Criminal Procedure Final

12. General bail jurisprudence

Eighth Amendment: "excessive bail shall not be required." Not clearly incorporated into due process clause of Fourteenth Amendment. Setting amount of felony bail depends on individual defendant factors. May include: Past history, local ties to community, work history, harm to community, flight possibilities, financial resources, seriousness of crime, and penalty.

2. Original intent and the Fifth Amendment

Framers of the Fifth Amendment: Intended it to apply only to the federal government. The privilege covers only testimonial evidence. In state cases, before 1964, privilege depended on state constitutions and law.

7. Waiver of the right to trial by jury

Waiver must be knowingly and intelligently made. Some states require consent of prosecutor. May require waiver in open court when represented by attorney. May have to be in writing.

7. Due process concerns: suggestiveness of identification

Accuracy of identification questioned where: Steering, directing, or suggestiveness infected identification process. Proper to take quickly arrested suspect back to crime scene for identification. Or to victim's hospital room. Error to have suspect in successive lineups.

1. Trial by jury: a constitutional right

Article 3, section 2, constitution of the United States guaranteed trial by jury Sixth Amendment reaffirmed the right "By an impartial jury of the State and district" Constitutional right: only covered federal trials until incorporation later 6 person juries are allowed, do not always have to be unanimous

8. Prosecution comment on defendant's use of Fifth Amendment

As general rule, the prosecution cannot make a clear adverse comment on the failure of a defendant to take the witness stand And explain the evidence Or to personally present a defense If prosecutor could comment: Exercise of the privilege could hurt defendant. Could infer guilt from silence. Would frustrate philosophy of the privilege.

4. Sixth amendment right to counsel at lineups

Attorney must be available for all "critical stages" of criminal process. Attorney required at post-indictment or post-information in person lineup. After formal charged, in-person lineup constitutes a critical stage. Improper influence of suggestion causes significant miscarriages of justice. If right to counsel at in-person lineup violated: Judge must determine that eyewitness' memory at trial not tainted by improper lineup Witness must identify solely from crime scene identification Counsel at lineup can prevent steering, illegal suggestion, successive appearances, or situations violating due process

14. Proving improper rationales for using peremptory juror challenges

Batson v. Kentucky: improper for prosecutor to remove all minority jurors from case where defendant a minority. To prove removal improper: Defendant demonstrates she is member of minority. That prosecutor removed members of her race from jury solely due to race. Then prosecutor must prove race-neutral rationale. Page 433- peremptory challenges

22. Separate offenses: The Blockburger Test

Blockburger defendant made two drug sales separated by minutes Argued it was same crime Held: two separate crimes at different times Key to determining whether separate offenses exist: Whether each of the two criminal offenses under consideration requires proof of an additional fact or element that the other does not

11. Combination of smaller juries with nonunanimous verdicts

Burch v. Louisiana: Nonunanimous six-person jury vote held unconstitutional in serious, non-capital cases. (5-1 vote.) States not permitted to introduce nonunanimous jury voting where it had reduced jury to constitutionally minimum number.

16. Congressional challenge to Miranda warnings

Congress attempted to reverse Miranda decision by legislation 18 U.S.C. 3501 provided evidence in violation of Miranda admissible if voluntary Federal courts: determine if statements in violation of Miranda rules were voluntary admissible , even if warnings never offered

15. Procedure for waiver of Miranda protection

Constitutional rights enforced by Miranda may be waived by: Oral statement Written statement Other clear conduct indicating waiver Must be voluntarily waived Must understand the consequences of waiver No waiver: When warnings never given No improper coercion: If prompted by mental illness, family, or religious experience Allegation of waiver: Burden of proof on prosecution By preponderance of evidence

5. Right to counsel during identification: limitations

Counsel not always required Mere arrest and exhibition to victim: no right to counsel Post-arrest in person lineup: no federal constitutional right to counsel Post- indictment, post information in person lineups require Sixth Amendment right to counsel

21. Alleging double jeopardy violation: requirement of same offense

Crime must be the same one arising from same facts situation United States v. Dixon, defendant under order to not commit new crime. He did. Prosecuted for criminal contempt. Could not be prosecuted for underlying crime He had already been convicted of those acts under criminal contempt of court

10. Necessary condition for Miranda warnings :custody

Custody exist: Individual restrained of freedom of movement, or Deprived of freedom of action in any significant way Custody does not exist when: Subject is always free to leave Police place no restraints on going about one's business Case page 303 Considerations of custody: First, what were the circumstances of the interrogation? Second, would a reasonable person have felt free to leave? Another view of custody: Under the circumstances, would reasonable officer have permitted subject to leave? (minority view)

6. Violation of fair cross section requirement: proof and remedy

Defendant should raise issue and demonstrate: The identifiable group has distinctive group characteristics, The under-representation of this group in the jury pool unreasonable, And under-representation is due to attempts to exclude the group.

