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Criminal ProcedureFour Global Issues
1. does the 4th apply to a given search or seizure?
If Yes
2. did they have a warrant to authorize their conduct?
What are the rules and limitations governing warrant searches
If they didn’t have a warrant
3. Warrantless Searches and Seizures: Exceptions and Limits
is the governments conduct admissible? If yes its admissible and you’re done.
If the government’s conduct is not admissible
4. Does The Exclusionary Rule Apply to let this shit in anyway?
Fourth Amendment Search and Seizure
Protected Areas: Did the SS invade an area or item protected by the 4th
Gov Agent Physical Intrusion
Violated persons reasonable expectation of privacy
o If one of two is satisfied Does that person have standing.
4th amendment protect
o (1) persons
o (2) houses & hotel rooms
Curtilage is included adjacent to the home where the activity of home life extends.
o (3) papers
o (4) effects
Unprotected Items – Knowing exposure to third parties will remove 4th protection.
(1) account records held by a bank are exposed to bank personal
(2) public air space – anything that can be seen below.
o California v. Soralo - ∆ claimed that flying over pot farm in yard was invading curtilage but
SCOTUS said it was publically navigable airspace. If delta can see it so can cops
(3) Garbage – if its at the curb its abandoned and cops can take it
(4) Odors – from car and luggage but NOT from your home.
(5) open fields – anything that can be seen in or across an open field.
o Anything outside the curtilage is an open field
3 spheres
Example: gov. agent seizes a person house paper effect – protected item
Two tests
o 1: TRESSPASS TEST – Gov’t agent must physically intrude on a constitutionally protected
area to obtain information. In 2012 the court reinvigorated this test with US. v Jones
(GPS in undercarriage of car for 28 days without warrant bc it was tracking car on
public roads which are open fields. Placing the device on a car/effect is a physical
intrusion on that effect for the purpose of obtaining information. )
o 2. PRIVACY BASED TEST – Two Prong KATZ Test - majority use this since 1967 -
Does this violate a reasonable expectation of privacy?
First thing ∆ must show is actual or subjective expectation of privacy in the area
searched or item’s seized
Second thing ∆ must show is that society recognizes that privacy expectation as
reasonable.
KYLLO Exception – presumptively unreasonable when the police use a
device that is not in public use to explore details they could not have known
without physical intrusion.
Police did not believe this implicated the fourth amendment but
SCOTUS disagreed. You need a warrant for this kind of thing.
Constitutional “Standing” – if you have a search of a protected area or item implicating trespass or privacy test
the 4th will apply if the person has standing to challenge the search.
That individuals personal privacy rights need to be invaded.
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o Six contexts typically in exams
Owner of the premises always has standing
Non-owner who lives on the premesis – Renters have standing
Overnight guest has standing in areas an overnight guest can access.
Common areas are ok but private areas are not
i.e. master bedroom closet you would not access.
Commercial Premises
House owned by an acquaintance used it to bag cocaine - search house was
permissible because if you’re only there on a one time basis for a few hours to
serve a commercial purpose there is not a sufficient nexus to this place to
afford the privacy rights necessary to challenge the government agents
conduct on privacy grounds.
Lower courts have looked at factually distinct cases where there is
more than a one time basis with extended time, routine access,
relationship with owner of commercial premises. May distinguish and
create an exception to the above.
Ownership of seized property gives standing if the person has a reasonable
expectation of privacy in the area from which the property was seized.
Guy has a bunch of drugs and puts them in his girlfriends purse. Cops search
house shes staying in and they look in her purse. The boyfriend tells the cops
they belong to him and he tries to challenge the claim. SCOTUS said he had
no standing because he had no expectation in privacy in his girlfriends purse
and only she could challenge them.
Auto Search – passenger in the car that’s searched and contraband attributable to you
as the passenger is found. You don’t have standing as a passenger to challenge the
search.
Sawed off rifle case.
Warrants – Constitutionality of searches conducted with warrant
Sub Issues: 3 requirements for a search conducted pursuant to a warrant to be constitutional.
o (1) Warrant must be issued by a neutral and detached magistrate
o (2) Warrant MUST be supported by Probable Cause and Particularity (textual)
If not is the warrant saved by an officers good faith good faith doctrine
o (3) Is the warrant properly executed by the police.
