MBE Subjects II_CrimPro Outline

8/12/2019 MBE Subjects II_CrimPro Outline

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MBE CRIMINAL PROCEDURE

I. INTRODUCTION TO CRIMINAL PROCEDURE

A. Systems of Criminal Procedure

1. The Fourth, Fifth, and Sixth Amendments

a. The Fourth Amendment protects the people from unreasonable searches and seizures and requires that

warrants be supported by probable cause

b. The Fifth Amendment prohibits coerced confessions, unreliable identifications and provides a privilege against

self incrimination

c. The Sith Amendment provides a person formerly accused of crime the right to assistance of counsel during

all critical stages of the adversarial process. That means trial, prelim hearings, police questioning and physicalidentification proceedings. Sith Amendment also includes confrontation clause which requires testimonial

evidence be sub!ected to adversarial testing.

". Federal and State System

a. #ur focus is the $nited States %onstitution.

They provide a baseline of procedural protections that the state may not deprive. &owever, states arealways permitted to provide additional procedural protections to suspect and defendants.

A state statute that grants police authority to engage in conduct that violates the federal constitutionalstandard is invalid 'li(e a statute authorizing no)(noc( warrant eecution for an entire category of

crimes*.

B. Approach to a Criminal Procedure Question

1. +as there government action

". -f so, did it trigger a constitutional right 'for eample, was it a search or seizure, or was the suspect sub!ected to

custodial interrogation*

. -f so, did the government violate the constitutional right 'for eample, was the search or seizure unreasonable, or

did the police violate the /iranda rule*

0. -f so, is #$2 defendant entitled to the remedy of eclusion

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II. THE FOURTH AMENDMENT

A. Government Action

1. The Fourth Amendment applies only to government, not private conduct.

a. Silver Platter octrine!+hen a private party acting on his own acquires evidence that the government later

see(s to introduce in a criminal prosecution, it does not trigger the Fourth Amendment

b. &owever, when a private party acts at the direction of a government agent or pursuant to an official policy6

then the search and seizure is sub!ect to the Fourth Amendment.

B. Sei"ure

1. The Fourth Amendment7s 8reasonableness requirement9 is triggered by6 any government seizure of a person or

property.

". Sei"ure of Persons

a. A person is seized when, as the result of government action6 a reasonable person, in his position, will not feel

free to leave or otherwise terminate the police encounter

'1* :ot all police encounters are seizures. -f reasonable person feels free to leave or terminates encounter,

the Fourth Amendment is not triggered.

'"* A seizure occurs when the police use physical force to restrain a suspect, or when they ma(e a show of

authority followed by submission.

'a* -f a suspect is located in a naturally confined location 'li(e a bus*, the test is6 whether a reasonable

person will feel free to terminate the encounter with the police.

b. Arrest is a 8maimum9 seizure, indicated by police action that initiates the criminal prosecution process 'ta(ing

the suspect to !ail*.

All arrests are seizures, but not all seizures are arrests. The difference is indicated by purpose and duration.

c. Terry Stop!;etween a routine police encounter and arrest is a Terry Stop.

'1* A Terry Stop is a 8brief investigatory seizure9 because police require the suspect to interact with them,

therefore triggering the Fourth Amendment.

'"* The difference between a Terry Stop and an Arrest is duration and purpose.

'* A Terry Stop is not the initiation of criminal action, it is for the sole purpose of investigating a 8reasonable

suspicion9 crime is about to, or has recently occurred.

'0* The permissible duration of a Terry Stop is the time necessary to confirm or deny the suspicion.

'a* -f confirmed, the suspicion blossoms into probable cause, which !ustifies arrest.

'b* -f denied, the seizure must terminate.

. Sei"ure of Property. For property to be seized, police must ta(e some action that results in meaningful

interference with a possessory interest

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a. -f police ta(e control of property, then it has been seized.

b. -f police place something on the property 'li(e a beeper* that does not interfere with the owner7s use of the

property, then it has not been seized due to no interference with possessory interest.

C. Search

1. A search is a government intrusion into a reasonable epectation of privacy '235*.

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'D* information on an email sent through an -S5 'but the contents of the email are within a 235*E

'B* conversations that the suspect believes are private but that the party on the other end records. This is

the false friend doctrine

+hen a person eposes something to another person, they assume the ris( that the other person will eposeit to the police, and if this happens it is not a search.

'* #pen fields6 unoccupied areas beyond curtilage of the home.

'?* :a(ed eye observation of private property by air so long as police comply with flight limitations

'@* Aerial photography of large fenced in areas around an industrial comple even using high)powered

scopes

'1* Giscarded property, such as commingled garbage and abandoned rental premises.

. +hen the government uses a device that is not in general public use, enabling them to see 8through the walls9 of a

home, this is a search because it intrudes upon a 235.

. Complyin' (ith the Fourth Amendment

1. The touchstone of the Fourth Amendment is reasonableness. Accordingly, a search or seizure6 must be reasonable in

order to comply with Fourth amendment

a. -f police obtain a warrant to conduct the search or seizure, it creates a presumption of reasonableness. To

challenge the search or seizure, the defendant bears the burden of rebutting this presumption by proving6

'1* The warrant6 was not based on valid probable cause

'"* The magistrate6 not neutral or detached

'* The warrant6 failed to describe with particularity the thing to be seized or place to be searched

3ven if a warrant is determined invalid, the evidence may still be admissible pursuant to the good faith eception

to the eclusionary rule. 3clusion requires the additional determination that police acted unreasonably when

they relied on the warrant.

b. ;ecause a search or seizure without a warrant is presumptively unreasonable, the government bears the

burden of proving the search or seizure fell within an established eception to the warrant requirement.

". The Procedural Component! )arrants

a. A valid warrant to search or seize must be issued by a neutral and detached magistrate, based on probable

cause, and describe with particularity the thing to be seized or the place to be searched.

'1* The information 'affidavit* presented to the magistrate must provide relevant facts that lead to the

conclusion that6 it is more probable than not that a person committed a crime or that evidence will be

found in a particular location.

'"* The information presented to the magistrate must not be stale.

b. -t is improper to issue a warrant, even when there is probable cause, if the method of intrusion is

unreasonable.

#xample!-t is improper to require the removal of a bullet from an individual suspected of robbery whenthe bullet is deeply embedded in the body, removal would damage the body, and the removal would

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require general anesthesia.

c. +arrant 3ecution

'1* 5olice must normally6 (noc( and announce their identity before entering a home.

'"* >noc( and announce is not required if6 police have reasonable suspicion to believe that doing so would

lead to flight, endanger them, or lead to destruction of evidence.

'* The violation of the 8(noc( and announce9 rule violates the Fourth Amendment but does not trigger

eclusionary rule. Hudson v. Michigan

. The Substantive %omponent6 5robable %ause and 2easonable Suspicion.

a. 5robable %ause is 8fair probability9 defined as facts and circumstances that would warrant a reasonable person

to conclude that individual in question has committed a crime to support arrest or that specific items related to

criminal activity will be found at a particular location.

'1* 5robable cause is an ob!ective standard. As a result, the sub!ective intentions of the police officer pay no

role in assessing probable cause.

A defendant cannot challenge probable cause by asserting that the officer had a sub!ective improper motive

for an arrest. The search incident to the arrest is valid so long as the ob!ective facts indicate that a crime

was committed, arrest is supported by probable cause. -t is irrelevant that the officer conducted thearrest simply to use it as an opportunity to search for evidence he had a hunch he might find or to harass

the suspect. =Whren v. U.S., D1 $.S. ?B, ?1 '1@@B*C.