17. Miranda warnings: required by the constitution

Dickerson v. United States ruled that Miranda decision was of constitutional dimension. Miranda case cannot be overturned by congressional law. Congress cannot interpret Constitution. Federal courts have no supervisory control over state court systems. To decide original Miranda case, Court had to have been interpreting the Constitution. Therefore, Congress cannot change Miranda by enacting new statute.

11. Necessary condition for Miranda warnings; interrogation

Direct questions: qualify as interrogation Intra-police communication in presence of subject where police reasonably expect a response: may qualify as interrogation Police words or actions clearly designed to prompt a response: may be interrogation

23. Dual Sovereignty Doctrine: successive prosecution for same acts permitted

Dual sovereignty doctrine: sovereign criminal jurisdictions to prosecute one act as separate crimes No double jeopardy Example: Heath v. Alabama, defendant convicted in georgia of wife's murder and convicted in Alabama of same wife;s murder One conspiracy and one murder was illegal under laws of both states, although wife died once Dual sovereignty allows successive federal and state prosecutions. Example: Bartkus acquitted in federal court, but convicted in Illinois for same robbery. Bartkus v. Illinois. Bartkus could have been tried and convicted in both jurisdictions. Sovereign states had criminal jurisdiction before Constitution of the United States existed.

Case 12.4, Leading Case Brief: Barker v. Wingo, 407 U.S. 514 (1972)

Facts: Barker arrested for murder, but not tried for over five years after indictment. Prosecution had good reasons and Barker did not complain, at first. Barker eventually convicted; argued Sixth Amendment right to speedy trial violated. Issue: If prosecution has valid reasons and defendant not prejudiced, has Sixth Amendment been violated? Held: No. Rationale: Five years is long time, but defendant showed no prejudice to merits of his defense case. He asserted rights rather late; government had valid reasons for not bringing him to trial. Length of delay was long; not in government's favor. Without proof of prejudice to case, Barker loses appeal.

Case 12.2, leading case brief: Coleman v. Alabama, 399 U.S. 1 (1970)

Facts: Coleman had preliminary hearing but no attorney appointed to assist. Preliminary hearing was not a required step and no defenses could be lost by not asserting. Bail and probable cause are issues that are determined. Coleman argued he had a right to counsel at preliminary hearing. Issue: Is preliminary hearing a critical stage where right to counsel exists? Held: Yes. Rationale: Preliminary hearing requires guidance of counsel because counsel could expose fatal flaws in case; freeze adverse testimony by cross-examination; and develop impeachment strategies. Counsel can discover theory of the case. Absence of counsel at this stage might prevent eventual fair trial on merits. Case is reversed

Case 13.1, leading case brief: Duncan v. Louisiana, 391 U.S. 145 (1968)

Facts: Duncan charged with simple battery; faced two years in prison. Demanded and was denied a jury trial; judge convicted him and sentenced him to sixty days. Issue: Does Sixth Amendment require right to state jury trial where potential sentence is two years? Held: Yes. Rationale: Court determined that fundamental rights of the Bill of Rights must be recognized by states. Trial by jury is one of the fundamental principles of liberty and justice and is incorporated into due process clause of Fourteenth Amendment.

Case 11.3, leading case brief: Arizona v. Fulminante, 499 U.S. 279 (1991)

Facts: Involuntary and voluntary confessions used against defendant at murder trial. He argued for reversal because jury swayed differently by two confessions when only one was admissible. Issue: Where involuntary confession was used against defendant, must conviction always be overturned? Held: No. Rationale: Not every admitted involuntary confession affects outcome of case. Only where involuntary confession results in miscarriage of justice and reviewing court cannot say beyond a reasonable doubt that the error did not affect the result, must the case be reversed The first confession in prison was coerced in a sense because the guy he told had the authority of the police They couldn't use the one told to the wife because they couldn't tell beyond a reasonable doubt that he would have been convicted on this conviction alone so they had to start a new trial Out of this case you get: harmless error standard is what you use when there was an improper confession, there can be coercion even if the person isn't wearing a badge

Case 11.2, leading case brief: Colorado v. Connelly, 479 U.S. 157 (1986)

Facts: Man with history of mental illness confessed to homicide to police officer. Miranda warnings given three times, confession continued. Defense counsel argued, involuntary confession due to religious confusion or motivation. Issue: Where police conduct is proper, does religious motivation make confession involuntary? Held: No. Rationale: Absent police misconduct- there is no basis that government had deprived him of any rights. No government misconduct here. Police did not coerce confession and private motivations of confessing defendant do not produce involuntary confession.

