Criminal Procedure

The Fifth Amendment in a Police Interrogation Context

A suspect has a constitutional right not to be compelled to make incriminating statements in the police interrogation process. Any incriminating statement obtained as the result of custodial interrogation may not be used against the suspect at a subsequent trial unless the police provided procedural safeguards effective to secure the privilege against self-incrimination (i.e., informed the suspect of his Miranda rights). An incriminating statement includes not only a confession, but other inculpatory statements, and is subject to suppression even though the defendant intended the statement to be exculpatory.

Contrast Stop and Frisk

A temporary detention for the purpose of a criminal investigation is a "stop," not an arrest, but is still a seizure for Fourth Amendment purposes. The test for a stop is whether the officer, by means of physical force or show of authority (to which the subject has submitted), has in some way restrained the liberty of the citizen. Seizure includes physical restraint or an order to stop so that the officer can frisk and ask questions on the street.

Consent searches

Consent can serve to eliminate the need for police to have probable cause as well as to first obtain a warrant in order to conduct a search. 1) Voluntary For permission to constitute consent, the permission must be given voluntarily. In determining whether a person's response constitutes consent, courts evaluate the totality of the circumstances in which the response is made. a) False assertion of authority Permission given in acquiescence to lawful authority (e.g., a warrant) is not voluntary. Consequently, if the officer conducting the search erroneously states that he has a warrant, then permission given in reliance on that statement does not constitute consent. b) Knowledge of the right to withhold consent The failure by police to inform the person from whom consent is sought that she has the right to withhold consent does not invalidate the consent. . c) Consent based on deceit A government agent pretending to be a narcotics buyer, for example, may accept an invitation to enter the premises for the purposes contemplated by the occupant (i.e., to purchase drugs). The officer or agent may then seize things in plain view. 2) Third-party consent When the person from whom consent is sought is not the defendant, in addition to the voluntariness of the permission, the authority of that person to consent can be an issue. a) Property of a third party Generally, a third party has the authority to consent to a search of property that she owns or occupies. As such, the defendant cannot suppress evidence seized during such a search on the grounds that he (the defendant) did not consent to the search. b) Property of the defendant Generally, a third party does not have the authority to consent to a search of property owned or occupied by the defendant. The defendant can generally suppress evidence seized during such a search unless (i) an agency relationship exists between the third party and the defendant that gives to the third party the right to consent on behalf of the defendant, or (ii)the defendant otherwise gives the third party such rights with respect to the property that the defendant assumes the risk that the third party would allow the property to be searched c) Jointly controlled property When the property to be searched is under the joint control of the defendant and a third party, the authority of the third party to consent turns on whether the defendant is present at the time of the search. i) Defendant not present If the property to be searched is under the joint control of the defendant and a third party, and the defendant is not present at the time of the search, then the third party has authority to consent. In addition, the third party's consent may be valid even though she lacks actual authority if the police reasonably believe that she has such authority. ii) Defendant present When the property to be searched is under the joint control of the defendant and a third party, and the defendant is present at the time of the search, then the police may not rely on third-party consent if the defendant objects to the search. When the defendant is not present, however, a third party may consent to a search even if the defendant previously was present and objected to a search at that time. iii) Ownership versus current control In some instances, ownership of the premises is not sufficient to confer authority to consent to a search. For example, a landlord may not consent to a search of the tenant's premises. However, some circuits have held that the owner of a house can consent to a search of rooms occupied by non-paying guests. iv) Parental consent When a child lives with a parent, the parent has the authority to consent to a search of a child's room even if the child is an adult. However, a parent may lack authority to consent to the search of a locked container inside the child's room, depending on the age of the child. 3) Scope of consent Although a search is limited to the area to which the consent applies, the search may extend to areas that a reasonable officer would believe it extends. For example, consent by a driver to search his car for drugs extends to a closed container within the car that could contain drugs. 4) Burden of proof The prosecution must prove that the permission was freely given; the defendant is not required to show that the permission was coerced.

Informants

Courts use the totality of the circumstances test to determine whether information provided by a police informant is sufficient to create probable cause. The affidavit generally does not need to include any particular information about the informant, including the informant's identity, so long as a neutral magistrate can find that, based on the informant's information and all other available facts, there is probable cause to issue the warrant.

Standing

Fourth Amendment rights are personal and may not be asserted vicariously. A defendant cannot successfully challenge governmental conduct against unreasonable searches and seizures unless the defendant himself has been seized or he has a reasonable expectation of privacy with regard to the place searched or the item seized. It is not enough that the introduction as evidence of an item seized may incriminate the defendant.

Effect of the Plea on the Defendant's Rights

Generally, a defendant, by entering a guilty plea, waives his constitutional rights, such as the right to a trial, the privilege against self-incrimination, and the right to confront his accusers. However, a defendant may challenge a guilty plea on the due-process grounds that it was not a knowing and voluntary waiver of such rights. In addition, a guilty plea does not constitute a waiver of a double jeopardy challenge unless the waiver is agreed to in the plea agreement. A defendant may also attack a guilty plea that is due to ineffective assistance of counsel.

Inconsistent verdicts

If a jury renders a verdict that a defendant is guilty of certain offenses but not guilty of other related offenses, then the verdict is not reviewable on the grounds of inconsistency. Is also applicable when a defendant is convicted of an offense for which a co-defendant, who is tried at the same time, is acquitted. This rule extends to bench as well as jury trials.

Initial Appearance

Soon after the defendant is arrested, the defendant must be brought before a judge who advises the defendant of the charges against him and of his rights and who appoints counsel if the defendant is indigent. During this initial appearance, which may be held in conjunction with a Gerstein hearing, the judge may also determine whether the defendant should be released prior to trial and the conditions of the release (e.g., bail), accept a plea from the defendant, and set a date for a preliminary hearing.

Commencement of the Right

Statutes of limitations are the primary safeguards against pre-accusation delay. However, the Due Process Clause may be violated if the delay was used to obtain a tactical advantage for the prosecution or to harass the defendant. Delay resulting from an investigation conducted in good faith does not violate the Due Process Clause. Under the Sixth and Fourteenth Amendments, the time period commences at the time of arrest or formal charge, whichever comes first. The defendant need not know about the charges against him for the right to attach.

Preliminary Hearing to Determine Probable Cause to Prosecute

Subsequent to the defendant's initial appearance, a preliminary hearing may be held to determine whether there is probable cause to believe that the defendant has committed a specific crime. At this hearing, which is an adversarial proceeding, the defendant has the right to counsel. A defendant who has been indicted by a grand jury is not entitled to this hearing.

SIXTH AMENDMENT

The Sixth Amendment provides that the accused shall have the right to a public trial, the right to confront witnesses against him, the right to cross-examine witnesses, the right to be present at his own trial, and the right to "the assistance of counsel for his defense." The right to assistance of counsel encompasses not only the right to hire private counsel, but also the right to be provided with counsel without charge if the accused is unable to afford counsel.

Balancing Test

The factors to be considered in determining whether the defendant has been deprived of a speedy trial post-accusation are the: i) Length of the delay; ii) Reason for the delay; iii) Defendant's assertion of a right to a speedy trial; and iv) Prejudice to the defendant. If the defendant's right to a speedy trial is violated, the charges are dismissed with prejudice.

Compulsory Disclosure

The privilege generally does not apply to an individual's voluntarily prepared business papers or to records required by law to be kept, such as tax returns. a. Subpoena A person who is served with a subpoena requiring the production of possibly incriminating documents may invoke the privilege if the act of turning over the documents constitutes self-incriminating testimony. The Fifth Amendment does not prevent law-enforcement officials, pursuant to a valid warrant, from searching for and seizing documents that would incriminate a person. 1) Diaries Generally, the government may not compel production of a diary. Note, however, that if the diary's production is not compelled if it is found incident to a lawful arrest, its contents likely are admissible (assuming the entries were made voluntarily).

State's Duty to Disclose

The prosecution has an affirmative duty to disclose any material evidence favorable to the defendant and relevant to the prosecution's case in chief that would negate guilt or diminish culpability or punishment. Failure to make such a disclosure violates the Due Process Clause and is grounds for reversal, regardless of whether the failure to disclose was intentional, if the defendant can show that (i) the evidence is favorable to the defendant and (ii)the failure to disclose caused prejudice against the defendant

The Fourth Amendment

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no Warrants shall issue, but on probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." This amendment protects persons against unreasonable arrests or other seizures as well as unreasonable searches. In addition, when a warrant is required, it must comply with these constitutional requirements.

Invocation of Privilege Should Not Impose a Burden

The state cannot penalize a defendant for invoking his right against self-incrimination by not testifying or cooperating with authorities. A violation in this regard by the state triggers the harmless-error test. However, if during trial the defendant claims that he was not allowed to explain his story, then the prosecution may comment on the defendant's failure to take the stand.

Maximum Sentence to Exceed Six Months

There is a constitutional right to a jury trial for non-petty offenses—those that carry an authorized sentence of more than six months of imprisonment, regardless of the actual penalty imposed or if additional statutory or regulatory penalties make the offense a "non-petty offense." a. Contempt In a civil contempt case, there is no jury trial requirement if the witness can avoid the punishment by complying with the court order. In a criminal contempt case that has no statutorily authorized punishment, the right to a jury trial is determined by the actual penalty imposed. Thus, a sentence of over six months would trigger the right to a jury trial.

Probable Cause to Detain (Gerstein Hearing)

Under the Fourth Amendment, a preliminary hearing must be held after the defendant's arrest to determine whether probable cause exists to hold the defendant. This hearing, known as a Gerstein hearing, need not be adversarial. There is no right to counsel at this hearing, and hearsay evidence may be introduced, but a hearing not held within 48 hours after arrest is presumptively unreasonable. However, the failure to hold this hearing does not affect the prosecution of the defendant for the charged offense, other than the exclusion of any evidence discovered as a consequence of the unlawful detainment. Under the Fifth Amendment, all felony charges must be by indictment of a federal grand jury, unless waived by the defendant.