'"* 5robable cause is always required to engage in a6 full)scale intrusion, a full)blown evidentiary search and

an arrest

b. 5robable cause is often established based on6 police observation, eyewitness accounts, suspect7s own

condition and conduct.

c. 5robable cause may also be based on6 tip from confidential or anonymous informant.

'1* The totality of the circumstances test is used to assess the reliability of an informant7s tip to establish

probable cause.

The factors considered are6

'a* Heracity of informant

'b* ;asis of (nowledge

'c* 5olice investigation that corroborates facts in the tip and establishes the accuracy of an informant7s

predictions

'"* An informant generally need not reveal his or her identity. &owever, if the informant does identify himself,

it bolsters the reliability of the tip because it sub!ects the informant to possible penalty for providing false

information.

'* -n order to establish probable cause, the totality of these circumstances 'factors* must indicate that the

information provided6 predictive information that only a person with inside access to the person would

(now.

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For a tip to establish probable cause, police corroboration must establish that the tipster providedpredictiveinsiderinformation. A prediction that any neighbor or 8enemy9 could ma(e to the police 'li(e the carsomeone drives, the route they ta(e to wor(, or the time they normally leave every day* does notindicate insider access, and therefore normally will not establish probable cause. Illinois v. Gates.

d. *easona+le Suspicionis defined as6 articulable information, more than a mere hunch used by individual or

police officer indicating the suspect has or is about to engage in criminal activity

'1* 2easonable suspicion is a level of certainty that will !ustify6 only a brief investigatory seizure 'terry stop*

or a cursory protective stop 'fris(*

2easonable Suspicion will never !ustify an arrest or a full)blown evidentiary search.

'a* A police officer7s sub!ective suspicion 'or instinct, or hunch*6 is not ob!ectively reasonable and

therefore, never sufficient to provide authority to even do a cursory seizure or search.

'b* -n order to transform 8sub!ective 8unreasonable9 suspicion9 to 8reasonable9 suspicion, the

officer must have some verifiable ob!ective fact to support her suspicion.

2easonable suspicion is easily understood as the addition of an ob!ective fact to the police officer7ssub!ective instinct based suspicion that corroborates that suspicion. Going so permits a reviewing courtto assess whether the police officer has a 8particularized and ob!ective basis9 for suspecting legalwrongdoing.

#. Applyin' the Fourth Amendment to Sei"ures

1. Arrests '/aimum seizure*

a. 5robable cause is6 always required for an arrest.

b. 5robable cause to arrest may be obtained by a variety of methods, including6 reliance on an informant7s tips

that satisfies the totality of the circumstances test from Illinois v. Gates.

2emember, reasonable suspicion for a Terry Stop can 8blossom9 into probable cause. -f during the investigatory stop the

police officer obtains additional information rising to the level of probable cause, the Terry Stop may be

escalated to an arrest and the suspect may be searched incident to that arrest.

c. There is no requirement to obtain a warrant to arrest a suspect in public, so long as6 police have probable

cause for the arrest.

A suspect is li(e any other piece of evidence the police seize. -f the suspect is in public and police need not intrude

upon a 235 to arrest the suspect, then li(e evidence in plain view police need not obtain a warrant to arrest

'seize* the suspect.

d. An arrest warrant is required6 before police can arrest an individual in his own home unless they have consent

or eigent circumstances to enter the home.

3igent circumstances !ustifying a warrantless entry into the suspect7s home to eecute an arrestrequires the following6

'1* An arrest attempt outside the home is6 thwarted because the suspect retreats into the home.

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'"* There is6 insufficient time to secure the warrant because delay would allow the suspect to evade arrest or

destroy evidence.

'* The arresting officer is6 in hot pursuit and has probable cause to affect a valid arrest for the suspect.

'0* The officer did not6 deliberately create the eigency !ust to avoid getting a warrant.

#$A%P!+hile on a routine patrol, #fficer Iones observes an individual he who matches the

description of a suspect who !ust robbed a cab driver at gunpoint. As Iones approaches thesuspect, the suspect bolts, ignoring Iones7 verbal demands to stop running. The suspect runs intohis house and slams the door behind him. Iones may enter the home to arrest the suspect withoutobtaining a warrant.

". Terry Stops

a. 2easonable suspicion that 8crime is afoot9 'a crime is in progress or has !ust been committed by the suspect*

!ustifies a6 brief investigatory seizure or terry stop.

b. 2easonable suspicion that crime is afoot may be established by6

'1* 5olice observations or eyewitness reports

'"* &eadlong flight from police in high crime neighborhood

'* An informant7s tip coupled with police investigation that corroborates the accuracy of the informant7s

predictions.

'a* $nli(e the test for probable cause, which requires the tip to provide predictive inside information,

reasonable suspicion is established by6 verifying the informant7s predictions even if they don7t

indicate insider access.

'b* ;ut a tip that provides nothing more than eisting information, even if corroborated by police investigation,does not establish even reasonable suspicion.

#$A%P!5olice receive an anonymous tip that an African American teenager about si feet tallis at a bus stop wearing a red plaid shirt, and that he has an illegal pistol under his shirt in his belt.3ven if police corroborate that a teenager matching this description is located at the bus stopprovided in the tip, there is no reasonable suspicion because there is nothing predictive about theinformation corroborated. -f, however, the tip indicates that, 8in ten minutes9 the same individual willarrive at the bus stop, and police wait there and observe his arrival, corroboration of thisinformation does establish reasonable suspicion, although not probable cause.

c. A police officer is !ustified in requesting a suspect7s name as identification during a Terry stop as long as the

request has an immediate relation to the purpose of the stop.

d. The permissible scope of a Terry Stop is the time required6 acting in due diligence to confirm or deny the

suspicion.

e. The fact that an officer may have also had some improper sub!ective basis for the stop will not result in a

finding that the stop was illegal6 so long as the stop was supported by ob!ective reasonable belief that the

suspect has or was engaged in crime.

. Sei"ures of Property

a. A warrant based on probable cause is required to !ustify the seizure of property.


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b. :o warrant is required if the property is6 in the officer7s plain view.

c. 5lain view requires6

'1* The police are6 in a lawful vantage point to observe the item. They don7t have to conduct search to

observe it

'"* The incriminating nature of the item is6 -//3G-AT3


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a. The scope of the search is limited to6 the premises described in the warrant.

b. :onetheless, contraband6 not listed in the warrant may be lawfully seized under the plain view doctrine during

warrant eecution so long as it comes into plain view within the scope of the warrant.

c. A location owned by non)suspects may be searched upon obtaining a warrant.

d. A search warrant for premises carries with it the right to detain persons in the home during the search but not

right to search those parsons unless they are listed in the warrant.

". )arrantless Searches! #xceptions to the )arrant *euirement!A warrantless search is unreasonable unless it

falls within one of the following established eceptions.

a. Searches -ncident to a &a(ful Arrest S-T&A/!A warrantless search of the arrestee and6 the area within his

immediate control 'wingspan* is automatically permitted following a lawful arrest.

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suspended license. 5olice wait for him to arrive at his home. +hen he arrives, police confronthim as he is getting out of his car and place him under arrest. Suspect is placed in handcuffsand police search his person and find a vile of heroin in his poc(et. Suspect is then placed inthe bac( of a police cruiser. 5olice then search the interior of his car and find an unregisteredpistol in the glove bo. The heroin will be admissible because the search of the suspect7sperson was within the proper scope of the S-T


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'b* &owever, this is a very narrow limitationJ being par(ed in a par(ing lot in a place where automobiles

normally stop temporarily does not trigger this limitation.