Case 10.2, Leading case Brief: Missouri v. Seibert, 542 U.S. 600 (2004)

Facts: Officer questioned Seibert, then took break. Upon resumption, officer gave Miranda warnings. Seibert repeated the unwarned prior confession after being Mirandized. This was police plan to avoid warning Seibert first. Issue: If police question custodially, then warn under Miranda, is second confession admissible? Held: No. Rationale:Miranda warnings allow arrestee to make a free and voluntary decision on interrogation. When Miranda is not given first and confession results, practice violates Miranda. When Miranda given after first confession to gain "good" confession, practice violates spirit of Miranda. Neither confession is admissible where this police practice is followed.

Case 10.4, leading case Brief: Dickerson v. United States, 530 U.S. 428 (2000)

Facts: Officers improperly Mirandized arrestee who gave confession. Confession was voluntarily given, but not consistent with Miranda. Congress' law said proper to admit. Issue: Can court use statement taken in violation of Miranda if confession was voluntarily given? Held: No. Rationale: Court has no supervisory role over state courts. Original Miranda case required states to enforce rules. Only if Miranda was required by Constitution would Supreme Court have power to decide. Court held Miranda case was of constitutional dimension.

Case 10.1, Leading case Brief: Miranda v. Arizona, 384 U.S. 436 (1966)

Facts: Police arrested Miranda and questioned him for two hours. He made a signed confession that was used against him over his argument that his Fifth Amendment rights had been violated. He was not told of his rights and did not ask for a lawyer. Issue: Must police give constitutional warnings to arrested persons who are questioned? Held: Yes. Rationale: No words of an arrestee can be used against arrestee unless police warn arrestee of constitutional rights. Police must tell about right not to incriminate and right to an attorney; that if one talks it will be used at trial. Police must tell arrestee that free counsel is available if arrestee cannot afford an attorney. Process assures intelligent understanding of constitutional rights.

Case 11.1, leading case Brief: Schmerber v. California, 384 U.S. 757 (1996)

Facts: Police had doctor draw blood sample from defendant driver following injury-auto accident. Defendant argues his privilege against self-incrimination violated by using his own blood at trial. Issue: Is privileged against self-incrimination violated by using own blood evidence against defendant? Held: No. Rationale: Blood alcohol level is physical and scientific fact; defendant is not forced to testify when blood evidence used against him. This was not testimonial communication forced from defendant's own mouth.

Case 10.3, leading case brief: Rhode Island v. Innis, 446 U.S. 291 (1980)

Facts: Police officers arrested Innis for murder and police repeatedly offered him the Miranda warnings. In a cruiser, as police conversed in front of Innis, he became motivated to disclose the murder weapon's location. The police discussed among themselves with suspect in the back about how bad it would be if a kid from the handicap school find the weapon and were to hurt themselves Issue: Do police interrogate arrestee when they speak in his presence about concerns involving defendant's case? Held: No. Rationale: In discussing location of murder gun, officers did not direct their conversation to arrestee. Officers had no observed intent to elicit a response from Innis; he spoke based on his decision. The words of the officers were not designed to elicit and were not likely to elicit an incriminating response from arrestee. Didn't suppress the gun in his case

Case 13.3 leading case Brief: Batson v. Kentucky, 476 U.S. 79 (1986)

Facts: Prosecutor used peremptory challenges to remove all minority jurors in trial of black man. All white jury convicted him. Batson argued prosecutor used racial discrimination, violating of equal protection clause of Fourteenth Amendment. Issue: If prosecutor, for racial purposes, removed all jurors of color, does practice violate equal protection? Held: Yes. Rationale: When proven racial discrimination appears in a case, any conviction will be reversed. Defendant needs show he is minority; that prosecutor has removed his race from jury purposefully; and then burden on prosecutor to explain race-neutral reasons. If no good explanation: reversal of conviction

Case 12.3, leading case brief: Stack v. Boyle, 342 U.S. 1 (1951)

Facts: Twelve defendants indicted in New York for conspiracy to overthrow federal government. Bail set at different amounts; sent to California for trial. Then bail set at 50K for everyone. Argued that each defendant was different and individual considerations should be made and 50K was excessive. Issue: Can bail amount be excessive when individual considerations not made? Held: Yes. Rationale: Eighth Amendment prohibits excessive federal bail. Any amount greater than necessary is excessive; bail amount considers each defendant's situation such as prior history, wealth, strength of case, and danger to community, etc. Court must make individual bail amount determinations. What comes out of this case- in order to set bail there has to be individual considerations for each person

Case 12.1, leading case brief: Neil v. Biggers, 409 U.S. 188 (1972)

Facts: Victim was raped, observed attacker clearly. Six months later, identified defendant as the perpetrator at a walk by in police station, after never identifying any other person. Issue: Did identification meet due process standards under the circumstances? Held: Yes. Rationale: Victim got good look, gave prior accurate description, was paying attention, had good opportunity for view, and was certain of her identification. Long time between crime and identification was only real concern. No attorney was necessary.

