation of a defendant from an officer of the state after the indictment (adversarial proceedings) of the defendant without the protection of counsel contravenes the basic fairness and fundamental rights of a person charged with a crime.

McNeil v. Wisconsin o Issue: Does an accused's request for counsel initial appearance on a charge

offense constitute an invocation of his sixth amendment rights that precludes police interrogation on unrelated offenses. (No the 6th amendment is offense specific)

o Rule of Law: The sixth amendment right to counsel is offense specific.

03/02/2014

Texas v. Cobb o Issue: Whether the sixth amendment o Rule of Law: 6th amendment is offense specific and does not attach to crimes that

are not factually related nor crimes that the defendant has had no adversarial proceedings started against him.

o Jf not factually related then the 6th amendment does not attach. o Felony murder is factually related (inadmissible) and intertwined, integrate part of

the crime. Patterson v. Illinois

o Issue: Whether or not his 5th amendment notification was sufficient or adequate enough to waive his 6th amendment to counsel?

o Different from case because he never specifically stated he wanted counsel o Rule of Law: A showing that defendant that defendant had been advised,

understood, and voluntarily waived his Miranda which includes the right to an attorney suffices to establish a waiver under the sixth amendment were defendant has yet to request or retain counsel. A waiver Miranda it is sufficient to waive 6th amendment right if defendant did not specifically request for attorney.

o You must specifically ask for counsel, you can implicitly waive your 6th amendment right only if you have not asked for your attorney.

o Overruled Jackson case. Kansas v. Ventris (Informant in

o Issue: Whether or not the informant (invalid testimony) can testify at the trial for impeachment purposes, where the defendant took the stand to commit purgery?

o If defendant had not have taken the stand, this would not have been an issue. o Rule of Law: Yes but only if defendant took the stand.

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Week March 24, 2014- March 28, 2014 In Class Criminal Procedure lecture Notes

Montejo v. Louisiana o Issue: Whether police may initiate interrogation of a criminal defendant once he

has counsel appointed at an arraignment? Whether defendant must affirmatively request counsel before the sixth amendment attaches?

o Rule of Law: a defendant must request counsel or otherwise assert his 6th amendment right at the preliminary hearing, if he does so the police may not initiate. If the court on his own, with the defendant talcing not affirmatively requested counsel, the police may reinitiate interrogation provided that they obtain a valid waiver of 5th amendment.

Mincey v. Arizona o Rule of Law: Pg. 984; Statements made by defen


Chavez v. Martinez (Never charged with a crime and Brought a Law Suit) o Issue: Whether there was a 5th amendment violation? o Rule of Law: o Pg. 956 Note 4: never charged, never a trial, never called to be a witness, so no

violation of 5th amendment right. Rochin v. California (Pumping of the Stomach OFFENDS CANONS OF DECENCY)

o Issue: Whether the actions by the police offended the due process clause and the cannons of decency AND SHOCKS THE CONSCIECE?

o Rule of Law: When the actions by police to obtain a conviction offend the cannons of decency and fairness, then the evidence will be suppressed. Brutal conduct to obtain a conviction offends the due process clause (14th amendment).

Irvine v. California (locksmith to make a key to respondent home and entered while defendant was gone, and put in listening devices)

o Mapp v. Ohio overruled this it made the 14th amendment applicable to the states

o Rule of Law: old law go with Mapp v. Ohio (pg. 521) o Unreasonable search under the 4th amendment o Always allege violation of 14th amendment (due process clause)

Schmerber v. California (Blood Sample)

4/07/2014

o Issue: Whether the withdrawal of blood sample offends the cannons of decency? o Rule of Law: The withdrawal of blood and the admission of the report do not

necessarily violate the 5th amendment privilege of a person not to be compelled to be a witness against himself.

o Technically in order to violate the 5th amendment there must be testimonial, technically not testifying against himself.