Neutrality of magistrate – neutral and detached when her conduct demonstrates bias in favor of the
prosecution.
o In rural area where access to court is limited a municipal officer can do it. In the case this guy
was paid flat rate for ever warrant issued and he just gave them all warrants so it introduced
inherent prosecutorial bias.
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Was there probable cause for the issuance of the warrant? Was it particularized?
o Probable cause requires proof of a fair probability that contraband or evidence of crime will
be found in the area searched.
Hearsay can be used to furnish probable cause.
Informant Tips can furnish probable cause
Sufficiency rests on corroboration by the police of enough of the tipster’s
information to allow magistrates to make a common sense practical
determination that probable cause exists based on the totality of the
circumstance.
ILLINOIS V. GATES – USE COMMON SENSE
Gates replaced Augilar-Spinelli (NY Uses This) – when you have
probable cause based on an informants tip to validate the warrant and
find probable cause you need to apply a two part test
o π must establish the Informants basis of knowledge.
o π must also establish informants reliability or veracity.
Both factors relevant under GATES but they are not as
distinct. More of a balance under GATES.
o Particularity – Warrant must specify the place to be searched and the items to be seized.
If a warrant is lacking the Good Faith Doctrine Kicks in
EXCEPTIONS that will kill good faith
Affidavit supporting the warrant application is so egregiously lacking
in probable cause that no reasonable officer could have relied on it.
o DA went to get a warrant but produced only an affidavit
drafted by the captain of police who got info from tipster who
is know to them and has provided reliable information in the
past.
o DA must give magistrate enough to conduct an independent
investigation to assess presence of probable cause. Absent this
information granting a warrant would go against the framers
intent in establishing a magistrate requirement.
If the warrant is so facially deficient in particularity that officers could
not reasonably presume it to be valid
If the affidavit relied on by the magistrate contains knowing or
reckless falsehoods that are necessary to the probable cause finding.
o Not all lies – ONLY knowing or reckless and necessary to the
probable cause finding.
You gotta have probable cause with the lies taken out
If the magistrate is bias in favor of the prosecution.
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o Bias erodes good faith.
Was the Warrant properly executed?
o Did the cop comply with the warrants TERMS AND LIMITATIONS?
If it says living room and bedroom for stolen iPods
Only those rooms are ok
They can only open containers that would reasonably contain an iPod.
o Compliance with the knock and announce rule.
Police must announce their presence & purpose before they can bust in.
UNLESS the officer reasonably believes that doing so would be feudal,
dangerous or would inhibit the investigation.
BROAD EXCEPTIONS!!!!!
Deciding whether or not to knock and announce and how long they
have to wait is only based on info available to them. 15/20 seconds
Scotus said ok for small apartment. If homeowner is in the shower it
wont be unreasonable if the cops don’t know he’s in the shower – only
info available to cops considered.
Searches and Seizures Conducted Without Warrants
If you determine that a warrant is not necessary under the circumstances you still need to be sure that
it is reasonable in order to remain constitutional.
o 4th amendment does not clearly delineate when you need a warrant
o in the 1970’s when court became more conservative the scotus built in a million zillion
exceptions to the warrant requirement to make it align with the framers intent.
8 exceptions to the warrant requirement E-S-C-A-P-I-S-T
E exigent Circumstances*
o Evienscent evidence – evidence that would dissipate or disappear in the time it would take to
get a warrant.
Tissue evidence under a suspects nails. You can take a scraping from under nails
without a warrant.
Exception: in a DUI context you cannot take blood alcohol level with blood
draw because SCOTUS said today it’s a quick process to get a warrant and
intrusion on the suspects fourth amendment rights are so significant re forcible
extraction of blood so its rare that such action would be justified.
Hot Pursuit – cops can enter a suspect or third parties home to catch a fleeing suspect.
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Anything in plain view is admissible
Emergency aid exception – cops can enter a residence if they have an objectionably
reasonable basis for belief that someone inside needs emergency aid to address or
prevent injury
S searches Incident to Arrest
o 4th amendment rights instantly diminish upon arrest, this means they are not similarly situated
to law abiding citizens
jail is their new home so we want to be sure they don’t have anything they are going
to hurt the cops on and to make sure they aren’t secreting any evidence that we want
to preserve or keep out of the prison system.
Justification: Officer safety and the need to preserve evidence
Timing is important – they must be contemporaneous in time and
place with the arrest.