Case 13.2 leading case brief: Williams v. Florida, 399 U.S. 78 (1970)

Facts: Williams wanted a twelve-person jury, but state law allowed only six-person jury in his case. He contended that his Sixth Amendment right to a jury trial was violated. Issue: Does a state violate Sixth Amendment jury trial right with a six-person jury? Held: No. Rationale: Framers of Sixth Amendment did not specify twelve jurors. If jury large enough to promote group deliberation, no problem. So long as modified jury serves the purpose of jury, no constitutional harm. Purpose of jury is to prevent oppression by the government.

1. Introduction to Miranda warnings

Fifth Amendment privilege against self-incrimination permits a person to remain silent. Many arrested persons: Ignorant of right not to self-incriminate. Do not know of right to free counsel. Unaware of other constitutional rights. Miranda warnings required if: Custody exists and interrogation is desired. Miranda Warning 1. Your have the right to remain silent. 2. Anything you do say can and will be used against you in a court of law. 3. You have the right to talk to a lawyer and have him or her present with you while you are being questioned. 4. If you cannot afford to hire an attorney, one will be appointed to represent you before any questioning. 5. You can decide at any time to exercise these legal rights and not answer any questions or not make any statements. Waiver- not in person who i got notes from notes Do you understand these rights as I have explained them to you? Having these rights in mind, do you wish to talk to me now?

2. The basis for the warnings

Fifth Amendment provides that no person can be required to become a witness against him or herself. Arrestee may waive the right. Arrestee might not assert due to ignorance. Prior to Miranda, history showed, some police interrogated with brutality: Beating and hanging. Isolation from other persons. No food or drink. No use of toilet. Mental harm using psychological methods.

1. Introduction to the fifth Amendment privilege

Fifth Amendment: "No person shall be . . . compelled in any criminal case to be a witness against himself. . . " General Theory: A person shall not have to assist the prosecution with testimony to help convict that individual. The fifth amendment: applies to state criminal prcedure Rationale: Fourteenth amendment due process clause requires the privilege Privilege against self-incrimination helps assure reliability and truthfulness of evidence Coerced testimony: motivated to end pain, mental strain, or torture and could be false

11. Bail issues presented at a preliminary hearing

Following a finding of probable cause, issue of bail may be an issue. Not all offenses are bailable. If bailable, judicial official must determine appropriate amount. Cash, approved property, stocks, or bonds. Attorney may argue concerning conditions of bail and the amount. Arraignment- the charges are read to the defendant, at this point plea is generally inappropriate. This is when the setting of bail occurs

3. Privilege against self-incrimination: excludable evidence

General Rule: Evidence obtained in violation of the privilege against self-incrimination excluded. Defendant: can refuse to testify. may testify. Must be defendant's voluntary decision.

4. Determining whether the right to a jury trial exists

General Rule: Offenses with maximum penalty of six months or less: Considered petty offenses. No right to trial by jury. Argument that common law offenses that had juries should still have them. Most driving while intoxicated cases considered petty: no constitutional right to jury. State is free to offer jury trial anytime. Juveniles tried in juvenile courts: No constitutional right to jury trial. Not considered criminal cases. Juveniles tried in adult courts: Have same jury trial rights as adults. If it stays in juvenile court than they do not have the right to a jury but if moved to adult court than they do.

5. Selecting jurors from a fair cross section

General Rule: the actual jury empanelled must have been selected from a fair cross section of the community. Guards against arbitrary power and ensures common sense judgment. Fair cross section is fundamental to the American system of justice. To claim violation of fair cross section: Must allege and prove excluded group is identifiable and distinctive. And, the group's exclusion is unfair and unreasonable. Jurisdiction must use method of selecting jurors that generates representative pool of all identifiable groups within jurisdiction.

8. Jury size: difference in State and Federal requirements

Generally, jury composed of twelve persons: Who must be citizens of the state and of the United States. Juror vote: Unanimous. True of federal courts and for death penalty and life imprisonment trials. Defendant can waive jury size in state cases. Example: juror illness or death. Federal criminal juries must have twelve persons and reach unanimous verdicts. State juries may have fewer than twelve members. Some states use six-person unanimous juries. Twelve person juries may be non-unanimous. Smaller jury more likely to reach verdict.

8. Accurate eyewitness identification: the Neil five-factors test

Identification procedures must: Produce reliable and accurate results. Court clarified the standard test with Neil v. Biggers: 1. Original opportunity for view. 2. Degree of attention. 3. Accuracy of original description. 4. Level of certainty. 5. Length of time since crime scene view.