Invoking the Privilege

a. Defendant's privilege A defendant who wishes to invoke the privilege simply invokes it by not taking the stand. Included in this right is the state's inability to compel the defendant to testify. The prosecution cannot bring the defendant's failure to take the stand to the jury's attention. b. Witness's privilege A witness, on the other hand, may be compelled to take the stand and can invoke the privilege only in response to a specific question when there is some reasonable possibility that answering the question will incriminate the witness. However, such an invocation after testimony has already been made may violate a defendant's right to confrontation, guaranteed by the Sixth and Fourteenth Amendments, if it prevents adequate cross-examination.

The Exclusionary Rule

prevents the introduction at a subsequent criminal trial of evidence unlawfully seized. This remedy is judicially created, not constitutionally mandated. Applies only to criminal trials, not civil proceedings. Evidence will also not be excluded at trial when introduced as impeachment evidence.

Administrative, special needs, and inventory searches

Administrative search warrants are generally required for nonconsensual fire, health, or safety inspections of residential or private commercial property. 1) Probable cause The probable cause requirement for administrative searches is less stringent than that for a criminal investigation. Evidence of an existing statutory or regulatory violation or a reasonable plan supported by a valid public interest will justify the issuance of a warrant. 2) Use of administrative searches The government may not use administrative searches to investigate criminal activity. However, discovery of evidence during the search does not invalidate the search. The following administrative-type searches may be validly made without a warrant: i) Searches of people entering an airplane boarding area, as long as the passenger can prevent the search by not boarding the plane; ii) Searches of businesses in highly regulated industries such as liquor stores, gun shops, strip-mining operations, and automobile junkyards, because of urgent public interest and under the theory that the business impliedly consented to warrantless searches by entering into a highly regulated industry; iii) Oral statements seized by wiretaps, when matters of national security are at issue; iv) Searches of students by public school officials, so long as they are based on reasonable grounds and the measures adopted for the search are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction. v) Special needs searches, such as drug testing for railroad employees involved in an accident or student athletes during the athletic season. To be a special need, the state interest must be a real, current, and vital problem that can be effectively addressed through the proposed search. Even if the need exists, it must be balanced against the privacy interest at stake and the character of the intrusion. vi) Inventory searches of items in official custody, such as impounded vehicles. Inventory searches must be performed according to standardized criteria and procedures. vii) Routine international border searches of border crossers and their belongings within the United States, including (i) stops, but not searches, by roving patrols who reasonably suspect that undocumented immigrants may be in an automobile, (ii) opening of international mail if authorities have reasonable cause to suspect contraband in the mail, and (iii) subsequent reopening of mail after the item had been resealed and delivered to the recipient; viii) Vehicle checkpoints and roadblocks set up to stop cars on the basis of a neutral articulable standard and designed to serve a limited purpose closely related to the problem of an automobile's inherent mobility (e.g., to get drunk drivers off the road); ix) Factory searches of the entire work force to determine citizenship of workers; x) Searches of government employees' electronically recorded documents and conduct, file cabinets, and desks if they are justified by a reasonable suspicion of work-related misconduct or a non-investigatory, work-related need; xi) Detention of a traveler whom authorities have reasonable suspicion is smuggling contraband in his stomach; xii) Searches of parolees and their homes, even with no reasonable suspicion, when a parolee agrees to submit to searches by a parole officer or police officer at any time as a condition of his parole. xiii) Seizure of contaminated or spoiled food; and xiv) Searches for the cause of a fire that occurs within a reasonable time after the fire is extinguished, but excluding searches for other evidence unrelated to the cause that would establish that the fire was attributable to arson.

2. Defining "Search": The Violation of a Reasonable Expectation of Privacy

An unreasonable search occurs when the government (1) invades a place protected by a reasonable expectation of privacy, or (2) physically intrudes upon a constitutionally protected area (persons, houses, papers, or effects) for the purpose of gathering information.

Preliminary Proceedings

Can include a hearing to determine probable cause to detain (a Gerstein hearing), an initial appearance, an arraignment, a detention or bail hearing, and a preliminary hearing to determine probable cause to prosecute the defendant. In addition, the defendant may make various motions, including motions to suppress evidence obtained in violation of the defendant's constitutional rights.

Obtaining evidence by questionable methods

Evidence obtained in a manner that shocks the conscience is inadmissible. Examples of such methods of gathering evidence include inducements by official actions that offend the sense of justice and serious intrusions into the body, such as with surgery to remove a bullet.

Third-party premises

A search warrant may be issued to search the premises of a person who is not suspected of a crime.

b. Particularity

A search warrant must describe with particularity the place to be searched and the objects to be seized. Warrants that also refer to "other fruits, instrumentalities and evidence of the crime at this [time] unknown" are not converted into illegal general warrants by the inclusion of such language. The reference to a "crime" has been interpreted as being limited to a particular crime rather than any crime. A warrant need not specify the manner of its execution.

Execution of warrant

1) By whom A warrant cannot be executed by a private citizen. Generally, only a police officer may execute a warrant, but administrative warrants may be executed by the appropriate governmental official (e.g., fire inspector). 2) Timing A warrant that is not timely executed (i.e., an unreasonable delay occurs) may be subject to challenge on the grounds that probable cause ceased to exist. 3) Manner of execution—knock and announce Most states and the federal government mandate that a police officer must generally announce his purpose before entering. A state may permit an exception to the rule if the entry is made under exigent circumstances, such as when there is a reasonable belief of danger to the officer or destruction of evidence. Note, however, that the interests protected by the knock-and-announce requirement do not include the shielding of potential evidence from discovery. Thus, violation of the "knock and announce" rule does not trigger the exclusionary rule with respect to evidence discovered as a result of a search conducted in violation of the "knock and announce" rule. 4) Seizure of evidence not specified A search warrant confers authority to search only the places and persons named in it. That said, any evidence of a crime, instrumentalities or fruits of a crime, or contraband found in plain view, whether or not specified in the warrant, may be seized. 5) Treatment of persons not specified in the warrant Independent justification is needed to search persons not named in a search warrant; mere proximity to a named person does not supply such justification. However, in conducting a search for contraband pursuant to a warrant, any occupant of the premises to be searched may be detained in a reasonable manner, which may include the use of handcuffs, for a reasonable time while the search is conducted. Such a detention is only justified for individuals within the immediate vicinity of the premises to be searched. If an individual is not in the immediate vicinity of the premises, then a detention of that individual must be justified by some other rationale.

Sentencing

1) Enhancements When a sentence may be increased if additional facts are established, a jury must determine the existence of such facts. Enhancement of a defendant's sentence by a judge without such a determination violates the defendant's right to a jury trial. However, the harmless-error test applies to determine whether a sentence enhanced in violation of a defendant's right to a jury trial must be reversed. 2) Concurrent versus consecutive sentences Judges can decide whether sentences for multiple crimes run concurrently or consecutively without violating this right.

Methods used to search

1) Fly-over An inspection conducted from at least 400 feet in the air, whether by an airplane or a helicopter, does not violate a reasonable expectation of privacy and therefore is not a search for the purposes of the Fourth Amendment. 2) Technological device Attaching a device to a person's body without consent in order to track that person's movements is a search for Fourth Amendment purposes. Similarly, collection by law enforcement of cell-site location information records from wireless carriers in order to track a suspect's whereabouts requires a warrant. With regard to automobiles, the Fourth Amendment does not prohibit the police from using technological devices to enhance their ability to search, However, physically intruding upon a suspect's property to install a technological device (e.g., a GPS tracker) may constitute a search. The use of a device or sense-enhancing technology (e.g., a thermal sensing device) that is not in use by the general public to explore the details of a dwelling that would previously have been unknowable without physical intrusion constitutes a search. Moreover, use of an electronic listening device to eavesdrop on a conversation made from a public phone booth can violate the speaker's reasonable expectation of privacy. Flashlight. Because flashlights are ubiquitous, the use of a flashlight at night to illuminate the inside of a car does not constitute a search for Fourth Amendment purposes. 3) Canine sniff Use of a trained dog to sniff for the presence of drugs is a search if it involves a physical intrusion onto constitutionally protected property. In the absence of a physical intrusion, the use of drug-sniffing dogs does not violate a reasonable expectation of privacy. Officer's sense of smell: A police officer may also rely on his own sense of smell in ascertaining the presence of illegal drugs or alcohol. 4) Field test of substance A field test performed on a substance to determine if the substance is contraband is not a search for Fourth Amendment purposes.

"Plain-view" doctrine

1) In public view Items in public view may be seized without a warrant because one cannot have a reasonable expectation of privacy in things that are exposed to the public 2) In private view In situations in which there is a reasonable expectation of privacy, a police officer may seize an item in plain view of the officer, even if the item was not named in the search warrant, as long as (i) the officer is lawfully on the premises, (ii) the incriminating character of the item is immediately apparent, and (iii) the officer has lawful access to the item.

Persons and their attributes

1) Physical characteristics There is no expectation of privacy in one's physical characteristics; therefore, a demand for a handwriting or voice sample is not a search. Furthermore, DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure. (taking and analyzing a cheek swab of the arrestee's DNA). 2) Government informants There is no reasonable expectation of privacy in conversations carried on with government informants or undercover officers. Similarly, if one party to a telephone call consents to wiretapping or agrees to record the call at the government's request, such monitoring will not trigger the Fourth Amendment rights of any other party to the call. A person also runs the risk that a third party to whom she turns over information may disclose such information to the government.

