MBE Criminal Pro

Pre-Trial Procedures: Chronology From Arrest to Trial 1. Grand Jury Indictment 2. Information 3. Booking 4. Bail Hearing 5. Preliminary Hearing 6. Arraignment 7. Motions 8. Plea Bargaining 9. Collateral Attacks on Guilty Pleas after Sentencing

1. Grand Jury Indictment Rule/Defendant's Rights: The indictment is a written accusation of charges against the defendant issued by a grand jury after it reviews the prosecution's evidence. A Fifth Amendment right to a grand jury exists in all federal felony cases. In federal court, the accused can waive a grand jury hearing except in capital offenses. The right to indictment by a grand jury for capital and infamous crimes has not been held binding on the states [Hurtado v. California, 110 U.S. 516 (1884), although several states require it in felony cases. Rule/Makeup of Grand Jury: A federal grand jury is composed of between 16 and 23 persons. 12 of whom must agree to issue an indictment. The grand jury - for it's foreperson or deputy - must return the indictment to a magistrate judge in open court. To avoid unnecessary costs or delay, the magistrate judge may take the return by video teleconference form the court where the grand jury sits [Fed. R. Crim. P. 6(f)]. Special grand juries that investigate unlawful activity on their own, such as political corruption, may bring an indictment to commence a proceeding. Rule/Grand Jury Secrecy: Grand juries are conducted in secret; the accused has no right to be present. The accused usually has no right to know that a grand jury is considering evidence against him. The grand jury has the power to subpoena evidence or testimony it wishes to consider as part of its investigation. An accused may not challenge a grand jury subpoena for lack of probable cause. Rule/Accused's Presence: The accused may not be present, confront witnesses, or introduce evidence in a federal grand jury proceeding. Rule/Grand Jury Witnesses: a grand jury witness right to counsel, EXCEPT for consultation outside the grand jury room. Grand jury witnesses are sworn and thus subject to penalty under perjury [United States v. Wong, 431 U.S. 174 (1977)]. Rule/Miranda Warnings to Potential Defendants: Miranda warnings need not be given to potential defendant's testifying at a grand jury proceedings [United States v. Mandujano, 425 U.S. 564 (1976)]. Rule/Racial Discrimination in Grand Jury Selection: If the grand jury pool was chosen in a racially discriminatory manner, reversal of a subsequent conviction on an indictment issued by that grand jury is the proper course [Vasquez v. Hillery, 474 U.S 254 (1986)]. 2. Information Rule: An information is a written accusation of charges filed in the name of the state by a prosecutor based on information submitted by police or private citizens. The information is an alternative to an indictment, used when a grand jury indictment is not required or has been waived. An information is almost always used in misdemeanors. A preliminary judicial hearing on probable cause prior to filing an information is afforded in most states, but it is not an explicit constitutional right [Gerstein v. Pugh, 420 U.S. 103 (1975)]. 3. Booking Rule: Booking generally occurs when a defendant first arrives at the police station or jail. The defendant is often photographed, fingerprinted, informed of the criminal charges, and allowed to make a phone call. Criminal defendants may not be compelled to testify against themselves, but the booking procedures, photographs, and inventory searches that compel only physical evidence are not protected by the Fifth Amendment. Also, a defendant accused of driving while intoxicated may be forced to submit to a blood-alcohol test without Fifth Amendment implications, and his refusal to submit to such testing may used against him at trial [South Dakota v. Neville, 459 U.S. 553 (1983)]. After booking, the defendant may be allowed to post bail and obtain immediate release, or the defendant may be thoroughly searched and placed in a cell pending his court appearance. 4. Bail Hearing Rule: The defendant is entitled to an individualized hearing to determine whether the bail should be granted or denied. A bail hearing is not yet considered to be among those "critical stages" where the defendant has the right to counsel-although counsel is usually present. A bail hearing will be set and conducted during or soon after arraignment. The purpose of bail is to assure the presence of the defendant at trial. A denial of bail may be raised at any time during criminal proceedings. The Eight Amendment prohibits "excessive bail," but there is no explicit constitutional right to bail. Most states, however, grant a right to bail in their constitutions. Eighth Amendment challenges arise when significant restraints on the defendant's liberty exists, such as being held in jail or released only upon posting bail, and those restraints exceed the safety interest in holding the defendant [Stack v. Boyle, 342 U.S. 1 (1951); Gerstein v. Pugh, 420 U.S. 103 (1975)]. 