Geographic scope is the wingspan – includes body, clothing and
containers within the arrestee’s immediate control without regard to
the offence for which the arrest was made. BIRGHT LINE
STANDARD REGARDLESS OF WHAT THE ARREST WAS FOR.
o If they pat you down and find drugs they come in as evidence
as long as that is found within the wingspan.
Searching CARS roadside after DUI – cop can search the arrestee’s car but they are
limited to the interior car. That includes closed containers but NOT THE TRUNK.
SCOTUS DISTINCTION BETWEEN SECURED & UNSECURED
ARESTEE’S
Once the arrestee is secured and in the cop car the arrestee’s car can
only be searched in the police believe the car contains evidence
pertaining to the crime for which the arrest was made. This limitation
does not apply to an unsecured arrestee.
C onsent
o Cops can ask for consent to search anything and if you agree to let them search it doesn’t
make sense to ask them to get a warrant because you’ve agreed to waive your 4th amendment
rights.
What is valid consent?
Voluntary and intelligent
Cops don’t have to tell you that you have the right to refuse
What is the scope of consent?
All areas for which a reasonable officer would believe you consented
to.
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Apparent Authority – if cop gets consent from someone who lacks actual authority to
grant it the consent is still valid if the officer reasonably believes that the consenting
party had actual authority.
Woman comes to station to log a DV complaint and cop goes with cop to
apartment. Says its “our apartment” has a key and says she keeps stuff there.
The officer sees drug paraphernalia and gets to the boyfriend who says isn’t
not both of their apartments. Cop takes the drug stuff. Bf challenges drug
seizure as fruit of an unlawful entry. SCOTUS says its fine bc he had apparent
authority which was enough.
When multiple adults share a residence anyone can consent to search of
COMMON areas. An objecting roommate will trump a consenting roommate.
A automobiles – 6 exceptions can come into play here. Turns on facts
o Justification:
Ready mobility
Lesser expectation of privacy
Officers need probable cause to believe that contraband or evidence of crime
will be in the vehicle.
This gives them access to the whole car including trunk and any
package luggage or container that could reasonably contain the item
they are looking for.
o Traffic Stops: the officer does not need probable cause at the time he pulls the car over as
long as he get the probable cause before he actually conducts the search.
P plain View
o Always subject to the same three requirements
(1) lawful access to the place where you saw it
(2) lawful access to the item itself
(3) criminality of the item must be immediately apparent
I inventory
o Of arrestee’s when they are booked into jail.
o Of cars when they are impounded
Constitutionality depends on…
Regulations must be reasonable in scope
Search itself has to comply with the regulations
Search must be conducted in good faith – to safeguard owners possessions and
to protect officers safety
OFFICERS SUBJECTIVE INTENT MATTERS
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S special Needs Doctrine in the late 1980’s
o The special needs of law enforcement, government officials and school official beyond a
general need for law enforcement.
Post terry constitutionality based on less than probable cause maybe that’s not a
constitutional floor.
Balance of states interest v. individual interests so you have no floor at all.
Drug testing – warrantless and suspicionless testing for Railroad
employees after a crash, customs agents who are responsible for drug
interdiction, public school children who engage in any extracurricular
activities (first athletes than extended to any activity/club based on the
widespread use of drugs by our nations teenagers)
o You can also look in the bags of kids to check for violations of
school rules if the search is reasonable at its inception and is
not excessively intrusive in light of the age and gender of the
student and the nature of the infraction.
o 8th grade student strip search who they believed was carrying
prescription strength Advil because of her age and gender and
because there was no danger associated with the drug.
Does not apply to law enforcement programs whose primary purpose is to
gather criminal evidence for general use by law enforcement.
Check points for drunk driving special need is public health and safety
Indiana set up narcotics check point in a bad neighborhood but they
did not have the same state interest re driving. Their purpose was
purely related to law enforcement.
T terry Stop and Frisk
o ONLY 4th amendment textual standard is probable cause until Terry v Ohio in the 1960’s –
cops saw guys case store and wanted to briefly stop and question them to figure out their
deal.
Can we invade a person’s 4th amendment rights on less than probable cause?
You can stop, question and pat down a person on less than probable cause.
Terry stop – brief detention or seizure for the purpose of investigating
suspicious conduct.
Threshold Question : when is someone seized under the 4th amendment
when based on the totality of the circumstances, a reasonable person
would not feel free to leave or would decline an officers request to
answer questions.
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Police pursuit its treated differently – when someone is being pursued
by a police officer they are seized only if they submit to the officers
authority by stopping or if the officer physically restrains them. While
running away you are not seized but as soon as they get you you’re in
a state of seizure.