Stop and frisk

1) Stop—limited seizure/detention A "stop" (also known as a "Terry stop") is a limited and temporary intrusion on an individual's freedom of movement short of a full custodial arrest. A stop is justified on the reasonable suspicion, based upon articulable facts, that the detainees are or were involved in criminal activity. Whether reasonable suspicion exists is based on the totality of the circumstances. It requires more than a vague suspicion, but less than probable cause, and it need not be based on a police officer's personal knowledge. Reasonable suspicion can be based on a flyer, a police bulletin, or an informant's tip, but only if the tip is accompanied by sufficient indicia of reliability. A police officer's reasonable mistake of law can support reasonable suspicion to conduct a traffic stop. 2) Frisk—limited search An officer who does not have probable cause to arrest may make a limited search of a person he has lawfully stopped, such as a pat-down of the outer clothing, if he has reasonable suspicion that the person was or is involved in criminal activity and that the frisk is necessary for the preservation of his safety or the safety of others. Under the "plain feel" exception, if an officer conducting a valid frisk feels with an open hand an object that has physical characteristics that make its identity immediately obvious (i.e., he has probable cause to believe that the item is contraband), then the officer may seize the evidence. Police may also briefly seize items if the officers have a reasonable suspicion that the item is or contains contraband. 3) Terry stop and frisk of a car Pursuant to a lawful stop of a vehicle, police may conduct a search of the passenger compartment for weapons, if: i) The police possess a reasonable belief that the suspect is dangerous and may gain immediate control of weapons; and ii) The search of the passenger compartment is "limited to those areas in which a weapon may be placed or hidden." Police may order occupants out of a vehicle that they have lawfully stopped. When police make a lawful traffic stop, they are automatically detaining both the driver and the passenger. They may only frisk the driver or the passenger if they have reasonable suspicion that the person is carrying a weapon. 4) Limits on time, place, and investigative method A Terry stop must be temporary and last no longer than is necessary to effectuate the purpose of the stop. The investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short time. Police may stop the person, question him for a limited period of time, and frisk him for weapons only, not evidence. Police also can require that the detained person identify himself. Failure to comply with this request can result in the arrest of the detained person. After the conclusion of a traffic stop, absent reasonable suspicion, police extension of the stop in order to conduct a dog sniff violates the Fourth Amendment's protection against unreasonable seizures. When police hold a suspect beyond the amount of time necessary to effectuate the purpose of a Terry stop, the seizure becomes an arrest and must be supported by probable cause.

Public Trial

1. Defendant's Right The Sixth Amendment guarantees a criminal defendant the right to a public trial. The defendant may waive the right and request a closed proceeding. However, because the request also implicates the First Amendment right of access of the press and the public, the court must consider several factors, and the likelihood of a closed proceeding is slight. The court may even allow the proceedings to be televised over the defendant's objection. The right to a public trial extends to preliminary hearings and suppression hearings. A suppression hearing may be closed if (i) there is an overriding interest likely to be prejudiced by an open trial, (ii) the closure is not in excess of the interest, (iii) other alternatives have been considered, and (iv) the court enters adequate findings to support closure. 2. Public's Right Regardless of the wishes of the defendant or prosecutor, a trial must be public unless there is either a substantial likelihood of prejudice to the defendant or a need to limit access to ensure an orderly proceeding. This right extends even to voir dire and many other preliminary matters.

Remedies for Denial of Counsel

1. Effect on Conviction If a right to counsel at a trial proceeding under the Sixth Amendment is denied, the defendant's conviction should be automatically reversed. Automatic reversal also applies to a conviction obtained after a court has erroneously refused to permit an attorney chosen by the defendant to represent him, when that attorney is not supplied by the state. 2. Effect on Guilty Plea If the defendant has pleaded guilty at a preliminary hearing, without being given the opportunity to have counsel, then the defendant has the right to withdraw the plea, and it may not be used against the defendant as an evidentiary admission. 3. Effect on Denial of Counsel at Nontrial Proceedings A denial of counsel at a nontrial proceeding, such as a lineup, is subject to harmless-error analysis. 4. Admissibility of a Defendant's Statements to Informants Post-indictment statements that a defendant makes to a police informant are inadmissible when the police intentionally create a situation likely to induce the defendant into making incriminating statements about the crime for which he was indicted without the assistance of counsel. There is no Sixth Amendment violation, however, if the police place an informant in the defendant's cell simply to listen and report the defendant's statements, without questioning the defendant. 5. Exclusionary Rule Under the Sixth Amendment a. Fruits doctrine The fruit of the poisonous tree doctrine is applicable to violations of the Sixth Amendment right to counsel. Both statements and physical evidence obtained as a result of a Sixth Amendment violation are inadmissible. b. Impeachment If the police initiate a conversation with an accused individual who has requested counsel, any incriminating statements made by the defendant may still be used for impeachment purposes.

Fair Trial

1. Impartial Judge Due process requires that a judge possess neither actual nor apparent bias. If actual or apparent bias exists, the judge must follow a recusal process in the federal or state jurisdiction. The impermissible bias or prejudice usually must stem from an extrajudicial source. 2. Fair Conduct by the Prosecutor a. Examples of misconduct A prosecutor may not: i) Make material misstatements of law or fact; ii) Elicit information from the defendant outside the presence of his counsel; iii) Express opinions about the defendant's guilt or innocence; iv) Make unfair or improper remarks about the defendant, his counsel, or witnesses; v) Comment on the defendant's failure to testify at trial; or vi) Make improper remarks to the jury to inflame their passions to convict for an improper reason. b. No use of false testimony A prosecutor may not knowingly use perjured or false testimony for the case in chief, for sentencing, or to impeach the credibility of a witness. c. No suppression of favorable evidence Due process requires the prosecution to disclose evidence favorable to the accused (i.e., exculpatory or impeaching) when such evidence is material to guilt or punishment. Similarly, police violate due process when, in bad faith, they destroy evidence that would have been useful to the defendant at trial. The defendant does not, however, have the right to require police to preserve all evidence if it is not certain that the evidence would have been exculpatory.

Grand Juries

1. Indictment After hearing the prosecution's evidence, the grand jury decides whether there is probable cause to charge a particular defendant with a particular crime and, if so, returns a "true bill" of indictment. 2. Grand Jury Proceedings a. Defendant's rights The grand jury is a non-adversarial proceeding. The proceedings are conducted in secret, and the defendant has no right to present or confront witnesses or to introduce evidence. The defendant is not entitled to a dismissal due to a procedural defect in grand jury proceedings, unless the defect substantially impacted the grand jury's decision to indict. However, the defendant (or any other witness) may make a motion to seal the grand jury report if he believes that he has been defamed. 1) Double jeopardy Because jeopardy does not attach until a trial begins, the Double Jeopardy Clause does not apply to grand jury proceedings. The refusal of a grand jury to indict a defendant with respect to a specific crime does not prevent the indictment of the defendant for the same crime by another grand jury. b. Role of the prosecutor The prosecutor is the advisor to the grand jury. As such, the prosecutor's role is to advise the grand jury with respect to the law and assist the grand jury in its job of issuing subpoenas for witnesses and evidence. The prosecutor has no legal obligation to present evidence exculpating the defendant to the grand jury. The prosecutor is subject to the grand jury secrecy rules. c. Witness's rights A grand jury witness has no right to counsel in the grand jury room. The witness may request permission to consult with counsel outside of the jury room before answering a grand jury question. A prosecutor's failure to give a Miranda warning to a witness who then lies to a grand jury does not prevent the prosecution of the witness for perjury. Further, a witness who is a target of an investigation and may become a defendant is not entitled to a warning of his putative defendant status; the failure to receive such a warning does not protect a lying witness from a perjury conviction. d. Grand jury's role The grand jury has subpoena power to investigate matters before it or to initiate criminal proceedings. The subpoena can be quashed by the opposing party if he can demonstrate that the evidence sought is not relevant to the investigation. However, the witness or defendant cannot attack the subpoena based on the grand jury's lack of probable cause. The grand jury is not restricted to hearing evidence that would be admissible at trial; an indictment may generally be based on hearsay or illegally obtained evidence. The grand jury may not exclude members of minority races, regardless of whether they are the same race as the defendant. Such exclusion will lead to a reversal of the indictment without regard to the harmlessness of the error.

Fruits of a Tainted Confession

1. Physical Evidence Derivative physical evidence (e.g., a gun) obtained as a result of a non-Mirandized confession is admissible, so long as that confession was not coerced. 2. Second Confession A Miranda violation does not automatically require the suppression of incriminating statements made by the defendant after receiving Miranda warnings. However, a second confession may be suppressed when the circumstances indicate that the substance of Miranda has been drained away. For a plurality of the court, the test is an objective one—a reasonable person in the suspect's position would not have understood the Miranda warnings to convey a message that the suspect retained a choice about whether to remain silent. For the justice who cast the deciding vote (Justice Kennedy), the test is a subjective one—did the police act with an intent to circumvent the purpose of the Miranda warnings. Miranda; Missouri v. Seibert, 542 U.S. 600, 611 (2004).

Fifth Amendment in the Trial Context

1. Scope of Privilege A defendant may refuse to testify at a criminal trial. He may also refuse to answer questions in other proceedings (i.e., civil depositions) when the answers might incriminate him in future criminal proceedings. The privilege does not prevent the prosecutor from using prior conflicting statements to impeach the defendant once the defendant takes the stand. This is called "opening the door" by the defendant. 2. Voluntariness Admissions of incriminating statements made during a court-ordered psychiatric examination are generally deemed involuntary and not admissible at trial unless the defendant is given Miranda warnings before the interview and waives his rights. Business papers voluntarily prepared by an individual, or required records, such as tax returns, are not protected. 3. Immunity The prosecution may compel incriminating testimony if it grants immunity to the individual and the individual must testify. The testimony cannot be used against the individual, directly or indirectly, in a subsequent prosecution. a. Transactional immunity Often called "blanket" or "total" immunity, "transactional immunity" fully protects a witness from future prosecution for crimes related to her testimony. b. Use and derivative-use immunity "Use and derivative-use" immunity only precludes the prosecution from using the witness's own testimony, or any evidence derived from the testimony, against the witness. Testimony encouraged by a promise of immunity, however, is considered coerced and involuntary. c. Federal and state immunity Testimony under a grant of immunity may not be used by another U.S. jurisdiction to prosecute the defendant. Thus, a state grant of immunity will preclude admission of the testimony in a federal proceeding. 4. Prosecutorial Comment The prosecutor may not comment on the defendant's exercise of the privilege against self-incrimination at trial. It is per se reversible error.