5. Preliminary Hearing Rule: The preliminary hearing is an adversarial procedure to determine probable cause to prosecute. While no constitutional right for a preliminary hearing per se exists, in situations where a defendant is arrested without a warrant or a prior indictment, such as a grand jury indictment, there will exist a Fourth Amendment right to a probable cause hearing. Rule/Presentation of Evidence: Presentation of evidence is allowed by both sides, and the defendant may assert any of his defenses. The burden of production of defenses rests on the defendant whereas the burden of persuasion after the defensed has been raised rests on the prosecution. A defendant may waive his right to a preliminary hearing. A delay between the arraignment and the preliminary hearing is normal. The police and the prosecutor may continue their investigation during this time. Plea bargain negotiations are allowed and proper. Rule/Defendant's Sixth Amendment Right: Though it is a strategic choice as to whether the defense counsel opts to cross-examine the prosecution's witnesses at this time, the defendant's Sixth Amendment right to confront and cross-examine opposing witnesses who are unavailable at trial will be deemed protected if the defense counsel had a fair opportunity to cross-examine the witnesses at the preliminary hearing [California v. Green, 300 U.S. 149 (1970)]. 6. Arraignment Rule: During the arraignment, the defendant is given formal notice of the charges against him and advised by the court of his rights. The defendant has a right to counsel at this stage, although the defendant may be entitled to counsel earlier [Coleman v. Alabama, 399 U.S. 1 (1970)]. Rule/Arraignment Procedure: The defendant is called upon to answer the indictment, elect a trial by judge or jury, and enter his plea. In felony cases, indigent defendants are usually appointed counsel at this time. If the defendant pleads not guilty, or remains silent, a preliminary motion and trial dates are set. Rule/No Contest or Nolo Contendere: by pleading nolo contendere, or "no contest," a defendant can forgo a trial without admitting guilt. Not that such a plea is not admissible to prove guilt in subsequent criminal and civil cases. Rule/Guilty Plea/Judge's Duties: If the defendant pleads guilty and thus waives a jury trial, the judge then determines if the plea was voluntarily and intelligently made: (a) To be voluntary and intelligent, the plea must be taken on the record and the judge must personally be certain that the defendant understands: (1) the nature of the charge against him; (2) the maximum possible sentence and any mandatory minimums; (3) the fact that he has a right not to be plead guilty; and (4) that by pleading guilty, the right a jury trial is waived [Boykin v. Alabama, 395 U.S. 238 (1969); Henderson v. Morgan, 426 U.S. 637 (1976)]. Rule/Entry of Guilty Pleas: A guilty plea is valid to impose criminal punishment, even when the defendant never makes a formal admission of his guilt [North Carolina v. Alford, 400 U.S. 25 (1970)]. The defendant must be advised of his right to counsel. The entry of a guilty plea requires the assistance of counsel, unless the defendant has voluntarily waived his right. Rule/Withdrawal of Guilty Pleas: A defendant may withdraw his guilty plea and plead again when any form of error occurs during the taking of the plea. A withdrawn guilty plea is inadmissible in a subsequent civil trial [McCarthy v. United States, 394 U.S. 459 (1969)]. 7. Motions Rule: Following the formal indictment, a defendant may raise motions to dismiss, motions to suppress evidence, or motions to compel discovery. The defendant's chief remedy for enforcing his Fourth Amendment right to a reasonable expectation of privacy, Fifth Amendment right against self-incrimination, and the Sixth Amendment right to counsel to bring a motion to suppress the evidence, generally pursuant to either the exclusionary rule or the fruit of the poisonous tree doctrine. Motions can be filed to compel the prosecution to provide discovery that the defense believes is relevant and available to the prosecution. Before trial, motions can be filed to keep the prosecution from presenting evidence that, although obtained illegally, may not be admissible because a variety of evidentiary rules, such as the rule against hearsay. 8. Plea Bargaining Rule: A defendant may agree to plead guilty to an offense in return for the prosecutor's recommendation of a lesser sentence or dismissal of a charge. A defendant has a right to enforce his plea bargain once the court accepts the plea. (a) Failure to enforce the bargain can result in either specific performance of the plea or withdrawal of the guilty plea by the defendant; (b) the plea bargain is enforceable against the prosecutor, not the judge. Because the plea bargain is viewed as a contract negotiation, it is permissible for the prosecution to drive a hard bargain and even to threaten the defendant with a more serious charge if he does not plead guilty [Santobello v. New York, 404 U.S. 257 (1971); Bordenkircher v. Hayes, 434 U.S. 357 (1978); United States v. Ruiz, 536 U.S. 622 (2002)]. 9. Collateral Attacks o Guilty Pleas After Sentencing Rule: On the theory that the defendant knew the risks involved before choosing to waive a jury trial, the defendant does not have the right to collaterally attack a guilty plea for prior constitutional violations. HOWEVER, the defendant who pleads guilty is allowed to file a collateral attack: (a) when the prosecutor fails to keep his promise; (b) when the court lacks jurisdiction; or (c) when ineffective assistance of counsel occurs [Brady v. United States, 397 U.S. 742 (1970); Tollett v. Henderson, 411 U.S. 258 (1973); Santobello v. New York, 404 U.S. 257 (1971); Blackledge v. Perry, 417 U.S. 21 (1974)].