Traffic Stop is a type of terry stop – both the driver and the passengers are
seized so either can challenge the legality of the stop.
Cop has discretion to order passenger and driver out of the car.
Dog sniff’s are allowed as long as the sniff does not prolong the stop
unreasonably.
o Odors from the car are not protected by 4th same for luggage.
homes get protection that the car and luggage do not
get. They cant sniff the curtilage to get info even if its
girlscout cookie like intrusion.
o TERRY FRISK as distinguished form terry stop. – SAFETY FRISKS
A pat down of the body and outer clothing for weapons that is justified by a belief
that the suspect is armed and dangerous.
IF the cop finds a weapon its coming in
If the cop finds DRUGS it can come in as long as the cop doesn’t physically
manipulate the contraband.
You cant feel the contours but if you immediately recognize it you can
bring it in.
You can frisk a car – search the cabin but you’re limited to places where a weapon
can be placed or hidden.
o EVIDENTIARY STANDARD – REASONABLE SUSPICION
STOP - Specific and articulable facts that indicate that criminal activity is aftoot.
FRISK - Specific and articulable facts that indicate that a suspect is armed and
dangerous.
OBJECTIVE REASONABLENESS NOT SUBJECTIVE INTENT.
Exclusionary Rule: Fourth Amendment Limitations
Unconstitutionally obtained evidence is only kept out of the prosecutions case in chief but it can
come in to impeach the defendant on cross examination.
Knock an announce violations are not going to impact the admissibility of the evidence obtained in
the search that follows
Police misconduct must be deliberate reckless or grossly negligent
o Book keeping error that led to an unlawful arrest. The evidence was not excluded because
tort negligence is not enough
Erroneously obtained while executing a search warrant will not keep the evidence out as long as the
mistake was reasonable.
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o Cops go to the wrong door in the apartment building. They find mad drugs but the drugs
wont be kept out based on the cops mistake since it was reasonably and since they stopped
the search as soon as they realized they made a mistake.
Fruit of the Poisonous Tree – all above is direct evidence but this is derivative evidence by
exploiting unconstitutional direct evidence
o This doesn’t come in in the prosecutors case and chief
Two ways to nullify – if break in the causal link frustrates the chain between the
original illegality and the evidence that is later discovered.
Inevitable discovery – when the evidence would necessarily have been
discovered through lawful means.
11 year old girl killed in Iowa at Christmas time. Detective was told
not to question him but they engaged in casual conversation and
confessed and led to the girls body but SCOTUS said it was a violation
of the 6th amendment and took the body out as fruit of the poisonous
tree. They went back and said that the cops were looking for the body
in a parcel w/ a grid search and the girls body had been dumped within
the grid so if the detective didn’t beat them to it the cops would have
found it anyway.
Attenuation – admits derivative evidence where the passage of time and
intervening events purge the taint of the original illegality and restore the
defendants free will.
Eavesdropping a/k/a The False Friend Doctrine
You assume the risk that the other person will keep the conversation private when you talk to a
friend and he’s wearing a wire.
Law of Arrest
An arrest occurs whenever the police take someone into custody against their will for prosecution
OR interrogation.
o A defacto arrest when the police compel someone to come to the station for finger printing or
questioning.
SCOTUS – when someone is arrested for a serious offense it is permissible to take a
DNA sample w/ cheek swab as apart of the routine booking process.
YOU NEED PROBABLE CAUSE TO ARREST.
You can arrest for all offenses even those punishable by a fine only. Cops
have plenary authority under the 4th amendment to arrest individuals for any
offense
o You need a warrant to arrest in their home
o 3rd party home – arrest and search warrant
o public place – you don’t even need a warrant.
Confessions: ways to exclude a confession
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The 14th Amendment Due Process Clause
Involuntariness – confession is a product of police coercion that overbears the suspects will.
o SCOTUS – god commanded guy to go from Boston to Denver to confess to a crime from
years ago cop gets waiver and reads Miranda. He declined into psychosis in the 24 hours
following confession and psychologist testifies that he was psychotic at the time he gave the
confession.
Court says the confession is in because his will was not overborne by coercion even if
he was nuts. Gods not a state actor for the purpose of the 14th amendment.
6th Amendment Right to Counsel
Powerful right for criminal ∆ but LIMITED compared to Miranda right to counsel.
o Express guarantee that arises when the ∆ is formally charged. Once it attached it applies at all
critical stages of the prosecution - i.e. arraignment, probable cause hearings and police
interrogations after charging.