Manson v. Brathwaite (Line Ups/ Only 1 Photo) o Issue: Whether the 14th amendment was violated because they conducted a

suggestive line up. o Rule of Law: An out of court identification made by a single photo will not

necessarily be inadmissible. The court will rely on the totality of the circumstances and will permit the admission despite suggestive aspects as long as it is reliable.

o Factors: Natural Light, accuracy of description, degree of attention of passing observer, the witness level of certainty, the time between the crime and time.

o Single photo was not suggestive enough to suppress or exclude the identification of the defendant.

o Rule of Law: At post indictment lineup the sixth amendment requires the presence of counsel, hover pictorial lineups do not

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o Know the difference between Pre indictment lineup v. Post indictment lineup Nix v. Williams (Inevitable discovery Doctrine/ Christian Burial Speech)

o Rule of Law: If the prosecution can establish by a preponderance (more likely than not) of the evidence that the evidence or information ultimately or inevitably would have been discovered by lawful means then the evidence will be admissible regardless of the illegality.

o Rule of Law: Must show with a reasonable probability (preponderance) that the 1) Evidence would have been discovered by lawful means, 2) and the officers and the government were pursuing an alternative line of investigation at the time of police misconduct.

Murray v. United States (Independent source doctrine/Search first then go get a warrant)

o Rule of Law: The independent source doctrine applies to evidence initially discovered during or as a consequence of an unlawful search, but also, to later obtained independent evidence from activities untainted by the initial search.

o Look at the information the information that the officers new before Sherman v. United States (Entrapment/ recovering addict/ adequate steps to treat

addiction) o Issue: Whether or not the petitioner was predisposed or whether or not the

conviction should be set aside because he was entrapped? o Entrapment- when the government overreaches, not just the government

presented an opportunity is not sufficient. o Rule of Law: entrapment occurs only when the criminal conduct was a product of

the law enforcement officials. Merely affording the opportunity does not constitute entrapment (ex: prostitute= not entrapment).

o Persistence + (PLUS) o Two approaches Subjective/ objective approach

o PREDISPOSITION IS REVLEV ANT TO BOTH APPROACHES o Subjective approach= majority= look at the conduct of the government o Objective approach= minority- MPC /ALI look at conduct of defendant

Jacobson v. United States(Entrapment I 2 Y2 YEARS trying to get defendant to break the law)

o Issue: Whether the government entrapped the defendant into committing the crime through repeated pressures from undercover agents?

o Rule of Law: it is not entrapment when officers or government agents merely afford the opportunity to commit the crime, however government agents may not originate the criminal design or plant it in an innocent person who was not predisposed to commit a criminal act.

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United States v. Gamble(Entrapment/ Mail Fraud/ Egregious Conduct/) o Issue: Whether or not the governments conduct was so overbearing to violate the

defendant's due process? o Did not. Only provided him the opportunity, had been doing this for a while o Rule of Law:

Riverside v. McLaughlin (Probable Cause Hearings/ Warrantless Arrest v. Warrant Arrest)

o Within 48 hours o Rule of Law: Gerstein: the fourth amendment requires a prompt judicial

determination of probable cause as a prerequisite to an extended pretrial detention following a warrantless arrest. They have to be pro'lided within 48 hours of arrest.

United States v. Salerno (Bail I BAIL REFORM ACT OF 1984 is not a violation of due process rights)

o Rule of Law: People are entitled to bail, excessive bail is a violation of the gch amendment, however the bail act of 1984 provides that a defendants dangerousness if proven by clear and convincing evidence is a legitimate basis to deny bail outright even if his dangerousness has no direct relation to the crime with which he is charged.

Gideon v. Wainwright {Habeas Corpus) o Issue: Whether one who is charged with a crime must be furnished counsel by the

state o Rule of Law: in all felony prosecutions the defense shall enjoy the right to

counsel if he cannot afford one. It is an automatic reversal on appeal if this right is denied regardless without a showing of any harm to the defendant.

Scott v. Illinois o Issue: Whether the appointment of counsel is required where jail time is a penalty o Probation= actual jail time = grounds of appeal if no attorney given o Rule of Law: there is a constitutional right to appointment of counsel in state and

federal misdemeanor cases in which a defendant is sentenced to any amount of jail time; however there is no right to counsel in a misdemeanor case in which a fine only is imposed.

Alabama v. Shelton o Issue: Does the Sixth Amendment right to appointed counsel, apply to a defendant

who was sentenced to a suspended sentence? o Actual Imprisonment Rule o Rule of Law: Right to counsel in misdemeanor case exists even when suspended

jail sentence, even if no jail time served.