Statements and Confessions 1. In General 2. Involuntary Statements 3. Inadmissible Statements

1. In General Rule/Statements and Confessions: Derive from the Fourth, Fifth, and Sixth Amendments. 2. Involuntary Statements Rule/Inadmissible: A statement is generally considered involuntary when the police subjected the suspect to coercive conduct, and that conduct, under the totality of the circumstances, was sufficient to overcome the will of the suspect (given his particular vulnerabilities and the conditions of the interrogation). This standard is by its nature subjective, and requires a case-by-case analysis to determine voluntariness. Thus, a statement made by a suspect of average intelligence who is comfortable in his surroundings when the statement is made is likely, but not assumed, to be considered voluntary. 3. Inadmissible Statements Rule: A statement is inadmissible if it: violates the Due Process Clause of the Fifth and Fourteenth Amendments; the sixth Amendment Right to Counsel; the Fifth Amendment Privilege against Self-Incrimination; and/or are Fruits of Illegal Conduct - Fourth Amendment Exclusionary Rule. Four Bases to Exclude Statements and Confessions 1. Voluntariness approach = DP CL and 5th & 14th Am. To be admissible, a statement must be voluntary made based on the totality of the circumstances. 2. Right To Counsel Approach = 6th Am. Statements made during any critical stage of a criminal proceeding are inadmissible unless the defendant is afforded the right to counsel. 3. Miranda Standard = 5th Am. Priv. against Self-Incrimination. Statements made during custodial interrogation are inadmissible in the absence of Miranda warnings. 4. Fruits of illegal Conduct = 4th Am. Exclusionary Rule. Even voluntary statements obtained as fruits of prior illegal searches and seizures are inadmissible.

Double Jeopardy 1. In General 2. When Jeopardy Attaches 3. Same Offense 4. Separate Sovereignties Doctrine 5. Retrial after Jeopardy Attaches 6. Appeal by the Prosecution 7. Application of Double Jeopardy Sentencing 8. Collateral Estoppel