19. Double jeopardy: a required motion

If double jeopardy argument arises: Mandatory pretrial motion Double jeopardy protects from being tried or punished more than once for the same criminal act Protects against retrial after conviction or after acquittal Defendant could be tried for one act that was offense in more than one state

9. When interrogation must cease

If the arrestee indicates in any manner at any time that there is no further desire to be questioned. Police: Not permitted to attempt to change arrestee's decision. Cannot tell arrestee: He or she must submit to continued questioning. After warnings, arrestee clearly indicates the desire to remain silent- asks for attorney: All efforts at interrogation must cease. Edwards v. Arizona- book page 318 After warnings, arrestee wants to remain silent only, and has not asked for lawyer: After significant time has passed, police may ask if subject wants to talk about crimes unrelated to arrest

4. The Fourteenth Amendment alterations

In 1868, after the American Civil War: Fourteenth Amendment adopted. Contained due process guarantee. Required states to treat people with fundamental fairness. Amendment not intended to gather first eight amendments into due process clause.

17. To determine whether a violation exists: The four factors test

In Barker v. Wingo, Supreme Court announced four-factors test to determine violations of Sixth Amendment speedy trial right. Consider: The length of the delay. The reason for the delay. Preparing a witness could be a good one The defendant's assertion or non-assertion of right. The prejudice to the defendant- to the case as well as to the defendant

3. The road to Miranda

In Escobedo v. Illinois, 378 U.S. 478 (1964), defendant arrested and interrogated for murder. His attorney was kept from him. After minimal sleep, he implicated himself. Attorney was kept from him Supreme Court heard case: Reversed- Fifth and Sixth Amendment violations

9. Current application of identification procedures

In United States v. Traeger, a bank robbery case, defendant contended violation of due process Teller had excellent crime scene view; Traeger was tall and robust; had blonde ponytail; lineup contained smaller people; and teller was very sure of her identification Reviewing court asks: Was identification unduly suggestive? Was it reliable, using Neil five factors test? Court upheld identification process

14. Personal motivations for confession irrelevant

Internal personal motivations to confess irrelevant: If police have not created reason to confess Mental illness or religious motivations: Do not make confession involuntary Where police conduct proper: no exclusion of any confession on due process or self-incrimination arguments Case page 357

12. Miranda interrogation: the functional equivalent

Interrogation: may be so subtle as to not seem to be interrogation. Interrogation: Police intentionally play to arrestee's known weaknesses. Police words or actions clearly designed to prompt a response: may be interrogation. Interrogation: In Nix v. Williams, officer purposefully gave speech to arrestee designed to elicit an incriminating response. No interrogation or functional equivalent: Where relative of arrestee asks questions in front of police. When police do not ask the questions but hear answers.

15. Involuntary confession not available for proof of guilt

Involuntary confession: Inadmissible for proof of guilt Inadmissible for any purpose - even for impeachment. Rationale: Admission violates due process Use violated self-incrimination prohibition Unknown whether confession is accurate Appellate court and involuntary confession: Will affirm or reverse conviction on harmless error rule- Harmless error rule- says that beyond a reasonable doubt that the confession would have no outcome on the conviction Where admission had no effect on outcome, affirm conviction Court must determine that beyond a reasonable doubt, error had no effect Where admission may have had effect on verdict, reverse conviction

20. Requirements to claim a violation of double jeopardy

Jeopardy must have attached at first trial and trial reached a resolution on merits Attaches at bench trial when judge hears evidence from first witness Attaches at jury trial when jury has been empanelled and sworn as a jury Pretrial dismissals: no jeopardy attachment

12. Trial by jury: issues involving racial and gender discrimination

Keeping minorities from jury service: practiced by some states. Poll taxes and literacy tests. "Key man" system reduced minority jurors. Equal protection clause prevents discrimination in juror selection. Strauder v. West Virginia. Unconstitutional to allow only white men on jury. Provable racial discrimination: Virtually certain reversal of verdict. Gender discrimination: Treated almost as if racial discrimination occurred. Cannot remove jurors based on gender. Improper for state to use peremptory challenges to remove all men in a paternity case. No person has a right to have a jury composed of any members of same race or gender.

10. The concept of Jury unanimity: variety in State juries

Louisiana and Oregon permitted non-unanimous jury verdicts in serious, non-capital cases. (9-3 vote.) Supreme Court rejected argument that non-unanimous verdicts failed proof beyond a reasonable doubt.

12. Evolution of interrogation and confession under the Warren Court

Malloy v. Hogan decided after Brown and Payne. Supreme Court determined: fundamental fairness required that privilege against self-incrimination clause of Fifth Amendment be incorporated into due process clause of Fourteenth Amendment. To be admissible: a confession must be the result of the defendant's free and voluntary decision, unfettered by coercion, whether physical or mental. Factors to consider: length of the time of interrogation, manner of questioning, including rest periods for food, personal essentials, opportunities for sleep.

chapter 10 summary

Miranda warnings required: When police have arrestee in custody, and When police plan to question the arrestee. Warnings must be offered to all. Never a presumption of Miranda warning knowledge. Failure to follow Miranda procedure: Evidence excluded for proof of guilt.