PRETRIAL PROCEDURES Eyewitness Identification Procedures

1. Types There are two types of eyewitness identification procedures: corporeal and non-corporeal. Corporeal identifications are "in-person," as in lineups or show-ups. Non-corporeal identifications are not in-person and involve police officers using photo arrays for a witness to identify the perpetrator of the crime. 2. Post-Indictment Identifications—Sixth Amendment Right to Counsel A defendant is entitled to have counsel present at any post-indictment lineup or show-up in which the defendant is required to participate. The prosecution bears the burden of establishing that counsel was present. The right to counsel does not apply to any pre-indictment lineup, even if it takes place after the defendant has been arrested for another unrelated crime. a. Waiver The defendant can waive the right to have counsel present at the lineup, provided that waiver is made knowingly and intelligently. The prosecution bears the burden of demonstrating that the waiver was valid. b. Remedy for violation Testimony about a post-indictment, pre-trial identification in the absence of counsel is inadmissible at trial, but the witness may still identify the defendant at trial if the prosecution can show that the identification has independent reliability. c Non-corporeal identification procedures There is no right to counsel during an identification through a photo array, regardless of when the photo array is conducted.

Impermissibly Suggestive Identification Procedures—Due Process Rights

A defendant also has a due process right pursuant to the Fifth Amendment (for federal prosecutions) and the Fourteenth Amendment (for state prosecutions) with regard to a witness's identification based on an identification procedure arranged by the police that was impermissibly suggestive. a. Two-prong test Courts use a two-prong test to determine the admissibility of a pre- or post-indictment corporeal or non-corporeal identification. To prevail, the defendant must demonstrate that the procedure was impermissibly suggestive and that there was a substantial likelihood of misidentification. In order to have the identification admitted, the prosecution can offer evidence that the identification was nonetheless reliable. In making its ruling, the court is to consider the following factors: i) The witness's opportunity to view the defendant at the time of the crime; ii) The witness's degree of attention at the time of the crime; iii) The accuracy of the witness's description of the defendant prior to the identification; iv) The level of certainty at the time of the identification; and v) The length of time between the crime and the identification. Only when the indicators of a witness's ability to make an accurate identification are outweighed by the corrupting effect of law enforcement suggestion should the identification be suppressed on due process grounds. 1) Impermissibly suggestive Police identification procedures that are highly suggestive usually are also impermissibly suggestive. However, even when such procedures are highly suggestive, they may not be impermissibly so, if they are necessary. In addition, a defendant's due process rights are violated only if it is the police who have arranged the identification procedure to be impermissibly suggestive. b. Suppression hearing A defendant who has moved to suppress an identification is entitled to a suppression hearing. This hearing usually is held outside the presence of the jury, although exclusion of the jury is not constitutionally required. c. Remedy for violation A conviction as the result of a trial in which an illegal identification was admitted will be overturned unless, under the doctrine of harmless error, the appellate court is convinced beyond a reasonable doubt that the improperly admitted identification did not contribute to the verdict.

Waiver

A defendant may knowingly and voluntarily waive his Miranda rights. The burden is on the government to demonstrate by a preponderance of the evidence that the waiver was made knowingly and voluntarily. There can be no effective waiver, however, until the Miranda warnings are properly given. Silence on the part of the suspect is not sufficient to waive his Miranda rights. However, a suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police. Once effectively waived, the police are not required to inform the suspect of the defense counsel's efforts to reach the defendant by telephone and need not inform counsel that the defendant is being questioned.

2. Waiver

A defendant may waive the right to a jury trial and opt for a trial by judge, known as a "bench trial," if the waiver is freely and intelligently made. However, the defendant does not have an absolute right to a bench trial. The court or prosecutor may compel the defendant to submit to a jury trial, unless the defendant would be denied a fair trial.

Waiving the Privilege

A defendant waives the privilege by taking the witness stand; a witness waives the privilege by disclosing self-incriminating information in response to a specific question. Having taken the stand, the defendant cannot assert the privilege in response to the prosecution's proper cross-examination of his testimony, including impeachment questions.

Guilty Pleas

A guilty plea is an admission of facts contained in the charging document (e.g., indictment, information).

Jury Compliance

A jury of less than six members is a denial of due process, and a unanimous verdict is constitutionally required if a jury is made up of only six members. For state-court juries of seven or more, the vote need not be unanimous, but there is no strict rule as to how many votes are required for conviction. The Federal Rules of Criminal Procedure require a unanimous vote by a 12-member jury in federal criminal trials, unless waived in writing and approved by the court. A verdict by 11 jurors is permitted if the 12th juror is excused for good cause after deliberations begin. b. Composition of the jury 1) Representative cross-section of the community The Equal Protection Clause bars racial discrimination in the selection of juries, including grand juries. The requirement that a jury be selected from a representative cross-section of the community also extends to gender discrimination. However, the actual jury selected need not represent a fair cross-section of the community. 2) All defendants may challenge jury selection discrimination The defendant has standing to challenge the jury-selection process, regardless of any showing of actual bias. 3) Prima facie case The prima facie case for absence of a representative cross-section can be established by showing that: i) The group allegedly excluded is a "distinctive" group in the community; ii) The group was not fairly represented in the venire from which the jury was chosen; and iii) The underrepresentation resulted from a systematic exclusion of the group in the jury-selection process. To rebut, the prosecution must show that the disproportionate exclusion manifestly and primarily advances a significant governmental interest. 4) State's right to use neutral principles In response to a claim of intentional racial discrimination in jury selection, the state has the right to apply neutral, nonracial principles to jury selection, even though it results in a smaller percentage of minorities on juries. The state must prove "absence of discriminatory intent."

Arrest: Unreasonable Seizure of Persons 1. Seizure: Objective Test—Not Free to Leave

A person is seized by the police when the officer physically touches a subject or when the subject submits to the officer's show of authority. When the actions of the police do not show an unambiguous intent to restrain a seizure occurs only if, in view of the totality of the circumstances, a reasonable innocent person would believe he was not free to leave. The test is whether a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter.

Plea Bargain

A plea bargain between the prosecutor and the defendant is treated as a contract. The bargain may involve the crimes with which the defendant has been charged, such as a promise by the prosecutor to drop specific charges in exchange for the defendant's promise to plead guilty to other charges, or the defendant's sentence, such as a promise by the prosecutor to recommend a particular sentence in exchange for the defendant's guilty plea. a. No right to bargain A defendant cannot compel the prosecutor to bargain; the defendant does not have a constitutional right to plea bargain. b. Pressure to bargain A defendant's plea made in response to the prosecution's threat to bring more serious charges does not violate the protection of the Due Process Clause against prosecutorial vindictiveness, at least when the prosecution has probable cause to believe that the defendant has committed the crimes. Similarly, the bringing of felony charges against a defendant after the defendant asserted his right to a jury trial for misdemeanor offenses related to the same incident does not in itself constitute prosecutorial vindictiveness. c. No duty to disclose impeachment information The prosecution is not required to disclose impeachment information or information related to an affirmative defense to a defendant when the defendant enters into a plea bargain agreement prior to trial. The failure to disclose such information does not render the defendant's plea bargain involuntary. d. Enforcement of the bargain 1) Court When entering into a plea bargain, the agreement is enforceable against the defendant and the prosecutor, but not against the judge. If the judge is not satisfied with the bargain, he can reject the plea. A defendant does not have a constitutional right to have his plea accepted by the court. 2) Prosecution Should the prosecution violate the provisions of the plea bargain, the judge decides whether specific performance of the plea is required or whether the defendant can withdraw his plea. 3) Defense If a defendant fails to abide by the plea agreement (e.g., fails to testify in another trial), then the prosecution can have the sentence vacated and reinstate the original charge.

4) Prison

A prison inmate has no reasonable expectation of privacy in his cell. The limitations on Fourth Amendment rights are justified by the need to maintain institutional security and preserve internal order and discipline. Unlike a convict, a pretrial detainee may have a limited expectation of privacy in his cell. However, a detainee's cell may be subject to a routine search, and the detainee's person may be subject to a strip search or a full-body search after a contact visit with someone from the outside. Jail administrators may also require all arrestees committed to the general population of a jail to undergo no-touch visual strip searches, even if the arrest was for a minor offense and even in the absence of reasonable suspicion that the arrestee possesses a concealed weapon or other contraband.

Search Warrant Requirements

A valid search warrant must be issued by a neutral and detached magistrate based on probable cause, must be supported by oath or affidavit, and must describe the places to be searched and the items to be seized. Warrantless searches are per se unreasonable unless the search satisfies one of seven exceptions to the warrant requirement. a. Probable cause Facts supporting probable cause may come from any of the following sources: i) A police officer's personal observations; ii) Information from a reliable, known informant or from an unknown informant that can be independently verified; or iii) Evidence seized during stops based on reasonable suspicion, evidence discovered in plain view, or evidence obtained during consensual searches. 1) Right to attack truthfulness of affidavit Generally, a search warrant that is valid on its face may not be attacked by a defendant as lacking in probable cause. A defendant can challenge a facially valid warrant only when the defendant can establish, by a preponderance of the evidence, that: i) The affidavit contained false statements that were made by the affiant knowingly, intentionally, or with a reckless disregard for their truth; and ii) The false statements were necessary to the finding of probable cause.