1. In General Rule: The Double Jeopardy Clause is intended to prevent undue harassment and expense by eliminating the risk of a defendant being punished twice for the same offense. The Fifth Amendment provision, which states, "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb," applies to the states through the due process clause of the Fourteenth Amendment [Benton v. Maryland, 395 U.S. 784 (1969)]. The Double Jeopardy Clause applies to all crimes, even those punishable only be fine. 2. When Jeopardy Attaches Rule: Double jeopardy attaches when the first juror is sworn in; if there is no jury, then when the first witness is sworn in. If a civil fine is truly punishment, then the double jeopardy clause is triggered. When a grand jury fails to indict a defendant, or hand down a no bill or no true bill, that defendant may again be indicted for the same offense, as jeopardy has not yet attached. 3. Same Offense Rule: Crimes constitute the same offense for double jeopardy purposes if one set of facts proves them both. When a second offense contains all the elements of a first offense, plus additional elements, then the first offense is a lesser-included offense of the second. (a) Once jeopardy has attached for the lesser-included offense, re-trial is barred for the greater offense; (b) likewise, once jeopardy has attached for the greater offense, retrial is barred for the lesser-included offense; (c) the order of trials is irrelevant, as is the determination of whether the defendant was acquitted or convicted for the first offense [Brown v. Ohio, 432 U.S. 161 (1977); Harris v. Oklahoma, 433 U.S. 682 ((1977)]. Rule/Exceptions to Lesser-Included Offenses: When at the time jeopardy attaches for the first offense all the elements of the second offense have not occurred a later trial for the greater offense is permitted. If the prosecution wishes to try closely related charges together, the defendant may make a motion for separate trials. However, if his requested is granted, he has waived any claim to double jeopardy; separate trials and separate punishments do not violate double jeopardy and are proper when one unlawful act produces more than one separated criminal offense [Missouri v. Hunter, 459 U.S. 359 (1983); (no violation of double jeopardy occurred when cumulative sentences for two offenses were imposed for conduct arising from one criminal act)]. The following would constitute separate offenses: (1) burglary and conspiracy to commit burglary; (2) driving while intoxicated and involuntary manslaughter; and (3) murder of more than one victim. 4. Separate Sovereignties Doctrine Rule: The double jeopardy prohibition does not prevent dual prosecution by separate sovereignties. Therefore, a defendant may be prosecuted for the same criminal conduct by: (a) a federal court and then by a state court, or vice versa; or (b) state courts in two separate states. Inasmuch as a municipality is not considered a separate sovereignty, a local conviction would bar a state prosecution for the same offense [Bartkus v. Illinois, 359 U.S. 121 (1959); Abbate v. United State, 359 U.S. 187 (1959); Walter v. Florida, 397 U.S. 387 (1970)]. 5. Retrial after Jeopardy Attaches Rule: Despite the rule against double jeopardy, retrial is permitted if: (a) the defendant successfully appeals his conviction because of an error made at trial; or (1) the defendant's appeal is considered a waiver of a double jeopardy claim; (b) the appeal was granted because of the amount of evidence supporting the conviction. (1) In such a case a retrial following reversal of a conviction due to insufficient evidence is prohibited by the Double Jeopardy Clause. HOWEVER, a retrial following a reversal due to the conviction being against the weight of the evidence s not barred. Retrial for a greater offense is unconstitutional after a conviction for lesser-included offense, because the conviction of the lesser crime implies acquittal of the greater. [Burks v. United States,, 437 U.S.1 (1978); Hudson v. Louisiana, 450 U.S. 40 (1981); Tibbs v. Florida, 457 U.S. 31 (1982); Price v. Georgia 398 U.S. 323 (1970)]. Rule/Retrial after Mistrial/MBE: A mistrial or a reversed conviction will not bar a retrial. Rule/Retrial after Mistrial: Retrial is permitted in situations where a mistrial has been granted on the defendant's motion. Retrial is not permitted when the defendant objects to a mistrial, unless in the discretion of the court a manifest necessarily exists that justice can only be served by declaring a mistrial [e.g., a jury that fails to agree on a verdict is a proper basis to find "manifest necessity" and permit retrial]. Rule/Retrial after Mistrial/acquittal following a hung jury: If a judge grants an acquittal instead of a mistrial following a hung jury, retrial is not permitted [United States v. Martin Linen Supply, 430 U.S. 564 (1977)]. Rule/Retrial after Mistrial/Improper Conduct:improper conduct by the defendant or improper remarks by defense counsel are sufficient grounds to declare a mistrial and permit retrial [[Arizona v. Washington, 434 U.S. 497 (1978)] Rule/Retrial after Mistrial/Illness or Death: Illness or death of the judge, jurors, or the defendant may result in mistrial without double jeopardy barring retrial [United states v. Sanford, 429 U.S. 14 (1976)]. Rule/Retrial after Mistrial/Necessity Caused by Prosecution: Necessity caused by the prosecution may be invalid grounds to declare a mistrial [Downum v. United States, 372 U.S. 734 (1963)]. 6. Appeal by the Prosecution Rule: The prosecution's right to appeal an adverse ruling is more limited than the defendant's right to appeal. The prosecution may appeal without the bar of double jeopardy in two situations as follows: (a) when a judge grants an acquittal on an issue not related to guilt or innocence of the defendant, the prosecution may appeal the dismissal [United States v. Scott, 437 U.S. 82 (1978); United States v. Wilson, 420 U.S. 332 (1975) (when the judge sets aside a jury's guilty verdict as a matter of law, the prosecution may appeal)]; and (b) the prosecution is allowed to appeal whenever the appeal can be decided without subjecting the defendant to a second trial [United States v. DiFrancesco, 449 U.S. 117 (1980) (following a guilty verdict, an appeal by the prosecution challenging the leniency of the sentence was found not to be in violation of the Double Jeopardy Clause). 7. Application of Double Jeopardy Sentencing Rule/New Trials/Capital Sentences: When a defendant appeals his conviction, receives a new trial. and is then reconvicted for the same offense, double jeopardy is not an absolute bar to the imposition of a harsher sentence. (a) HOWEVER, due process requires that a more severe sentence can be given upon reconviction only when the judge makes an affirmative showing of new information on the record [North Carolina v. Pearce, 395 U.S. 711 (1969); (b) Also, the double jeopardy clause does not apply to capital-sentencing proceedings when such proceedings have the hallmarks of the trial on guilt or innocence [Bullington v. Missouri, 451 U.S. 430 (1981)]. Rule/Limitation on More Serious Punishment/Exception: The limitation preventing more serious punishment upon resentencing is inapplicable in following: (a) a jury sentence [Chaffin v. Stynchcombe, 412 U.S. 17 (1973)]; and (b) a trial de novo [Colten v. Kentucky, 407 U.S. 104 (1972)]. Rule/Murder Convictions and Appeals: When a defendant is convicted of murder and sentenced to life imprisonment but successfully appeals the conviction, jeopardy has not terminated and the life sentence initially imposed does not raise a double jeopardy bar to a death sentence on retrial [Sattazhan v. Pennsylvania, 537 U.S. 101 (2003)]. Rule/Reduced Sentence on Appeal: A court can reduce a sentence on appeal to the sentence of a non-jeopardy-barred crime [Jones v. Thomas, 491 U.S. 376 (1989)]. 8. Collateral Estoppel Rule: The doctrine of collateral estoppel. which precludes relitigation between the same parties of issues actually determined at an earlier trial, is embodied in the guarantee against double jeopardy [Ashe v. Swenson, 397 U.S. 436 (1970)]. Collateral estoppel will only be applicable when the very issue sought to be precluded in the later prosecution has been necessarily determined in the earlier trial.