'D* Any automobile stop, for eample to issue a citation, may lead to probable cause there is contraband in

the vehicle. -f probable cause arises after the warrantless stop, then there is no need for a warrant.

#$A%P #fficer Iones pulls suspect over for speeding. As he is writing the citation, he as(ssuspect, 8do you have anything in the car - should (now about9 Suspect responds, 8!ust a littleweed in the glove compartment.9 #fficer Iones may now search the glove compartment formari!uana, and any contraband he observes while doing so is sub!ect to a plain view seizure.

c. The Special 3eeds octrine

'1* 5olice are permitted to use chec(points to conduct brief seizures andKor limited searches no

individualized suspicion or warrant in response to a public safety danger that cannot be addressed by

complying with the normal individualized suspicionKwarrant requirements.

'"* The primary purpose of a special needs search or seizure6 the police will be unable to protect us from

imminent danger if they have to first establish probable cause or reasonable suspicion. This is also

(nown as suspicionless search and seizure.

'a* -f the primary purpose is6 to protect the public from an immediate danger. -f primary purpose is

general crime control or discovery of evidence of crime, this eception does not apply.

'b* %ommon special needs chec(point searches include sobriety chec(points, search for recently

escaped prison inmates, counter)terrorism chec(points, and chec(points to search for suspects of

a recent crime.

#$A%P 5olice set up a chec(point to search vehicles for evidence of illegal drugs. Thechec(point violates the Fourth Amendment because its primary purpose is indistinguishable fromthe general interest in crime control and because the chec(point is not based on individualizedsuspicion of wrongdoing. Indianapolis v. Edonds.

'* A special needs search or seizure must be6

'a* ;ased on a fied formula that6 deprives individual officers of the discretion to select sub!ects.

'b* :arrowly tailored in scope6 to address the specific threat.#$A%P -n response to heightened intelligence reports of possible terrorist subway bombings,police may establish chec(points to randomly search bags of subway passenger. 5olice may onlyloo( in bags capable of concealing a bomb.

'c* ;e conducted in a location and a manner that minimizes citizen aniety.

'0* 5olice may seize any contraband that comes into plain view while searching within the scope of the

special needs inspection6 even if the contraband is unrelated to the public safety concern.

'D* 5olice officers may not6 randomly stop vehicles to chec( the license and registration.

'B* %ustoms officials may stop vehicles at permanent chec(points located at or near the border with6 no

suspicion or cause as an incident of national sovereignty.

;ecause a special needs stop is a seizure, if it is unreasonable 'not based on a valid special needs !ustification*,

any evidence it leads to will be tainted by the stop. &owever, if it is reasonable, any subsequent search or

seizure will be unaffected by the stop, even if the evidence is unrelated to the special need.

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Angela is stopped at a sobriety chec(point. #fficer Iones stands near the driver7s side window and as(s Angela for her

license and if she has been drin(ing. +hile Angela is answering, through the passenger window Iones sees the end of a

bong stic(ing out of a bag. #fficer Smith then has Angela step away from the car. &e ta(es the bag from the car, seizes

the bong, and searches the contents of the bag. -nside the bag he finds felony amounts of mari!uana. -s the seizure of

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the bong and the mari!uana reasonable

S",riet# chec- ("it is +der (+r*ie! "f s(ecia) eeds search !here,# (")ice ca +se

chec-("its t" carr# "+t ,rief searches ad sei+res. P")ice ca search ad seie a#

c"tra,ad that c"mes it" ()ai *ie! as a res+)t "f this search% e*e if it is +re)ated t"

sc"(e "f search. Oce (")ice "fficer sees ,"& /+tti& "+t "f ,a&% it creates (r",a,)e ca+se

t" seie ,"& ad the ,a& ,eca+se it is i a a+t"m",i)e% ad a)) c"taiers i a+t"m",i)e

s+,/ect t" a+t"m",i)e e0ce(ti"% !hich meas " !arrat is re1+ired t" c"d+ct a search.

d. Consent

'1* %onsent is an eception to both the warrant and probable cause requirements. -f an individual waives

her right to privacy by consenting to a search6 the search is reasonable even if the police officer as(ed

for it on a hunch

'a* Any evidence observed in plain view within the proper scope of a consent search6 may be seized

pursuant to plain view doctrine.'"* %onsent must be6 (nowing and voluntarily. Holuntariness is assessed based on totality of circumstances.

'a* %onsent is invalid if it is obtained by asserting a fa(e warrant, fraudulently, under duress, or

pursuant to an unlawful police threat 'a threat to do something that the officer has no authority to

do*.

'b* &owever, the police are not required to inform a suspect of the right to decline to give consent.

'* -n certain situations, valid consent is implied by virtue of engaging in specific behavior, such as traveling

by airplane or engaging in a regulated business.

'0* :ormally, the scope of consent is implied by the request andKor the item the officer indicates he is

loo(ing for.

#$A%P!Aida Fellon, eager to show that she did not have anything to hide and to get the policeoff of her bac(, invites them to chec( the car epecting the police to only loo( in the passengercompartment. The police were !ustified in arresting her when they found heroin around thetransmission because she gave the police permission to chec( the car and never limited the scopeof the search.

'D* An individual has an absolute right to refuse to grant consent, to withdraw consent once granted, or to

limit the scope of consent. &owever, an individual must6 clearly epress any limitations on scope of

consent prior to officer finding evidence,

2emember, if consent is obtained following an unlawful seizure, the unlawful seizure is a poison tree thattaints the consent and any evidence it leads to.

'B* Third4Party Consent

'a* Any person who has !oint control or use of shared premises6 may consent to a valid search and any

evidence seized in plain view may be used against the co)occupants.

'b* Such consent applies to6 common areas but not to private reserved areas where defendant has

eclusive control.

'c* A police search based on consent is reasonable so long as6 the person granting consent has actual

authority over the place #2 a reasonable police officer would have relied on the consent.

#$A%P 5olice respond to a report of domestic battery. They arrive at the home of the victim7s

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mother, where the victim is located. The victim says her boyfriend beat her, and that he is in their

shared apartment. The police as( the victim if she has the (ey, and she provides it to them and grantsthem consent to search the apartment. 5olice enter the apartment, arrest the boyfriend, and seizecocaine they observe in plain view on the coffee table. -t turns out the victim moved out about amonth earlier and did not have actual authority to grant consent. The search is nonethelessreasonable so long as a reasonable officer would have concluded she did have consent at the timeshe granted it.

#$A%P!A landlord may not consent to the search of a tenant7s apartment.

#$A%P!A motel owner may not consent to the search of a guest7s room.

#$A%P!An employer may not consent to the search of an employee7s private storagearea.

'd* A present and o!ecting co)tenant trumps consent granted by the other co)tenant.

&owever, if the suspect is not present and does not ob!ect, the co)tenants consent is validagainst him.