Offence specific in that it only applies to the charges against you. No protection for
uncharged criminal activity.
Incriminating statements obtained by cops from a ∆ who as been formally
charged are admissible as long as those statements were deliberately elicited
and the defendant did not knowingly deliberately and voluntary waiver of
counsel.
Example: ∆ charged with burglary and represented by public defender. Remanded to custody
pending trial. Two weeks later ADA questions him and he incriminates himself about the burglary
and about an unrelated murder.
o His 6th amendment rights have been violated regarding the burglary because questioning was
deliberate and he had not voluntarily waived counsel. No violation exists with respect to the
murder.
5th Amendment Miranda doctrine
Implied rights grounded in the self incrimination clause of the 5th amendment
o Right to remain silent
o Anything you say can and will be used against you
o You have the right to an attorney
o If you cannot afford one, one will be appointed for you at no cost
They become necessary when two requirements are satisfied
(1) custody requirement
Step 1: freedom of movement test – would a reasonable person feel he
was not at liberty to end the interrogation and leave. If satisfied move
on to…
Step 2: The environment in which the interrogation takes place is not
inherently coercive or police dominated. Like station house
interrogation in Miranda
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(2) Custodial Interrogation
any conduct the police knew or should have known was likely to elicit
and incriminating response.
o ILLINOIS v. PERKINS – under cover agent put in cell with ∆
to elicit incriminating evidence about unrelated murder which
they were able to do. ∆ claimed Miranda violation but
SCOTUS said no.
If he believed he was talking to a friend it wasn’t
inherently coercive or police dominated as it was in
Miranda. Miranda is only a remedy for an individual in
a police dominated or coercive environment.
EXCEPTION – if interrogation is prompted by an immediate concern for
public safety concerns any statements ∆ makes can be used against him.
o ∆ subject to custodial interrogation absent the exception has 3 options
(1) Waive rights – most popular
Miranda waiver is valid if
(1) its knowing and intelligent
o if suspect understands nature of rights and consequences of
abandoning them
(2) It must be voluntary waiver
o not the product of police coercion
waiver can be express or implied by a course of conduct
that indicated his desire to speak
if he got his Miranda rights and understood them he
waives by making an uncoerced statement
The burden is on π who must prove waiver by
preponderance of the evidence.
Invoke right to remain silent
Must be unambiguously invoked
Once invoked they must scrupulously honor the invocation
At the very least they cant badger him into talking
They need to wait a significant period of time before resuming
question
Invoke right to counsel – MOST POWERFUL RIGHT
Stands in stark contrast of trends to undo the warren courts bullshit which
conservatives back peddled on.
Sufficiently clear that a reasonable officer in that situation would
understand what suspect said to be a request for counsel
From that point all interrogation must cease unless suspect initiates
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NOT OFFENSE SPECIFIC all topics are barred outside of presence of
attorney and follows him for the first 14 days after his release.
o Once ∆ asks for his lawyer the police cant question him about
anything at all outside the presence of his lawyer and their only
way out of the box is if the suspect initiates and says I wanna
talk to the cops. This follows him for 14 days after release and
on the 15th day they can try again.
Exclusionary Rule: 5th Amendment/Miranda Limitations
Incriminating statements obtained in violation of Miranda cant be used in π case in chief but they
can be used against ∆ on cross to impeach. (just like 4th amendment)
Failure to give ∆ Miranda warning does not require suppression of the physical fruits provided the
statements are voluntary.
o If ∆ confesses to murder and tells cop where weapon is he can suppress confession but not
weapon bc it’s a physical fruit.
If a statement is inadmissible due to Miranda violation, subsequent statements after Miranda waiver
is obtained, are admissible IF the inadmissible statement isn’t obtained through inherently coercive
police tactics or offensive to due process.
o Miranda mistake up front mirandized and waived second statement comes in unless
mistake was so inherently coercive it offends due process.
Pretrial Identifications – rules vary depending on type of ID
Line Up
A show up – only shows witness one pic and asked if that’s the guy
Photo Array
o Two substantive challenges to pre-trial identification
6th amendment right to counsel after line-up’s and show-ups that take place after
formal charging but NOT to photo arrays.
Violation of due process if it is so unnecessarily suggestive that it creates a
substantial likelihood of misidentification.