Identifications 1. The Two Bases to Attack Identifications of a Defendant

1. Pre-Indictment Identifications: The Due Process Standard Rule/Due Process: Any lineup, show-up, or photo identification will be inadmissible as violative of due process when the identification is unnecessarily suggestive and likely to produce irreparable mistaken identification (e.g., a photo identification that includes repetitive display of a photo or distinctive marks on the photo ). [Stovall v. Denno, 388 U.S. 293 (1967)]. Rule/One-on-one Identifications: One-on-one identifications require close judicial scrutiny because of the high likelihood of misidentification. Courts have adopted a specific approach for both out-of-court and in-court identifications: where an identification is both suggestive and unnecessary, it can still be admissible if it is reliable based on a totality of the circumstances approach [Manson v. Brathwaite, 432 U.S. 98 (1977)]. The following factors are considered and then balanced against the degree of suggestiveness: (1) The opportunity to view the criminal at the scene; (2) the witness's degree of attention; (3) the accuracy of the witness's description; (4) the degree of certainty of the witness; and (5) the time interval between the crime and the identification. (e.g., An unnecessary suggestive show-up seven months after the crime was held proper because it satisfied the criteria for reliability [Neil v. Biggers, 409 U.S. 188 (1972)]; the showing of a single photograph to a police officer two days after a crime was admissible [Mason v. Brathwaite, 432 U.S. 98 (1977); in a lineup where the defendant was six inches taller than the other suspects, was the only suspect in the lineup wearing clothes similar to those the thief was described as wearing, and was the only suspect to reappear in the second lineup, a due process violation was found [Foster v. California, 394 U.S. 440 (1969)]. Rule/Subsequent in-court identifications: When an out-of-court identification is excluded for suggestiveness or unreliability, a subsequent in-court identification is not allowed. 2. The Right to Counsel in Post-Indictment Lineups Rule: The right to counsel attaches upon the start of adversary proceedings, to which an indictment would qualify [Moore v. Illinois, 434 U.S. 220 (1977)]. After formal charges are filed, the defendant has a right to have counsel present at a lineup [United States v. Wade, 388 U.S. 218 (1967)]. Still unresolved is the point at which counsel may be present at a lineup - after a defendant is in custody under an arrest warrant (i.e., formal charges) or only upon an indictment. Rule/Prior to Indictment: No right to counsel exists at police lineups conducted before the accused is indicted [Kirby v. Illinois, 406 U.S. 682 (1972)]. Rule/Identification Based on violation of D's Right to Counsel: The inadmissibility of a previous out-of-court identification made at a lineup, based on a violation of the defendant's right to counsel, does not bar the witness from making an in-court identification of the accused at trial when the prosecution can clearly and convincingly show that the subsequent identification stemmed from an independent purging source [Gilbert v. California, 388 U.S. 263 (1967)]. Rule/Consequence of Improper Admission of an Identification: Improper admission of an identification will result in overturning a conviction, unless the prosecution can show harmless error [Chapman v. California, 386 U.S. 18 (1967)].

Rights of Prisoners, Juveniles, and Aliens 1. Prisoner's Rights 2. Juvenile's Rights 3. Alien's Rights