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#fficer Iones pulls over %armella for speeding. %armella7s friend Adriana is also in the car. Iones has a hunch there

might be drugs in the car, and as(s %armella if she has any drugs in the car. She says no. &e then says, 8then -

assume you wouldn7t mind letting me ta(e a loo( in the trun(9 %armella agrees, and opens the trun(. -n the trun(

Iones sees a bac(pac(, and as(s %armella if it is hers. She says no, that it belongs to Adriana. Iones then as(s

Adriana if he can ta(e a quic( loo( inside, and Adriana hesitates. Iones then says, 8if you don7t let me loo( -7ll !ust

(eep you both here until - can get a drug dog on scene, and if the dog alerts on the bag or anywhere else in the car -

am going to search it.9 At that point, Adriana says, 8- guess - have no choiceJgo ahead and loo(.9 Iones opens the

bac(pac( and finds mari!uana inside. -s the mari!uana admissible

N". Officer $"es had " reas"a,)e s+s(ici" t" h")d Carme))a ad Adriaa f"r )"&er

tha !hat it !"+)d ta-e t" iss+e a citati" ,ased " a h+ch. If he did% that !"+)d ,e+)a!f+). He threated her !ith +)a!f+) c"d+ct% ad the she ac1+iesced% !hich is "t

(ermissi,)e% ad reders the c"set2search i*a)id. If he had reas"a,)e s+s(ici"% the

it !"+)d ha*e ,ee )a!f+) f"r him t" h")d the ,ac-+( f"r a reas"a,)e (eri"d "f time

thr"+&h a Terr# sei+re ti)) he c"+)d &et a dr+& d"&.

e. 0ot Pursuit!A warrantless search for a suspect is lawful when6 police are in actual hot pursuit of the suspect

to apprehend him.

'1* 5olice may enter and search a private dwelling6 while in hot pursuit of a fleeing suspect even if dwelling

is not of the suspect.

'"* 5olice may eecute a warrantless arrest the suspect in the premises and6 also seize any contraband

they see in plain view pursuant to hot pursuit entry.

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Two police officers are pursuing a purse)snatcher on foot and follow the thief right into the home of 5ierre, a

person with no connection to the purse thefts in any way. +hile attempting to wrestle the purse)snatcher to the

floor in the living room, the officers observe about twenty small plastic bags with white powder inside on a coffee

table and seize them. After they arrest the purse)snatcher, police search his poc(ets and seize a vile of cocaine.


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Are the warrantless seizures reasonable

Yes% (")ice ma# eter ad search a (ri*ate d!e))i& !hi)e i h"t (+rs+it "f a f)eei&

s+s(ect e*e if d!e))i& is "t "f the s+s(ect. 3hi)e at the (remises% (")ice ca seie

a# c"tra,ad the# see i ()ai *ie! (+rs+at t" their h"t (+rs+it etr# ad arrest

the s+s(ect " the (remises% !hich is !hat ha((eed i this case.

f. #xi'ent Circumstances

'1* %losely related to &ot 5ursuit is 3igent %ircumstances6 5olice may search without a warrant when the

situation indicates waiting to obtain a warrant will result in6

'a* imminent destruction of evidence

'b* imminent escape of the suspect

'c* imminent ris( to the police or other people in the area.

'"* 3igency !ustifies a warrantless search and seizure of evidence in or on a suspect7s body provided that6

'a* There is probable cause to believe that6 nature of the evidence renders it easily destroyed or li(ely

to disappear before a warrant can be obtained.

#$A%P!Guring a Terry stop, a police officer sees a drug suspect place a pill in his mouth.The officer may grab the suspect on the throat in order to force the suspect to spit out the pill.

'b* The procedure for seizing the evidence is6 reasonable and does not shoc( the conscience.

#$A%P!The blood)alcohol level of a drun()driving suspect will diminish over time. An individualsuspected of murder by strangulation may have evidence under his fingernails that he may easilyremove. ;oth types of evidence are easily destroyed or li(ely to disappear and thus may be obtainedfrom the suspect7s body by reasonable means, such as withdrawing blood by a trained medicalspecialist, or scraping under the nails with a nail file. -f the method used was the only viable means toprotect the evidence, it is more li(ely to be considered reasonable.

#$A%P!5ummeling a suspect7s stomach with nightstic(s to induce vomiting before havingthe suspect7s stomach pumped at the 32 to retrieve illegal drugs swallowed is not considereda reasonable procedure for obtaining evanescent evidence. Such techniques 8shoc( theconscience9 and violate due process =2ochin v. %alifornia, 0" $.S. 1BD '1@D"*C.

'* 3igency !ustifies6 a warrantless crime scene search to see( other victims or a remaining (iller.

'0* Although, this eception does not authorize6 to do a search at the crime scene unrelated to this eigencypurpose.

g. The Terry Search Fris5/

'1* A Terry Fris( is a cursory search for weapons or some other instrumentality that creates an imminent

danger to the officer of others in close proimity. A Terry Fris( is !ustified only by6 reasonable suspicion

the suspect is armed and dangerous, unli(e a Terry stop.

A Terry Stop is !ustified by 2easonable Suspicion 8crime is afoot9E a Terry Fris( is !ustified only when thereasonable suspicion also indicates the suspect is armed and dangerous.34A/

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'* The eclusive !ustification for a Terry Fris( is6 protective, not to search for evidence.

'0* As a result, the scope of a Terry fris( is strictly limited to a cursory inspection of the suspect7s outer

clothing to confirm or deny that the suspect is armed.

'a* -f the fris(Kpat down results in the officer feeling something he (nows immediately is a weapon or

any other contraband6 the officer may seize the weapon or contraband, pursuant to plain touch

variant of plain view doctrine.

'b* &owever, because the eclusive purpose of a Terry fris( is to protect from danger caused by

weapons and not to search for evidence, if the officer feels something he (nows is not a weapon but

merely suspects is contraband and has to manipulate the item to establish probable cause to seize6

the manipulation eceeds the scope of the Terry fris( and seizure of contraband is unreasonable.

'c* +hy ;ecause the incriminating nature of the contraband was beyond the scope of the Terry fris(.

'D* The protective rationale for a Terry Fris( has been etended to6

'a* A brief cursory loo( in areas within an automobile where police have reasonable suspicion6 a

person stopped will have immediate access to a weapon after getting bac( into the car i.e. after a

traffic citation. The police can only loo( in places where the person can immediately grab a

weapon.

'b* A cursory sweep of the interior of a home when police enter the home to serve a warrant based onreasonable suspicion that others may be present in the home and capable of launching an ambush.

Any evidence found can be grabbed pursuant to plain view doctrine.

Full ;lown Search 5robable %ause

Search Fris( 2easonable Suspicion

of Ganger

:o Search :o -ntrusion into 235 &unch

/otive

SEARCH

01P2T0#T-CA&

A police officer sees %hristopher pacing in front of a !ewelry store and going bac( and forth to consult with some friends a

bloc( away about four times. ;ased on his years of eperience, the officer suspects the group is planning to rob the store.

/ay the officer lawfully approach %hristopher to as( a few questions -f %hristopher tries to wal( away, may the officer stop

and question %hristopher /ay he fris( %hristopher

Yes% the "fficer is a))"!ed t" a((r"ach ad as- 1+esti"s ,ased " mere h+ch as that

is "t a sei+re. He ca st"( ad 1+esti" Chris ,eca+se he has reas"a,)e s+s(ici"

that Chris is +( t" " &""d. Yes% he ca a)s" fris- Chris ,eca+se it is reas"a,)e t"

c"c)+de that s"me"e ()ai& t" r", a st"re is armed ad da&er"+s.