Exceptions to the Warrant Requirement - a. Search incident to a lawful arrest

A warrantless search is valid if it is reasonable in scope and if it is made incident to a lawful arrest. If the arrest is invalid, any search made incident to it is likewise invalid. 1) The Chimel standard A lawful arrest creates a situation that justifies a warrantless contemporaneous search of the person arrested and the immediate surrounding area (i.e., his "wingspan") from which a weapon may be concealed or evidence destroyed. If the arrest occurs in a home, it is permissible to conduct a "protective sweep" for confederates in spaces immediately adjacent to the place of arrest, even without probable cause or reasonable suspicion. If the officers have reasonable suspicion that confederates are hiding beyond these immediately adjacent areas, they can broaden their search for people in those places too. 2) Time limitations (temporal unity) A search incident to a valid arrest must take place contemporaneously with the arrest in order to be valid. 3) Scope of search The right to search incident to a lawful arrest includes the right to search pockets of clothing and to open containers found inside the pockets. The right also extends to containers "immediately associated" with the person (such as a shoulder bag or purse). Does not extend to an arrestee's cell phone or laptop. Absent exigent circumstances, police must obtain a warrant before searching digital information of a person arrested. 4) Vehicle search incident to arrest To justify a warrantless search of an automobile incident to arrest, the Fourth Amendment requires that law enforcement demonstrate either (i) that the arrestee is within reaching distance of the passenger compartment at the time of the search and, as a result, may pose an actual and continuing threat to the officer's safety or a need to preserve evidence from being tampered with by the arrestee or (ii) that it is reasonable that evidence of the offense of arrest might be found in the vehicle. 5) Impounded vehicle A legally impounded vehicle may be searched, including closed containers, such as glove box or a backpack, as part of a routine inventory search. The warrantless search need not take place at the time that the vehicle is seized.

Abandoned property

Abandoned property is not protected by the Fourth Amendment. Example: There is no reasonable expectation of privacy in garbage set curbside for pickup.

Anticipatory warrant

An anticipatory search warrant is a warrant that is based on an affidavit that shows probable cause that evidence of a particular crime (such as forged checks) will be at a specified location at some time in the future. Police do not have to believe that contraband is on the premises to be searched at the time the warrant is issued. The probable cause requirement is satisfied when, at the time that the warrant is issued, there is probable cause to believe that the triggering condition will occur and, if that condition does occur, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

Arrest Warrants

An arrest warrant is issued by a detached and neutral magistrate upon a finding of probable cause that a crime has been committed. However, an arrest made pursuant to a warrant that failed to satisfy the probable cause requirement is not illegal when the officer making the arrest independently had probable cause for making the arrest. a. Entry into home A warrant to arrest an individual implicitly authorizes entry into the arrestee's home to serve the warrant if the police have reason to believe that the arrestee is present. A police officer may not arrest a person in another person's home without an arrest warrant for the subject and a search warrant for the third party's home, absent exigent circumstances or valid consent to enter the third party's home.

Motel room

As with the search of a home, the search of a motel room by a government agent may be an unreasonable search. A motel clerk's consent to a governmental search of a room during the time it is rented is insufficient to justify the search.

Arraignment

At an arraignment, the court informs the defendant of the crime with which the defendant has been charged and elicits the defendant's response (i.e., plea) to those charges. At this time, the court may appoint counsel for an indigent defendant. These events may also take place at the initial appearance.

Counseling Clients to Invoke the Privilege

Attorneys may counsel their clients to invoke the privilege and will not be held in contempt of court. Otherwise, the person invoking the privilege would be denied his Fifth Amendment protection.

Knowing and Voluntary

Because a guilty plea constitutes both a confession and a waiver of various constitutional rights, the plea must be both intelligent and voluntary. The record must reflect that the judge has determined that the defendant knows and understands the following: i) The nature of the charges and their essential elements; ii) The consequences of the plea (e.g., the maximum and minimum possible sentences, possible immigration consequences); and iii) The rights that the defendant is waiving (e.g., right to a trial). The judge must also determine that the plea did not result from force or improper threats or from promises other than those contained in the plea agreement. a. Factual basis for plea The U.S. Constitution does not forbid criminal sentencing of defendants who are willing to waive their trial and accept a plea while maintaining their innocence. Therefore, because an express admission of guilt is not a constitutional requisite for the imposition of a criminal penalty, a judge may accept pleas that result in a criminal sentence without violating the Constitution, even if the defendant maintains his factual innocence. However, Rule 11(b)(3) of the Federal Rules of Criminal Procedure requires a judge to ascertain that there is factual basis for a defendant's plea in order to accept a guilty plea. Therefore, when the defendant asserts his innocence despite entering a guilty plea, the judge must determine that there is a factual basis for the plea in order to accept the plea. In entering a plea, a defendant has the right to counsel. b. Effect of violation When the court fails to ensure that the plea was knowing and voluntary, the defendant is entitled to withdraw his plea.

1. Custodial Interrogation

Custodial interrogation is questioning initiated by a known (as opposed to undercover) law-enforcement officer after a person is in custody. a. "Custodial" Custody is a substantial seizure and is defined for Miranda purposes as either a formal arrest or a restraint on freedom of movement to the degree associated with a formal arrest. If there has been no formal arrest, the question is whether a reasonable person would have believed he could leave, given the totality of the circumstances. A child's age is a relevant factor in determining whether a reasonable child would have believed he was in custody. 1) Police station While police questioning an individual at a police station typically constitutes a custodial interrogation, the fact that the questioning takes place at a police station does not automatically make the encounter custodial. Example: A woman voluntarily goes to the police station to talk about a crime. As soon as she arrives, she is informed by the officer on the case that she is free to leave at any time and is not under arrest. Even though she is speaking with the police at the police station, the totality of the circumstances establishes that she is not in "custody," and therefore Miranda will not apply. 2) Crime scene The questioning of a person at the scene of a crime or pursuant to a field investigation does not constitute custody for Miranda purposes as long as the person questioned is not under restraint equivalent to that of formal arrest and has the right to leave the presence of the questioning officer. 3) Traffic stop Traffic stops generally are not considered custodial because they generally are brief and temporary. 4) Prison Imprisonment alone does not necessarily create a custodial situation within the meaning of Miranda. The questioning of a prisoner, who is removed from the general prison population, about events that took place outside the prison is not categorically "custodial" for Miranda purposes. A standard, objective "totality of circumstances" analysis applies when an inmate is interviewed, including consideration of the language that is used in summoning the prisoner to the interview and the manner in which the interrogation is conducted. 5) Continuation of custody The failure of a police agency to provide Miranda warnings to a suspect can render inadmissible a statement given to a second policy agency that continues the interrogation of the suspect in the same location immediately after the termination of the interrogation of the suspect by the first police agency, even though the second police agency gave the suspect Miranda warnings and questioned the suspect about an unrelated crime.

Harmless error

Even if the trial court wrongfully admitted illegally seized evidence, the appellate court can refuse to order a new trial if it finds that the error was harmless beyond a reasonable doubt, meaning that the erroneously admitted evidence did not contribute to the result. Note: The denial of the right to counsel is never a harmless error.

Development of probable cause

If the officer conducting the stop develops probable cause, the officer may then make an arrest and conduct a full search incident to that arrest. If the stop involves a vehicle, the officer may search the passenger compartment and all containers therein, whether open or closed, if the arrestee is within reaching distance of the passenger compartment of the vehicle or if it is reasonable to believe that the vehicle contains evidence of the offense of arrest. d. Automobile exception The Fourth Amendment does not require police to obtain a warrant to search a vehicle if they have probable cause to believe that it contains contraband or evidence of a criminal activity. The police may search anywhere in a car that they believe there to be contraband, including the trunk and locked containers, so long as they have probable cause to do so. The search may also extend to passengers' belongings, as well as to mobile homes. Any other evidence observed in plain view may also be seized. Note that the automobile exception does not permit the warrantless entry of a home or its curtilage in order to search a vehicle therein. 1) Pretextual stop Police may use a pretextual stop to investigate whether a law has been violated, even if they have no reasonable suspicion, provided that they have probable cause to believe that the law for which the vehicle was stopped has been violated. 2) Containers within a car Probable cause to search a vehicle extends only to containers and compartments that reasonably could hold the evidence they are searching for. Note, however, that what the officers find in one container may give them probable cause to believe evidence is contained elsewhere in the car. 3) Trunk If police have probable cause to search the trunk, not just a container placed in the trunk, then they can search the entire trunk and every container in the trunk, even if locked.

Detention Hearing

In conjunction with the defendant's initial appearance or at a separate hearing, the court may determine whether to release the defendant and any conditions upon such release. At such time, the court may set bail

b. Exigent circumstances

In determining the existence of exigent circumstances, courts use the "totality of circumstances" test. Police can't create the exigency. Police may also secure the premises for a reasonable time to enable officers to obtain a warrant when the police have reason to believe that the failure to do so could result in the destruction of evidence. 1) Hot pursuit If the police have probable cause to believe that an individual has committed a felony and they are pursuing him, then they have the right to enter a private building, to search that building for the person or his weapons, and to seize evidence . No such exigency exists in pursuing someone suspected of a nonjailable traffic offense. 2) Emergency situations A search without a warrant is authorized whenever there is a reasonable apprehension that the delay required in obtaining the warrant would result in the immediate danger of evidence destruction or the threatened safety of the officer or the public, or when a suspect is likely to flee before a warrant can be obtained. Whether a person is in need of aid is judged on the basis of a police officer's objective reasonable belief that the person needs aid. Except in unusual situations, blood samples require warrants, but breath samples do not. The involuntary, warrantless blood test of a drunken-driving suspect was appropriate when police could reasonably have believed that the delay necessary to obtain a search warrant would likely result in disappearance of the blood-alcohol content evidence, and the test was administered according to accepted medical practices. However, the reasonableness of a warrantless blood test is determined case by case, based on the totality of the circumstances. The Fourth Amendment mandates that police officers obtain a warrant before a blood sample can be drawn, if they can reasonably do so without significantly undermining the efficacy of the search.

4.Right to Counsel of Choice

In general, a defendant who is able to afford a lawyer is entitled to the counsel of his own choosing, while an indigent defendant is not entitled to the appointment of counsel of his own choosing. However, a defendant cannot compel a lawyer to represent him even if the defendant has the ability to pay the lawyer. In addition, the court can deny a defendant his chosen counsel when the lawyer is not a member of the bar or is otherwise disqualified from representing the defendant (conflict of interest).