1. Prisoner's Rights Rule: Generally, prisoner's constitutional rights are more limited in scope than those held by individuals in society at large. The test for prisoner rights is whether restrictions are reasonably related to legitimate penological interests [Shaw v. Murphy, 532 U.S. 223 (2001); Turner v. Shaflley, 482 U.S. 78 (1987)]. Rule/Parole or Probation: No federal constitutional right to parole or probation exists. HOWEVER, where state law provides for a right parole, a prisoner denied parole must be granted notice of the reasons for denial and an opportunity to be heard; (1) revocation of probation entitles the prisoner to the right to counsel if a new sentence is imposed; otherwise, the right to counsel is limited and determined on a case-by-case basis; (2) due process affords a prisoner the right to both a pre-revocation hearing and a revocation hearing. At this latter hearing, evidence may be presented and confrontation of witnesses is allowed, subject to the discretion of the court [Greenholtz v. Inmates of Nebraska, 442 U.S. 1 (1979); Mempa v. Rhay, 389 U.S. 128 (1967); Morrissey v. Brewer, 408 U.S. 471 (1972)]. Rule/Other Specific Rights: prisoners must have reasonable access to the court's and legal counsel as well as some form of communication with the press; the state may not refuse to provide prisoner's with medical care; a prisoner must be given notice of the forfeiture of property through a certified letter addressed to him at the facility where he is confined [Bounds v. Smith, 430 U.S. 817 (1977); Pell v. Procunier, 417 U.S. 817 (1974); Estelle v. Gamble, 429 U.S. 97 (1976); Dusenbery v. United States, 534 U.S. 161 (2002)]. Rule/Limits On Prisoner Rights: Prisoners have no right to unionize; mail may be censored subject to strict guidelines, and letters to inmates from their attorneys may be opened, but not read, by prison authorities; inmates have no right to provide legal service to fellow inmates; A private corporation operating a correctional facility through a contract is not subject to suit for allegedly violating the prisoner's constitutional rights. Visiting regulations are usually viewed as reasonably related to legitimate penological interests and are, constitutional [Jones v. North Carolina Prisoner's Labor Union, Inc. 443 U.S. 119 (1977); Procunier v. Martinez, 416 U.S. 396 (1974); Wolf v. McDonnell, 418 U.S. 539 (1974); Correctional Services Corp v. Makesko, 534 U.S. 61 (2001); Overton v. Bazzetta, 539 U.S. 126 (2003)]. 2. Juvenile's Rights Rule: (1) Juvenile offenders must receive due process of the law under the following recognized procedural safeguards: (a) the right to written notice of the charges; (b) the right to counsel; (c) the right to confront and cross-examine witnesses; (d) the privilege against self-incrimination; (e) the right to have guilt proved beyond a reasonable doubt; and (f) the right not to be placed in jeopardy twice for the same offense once adjudicated a delinquent [Breed v.. Jones, 421 U.S. 519 (1975). The following constitutional rights have not been extended to juvenile proceedings: (a) the right to a jury trial; (b) the right to bail; and (c) the right to a public trial [McKeiver v. Pennsylvania, 403 U.S. 528 (1971)]. Rule/Juveniles/Death Penalty: The Eight and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed [Roper v. Simmons, 543 U.S. 551 (2005)]. 3. Alien's Rights Rule: Under the U.S. Constitution, an alien's detention is limited to time reasonably necessary to accomplish that alien's removal from the United States. Indefinite detention is not allowed [Zadvydas v. Davis, 533 U.S. 678 (2001)].

Miscellaneous Procedural Considerations 1. Retroactivity on New Decisions 2. Ex Post Facto Crimes 3. Independent State Grounds 4. Privilege Against Self-Incrimination 5. Exceptions to the Privilege Against Self-Incrimination