7. Delivering the Miranda warnings

Miranda warnings: Read to arrestee from preprinted card at point of arrest. Followed by written warning in check-off format at stationhouse. Warnings given with less that textbook clarity may be deemed sufficient if they: Meet basic minimum standards. Are understood by the arrestee.

13. Exigent circumstance exception to Miranda interrogation

New York v. Quarles recognized a public safety exception to Miranda warnings. Requires: Immediate danger to the safety of the public or of a police officer. Permits: Questions to address emergency prior to offering Miranda warning.

13. Modern evolution of interrogation and confession

No violation of self-incrimination privilege where: Officer interrogated injured suspect Suspect basically confessed Incriminating statements never used against him No violation of self-incrimination privilege where suspect: Required to participate in lineup Had to wear specific clothing Ordered to make voice recording

15. Evolution of the sixth amendment right to counsel

Original view: Sixth Amendment provided for counsel in federal trials if one could afford one. Did not address how poor got attorney. Poor defendants suffered mismatch from beginning of Constitution until 1960's. Gideon v. Wainwright: argued for free counsel for indigent. Held: Free counsel if poor person charged with felony.

11. Confession practice prior to the warren court revolution

Originally, Fifth Amendment privilege: No application to states After Fourteenth Amendment containing due process clause: Brutal and/or tortuous interrogations excluded on due process grounds Confession excluded on due process grounds Brown v. Mississippi, police tortured defendants until confession extracted. Supreme Court reversed on violation of due process of Fourteenth Amendment. Payne v. Arkansas, Court used due process to reverse conviction. Man threatened with mob execution involuntarily confessed; violation of due process.

13. Removal of prospective jurors: proper and improper rationals

Party can remove any juror for bias, interest, or prejudice. Peremptory challenge: Not permissible solely due to race, gender, or ethnicity. To prevail: defendant had to prove history of prosecutor's use of removal.

6. Photographic arrays: no sixth amendment right to counsel

Photographic array: Mug book pictures, PowerPoint photo presentation, or photo of prior lineup offers no right to counsel. Court refused to extend counsel right to every possible identification situation. Potential steering or other due process violation could occur, but no right to counsel at photo identification.

6. Substance of the warnings

Police must tell arrestee in clear and unequivocal terms: of the right to remain silent. that anything that is communicated to police may be used against the detainee in court. there is a right to consult with an attorney prior to questioning. that if arrestee cannot afford an attorney that one will be appointed prior to any questioning.

4. The case of Miranda v. Arizona - not in the notes of the person I borrowed notes from

Police questioned Miranda for two hours and did not inform him of any right to counsel or to be silent. He confessed to rape and kidnapping. Prosecution introduced that confession against him. Result: Conviction. The Supreme Court reversed the case. Held that Miranda should have been told of his right to counsel; that he had a right to silence; and that if he spoke, his words could be used against him.

5. Prerequisites for Miranda warning

Police required to advise every detainee concerning rights available under the Fifth and Sixth Amendments Triggering events: Custody. Desire to interrogate. Miranda warnings had to be given to persons in custody for felonies and misdemeanors.

10. The initial appearance and the preliminary hearing

Preliminary hearing used when no indictment planned. May include reconsideration of probable cause if grand jury indictment obtained. Accused may waive preliminary hearing. Sixth Amendment right to counsel: At preliminary hearing. Initial appearance may involve: Reading charges to arrestee. Appointing counsel. Determining if probable cause exists: If no indictment has been returned. May involve setting of bail amount. Initial appearances vary widely in different jurisdictions concerning what might transpire. Preliminary hearing: Prosecution presents probable cause Defendant cross-examines witnesses: May defeat probable cause Defense rarely gets case dismissed Effect: "freezes" government testimony Critical stage in criminal procedure For probable cause only hearing, no right to counsel

chapter 12 summary

Pretrial motions promote orderly trial. Identification of suspects is critical to justice. Preliminary hearings serve defendant's well by screening out some cases. Speedy trial provisions help justice by assuring quick resolution of criminal issues. Double jeopardy provisions prevent a state from wearing down a defendant with successive trials.

1. Pretrial motions

Pretrial motions: resolve issues that interfere with orderly trial May clarify issues where no dispute exists May be mandatory or discretionary If mandatory, they must be raised pretrial or are waived Where discretionary, may be made pretrial or during trial Mandatory pretrial motions. Examples: speedy trial, venue, double jeopardy, severance of trials of of defendants, defendant's competency- competency to stand trial-example: person has mental difficulty at time of trial but not on the day of the crime, or insanity issues. Discretionary pretrial motions- not mandatory but probably should be brought up before trial Examples: suppression of evidence, voluntariness of confession, and privileges such as husband-wife or doctor-patient.