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Faretta v. California o Issue: Whether a defendant may waive his right to counsel and represent himself

pro-se? o Rule of Law: Representing oneself is a part of the 6th amendment right to

counsel. Indiana v. Edwards

o Issue: Does the Court's prior ruling that a criminal defendant need only be "literate, competent, and understanding" to represent himself at trial set an appropriate standard for defining that defendant's mental competence to invoke his Sixth Amendment right to self-representation when he is otherwise unable to conduct a coherent defense?

o Rule of Law: the constitution permits judges to take realistic accounts of the particular defendant's mental capacities by asking whether a defendant who seeks to conduct his own defense at trial is mentally competent to do so. That is to say, the constitution permits states to insist upon representation by counsel for those competent enough to stand trial but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves.

Strickland v. Washington o Issue: What standard should be applied to determine whether a convicted person's

Sixth Amendment right to counsel has been violated so as to require reversal of a conviction or to set aside a death sentence?

o Rule of Law: the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Rompilla v. Beard o Rule of Law: Lawyers are bound to make reasonable efforts to obtain review

material that may influence or provide mitigating circumstances. Mickens v. Taylor

o Rule of Law: Defense counsel is forced to represent co-defendants is an automatic reversal over timely objection, unless trial court has determined there is no conflict of interest.

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Nix v. Whiteside o Rule of Law: An attorney is precluded from taking steps or in any way assisting the

client in presenting false evidence or otherwise violating the law and should admonish the client about his duty to inform the court if the defendant perjures himself on the stand.

o Issue: Does an attorney's admonition to his client that he will inform the court about what he sees as a client's plan to commit perjury violate a defendant's right to effective assistance of counsel under the Sixth Amendment?

Boykin v. Alabama

4/14/2014

o Rule of Law: Error for trial court to accept a guilty_ plea without an affirmative showing that it was voluntary and intelligently made. A sentence to death for common law murder is cruel and unusual punishment.

Henderson v. Morgan o Issue: Whether a defendant may enter a guilty plea without being informed that

intent was an element of the crime? o Pg. 1203 Note 13 o Rule of Law: A plea may be involuntary either because the accused does not

understand the nature of the constitutional protections that he is waiving or because he has such an incomplete understanding of the charge that his plea cannot stand as an intelligent admission of guilt. Without adequate notice of the nature of the charge against him or prof that he in fact understood the charge, the plea cannot be voluntary in the latter sense.

North Carolina v. Alford (Alford Plea) (threat of higher sentence if don't plead guilty) o Issue: Whether defendant's plea of guilty was invalid because it was a product of

fear and coercion? o Rule of Law: a plea of guilty may validly be induced by threat, which subjects

defendant to the risk of death so long as plea is entered in open court, defendant is represented by competent counsel who is aware of the threat, and the plea is voluntarily and intelligently given. (All factors must be met)

o A defendant does not have an absolute right under the constitution to have his guilty plea accepted by the court. (Fed. Rule 11)

McMann v. Richardson o Rule of Law: A plea of guilty in a state court is not subject to collateral attack in

a federal court on the grounds that it was motivated by a coerced confession, unless the defendant was incompetently advised by his attorney.

Menna v. New York o Double jeopardy attaches when the first witness takes the stand.

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o Rule of Law: Double jeopardy clause prevents the prosecution of offenses growing out of the same criminal transaction; i.e. lesser-included offenses which the defendant has already plead guilty to.

Santobello v. New York o Rule of Law: No absolute right to have guilty plea excepted, a court may reject a

plea in the exercise of sound judicial discretion. Borsenkircher v. Hayes

o Issue: whether due process clause is violated when prosecutor carries out a threat to carry out a more serious crime?

o Rule of Law: as long as the prosecutor has probable cause to believe that the accused has committed an offense by defined by statute, the decision whether or not to prosecute, and what charge to file or bring to a grand jury, generally rests in the prosecutions discretion.

U.S. v. Ruiz (Fast track plea bargain) o Rule of Law: The constitution does not require the government to disclose either

affirmative defense information or impeachment information relating to informants or other witnesses before entering into the binding plea agreement with a criminal defendant.

Brady rule: Suppression by the state of evidence favorable to the accuse upon request violates the due process clause, where the evidence is material either to guilt or to punishment; however a prosecutor has not duty to routinely deliver his entire file to the defense counsel.

Mu'min v. Virginia o Rule of Law: the use of purgered testimony is fundamentally unfair to obtain a

conviction and that conviction must be set aside. Arizona v. Youngbloods

o Rule of Law: not unconstitutional for state not to preserve evidence as long as there is no bad faith

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walker outline part 2

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