1. Retroactivity on New Decisions Rule: A Supreme Court case creating a new constitutional right is fully retroactive to all defendants whether the case is pretrial, at trial, or in the process of direct appeal. HOWEVER, a collateral petitioner using a writ of habeas corpus will receive the benefit of a new decision only if: (a) the crime is itself decriminalized; or (b) the prosecution was fundamentally unfair and the new rule maximizes the truth-finding function of trial. 2. Ex Post Facto Crimes Rule: A crime must be a law at the time of the offense in order to punish the defendant. The basic ex post facto protections include prohibition of the following: (a) retroactive criminal statutes; (b) increasing the punishment after the commission of the offense; (c) removing a defense that was viable at the time of the offense; and (d) applying the riles of procedure or evidence retroactively if those rules would make it easier to convict a defendant. Rule: A state may not enact a statue that extends the limitations period for a crime when the previously applicable limitations period has already expired [Stonger v. California, 539 U.S. 607 (2003)]. 3. Independent State Grounds Rule: In accordance with the Tenth Amendment, all powers not expressly given to the federal government by the U.S. Constitution reside in the states. Thus, state courts, pursuant to their own constitutions and cases interpreting their constitutions, can give to the criminally accused greater procedural protections that they are federally required. HOWEVER, if they so proceed, they must indicate that such a decision is based on adequate and independent state grounds and must not entangle state and federal bases [Michigan v. Long, 463 U.S. 1032 (1983)]. (2) Thus, in any state prosecution, a competent defense will make a separate set of solely state constitutional arguments. 4. Privilege Against Self-Incrimination: Rule: The Fifth Amendment provides that no person shall be compelled in any criminal case to be a witness against himself, and that this privilege belongs to the accused and to all witnesses. This right is binding upon the states through the Due Process Clause of the Fourteenth Amendment. (a) The privilege against self-incrimination applies to all proceedings, both civil and criminal, where formal testimony is received; (b) HOWEVER, the holder of the privilege must be a natural person or a sole proprietorship. Partnerships, corporations, and other business entities are not entitled to assert the privilege; officials for such entities must submit subpoenas for business records and testimony that might incriminate the entity. Such an official may, however, refuse to provide evidence that might tend to incriminate himself. (c) The Fifth Amendment privilege apples to questions posed by the government during a criminal trial and in any situation where the individuals response might be used to incriminate that person in a future criminal trial [Lefkowitz v. Turley, 414 U.S. 70 (1973)]. Rule: The evidence protected by the Fifth Amendment must be self-incriminating. Rule/Fifth Amendment/Testimonial: The privilege against self-incrimination protects individuals only from being compelled to provide testimonial or communicative evidence. Thus, the Fifth Amendment privilege does not protect against compulsion to perform physical acts or submit physical evidence. There is no Fifth Amendment right to refuse to: (a) give a urine sample; (b) submit to fingerprinting. photography, or measurements; (c) write, speak, or wear particular clothes; (d) assume a stance or walk; or (d) make a particular gesture for identification or court appearances; (e) for public policy considerations, give required disclosures [e.g., stopping to give name and address at the scene of an accident in which the defendant was involved, would be considered insufficiently testimonial]. Rule/Prosecution May Not Comment on Defendant's Refusal to Testify: The defendant has not obligation to testify, and the prosecution may not comment on the defendant's failure to testify [Griffin v. California, 380 U.S. 609 (1965)]. (a) A criminal defendant need not be warned of the right not to testify. Therefore, a response to questions asked by the government will constitute a waiver of the privilege. (b) The defendant may ask the judge to instruct the jury not to draw an adverse inference from the defendant's failure to testify [Carter v. Kentucky, 450 U.S. 288 (1981)]. (c) When a prosecutor argued during summation that the testifying defendant's presence at trial afforded an opportunity to tailor the testimony of other witnesses, there was no Fifth Amendment violation [Portuondo v. Agard, 529 U.S. 61 (2000)]. Rule/Self-Incrimination/Guilty Plea: When a defendant has pled guilty, he does not waive his Fifth Amendment rights in the sentencing hearing, and the sentencing judge may not draw adverse from the defendant's silence at sentencing [Mitchell v. United States, 526 U.S. 314 (1999)]. 5. Exceptions to the Privilege Against Self-Incrimination Rule: Testimony for which the individual has been granted use or transactional immunity is not self-incriminating and hence eliminates the privilege. (a) Use Immunity - ensures that the testimony of the witness will not be used against that witness. (b) Transactional Immunity - is extremely broad and ensures that the witness will not be prosecuted for any crimes related to the entire transaction. Rule/SOL: Testimony regarding acts for which the applicable statute of limitations has run or regarding simply embarrassing acts is also not self-incriminating. Rule/Defendant Takes the Stand: Once a defendant decides to take the stand and permit questioning on direct examination, he may be cross-examined regarding the substance of his testimony. Generally, the defendant is thought not to waive the Fifth Amendment privilege in total, but to grant a waiver to the extent necessary for reasonable scrutiny by the prosecution. Rule/Volunteered Information: The Fifth Amendment does not protect volunteered information regardless of how incriminating. The government is only prohibited from compelling or coercing an individual into incriminating himself.

Inadmissible Statements/Voluntariness Approach/Coercion To be admissible, a statement must be voluntarily made based on the totality of the circumstances

1. Rule: A statement is inadmissible if it is involuntary under the Due Process Clauses of the Fifth and Fourteenth Amendments. A statement is generally considered involuntary when the police subjected the suspect to coercive conduct, under the totality of the circumstances, was sufficient to overcome the will of the suspect (given his particular vulnerabilities and the conditions of the interrogation). This is a subjective standard determined on a case by case basis. Thus, a statement made by a suspect of average intelligence who is comfortable in his surrounding when the statement is made is likely, but bot assumed, to be considered voluntary. Rule/Standard: The voluntariness standard is based on the trustworthiness and reliability of the proffered evidence and is used to determine the admissibility of a confession based on the totality of the circumstances [Brown v. Mississippi, 297 U.S. 278 (1936). Factors of Coercions include: the defendants: (1)The nature of the defendant: age, sex, education, and mental and physical health, history of alcohol and drug abuse; and (2) the nature of the police conduct. Confessions obtained under conditions where the defendant's free choice is significantly impaired are likely to be found coercive. HOWEVER, where the police employ a "false friend," such as a jail cell plant, and by deception the defendant is unaware that the person with whom he is conversing is a police or agent, a confession of the person could be trusted. Where actual or threatened physical injury is involved, the Court has readily found there to be coercion sufficient to negate free will [Arizona v. Fulminante, 499 U.S. 279 (1991); D confessed to "false friend" that he murdered his daughter under the belief that "false friend" would give him protection from the other inmates who were threatening to kill D while in prison]. 2. Rule: although the police have broad reign to trick and deceive the defendant during interrogation, they may not offer false promises of dropping charges to elicit confessions [Spano v. New York, 360 U.S. 315 (1959)]. 3. Rule: coercion may take the form of physical abuse, threats, or promises of leniency. If the defendant's confession is the product of coercion it may not be introduced at trial either direct evidence or for impeachment purposes. EXCEPTION: However, admission of an involuntary confession no longer results in automatic reversal. Rather the harmless error rule is now applicable to the admission of involuntary confessions; under this standard the government must prove beyond a reasonable doubt that the introduction of the confession into evidence did not contribute to the verdict of guilty, [Arizona v. Fulminate, 499 U.S. 279 (1991)].