13. Federal bail practice: recent considerations

Prior to 1984, federal presumption was in favor of bail in most cases. Bail Reform Act of 1984: Congress mandated some changes. Where charge involved drugs, violence, life penalty, or ten year penalty: Bail could be denied. Bail Reform Act of 1984: Either bail granted or bail denied. If granted, even with severe restrictions, defendant considered bailed. Act required rapid detention hearing. Failure to hold speedy hearing: release not mandated as remedy to arrestee. Federal Bail Reform Act inapplicable to states. Misdemeanor bail, generally: Without reference to individual factors. Based on preset bail schedule. Bail allows accused to plan defense with counsel and address pretrial issues. Permits defendant to find witnesses and evidence.

chapter 11 summary

Privilege against self-incrimination allows defendant not to tell on himself or herself. Fifth Amendment privilege assertable against government in most situations. Involuntary confessions: not admissible to prove guilty or impeachment

7. Privilege against self-incrimination assertable in a variety of contexts

Privilege may be assertted anytime: A police officer asks a question A person is called as a trial witness A person is called as a grand jury witness A police officer faces internal affairs A parolee or probationer has a hearing Use immunity- what you testify to can not be used against you

2. Identification procedures

Problems with making accurate identifications of suspects. Focus: Gender, race, skin color, height, weight, voice. Additional scrutiny: Linguistic patterns, fingerprints, palm prints and DNA. Newer identifiers: Retinal scans, mathematical ratios of facial characteristics, and other biometric identifiers. Collection and use of identification evidence requires compliance with due process. Admission of scientific evidence of identity rests more with the substantive law of evidence than with constitutional considerations.

5. Required production of non-testimonial evidence and the Fifth Amendment

Prosecution may compel defendant to "give up" non-testimonial evidence. Real and physical evidence is not testimonial evidence. Private business records: not covered by Fifth Amendment privilege Defendant must give blood, fingerprint, saliva, urine, and allow measurement, photos, and voice, handwriting and DNA samples,etc Schmerber v. California: must give blood sample,similar evidence;not privileged Schmerber arrested for driving under influence, in hospital officer had blood sample taken and came back he was drunk At trial his attorney objected the blood evidence violated his fifth amendment rights, supreme court ruled it did not Case book page 349 * there may be fourth amendment requirement to acquire them but not fifth amendment to use them Permissible to force one to model clothing: Justice Holmes noted: Fifth Amendment prohibits using physical or moral force to extort testimonial communications. Holt v. United States. United States v. Dionisio: suspect must give voice sample to grand jury and prosecutor. Roadside videotape of impaired driver not considered testimonial; only shows physical facts. Pennsylvania v. Muniz.

9. An equivalent substitute for the Fifth Amendment privilege:Immunity

Prosecutor may force witness to self-incriminate Prosecutor offers substitute protection equal to privilege Witness forced to offer incriminating evidence if prosecutor grants Use immunity- does not protect the witness from prosecution. Only protects them from things they say in response to a question Transactional immunity- person will not be indicted from anything that comes out of the whole transaction Use immunity: information offered by a witness will not be used affirmatively against the individual. Transactional immunity: prosecutor will not start a criminal case against the witness for any crimes that are the subject of the investigation. To force witness testimony, immunity must offer: Protections that are equal to the Fifth Amendment: Use immunity. Or protections that are greater protection than guaranteed by Fifth Amendment: Transactional immunity

2. Application to the right to a jury trial

Reference to "state" in Sixth Amendment: Referred to location of trial, not state trials. Under original intent: States free to eliminate jury trials in state cases. Warren Court revolution incorporated Sixth Amendment jury trial right. Now applicable to state criminal trials.

chapter 13 summary

Right to jury trial depends on potential sentence: Greater than 6 months Jury trial may involve different numbers of jurors and nonunanimous voting may be permitted Juror selection must meet due process and equal protection standards Indigents receive free legal counsel of prison is possibility

14. Right to a speedy trial: reasonable time requirements

Sixth Amendment grants right to speedy trial in all cases. Incorporated into due process clause of Fourteenth Amendment. Klopfer v. North Carolina Federal Speedy Trial Act places criminal cases at top of federal court dockets. States have speedy trial statutes that promote resolution of criminal cases. Speedy trial allows defense to remain fresh with little memory fade. Long delay generally helps defense: Prosecution has burden of proof. Memory of witnesses fades. Prompt resolution generally favors all parties involved.