01P2T0#T-CA&


16/38


17/38


18/38

b. Fruit of the Poisonous Tree octrine!-n addition to ecluding the direct evidence obtained as the result of

the unreasonable search or seizure, any additional evidence derived from the initial illegality, including oral

statements and physical ob!ects6 FA


19/38

The officer does so, and the magistrate issues the search warrant. ;efore the officer returns withthe warrant, the lead detective unlawfully enters the warehouse !ust to confirm that what theythin( they are going to find is actually there. &e observes large amounts of mari!uana. &e thendeparts the warehouse and awaits the officer with the warrant. +hen the officer arrives with thewarrant, they once again enter the warehouse and seize the mari!uana. This evidence isadmissible. Although the police committed an unreasonable search of the warehouse 'a poisontree*, that search in no way impacted the information submitted to obtain the warrant. Therefore,although there was an unlawful search 'a poison tree* there is no 8but for9 connection betweenthe tree and the 8fruit9 'the mari!uana* because the unlawful search did not lead to the evidence.

-t is therefore admissible =Murray v. United States, 0? $.S. D '"D*C.

'"* -nevita+le discovery!3vidence that is obtained through a poison tree 'a but for connection to a violation

of the defendant7s constitutional protection* will still be admissible if6 the police would have inevitably

discovered the evidence through an independent source.

#$A%P Gefendant leads Getective


20/38

d* a valid /iranda waiver

-t is easier to attenuate the taint of an arrest that is unlawful because the police failed to obtain a requiredwarrant even though they had probable cause 'li(e an in home arrest without a warrant* than anarrest where the police did not even have probable cause. This is because the 8poison9 from the firstviolation is less potent than the 8poison9 from the second violation.

e. 2ther &imitations to the #xclusionary *ule

'1* -mpeachment. The eclusionary rule does not apply6 to the use of tainted or inadmissible evidence to

impeach the defendant7s testimony.

A defendant can7t hide behind the eclusionary rule to lie.

'"*Lood Faith 3ception6 ;ecause the eclusive ob!ective of the eclusionary rule is to deter police

misconduct, when police act in good faith reliance on a warrant that is subsequently ruled invalid, the

evidence seized will not be sub!ect to eclusion.

+arrants are usually issued by magistrates based on their conclusion the evidence presented is sufficient to

establish probable cause. /otions to eclude that evidence are presented to the trial court, which then

reviews the warrant application in order to determine whether the magistrate made a properdetermination of probable cause. Sometimes the trial court determines the magistrate made a mista(e in

issuing the warrant because of a lac( of probable cause. &owever, so long as a reasonable officer would

have still relied on the warrant, eclusion will have no deterrent value on future police conduct and is

therefore not appropriate.

'a*


21/38

BAR E6AM APPLICATION

Muestion 1

Guring a burglary, Gu(e steals several handguns. Gu(e sells one of the stolen handguns to 3arline, a 1B)year)old high

school student. 3arline places the handgun she purchased from Gu(e in the trun( of her car. The !urisdiction in which 3arline

lives has enacted a curfew for drivers under the age of 1?. +ith several specified eceptions, any driver younger than 1? is

not permitted to drive on public thoroughfares after 1 p.m. and before D a.m., unless an adult 'an individual at least 1? years

old* with a driver7s license is a passenger in the car. Approimately one wee( after 3arline purchased the handgun from

Gu(e, she is pulled over for violating the curfew. The police officers that stop her as( her to step out of the car. #ne of theofficers fris(s 3arline, and then both officers search the passenger compartment of 3arline7s car. +hen the officers do not

find anything of interest in the passenger compartment, they proceed to search the trun( of 3arline7s car. $pon opening the

trun(, they immediately discover the handgun. 3arline tells the officers that she purchased the handgun from Gu(e. Gu(e is

arrested and charged with burglary and illegal sale of a handgun. 5rior to trial, Gu(e files a motion to suppress the handgun.

The trial court will most li(ely

A* Geny the motion, because the search was incident to a lawful arrest.

B/ eny the motion, +ecause u5e does not have standin' to invo5e the exclusionary rule.

%* Lrant the motion, because the scope of the search was unreasonable.

G* Lrant the motion, because the handgun was fruit of the poisonous tree.


Muestion "

#n a slow night, a police officer decided to stop of a vehicle traveling on a city street. The officer pulled over the vehicle

based on an instinct that the driver was intoicated, and as(ed the driver for his license and registration, and has the driver

and passenger eit the vehicle. The officer then loo(ed under the seats of the vehicle. &idden under the passenger seat he

sees a plastic baggie with green leaf contents. The officer seized the bag, and the substance later tested to be mari!uana. At

trial, the passenger filed a motion to eclude the mari!uana from evidence.

&ow should the trial court rule

A/ %otion 'ranted, +ased on an unla(ful sei"ure.

;* /otion granted, based on an unlawful search.%* /otion denied, because the passenger lac(ed standing.

G* /otion denied, because the baggie was in the officer7s plain view.


22/38

III. STATEMENTS AND CONFESSIONS

F#$2 ;AS3S T# 34%


23/38

5olice deception and tric(ery during interrogation is !ust one of the factors to assess pursuant to the totality of thecircumstances test, and rarely in and of itself renders a statement involuntary.

#$A%P!An eleven year old confesses to a crime when confronted by a number of burlypolicemen. There is a legitimate question as to whether this confession is truly 8voluntary.9 Thiswould unli(ely raise a voluntariness concern for an adult suspect.

c. %oercion can ta(e the form of physical abuse, psychological pressure, or threats of future harm for failing to

answer questions.

#$A%P Suspect is an inmate in prison, and is befriended by a fellow inmate who tells him he isconnected to the /afia. The new 8friend9 tells him he will ensure he is protected from other prisonerswho (now he is suspected of molesting and murdering a young child. ;ut in echange, the 8friend9 says,8you first have to tell me if you did it.9 Suspect confesses to the crime. The inmate 8friend9 is in fact asnitch on the F;- payroll that passes the information to the F;-. This confession is involuntary because itwas coerced by threat of future harm if the suspect did not provide the confession.

d. 2emember, no impeachment eception for an actually coerced statement, and no requirement to be in

custody when the statement is made.

". 8iolation of the Sixth Amendment *i'ht to Counsel! the %assiah *ule

a. The initiation of formal adversarial process 'formal charge, indictment, arraignment, or preliminary hearing*triggers the Sith Amendment right to the assistance of counsel during all critical stages of the adversarial

process.

'1* A 8critical state9 includes6 deliberate elicitation of statements by the police, physical line)ups, prelim

hearings and trial.

it is useful to distinguish a 8suspect9 from a 8defendant.9 A suspect is an individual suspected by the police ofhaving committed a crime. A suspect becomes a defendant at the initiation of the formal adversarialprocessJwhen he is formally charged and the prosecutor is now involved in the case. A 8suspect9 hasno Sith Amendment protectionE a 8defendant9 does, but only for the crime he is a defendant for. -nother words, the Sith Amendment is 8offense specific.9

'"* -n /assiah, the Supreme %ourt held that the 8deliberate elicitation9 of a pre)trial statement from adefendant is a 8critical stage9 triggering the right to assistance of counsel.

'* Geliberate elicitation is6 epress or implied questioning by police of a defendant.

b. Therefore, any statements obtained by the police from a defendant related to the crime he is formally charged

with is inadmissible unless6

'1* &is lawyer was present during the questionE

'"* &e eecuted a (nowing and voluntary waiver of assistance of counsel

#$A%P Gefendant is indicted and arraigned for the murder of a child. +hile driving defendantfrom one city to another, Getective


24/38

government agent. Therefore, surreptitious questioning triggers /assiah rule.

d. Lovernment agents are permitted to approach the defendant to elicit a waiver of his Sith Amendment

assistance of counsel during questioning, and the waiver is effective6 so long as the defendant (new the right

he was giving up and did so voluntarily.

e. The Sith Amendment right to counsel is offense)specific.