Balance reliability of suggestive identification against its corrupting effect.
o Remedy is exclusion of witness’ in court ID.
Witness can still make an in court ID if the prosecution can prove that witness’
recollection is not from the unconstitutional lineup show-up or photo array
Witness opportunity to view suspect at crime scene
Specificity of description given to the police
Certainty of the witness’ identification.
If the witness’ observations were implanted in mind based on
suggestion rather than personal observation its not ok to get on the
stand and point to ∆.
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If witness is reliable then the witness shouldn’t be out just because the
cops fucked up the identification.
o Either would be a miscarriage of justice.
Pre-Trial Proceedings
After arrest ∆ goes before magistrate
o Initial appearance where ∆ is advised of his rights, bail is set and an atty is appointed if
necessary.
If they want to detain you pre-trial to bind you over for trial or keep you in jail they
need to show probable cause
Gerstein hearing isn’t necessary if the grand jury has issued an indictment or
if the magistrate has issued an arrest warrant.
Trial Rights
BRADY RULE.: Prosecutor has to disclose all material exculpatory evidence to a criminal ∆
Judges – all criminal ∆ have right to unbiased judge
o No financial stake in the outcome of the case
o No actual malice against the defendant
Jury – fair and impartial jury
o Right kicks in when the maximum authorized sentence exceeds 6 months.
o There must be at least 6 members of the jury in a criminal trial
6 requires a unanimous vote
over 6 they don’t have to be unanimous to comply with constitutional requirements.
We typically require both though its in excess of the constitutional requirement.
DEPENDS ON JSX.
o Cross-Sectional Requirement
Pool of jurors represents a cross section of the community.
People are drawn from that group to hear a case and they may be non-diverse
provided the pool from which the panel was drawn is divers.
Pre-emptory challenges can be used by either side without saying why
UNLESS exclusion is based on race or gender.
Ineffective assistance of counsel
o Most commonly raised claim on appeal but its hard to succeed on a Strickland test: two
prong test
Deficiency requirement – counsel performance must fall below an objectionable
standard of reasonableness it was as if he was not functioning as counsel. No cat naps
during trial
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Prejudice requirement – but for the deficiency the outcome of the trial would have
been different. Atty slept through witness direct and couldn’t cross but SCOTUS said
it wasn’t an important witness and it wasn’t prejudicial.
Guilty Pleas 95% are plead out
To be VALID a guilty plea must be voluntary and intelligent.
o To meet that standard a judge must conduct a plea taking colloquy
It must take place in open court and address on the record
Nature of the charges
including required elements of offense
consequences of the plea
∆ knows he’s waiving the right to plead not guilty and the right to a
trial.
Double Jeopardy
No person shall be put twice in jeopardy of live or limb from the same offense by the same
sovereign.
o Attaches when the jury is sword or if bench trial when the first witness is sworn or if in guilty
plea context when the judge accepts the plea unconditionally.
o This does not apply in civil proceedings.
Blockburger Test: two offenses are not the same for DJ purposes if each contains an
element the other does not.
If only one offense contains an element not in the other than the double jeopardy will
not apply.
If first tried for the lesser he cant be tried for the greater – SAME thing if it
goes the other way.
Different states not same sovereign
Fed and state not the same
State and internal municipalities DO apply
o Hung jury allows ∆ to be re-tried
o Successful appeal, particularly of a legal issue allows retrial
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Successful appeal due to insufficiency of evidence at trial does not DJ
o Breach of the plea agreement by the defendant – viewed as a contract – voids agreement and
∆ gets a retrial.
o If prosecution breaches ∆ can renegotiate
Fifth Amendment Privilege against Compelled Testimony
Anyone can take the 5th amendment but only
o If testifying under oath
Testimonial privilege so it doesn’t apply to physical ie extraction of blood
Only applies to words compelled from our mouth
Defendant cant get fucked for staying quiet
Pros can eliminate this privilege by granting immunity
Use and fruits or use and derivative use
o Π cant use your testimony or anything derived from it but they can use
anything obtained prior to immunity grant
∆ cant take the fifth on cross for anything within the scope of direct
you cant take the 5th if the statute of limitations has run on the underlying crime
YOU CAN ONLY TAKE THE 5TH IF YOU’RE GOING TO RISK BEING CHARGED
WITH A CRIME FOR WHAT YOU SAY. YOU CANT JUST SAY IT WILL MAKE YOU
LOOK BAD.
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