14. Right to counsel under Miranda is personal to arrestee

Sixth Amendment right to counsel belongs only to arrestee; Moran v. Burbine, sister of arrestee arranged for lawyer to assist burglary charge; Burbine never requested attorney after Miranda. Incrimination statements concerning unrelated murder admissible. Principle: constitutional rights enforced by Miranda warnings cannot be asserted by other person

3. Due process and the right to counsel at identification procedures

Sixth Amendment right to counsel exists at some identification procedures. No Fifth Amendment right to refuse participation in identification procedures. Courts may reverse a conviction based on eyewitness identification where: The right to counsel was violated. Procedures were impermissibly suggestive.

16. Speedy trial: when the time begins to run under the Sixth Amendment

Sixth Amendment right to speedy trial: Starts to run upon an arrest. An indictment begins the time period. Filing an information starts clock running. Custody in a foreign United States state does not stop speedy trial clock. Noncustodial state must make efforts to procure attendance for speedy trial.

9. State efforts to reduce the size of juries

Smaller juries save money: deliberate faster and have fewer hung juries. Williams v. Florida, approved six-person jury in serious, non-capital case. Ballew v. Georgia, Supreme Court refused to approve five-person jury. Six person juries must have unanimous vote. Even where six-person jury used, defendant may consent to smaller jury: Juror illness, no alternates. Juror death, no alternates. Limitation: Twelve-person jury required for death penalty or life imprisonment case.

15. Speedy trial statutes

Statutes are in addition to sixth amendment Provide timeline that prosecution should follow Justice best served by freeing innocent and incarcerating guilty Allow exceptions to timeline for necessary reasons

6. Assertion of the privilege against self-incrimination

The Fifth Amendment privilege: no application to business, corporations, labor unions, and similar entities and other artificial persons Privilege only assertable by holder, not a third party Privilege applies when testimony could incriminate in federal or state prosecutions

3. selective incorporation of the Sixth Amendment into the Due process clause

Trial by jury: Among fundamental principles of liberty and justice. "a fundamental right, essential to a fair trial." In re Oliver. "basic in our system of jurisprudence." Gideon v. Wainwright. Duncan v. Louisiana incorporated the Sixth Amendment right to jury trial into due process clause of Fourteenth Amendment. Following incorporation, states had to offer jury trials on same conditions as federal courts. Right to jury trial: may differ in form in some states. Jury trial exists if potential penalty greater than six months. Bench trials: six months or less.

17. Violation of Miranda: use of confession for impeachment purposes

Voluntary confessions received in violation of Miranda rules: Admissible for impeachment purposes Confession was true- just excluded for guilt purposes due to Miranda violation If excluded from impeachment, accused could commit perjury without sanction

10. Waiver of the Fifth Amendment privilege

Waiver permissible: When freely, voluntarily, knowingly, and intelligently waived Waive Miranda, speak to police Witness may take witness stand Suspect offers voluntary confession Case page 354 Totality of the circumstances test considers: Age, education, and intelligence Circumstances of any Miranda warning Subject's prior legal experience Length and circumstances of any interrogation Coercion, threats, or promises offered by police

8. When Miranda warnings are required: The triggering events

Warnings necessary when the officer: Places an individual in custody and The officer desires to initiate questioning. Waives rights, interrogation may begin. Police cannot first interrogate, later warn, and interrogate again. All evidence excluded. Missouri v. Seibert.

18. Remedy for violation of Sixth Amendment right to speedy trial

When defendant wins constitutional speedy trial argument: Remedy: dismiss the case with prejudice. Remedy seems drastic. Reason for remedy: Most cases involve prejudice to defendant's case or to personal life. No way to roll back clock; undue prejudice.

Salinas v. Texas

https://www.supremecourt.gov/opinions/12pdf/12-246_7l48.pdf

Case 12.5, leading case brief: Benton v. Maryland, 895 U.S. 784 (1969)

Facts: Benton convicted of burglary, acquitted of larceny. Problems with grand jury allowed retrial, but tried and convicted of both offenses. Argued that double jeopardy applied to states through due process clause of Fourteenth Amendment. Contended, should not have been retried on larceny. Issue: Did original acquittal of larceny prevent retrial based on double jeopardy? Held: Yes. Rationale: Originally double jeopardy provision not applicable to states. Fundamental fairness under due process of Fourteenth Amendment requires that double jeopardy provision be applicable against states as it is a fundamental ideal of justice. Benton was acquitted and cannot be tried a second time.

16. Constitutional right to counsel: Felonies and misdemeanors

Gideon held: indigent charged with serious, non-capital felony had right to free-appointed counsel Argersinger v. Hamlin and Scott v. Illinois: free counsel for all indigents facing any possibility of incarceration Right to counsel implies right to effective assistance of counsel Strickland v. Washington Competence of appointed counsel: Cannot fall below an objective standard of reasonableness Performance of counsel should not prejudice the defense

16. Involuntary confession not available for impeachment

Rationale: No way to determine whether confession was true and accurate or was fabrication and false. Secondary justification: When involuntary confessions excluded: No incentive to secure "bad" confessions.