Business premises

In general, business premises are protected by the Fourth Amendment. However, such premises may be subjected to administrative searches.

TRIAL Jury Trial

In the federal system, the Sixth Amendment provides the right to jury trials. States are obligated under the Fourteenth Amendment to provide jury trials in criminal cases involving only serious offenses. Criminal defendants, with some exceptions, are entitled to be present at initial arraignments, at every trial stage and at sentencing. Organizational defendants, defendants accused of misdemeanors, and defendants who persist in disruptive behavior, after being warned by the judge that such behavior could result in removal, need not be present.

Competency

Incompetency is a bar to trial. The judge has a constitutional duty to investigate and determine the competence of the defendant to stand trial if such evidence is apparent to the judge. A separate hearing is held to assess the defendant's competency. The test for whether a defendant is whether the defendant comprehends the nature of the proceedings against him and has the ability to consult with a lawyer with a reasonable degree of rational understanding. If the defendant is declared mentally incompetent to stand trial, and the charge is a serious criminal offense, then the government may administer antipsychotic drugs. Three conditions must be met before the defendant can receive these drugs: i) The treatment should not cause serious side effects that would affect the fairness of the trial; ii) The treatment is necessary and there is no less intrusive method to further the government's important interest; and iii) The treatment is medically appropriate.

b. "Interrogation"

Interrogation refers not only to express questioning, but also to any words or actions that the police know or should know are reasonably likely to elicit an incriminating response. 1) Voluntariness of statement Volunteered statements are not protected by Miranda, as they are, by definition, not the product of interrogation. A confession is involuntary only if the police coerced the defendant into making the confession. Whether a statement is voluntary or coerced is determined based on the totality of the circumstances. Judge decides involuntariness. a) Trickery Trickery by the police or false promises made to the accused by the police may render a confession involuntary. However, deceit or fraud by the interrogators does not itself make the confession involuntary. b) Character of the defendant The defendant's age, state of health, education, or intoxication are all factors in determining the coercive nature of the confession. Although a potentially significant factor, the defendant's mental condition alone cannot violate the voluntariness standard. There must be coercive police activity for the confession to be found involuntary. EXAM NOTE: Remember to apply the Miranda warnings only when an individual is subject to a custodial interrogation. If the police have no intention of questioning the individual, or if the individual is not in police custody, then the Miranda warnings are not applicable.

Compliance

Once a custodial interrogation begins, anything the defendant says is inadmissible until the defendant is informed of the Miranda rights and the defendant waives those rights. The failure to give a suspect the Miranda warnings does not require suppression of physical fruits of the suspect's "unwarned but voluntary statements." a. Content The warnings, which must be given before interrogation begins, need not be a verbatim repetition of the language used in the Miranda decision. Law-enforcement officials must inform suspects: i) Of their right to remain silent; ii) That any statement uttered may be used in court; iii) Of their right to consult an attorney and to have the attorney present during an interrogation; and iv) That an attorney will be appointed to represent indigent defendants. b. Timing The Miranda warning must be given before interrogation begins. If interrogation is stopped for a long duration, the warning must be given again. c. Right to counsel invoked The right to counsel under the Fifth Amendment is not automatic. To invoke the right to counsel under the Fifth Amendment, a suspect must make a specific, unambiguous statement asserting his desire to have counsel present. Once that right to counsel is invoked, all interrogation must stop until counsel is present. If the suspect voluntarily initiates communication with the police after invoking his right to counsel, a statement made by the suspect, such as a statement that the suspect spontaneously blurts out, can be admissible because it is not made in response to interrogation. In addition, police may re-open interrogation of a suspect who has asserted his Fifth Amendment right to counsel if there has been a 14-day or more break in custody. In such circumstances, the officers must give fresh Miranda warnings and get a valid waiver before beginning questioning. d. Right to silence invoked As with the Fifth Amendment right to counsel, the defendant must make a specific, unambiguous statement asserting his desire to remain silent. Merely remaining silent in response to police questioning does not invoke the privilege. If a defendant invokes his Miranda right to remain silent, the interrogator(s) must "scrupulously honor" that request. However, if after the defendant is released from custody, the defendant indicates a desire to speak to police, then a subsequent interrogation would be lawful, as long as the defendant was not coerced. The defendant must again receive fresh Miranda warnings. e. Grand jury There is no requirement to give Miranda warnings to a witness testifying for the grand jury. The witness may, however, consult with an attorney outside the grand jury room.

Offense-Specific

Once the Sixth Amendment right to counsel is properly invoked, it applies only to the specific offense at issue in those proceedings. 1. Blockburger Test Two crimes committed in one criminal transaction are deemed to be the same offense for Sixth Amendment purposes unless each offense requires proof of an element that the other does not.

Peremptory challenges

Peremptory challenges are requests by both parties during the voir dire jury-selection process to disqualify potential jurors without the need to show cause. a) Discriminatory use The Fourteenth Amendment Equal Protection Clause prohibits both the criminal defendant and the prosecutor from exercising peremptory challenges solely based on race or gender. If the explanation for striking a juror is deemed pretextual, then it gives rise to an inference of discriminatory intent that makes it difficult for the challenge to survive. The United States Supreme Court has set forth a three-prong test (the "Batson" test) to determine whether a peremptory challenge has been exercised on the basis of race: i) The moving party establishes a prima facie case of discrimination; ii) The party who exercised the challenge provides a race-neutral explanation for the strike; iii) The moving party carries her burden of proving that the other party's proffered reason was pretextual and that the strike was indeed motivated by purposeful discrimination. Once the party who exercised the challenge offers a race-neutral explanation and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue becomes moot. The ultimate burden of persuasion regarding racial motivation rests with the opponent of the strike. b) Not constitutionally required The loss of a peremptory challenge does not violate the right to an impartial jury. A defendant's exercise of peremptory challenges is not denied or impaired when the defendant chooses to use such a challenge to remove a juror who should have been excused for cause. c) Harmless-error doctrine The Constitution allows states to choose between harmless-error review and automatic reversal when a judge, acting in good faith, erroneously denies a defendant's peremptory challenge. Thus, if state law permits harmless-error review of the erroneous seating of the juror, there is no constitutional requirement for automatic reversal of the defendant's conviction

Warrantless Arrests

Police generally do not need a warrant to make a valid arrest in a public place. The police must have a warrant to arrest an individual in his own home, absent exigent circumstances or valid consent to enter the arrestee's home. a. Crime committed in the presence of the arresting party Either a police officer or a private individual has a right to arrest without an arrest warrant if either a felony or a misdemeanor is committed in the arresting party's presence. In determining whether a crime has been committed, the question is whether an officer could conclude—considering all of the surrounding circumstances—that there was a substantial chance of criminal activity. b. Crime committed outside the presence of the arresting party In situations in which a felony has been committed outside the presence of the one making the arrest, a police officer may arrest anyone whom he has probable cause to believe has committed a felony, but a private individual may make an arrest only if (i) a felony has actually been committed and (ii) the private individual reasonably believes that the person being arrested is guilty. c. Misdemeanor arrest A warrantless arrest of a person for a misdemeanor punishable only by a fine is not an unreasonable seizure under the Fourth Amendment. Note that the misdemeanor must have been committed in the presence of the arresting party; probable cause to believe that a misdemeanor was committed, without actually witnessing the crime, is not sufficient for a valid warrantless arrest. d. Effect of invalid arrest An unlawful arrest alone has no bearing on a subsequent criminal prosecution, and it is not a defense to the crime charged. If the police have probable cause to detain a suspect, they may do so even if they illegally arrested him (e.g., in his home without a warrant). Evidence seized pursuant to an unlawful arrest may be suppressed at trial.A voluntary confession made after an unlawful arrest will not automatically be suppressed.

Search and Seizure - 1. Governmental Action

Searches conducted by private citizens are not protected by the Fourth Amendment—there must be governmental action. However, the police may not circumvent the Fourth Amendment by intentionally enlisting private individuals to conduct a search of a suspect or areas in which the suspect has a reasonable expectation of privacy.

Impartial jury

The Sixth Amendment provides that an accused person is entitled to a trial by an impartial jury. Claims of juror bias and misconduct are subject to the harmless-error rule. 1) Views on race A defendant is entitled to inquire on voir dire into ethnic or racial prejudice of possible jury members only when the issues to be tried involve allegations of racial or ethnic prejudice, or whenever race is "inextricably bound up in the case." 2) Views on capital punishment Prospective jurors who are opposed to the death penalty may be removed for cause if their opposition to the death penalty is so strong as to prevent or substantially impair the performance of their duties at the sentencing phase of the trial. An improper exclusion of a juror from a jury that imposed a death sentence is subject to automatic reversal.

Speedy Trial

The Due Process Clause and federal statutes protect defendants from intentional and prejudicial pre-accusation delay. The Sixth Amendment speedy trial guarantee, the Fourteenth Amendment, the Speedy Trial Act of 1974, and other federal and state statutes protect defendants from undue post-accusation delay.