'1* -t only shields the defendant from questioning on the offense he has been charged with.

'"* 5olice may continue to question6 on other offenses, even those, which are factually related to the

charged offense, without implicating Sith Amendment.

#$A%P 5olice were allowed to question a defendant without counsel about the murders of ahomeowner and his daughter, even after the defendant had been indicted on burglary charges 'andrepresented by counsel on these charges* relating to the victims7 home =#e$as v. %o&&, D" $.S.1B" '"1*C.

2emember, !ust because questioning does not implicate the Sith Amendment right, it may stillimplicate /iranda or the Gue 5rocess voluntariness rule. Analyze each of these protectionsindependently.

. The Dth Amendment 5rivilege Against Self)-ncrimination '5AS-*6

a. The Fifth Amendment states that 8no person shall be compelled in a criminal case to be a witness against

himself.9

b. This means any person called to testify in any proceeding 'trial, grand !ury, preliminary hearing, administrative

hearing, legislative hearing, court)martial, etc.* has an absolute privilege to refuse to testify when6

'1* &e has a6 real and substantial fear that his testimony will result in self)incrimination or contribute to his

criminal conviction in $.S.

'"* &e asserts the privilege by refusing to testify.

The 5AS- applies only to 8testimonial9 evidence, and does not permit a witness to refuse to provide other

evidence even if it is clearly incriminating 'blood, hair, G:A, fingerprints, participation in a lineup,

handwriting samples, etc.*.

c. The witness waives the 5AS-6 simply by providing testimony. :o requirement to inform defendant that he has

right to refuse to testify.

d. The government can 8supplant9 the 5AS- 'thereby removing the fear of self)incrimination* by granting

immunity. There are two types of immunity6

'1*


25/38

neutralize this special inherent coercion by complying with /iranda warning and waiver requirement.

A valid /iranda waiver restores confidence that a suspect7s statements made during custodial interrogation are in

fact the product of free well and therefore not the product of inherent coercion because it 8neutralizes9 the

corrosive effect of custodial interrogation.

b. -n order to establish valid waiver6 the police must advise the suspect of the rights he is giving up.

c. These rights are6

'1* the right to remain silentE

'"* that anything said can be used against him in courtE

'* the right to the presence of an attorneyE and

'0* if he cannot afford an attorney, one will be provided for him

d. The /iranda warning and waiver requirement is triggered by6 custody and interrogation.

'1* %ustody is formal arrest, or a situation where a reasonable person in the suspect7s position wouldbelieve6 their freedom has been deprived to a degree analogous to formal arrest

'a* %ustody requires an ob!ective indication that police are initiating criminal process, for eample

being ta(en to the station for boo(ing.

'b* The sub!ective intentions of the officer are not controllingJcustody is assessed ob!ectively from the

perspective of the suspect.

'c* A Terry Stop is not custody because it is defined as6 brief investigatory seizure.

'd* Therefore, police may6 question an individual sub!ected to Terry stop without triggering /iranda

rule.

:ot all seizures are custody, but all custody is a seizure. The line between a non)custody seizure and aseizure that is custody is normally identified by ob!ective indications that the seizure is not 8brief9, butinstead the suspect is li(ely going to end up at the station for boo(ing. ;ut remember, an encounter canescalate from a non)custody seizure into a seizure that is custody 'which happens whenever thesuspect is arrested*. At this point, the /iranda rule comes into effect.

'"* -nterrogation is6 direct questioning or words or actions a reasonable officer would anticipate would li(ely

to eliciting an incriminating response.

'a* -nterro'ation focuses on >the reasona+le officer?, unli5e custody, which focuses on 8the

reasonable suspect.9

-f the police are aware of a particular vulnerability of the suspect and eploit that vulnerability, that fact is

imputed to the 8reasonable officer9 used to assess whether the statements or conduct used by theactual police qualify as questioning.

'b* Spontaneous or volunteered statements do not implicate the /iranda rule, even if they are made by

a suspect while in custody, because6 they are not the product of questioning.

e. &imitations of and #xceptions to the %iranda *ule

'1* A /iranda violation does not result in the eclusion of other evidence derived from the inadmissible

statement, because a /iranda violation does not trigger the fruit of the poisonous tree doctrine.

34A/

T-5

34A/

T-5

34A/T-5


26/38

01P2T0#T-CA&

The police go to the home of Ioe and


27/38

01P2T0#T-CA&

Iohn is suspected by police of murdering a child. ;ased on a warrant for his arrest, Iohn is apprehended and brought to

the police station for interrogation. Getective Smith advises Iohn of his /iranda rights, and Iohn signs a waiver form

indicating he is willing to spea( with the police. Iohn denies the murder over a three)hour interrogation. Frustrated,

Getective Smith loses his temper and slams Iohn against the wall violently enough to (noc( Iohn to his (nees and cut

the bac( of his head. Smith says, 8- (now you (illed that little girl. -f you don7t7 admit it, - am going to beat you to a pulpP9

Iohn then confesses. -s the confession admissible

He si&ed the !ai*er "f his Mirada ri&hts% ,+t the c"erci*e ad *i")et

c"fessi" tactics *i")ate d+e (r"cess. The c"fessi" is iadmissi,)e

+der the d+e (r"cess *")+tariess test.

g. Special *ules urin' -nterro'ations

'1* /iranda warnings need not be repeated6 because of a short brea( during the interrogation or because a

new officer begins questioning.

'"* -f a suspect ma(es an unequivocal request for an attorney6 or that she wishes to remain silent, A


28/38

'D* 3ffect of a /iranda violation on subsequent confessions.

'a* ;ecause a /iranda violation does not trigger the fruit of the poisonous tree doctrine, a statement

made in violation of /iranda6 normally does not taint a subsequent statement made after a valid

/iranda waiver even if it is the same information.

'b* &owever, police may not employ a 8question first, warn later9 tactic to deliberately bypass the effect

of /iranda warnings.

1* if the police deliberately elicit a confession from a suspect during custodial interrogation

without obtaining a valid /iranda waiver, and then elicit a /iranda waiver in the middle ofquestioning or immediately following questioning and have the suspect repeat the confession6

the waiver is invalid and both confessions are inadmissible in prosecution7s case in chief.

D. Fruit of the Poisonous Tree

a. -f a 8but for9 connection eits between a prior constitutional violation 'normally an unreasonable arrest* and a

suspect7s statement, the statement may be inadmissible fruit of a poisonous tree unless the government can

prove an eception, even if it complies with the rules above.

'1* Attenuation is the most common eception asserted to use a statement resulting from a 8but for9 lin( to a

constitutional violation 'poison tree*. 3ffective attenuation will depend on how 8potent9 the poison was6

the more flagrant the constitutional violation, the harder it is to attenuate.

'a* -f an arrest is unreasonable because police failed to obtain a required warrant, but nonetheless had

probable cause, that will normally be dissipated by a valid /iranda waiver6 this will normally be

dissipated by a valid /iranda waiver, so long as the statement was not elicited immediately after

arrest.

'b* -f an arrest is unreasonable because police did not even have probable cause, the taint is much

more difficult to dissipate, and will normally require6 more than !ust a /iranda waiver for

attenuation.

#$A%P 5olice have probable cause to arrest Ioe, and enter his house without a warrant tota(e him into custody. Two hours later at the police station, a detective who was not at the sceneof arrest obtains a /iranda waiver from Ioe. Ioe confesses to the crime during interrogation.

This /iranda waiver will li(ely be sufficient to prove the taint of the warrantless arrest wasdissipated or purged. Although police did not have a warrant, they did have probable cause anddid not elicit the confession immediately after the arrest.

#$A%P 5olice have a hunch Ioe is a terrorist planning a suicide bombing at a localshopping mall. 5olice see Ioe wal(ing down the street, arrest him, and bring him to the policestation. Two hours later at the police station, a detective who was not at the scene of arrestobtains a /iranda waiver from Ioe. Ioe confesses to the bomb plot during interrogation. This/iranda waiver will li(ely be insufficient to prove the taint of the unlawful arrest was dissipatedor purged. Although a few hours passed and a different officer conducted the interrogation, thearrest without probable cause creates a more powerful taint and requires more for dissipation.


29/38

I7. IDENTIFICATIONS

A. -dentifications of a efendant

1. The ue Process Standard!Applies to A


30/38

presence violates the Sith Amendment.

b. -f police conduct a corporeal lineup in violation of the Sith Amendment right to counsel6

'1* The results of the lineup 'the identification* are per se inadmissible at trial.

'"* The witness will be prohibited from ma(ing a subsequent in court identification of the defendant unless

the prosecution can prove6 by clear and convincing evidence, that the in)court identification is

independent from the out)of)court identification.

The more inherently suggestive the out of court identification, the more difficult it is to prove by clear and

convincing evidence it did not 8taint9 the subsequent in court identification.


31/38


Muestion

5olice were investigating the sale of cocaine in a certain neighborhood. ;ased on a tip from a reliable informant, Gefendant

became a suspect in the investigation. The police set up a controlled buy of cocaine from Gefendant, using the same

informant. After the controlled buy, the police obtained an arrest warrant and arrested Gefendant, but did not advise him of

his /iranda rights. At the police station prior to his arraignment, a police officer as(ed Gefendant why the police should

believe Gefendant, a drug dealer. +ithout ever eecuting a /iranda waiver and without an attorney present, Gefendant

responded, 8- might not be the most honest guy in the world, but - do not sell cocaine.9 #n cross)eamination at trial, theprosecutor as(ed Gefendant whether he had a reputation for honesty. Gefendant responded, 8Absolutely, everybody (nows

that - always tell the truth.9 The prosecutor then offered to admit into evidence Gefendant7s statement to police that he wasn7t

the most honest person. Gefendant7s attorney ob!ected to the introduction of this statement.

&ow should the court rule

A* The court should sustain the motion because Gefendant had not waived his /iranda rights.

;* The court should sustain the motion because Gefendant7s Sith Amendment right to counsel was violated during the

interrogation.

C/ The court should deny the motion +ecause it (as proper to use efendant6s statement for impeachment

purposes.

G* The court should deny the motion because Gefendant volunteered the statement.


Muestion 0

An armed robbery occurred at a liquor store. The robber had long hair and a distinctive tattoo on his left arm. +hen police

interviewed the cler( of the liquor store, they learned that the cler( (new the name and address of the robber, who was a

childhood friend of the robber. 5olice went to the home of the robber 'hereinafter 8Gefendant9* and placed him under arrest.

Gue to the cler(7s unavailability 'because he went out of town on vacation*, police were not able to hold a lineup until after a

grand !ury indicted Gefendant. +hen the cler( returned from his vacation, police held a lineup with Gefendant and five other

men who loo(ed li(e Gefendant, but none of the other men in the lineup had a tattoo on the left arm. 5olice failed to inform

Gefendant7s attorney of the lineup, so she was not present at the lineup. The cler( immediately identified Gefendant as the

robber. At trial, the cler( testified that he (new Gefendant since childhood, (new immediately that he was the robber, andidentified Gefendant as the robber. A !ury too( three minutes to find Gefendant guilty.

#n appeal, how should an appellate court rule

A/ The appellate court should affirm the conviction +ecause the in court - (as properly admitted.

;* The appellate court should reverse the conviction because the in)court identification of Gefendant at trial should not

have been admitted into evidence.

%* The appellate court should reverse the conviction because the lineup was unnecessarily suggestive and the in court

identification was therefore tainted.

G* The appellate court should reverse the conviction because the holding of the lineup without Gefendant7s attorney

being present violated Gefendant7s Sith Amendment right to counsel.


32/38

7. PRE8TRIAL PROCEDURES9 CHRONOLO:Y FROM ARREST TO TRIAL

A. Grand @ury -ndictment

1. The indictmentis a written accusation stating charges against the defendant issued by a grand !ury after it reviews

the prosecution7s evidence.

a. A grand !ury not an adversarial hearing, it is an investigatory tool. Therefore6

'1* The 8target9 of the investigation has no right to be present, and no right to assistance of counsel if called

to testify.

'"* The prosecution presents6 evidence to the grand !ury with no confrontation process.

'* The prosecution has6 no obligation to inform the !ury about clearly eculpatory evidence

b. /iranda warnings need not be given to6 even for potential defendants called to testify because grand !ury is

not custody.

'1* &owever, the target of the investigation and all other witness may assert the privilege against self)incrimination.

B. Bail 0earin'!The defendant is entitled to6 individualized hearing to determine whether bail should be granted or denied.

1. The purpose of bail is to secure the presence of the accused at trial.

". There is no constitutional right to bail. -f bail will be ineffective to secure the accused at trial, it may be denied.

. -f bail is appropriate, it may not be ecessive.

C. Plea Bar'ainin'

1. A plea of guilty is 8the strongest form of proof (nown to the law.9 A defendant may be convicted on his plea only.

a. The court must determine that the plea is voluntary and intelligent. To be intelligent, the accused must be

informed of the general nature of the offense he is pleading guilty to.

b. ;ecause a plea of guilty waives the right to trial by !ury, the right to confrontation and compulsory process, the

privilege against self)incrimination, and the presumption of innocence, the court must determine that the

waiver of these fundamental constitutional trial rights is intelligent and voluntary =/c%arthy v. $nited States,

@0 $.S. 0D@ '1@B@*C.

". A defendant may plead guilty without admitting guilt, called an 8Alford9 plea. -n such cases, other evidence 'li(e police

reports* must be admitted to the record to support the court7s finding of guilt.


33/38

7I. PRE8TRIAL RI:HTS

A. The *i'ht to a Speedy Trial

1. A right to a speedy trial is guaranteed by6 Sith Amendment

". +hile most state statutes also include a speedy trial right6 the only remedy for a violation of the constitutional right

is dismissal with pre!udice.

. The speedy trial cloc( begins running6 once a defendant is accused by formal charging or is arrested and held for

answer for a crime.

a. 5re)arrestKpre)charge delays are not considered in speedy trial analysis and there is no requirement to charge a

defendant immediately after report of a crime, although if pre)trial delays are totally un!ustified and result in

pre!udice they may violate due process.

0. The primary interests served by the speedy trial rule are accuracy and prevention of ecessive pre)trial stigma. The

test for violation considers the following factors6

a.


34/38

material.

'1* FavorableJthe disclosure trigger6 &ave to give to the defense

'a* -f defense ma(es a discovery request, any evidence that would tend to help the defense is

favorableE

'b* -f defense fails to ma(e a discovery request, only evidence that is clearly eculpatory is favorable.

'"* /aterialJthe remedy standard6 if the prosecution fails to disclose favorable evidence, a defendant is

entitled to a new trial 'or sentencing* if that evidence was also material.

'a* /aterial means6 That the evidence would have created a reasonable probability of a different

outcome.