FIFTH AMENDMENT RIGHTS AND PRIVILEGES The Privilege Against Compulsory Self-Incrimination

The Fifth Amendment provides that no person shall be compelled in any criminal case to be a witness against himself. It is applicable to the states through the Fourteenth Amendment. 1. Persons A person means an individual. Artificial entities such as corporations, partnerships, and labor unions may not assert the privilege, but a sole proprietorship may. The privilege does not extend to the custodian of corporate records, even if production would incriminate the custodian individually. 2. Testimonial Evidence The privilege protects only testimonial evidence. Nontestimonial physical evidence (such as a blood or urine sample, Breathalyzer test result, handwriting exemplar, voice sample, or other evidence of physical characteristics) is not protected.

a. Locations searched 1) Home

The Fourth Amendment, by its terms, protects against an unreasonable governmental search of a "house." This protection extends to persons who have the right to immediate possession of a dwelling, such as the renter of an apartment or a dormitory. a) Curtilage An area immediately surrounding the home known as the "curtilage" may be covered by the "umbrella" of the home's Fourth Amendment protection. In determining whether the area is protected, the following four-factor test applies: i) The proximity of the area to the home; ii) Whether the area is included within an enclosure surrounding the home; iii) The nature of the uses to which the area is put; and iv) The steps taken by the resident to protect the area from observation by passersby. b) Open fields Private property that lies outside the curtilage of a home, such as a farmer's field, is not protected by the home's umbrella of Fourth Amendment protection. Under the "open fields" doctrine, governmental intrusion on such property is not a search. The owner does not have a reasonable (i.e., objective) expectation of privacy, even though the owner may have a subjective expectation of privacy based on the fact that the land is fenced, protected from public view, and "no trespassing" signs are posted. c) Overnight guest in a home While an overnight guest in a home does not have an ownership interest in the home, such a guest does have a reasonable expectation of privacy, at least as to the areas of the home to which the guest has permission to enter. Short-term use of a home (hours) with the permission of the owner does not give rise to a reasonable expectation of privacy, at least when the home is being used for an illegal business purpose

Applicability: Right to Counsel 1. Types of Proceedings

The Sixth Amendment provides a constitutional right to counsel in any case in which the defendant is sentenced to incarceration, even if that sentence is suspended.

2. Applicable Stages

The Sixth Amendment right to counsel applies at all critical stages of a prosecution, after formal proceedings have begun. There is no right to counsel at post-conviction proceedings such as parole and probation hearings or habeas corpus hearings. The defendant does not need to invoke the Sixth Amendment right to counsel. The failure to provide counsel results in automatic reversal of a conviction. a. Critical stages- those proceedings between an individual and an agent of the state that amount to trial-like confrontations, at which counsel would help the accused in coping with legal problems or meeting his adversary. Generally, the Sixth Amendment right to counsel attaches at the following critical stages: i) Post-indictment lineups and in-person identifications; ii) Post-indictment interrogations, whether custodial or otherwise; iii) Arraignment and preliminary hearing to determine probable cause to prosecute, bail hearings, and pre-trial motions; and iv) Plea bargaining, guilty pleas, trials, and sentencing. Direct appeals as a matter of right. b. Noncritical stages The right to counsel generally does not apply to the following events: i) A witness viewing photos of the alleged defendant; ii) Pre-charge (investigative) lineups; iii) Taking of fingerprints, handwriting exemplars, voice exemplars, or blood samples; iv) Hearings to determine probable cause to detain the defendant (Gerstein hearing); v) Discretionary appeals; and vi) Post-conviction proceedings, such as parole or probation hearings, including habeas corpus. (The Sixth Amendment does apply, however, to probation revocation hearings that include sentencing.)

Right to Confrontation - 1. Trial

The accused has the right to directly encounter adverse witnesses, to cross-examine adverse witnesses, and to be present at any stage of the trial that would enable the defendant to effectively cross-examine adverse witnesses. If the defendant was instrumental in preventing a witness from testifying, then he forfeits his right to confrontation.

Use of Statements Taken in Violation of Miranda

The failure to give Miranda warnings is not a violation until a statement obtained without the use of warnings is used at trial. a. Impeachment purposes Statements taken in violation of Miranda may be used to impeach the credibility of the criminal defendant if he takes the witness stand and gives testimony at variance with his previous admissions. To be admissible for impeachment, the statement must be voluntary and trustworthy. The impeaching admissions may not be used directly in deciding ultimate issues of guilt or innocence; they may only be used in determining the defendant's veracity. Post-arrest silence by a defendant who has received Miranda warnings generally may not be used by the prosecution as either impeachment or substantive evidence without violating the defendant's right to due process. However, some states require a defendant to re-invoke his right to remain silent after a waiver to prevent the admission of his subsequent silence as impeachment evidence. b. Involuntary confessions Involuntary confessions cannot be used either substantively or for impeachment purposes. If a coerced confession is admitted into evidence, however, reversal is not automatic; the harmless-error test is applied, and the conviction will stand if the prosecution can show other overwhelming evidence of guilt.

6. Withholding Information

The police are under no obligation to inform a suspect that an attorney has been trying to reach him, and may even withhold that information intentionally, so long as the Sixth Amendment right to counsel has not yet attached. If the Sixth Amendment right has attached, this sort of interference with the attorney-client relationship might be a violation of that right.

Intentional detention

The police officer must intentionally employ physical force or a show of authority in order for the officer's actions to result in a seizure. As long as the officer intentionally employs force or makes a show of authority, the officer's purpose need not be to detain the defendant in order for the defendant to be seized. Example: During a high-speed chase, an officer forced the driver of the pursued automobile off the road. The officer's intentional use of deadly force against the driver constituted a seizure. Compare: During a high-speed chase, an officer accidentally struck and killed the passenger of the pursued motorcycle. The officer's accidental use of deadly force against the passenger did not constitute a seizure. When a police officer makes a traffic stop, not only the driver but also any passengers are deemed to be seized. Therefore, the passenger as well as the driver may challenge the constitutionality of the stop.

Nature of Proceedings

The privilege extends to a witness in any proceeding, whether civil or criminal, formal or informal, if the answers provide some reasonable possibility of incriminating the witness in future criminal proceedings. However, the privilege cannot be invoked when the government requires civil records to be maintained and reported on for administrative purposes. The privilege does not extend to identification requests at Terry stops. A violation occurs the moment the compelled statements are used against a person.

Automobiles

There is a lesser expectation of privacy with regard to the automobile and its contents than with a home. Even so, officers must have an articulable, reasonable suspicion of a violation of the law in order to stop an automobile. A call to 911 reporting erratic driving may give the police the reasonable suspicion needed to make a traffic stop if the report is reliable. The fact that a person who is in lawful possession of a rental car is not listed on the rental agreement does not defeat his or her otherwise reasonable expectation of privacy. a) Checkpoints Police may stop an automobile at a checkpoint without reasonable, individualized suspicion of a violation of the law if the stop is based on neutral, articulable standards and its purpose is closely related to an issue affecting automobiles. (no random stop of a driver to verify driver's license and car registration, no drug checkpoints, sobriety checkpoints okay). i) Immigration law enforcement When the purpose of the stop relates to the enforcement of immigration laws, any car may be stopped on a random basis at the border of the United States without a reasonable suspicion of wrongdoing. But a car may not be singled out and randomly stopped without a particularized and objective basis. ii) Search for witnesses A checkpoint maintained by police for the purpose of finding witnesses to a crime (rather than suspects) is not per se unreasonable, as long as (i) the checkpoint stop's primary law enforcement purpose is to elicit evidence to help them apprehend not the vehicle's occupants but other individuals; (ii) the stop advanced a public concern to a significant degree; and (iii) the police appropriately tailored their checkpoint stops to fit important criminal investigatory needs and to minimally interfere with liberties protected by the Fourth Amendment. b) Car's VIN The driver of a car does not have a reasonable expectation of privacy in the vehicle identification number (VIN) affixed to an automobile. Consequently, a police officer's moving of papers that obstructed his view of this number did not constitute a search under the Fourth Amendment, and a gun found while doing so was admissible into evidence.

Right to Bail

There is no explicit constitutional right to bail. However, any denial of bail must comply with the Due Process Clause. Therefore, the setting of excessive bail or the refusal to set bail is immediately appealable. Furthermore, bail set higher than an amount reasonably calculated to ensure the defendant's presence at trial is "excessive" under the Eighth Amendment. 1. Statutory Bail Provisions The Bail Reform Act of 1984 governs release or detention determinations in federal courts in criminal proceedings. Many states have modeled similar statutory bail provisions on the Act. 2. Presumptions Pre- and Post-Conviction There is a presumption in favor of pre-trial release. A detention hearing must be held at the initial appearance for there to be a release. However, there is a presumption against bail post-conviction, pending appeal. The Federal Rules of Evidence do not apply at detention hearings. 3. Pre-Trial Detention Certain pretrial detention practices that are reasonably related to maintaining jail security are permissible and do not violate due process or the Fourth Amendment. These include routine inspections of inmates' cells, prohibiting receipt of outside food or personal belongings, body-cavity searches, and double bunking.

Raising the Issue of Standing

To establish that a search violated his Fourth Amendment rights, a defendant must show a legitimate expectation of privacy with regard to the search (see §I.C.2., supra). To make such a showing, which is sometimes referred to as "standing," the defendant may have to admit facts that would incriminate him. Consequently, testimony given by the defendant to establish standing cannot be admitted as evidence against the defendant at trial.

Wiretapping

To obtain a warrant authorizing a wiretap, officers must satisfy the below requirements. The warrant must: i) Be limited to a short period of time; ii) Demonstrate probable cause that a specific crime has been or is about to be committed; iii) Name the person or persons to be wiretapped; iv) Describe with particularity the conversations that can be overheard; and v) Include provisions for the termination of the wiretap. Upon termination of the wiretap, the conversations that have been intercepted must be shown to the court. Furthermore, a speaker who makes no attempt to keep his conversation private has no Fourth Amendment claim. In addition, a wiretap related to domestic security surveillance requires that a neutral and detached magistrate—not the president—make the determination that a wiretapping warrant should issue, and the wiretap must comply with the Omnibus Crime Control and Safe Streets Act. However, there is no requirement for prior authorization when a covert entry is planned to install the electronic equipment, or when a pen register is used.