'b* -n other words, had it been disclosed6 it would have created reasonable doubt.

b. The prosecution is not required to disclose this information to a criminal defendant prior to plea bargaining or

entering into a plea agreement with him.

c. Gestruction of evidence held by the government violates due process only where6 the defendant can show

bad faith. :egligence is not sufficient to violate due process.

For non)disclosure, we worry about material. -f destroyed, then have to show destruction in bad faith R only the G

could have benefited from the evidence.34A/

T-5


35/38

7II. :UARANTEES OF A FAIR TRIAL

A. The *i'ht to Counsel at Trial

1. The right to counsel attaches to all critical stages of the proceedings that affect the defendant7s right to a fair trial 'trial,

preliminary hearing, corporeal identifications, police questioning*.

". Absent waiver, a defendant may not be 8imprisoned for any offense, whether classified as petty, misdemeanor, or

felony9 unless6 he was represented by counsel.

a. This means the government must provide counsel to indigent defendants whose cases meet this definition.

b. :ote that the trigger for providing free counsel is6 actual result.

. The right to counsel means the right to e''ective counsel. ;ecause courts presume that legal counsel is effective, it

is very difficult to prevail on an ineffective assistance of counsel claim.

a. A defendant see(ing a new trial based on a claim of -neffective Assistance of %ounsel must prove both6

'1* %ounsel was ineffective

'a* &er performance6 fell below a minimum standard of lawyer conduct.

'b* For eample6 sleeping in trial, failing to file a discovery request, failing to offer vital and clearly

eculpatory evidenceE and

'"* &ad the lawyer been effective6 it would have created reasonable probability of a different outcome

'* -n other words6 an effective lawyer would have created reasonable doubt

#$A%P Assistance of counsel is effective even when the lawyer fails to present mitigating

evidence, fails to mount a case for life imprisonment, and waives final argument during thesentencing phase of a death penalty proceeding.

B. @ury Trial

1. The right to a !ury trial attaches in any criminal proceeding where the defendant faces a potential sentence of6

longer than si months.

a. :ote that unli(e the right to counsel, the right to a !ury is triggered by potential result6 not actual result, if

defendant faces at least one charge of at least si months.

". %a5eup of the @ury

a. The @ury Pool!

'1* The defendant has a right to a !ury selected from a fair cross)section of the community, which means a

!ury pool that reflects6 a fair cross section of the ethnic and gender demographic of the community.

'"* -f the defendant can show that a distinct group was 8systematically ecluded9 from the !ury pool, he is

entitled to a new trial.

b. The Petit actual trial/ @ury!

'1* There is no requirement to provide a fair cross section of the community on the actual trial !ury.


36/38

'"* &owever, the use of peremptory challenges to eclude prospective !urors based on minority race or

gender6 violates equal protection.

'a* Therefore, a party ma(ing a peremptory challenge of a prospective minority !uror will be required to

offer a 8race or gender neutral9 basis for the challenge, and if that basis is unpersuasive6 the

peremptory challenge will be denied because the only inference we can draw is that the real reason

you are using the challenge is race or gender

C. Confrontation

1. The Sith Amendment provides defendant with6 the right to confront witness and evidence against him.

". The right to confrontation is triggered only by6 testimonial evidence, which means statements made in contet

where the witness would epect the statement to be used in a criminal trial.

a. -f the witness is telling the police or a @11 operator (hat is happenin'in order to help them respond to an

ongoing emergency6

b. -f the witness is telling the police or a @11 operator (hat has happenedas part of their investigation6 that is

testimonial in nature.

. -f government provides testimonial evidence, confrontation is satisfied by sub!ecting the witness to 8adversarialtesting,9 which means6 the witness testimony is provided under oath sub!ect to cross eamination

a. +here the witness is called to testify at trial, this right is satisfied, even if the defendant does not cross)

eamine the witness.

b. +here the witnesses prior 8testimonial9 statements are offered as hearsay, it will violate the right to

confrontation unless the defendant had a prior opportunity to sub!ect the hearsay to adversarial testing, for

eample at a prior preliminary hearing.

2emember, because a Lrand Iury is not an adversarial proceeding, the 8target9 has no opportunity to

cross)eamine a witness at a Lrand Iury. Therefore admission of that witness7s testimony at trial

against the defendant violates the %onfrontation %lause.

#$A%P!a prior statement of a witness made during a preliminary hearing is offered against theaccused at trial pursuant to a hearsay eception because the witness in unavailable. This does notviolate the %onfrontation %lause because testimony at a preliminary hearing is under oath and sub!ect tocross)eamination. Another prior statement from a witness who testified at the Lrand Iury that indictedthe accused is also offered as a hearsay eception because the witness in unavailable. This statementviolates the %onfrontation %lause, because although it was made under oath it was not sub!ect to cross)eamination.

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7III. DOUBLE $EOPARDY

A. efinition!The double !eopardy clause is intended to prevent undue harassment and epense by eliminating the ris( of6

1. The Fifth Amendment provision 8... nor shall any person be sub!ect for the same offense to be twice put in !eopardy

of life or limb9 applies to the states through the Gue 5rocess %lause of the Fourteenth Amendment.

B. )hen @eopardy Attaches

1. +hen a defendant moves to dismiss a charge based on a violation of double !eopardy, she must establish she had

been in !eopardy for the6 same offense by the same sovereign previously.

;eing previously charged is insufficientE the defendant must prove !eopardy had 8attached9 previously6

a. -n a non)!ury trial, !eopardy attaches when the first witness is sworn and the court begins to hear evidence

b. -n a !ury trial, is in panel and sworn

+hen a grand !ury fails to indict a target or a charge is dismissed prior to the !eopardy attachment point, !eopardy

has never attached and that target may again be the sub!ect of a grand !ury investigation for the same offense

or the charge may be brought again.

C. Same 2ffense

1. Two crimes occurring out of the same transaction are considered the same offense, unless6

a. 3ach charge requires proof of6 a separate, criminal impulse.

b. 3ach charge requires proof of6 a separate factual element.

#$A%P! G is charged with three counts of violating a federal narcotics statute. The indictment allegesthat during one transaction, defendant sold oycontin to two purchasers. %ount - alleges sale topurchaser 1 without a prescription in violation of Section - of the statute. %ount -- alleges sale without aprescription to purchaser " without a prescription. %ount --- alleges sale to purchaser " without a tastamp for the same sale as %ount --. 3ach of these three counts is a 8separate9 offense for purposes ofdouble !eopardy. 3ach purchaser is a 8separate unit of prosecution9 even though the sales occurredduring the same transaction. The two counts arising from the sale of the same oycontin to purchaser "are separate offenses because each requires proof of a different factual element in order to convict.

. Separate Soverei'nties octrine

1. The double !eopardy prohibition does not prevent dual prosecution by separate sovereigns. Therefore, a defendant

may6 be prosecuted for the same criminal conduct by a federal court, then a state court for the same offense, and

vice)versa.

#$A%P! /a!or:idal &assan is tried by court)martial 'a federal military court* at Fort &ood, Teas for themurder for 1 victims during his :ovember D, "1 rampage at Fort &ood. &e is convicted and sentenced tolife in prison. Assume the area where he committed the (illings is !oint federal and state !urisdiction. The stateof Teas now wants to prosecute him in order to see( the death penalty, and so does the $.S. Attorney forthat district. Teas may prosecute him for the same criminal conduct because Teas is a separate sovereignEif the $.S. Attorney indicts him, the indictment will be dismissed on a double !eopardy motion.

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Muestion D

Hictim is (illed in a hit)and)run accident. Gefendant is identified in a police lineup.

Documents

MBE Subjects II_CrimPro Outline