Ineffective Assistance of Counsel

To reverse a conviction on the ground of ineffective counsel, the claimant has the burden to show that: i) Counsel's representation fell below an objective standard of reasonableness; and ii) Counsel's deficient performance prejudiced the defendant, resulting in the reasonable probability that the outcome would have been different. Counsel's mere inexperience, strategy, choice of appellate issues, or even failure to produce mitigating evidence have all been found insufficient to rise to the level of ineffective counsel. 2. Conflict of Interest The representation of defendants with conflicting interests may amount to ineffective assistance of counsel. In general, to overturn a conviction on the basis of a conflict of interest, a defendant must show that there was an actual conflict of interest and that such conflict adversely affected the attorney's performance. a. Actual conflict To find an actual conflict, a court must determine that the defense attorney is subject to an obligation or unique personal interest that, if followed, would lead her to adopt a strategy other than that most favorable to the defendant. b. Adverse impact Adverse impact can be established by demonstrating that some plausible alternative defense strategy or tactic might have been pursued and such strategy or tactic was inherently in conflict with, or not undertaken, due to the attorney's other loyalties or interests. The conflicting character of the strategy is not sufficient if the strategy actually was rejected because another strategy was viewed as even more favorable to the accused. c. Knowledge of the court If an attorney representing codefendants makes a timely motion for appointment of separate counsel based on a potential conflict of interest, then the trial judge must either grant the motion or at least conduct a hearing to determine whether appointment of separate counsel is warranted under the circumstances. Failure of the judge to do so requires automatic reversal of a subsequent conviction. Unless the trial court knows or reasonably should know that a conflict exists, however, the court is not required to inquire about multiple representations. d. Rule 44(c) When co-defendants are represented by the same attorney, Rule 44(c) of the Federal Rules of Criminal Procedure requires the court to conduct a prompt inquiry into potential conflicts of interest and advise the defendants of the right to separate representation. Failure to comply with the Rule, though, will not constitute a per se reversible error, and an appellate court will likely ask whether the end result was representation by counsel under an actual conflict. e. Disqualification despite waiver A trial court has the authority to disqualify a defense attorney, even over the objection of the defendant, if the court concludes that there is serious potential of a conflict of interest. 3. Communication of Formal Plea Offer The right to effective assistance of counsel extends to the plea bargaining stage. Defense counsel must accurately communicate to the defendant any formal offer from the prosecution to accept a plea on terms and conditions that may be favorable to the defendant. To show prejudice once a plea offer has lapsed or has been rejected because defense counsel failed to accurately communicate the offer, a defendant must demonstrate a reasonable probability that she would have accepted the plea offer had it been accurately communicated by defense counsel. A defendant must also demonstrate a reasonable probability that the prosecutor and trial court would have accepted the plea if they had the discretion to reject it under state law. Ineffective assistance of counsel at the plea bargaining stage may constitute reversible error even if the subsequent trial and conviction are fair.

Exclusionary Rule

Under the exclusionary rule, evidence obtained in violation of the accused's Fourth, Fifth, or Sixth Amendment rights may not be introduced at her trial to prove her guilt. a. Fruit of the poisonous tree Subject to some exceptions, the exclusionary rule applies not only to evidence initially seized as a result of the primary government illegality, but also to secondary "derivative evidence" discovered as a result of the primary taint, also known as the "fruit of the poisonous tree." Example: A police officer conducts an unconstitutional search of a home, finds an address book, and uses that address book to locate a witness. The witness will not be allowed to testify, because her testimony would be a "fruit" of the unconstitutional search. b. Exceptions Evidence, whether primary or derivative, may still be admissible if one of the following exceptions to the exclusionary rule applies. 1) Inevitable discovery rule - The prosecution can prove that the evidence would have been inevitably discovered in the same condition through lawful means. 2) Independent source doctrine - The evidence was discovered in part by an independent source unrelated to the tainted evidence. 3) Attenuation principle - The chain of causation between the primary taint and the evidence has been so attenuated as to "purge" the taint. Both the passage of time and/or intervening events may attenuate the taint. Example: An officer makes an unconstitutional investigatory stop, learns during the stop that the suspect was subject to a valid arrest warrant, arrests the suspect, and seizes incriminating evidence during a search incident to that arrest. The evidence the officer seizes as part of the search incident to the arrest is admissible. 4) Good-faith exception The good-faith exception applies to police officers who act in good faith on either a facially valid warrant later determined to be invalid or an existing law later declared unconstitutional. Good faith is limited to the objective good faith of a reasonable police officer. This exception does not apply if: i) No reasonable officer would rely on the affidavit underlying the warrant; ii) The warrant is defective on its face; iii) The warrant was obtained by fraud; iv) The magistrate has "wholly abandoned his judicial role"; or v) The warrant was improperly executed. 5) Isolated police negligence Isolated negligence by law-enforcement personnel will not necessarily trigger the exclusionary rule. To trigger the rule, police conduct must be "sufficiently deliberate such that exclusion can meaningfully deter it." 6) Knock and announce The exclusionary rule does not apply to evidence discovered as a result of a search conducted in violation of the "knock and announce" rule, if the search was otherwise authorized by a valid warrant. 7) In-court identification A witness's in-court identification of the defendant is not fruit of an unlawful detention. Thus, the identification cannot be excluded. On the other hand, live testimony may be excluded as fruit of illegal police conduct if there is a sufficient link between the illegal police conduct and the testimony.

Grand Jury Subpoena

Unless a grand jury subpoena is being used for harassment or is extremely broad, requiring a person to appear before the grand jury under such subpoena does not fall under the protection of the Fourth Amendment.

Enforcement

When the defendant challenges a confession or the admissibility of evidence, by right, a hearing is held to determine whether the confession or evidence is fruit of the poisonous tree. This hearing is held outside the presence of the jury. The defendant has a right to testify at this hearing, and the state bears the burden of establishing admissibility by a preponderance of the evidence.

Indigence—Right to Appointment of Counsel

When the right to counsel exists, an indigent defendant has the right to the appointment of counsel.

Trespass

While the fact that a governmental agent is illegally on property does not automatically make the search illegal, nor does the fact that a governmental agent is legally in a public place make the search legal b. Objects sought 1) Papers and effects The Fourth Amendment, by its terms, protects "papers and effects." For example, a person retains a reasonable expectation that items placed within his luggage will be free from a purposeful, exploratory physical manipulation of the luggage. When papers and effects are transferred to a third party, such as checks and deposit slips given by a customer to a bank, a person no longer has a reasonable expectation of privacy in these items. Similarly, financial statements maintained by a bank are bank records in which the customer has no reasonable expectation of privacy.

Compliance with right to confrontation

a. Face-to-face confrontation Face-to-face confrontation is not an absolute right. A criminal defendant has the right to confront witnesses against him under the Sixth Amendment, unless preventing such confrontation is necessary to further an important public policy and the reliability of the testimony is otherwise assured. A defendant who voluntarily leaves the courtroom or a disruptive defendant whom the judge removes from the courtroom has not had his right to confrontation violated. This is to be determined on a case-by-case basis. The state's interest in protecting child witnesses from more than de minimis trauma as a result of testifying in the defendant's presence is considered an important public purpose under this rule. Maryland v. Craig, 497 U.S. 836, 855-856 (1990). b. Cross-examination of witnesses The right to confrontation means more than being allowed to confront the witness physically. The principal purpose of confrontation is to secure for the defendant the opportunity of cross-examination of the prosecution's witnesses. 1) Impeachment for bias A denial of the opportunity to cross-examine a prosecution witness with regard to bias violates the Confrontation Clause. Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). However, such denial is subject to harmless-error analysis. Moreover, trial judges retain wide latitude to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the safety of the witness, or interrogation that is repetitive or only marginally relevant. Id. 2) Memory loss by the witness The fact that a witness has a memory loss does not by itself violate the Confrontation Clause. Delaware v. Fensterer, 474 U.S. 15, 19-20 (1985). The Supreme Court has held that the Confrontation Clause does not bar testimony concerning a prior out-of-court identification when the identifying witness is unable, because of memory loss, to explain the basis for the identification. A defendant may conduct an effective cross-examination if given the opportunity to address the very fact of the poor memory of the witness. United States v. Owens, 484 U.S. 554, 564 (1988).

Waiver of Sixth Amendment rights

a. In general The Sixth Amendment right to counsel can be waived so long as relinquishment of the right is voluntary, knowing, and intelligent. Even though Miranda rights purportedly arise from the Fifth Amendment, an accused who receives proper Miranda warnings will be considered sufficiently apprised of his Sixth Amendment rights. As long as the defendant is given Miranda warnings and voluntarily waives those rights, the defendant's waiver of his Sixth Amendment rights will also be considered knowing and intelligent. b. Subsequent waivers pursuant to Edwards and Montejo Recall that in the Fifth Amendment context, once an individual in custody asserts the Fifth Amendment right to counsel, no subsequent waiver of that right is valid in a police-initiated custodial interrogation unless counsel is present. Edwards v. Arizona, 451 U.S. 477 (1981). Under the Edwards rule, any subsequent waiver of the Fifth Amendment right to counsel under these circumstances is presumed to be involuntary. If an accused has not actually asserted his right to counsel, there is no presumption that any subsequent waiver of the right to counsel will be involuntary. The Edwards rule will still apply if the accused has actually asserted his right to counsel, but remember that the Edwards rule only applies in custodial interactions. Therefore, even after Sixth Amendment rights attach, the police may initiate non-custodial interactions with the accused outside the presence of his lawyer, and there will be no presumption that any knowing waiver of the right to have counsel present for the interaction is involuntary. c. Right to proceed pro se A defendant has the constitutional right to refuse counsel and proceed pro se at trial. The waiver of the right to counsel must be knowingly and intelligently made. To that end, the court should make the defendant aware of the dangers and disadvantages of self-representation, such as the inability to raise an "ineffective assistance of counsel" defense on appeal. In addition, the court may, even over the defendant's objection, "appoint a 'standby counsel,' to aid the accused if and when the accused requests help, and to be available to represent the accused in the event that termination of the defendant's self-representation is necessary." A defendant who is competent to stand trial may nevertheless be found incompetent to represent himself.

Exceptions to the Miranda Requirement

a. Public safety When the public's safety is at risk, the police are not required to give Miranda warnings before questioning a suspect. b. Routine booking The "routine booking question" exception allows police to ask a suspected drunken driver routine biographical questions and to videotape the driver's responses without first giving the driver Miranda warnings. c. Undercover police Miranda warnings are not required if the suspect being questioned is not aware that the interrogator is a police officer.