Introduction 1. Systems of Criminal Procedure 2. Exclusionary Rule

1. Systems of Criminal Procedure Rule/Federal and State Systems: while provisions in the United States Constitution are the highest sources of criminal procedure law, these provisions (including the Fourth, Fifth, Sixth, and Fourteenth Amendments) create only a floor, not a ceiling, as to the rights that states must extend to it's citizens. States may create more extensive (but never less extensive) rights under their own constitutions, which are subject to ultimate review by their own state supreme courts. Rule/The Fourth, Fifth, and Sixth Amendments: Rule/Fourth Amendment: The Fourth Amendment protects the people and their papers, houses, and effects from unreasonable searches and seizures, and requires particularized, as opposed to general, warrants that are supported by probable cause. Rule/Fifth Amendment: The Fifth Amendment requires that no person be denied his life, liberty, or property without due process of law, and grants each person a privilege against self-incrimination. Rule/Sixth Amendment: The Sixth Amendment requires, in relevant part, that in all criminal prosecutions, the accused has the right to counsel to assist in his defense. 2. Exclusionary Rule Rule: The exclusionary rule is a procedural rule of federal constitutional law used to deter unlawful police conduct. Under this rule, all evidence seized in violation of the Fourth Amendment, including physical evidence and statements, is inadmissible in a criminal proceeding. The exclusionary rule is not meant as a remedy for violation of the defendant's Fourth Amendment Rights. Rather, this rule is aimed at the deterrence of Fourth Amendment violations by the police. Rule/Standing: A criminal defendant must have standing to raise a Fourth Amendment violation claim. This is a threshold issue for any defendant seeking to have evidence suppressed under the exclusionary rule. The defendant asserting the Fourth Amendment violation must personally be the victim of the police's unreasonable conduct. In analyzing standing to contest a search, the court must determine "whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place." [Rakas v. Illinois, 439 U.S. 128 (1978)]. Rule/Fruit of the Poisonous Tree: In addition to excluding all evidence that has been illegally obtained, any additional evidence, including oral statements and physical objects acquired either directly or indirectly from the illegal arrest, search, or seizure must also be excluded as tainted fruit of the poisonous tree [Wong Sun v. United States, 371 U.S. 471 (1963)]. HOWEVER, the fruit of the poisonous tree doctrine is not applicable to Miranda Violations. (e.g., Police lawfully arrest D but don't give Miranda warnings D confesses to running the a drug ring and tells Police where the drugs are; the drugs are admissible but the confession is not because their seizure is sub63ject to Miranda and not the Fourth Amendment analysis). The fruit of the poisonous tree doctrine does not apply to violations of the "knock and announce requirement during warrant executions. Rule/Fruit of the Poisonous Tree Exception: Subsequently seized evidence, otherwise inadmissible under the fruit of the poisonous tree doctrine, may still be admitted into evidence provided that the taint is dissipated or purged by: (a) independent evidence: which is evidence obtained form a source independent from the original illegality [Murray v. United States, 487 U.S. 533 (1988) (illegal entry into a warehouse did not require suppression of marijuana into evidence later discovered as a result of a search warrant obtained using information that was completely unconnected to the initial, unlawful entry, even where those officers seeking the warrant did not inform the issuing magistrate of the first entry). (b) Inevitable Discovery: which is evidence that would have been discovered regardless of the illegality [Nix v. Williams, 467 U.S. 431 (1984) (In violation of his right to counsel, ended with the suspect leading the police to the victim's body. The Court held that since the police were looking in the same area where the defendant lead them, the would have inevitably discovered the victim; therefore, admitting evidence at trial); Wong Sun v. United States, 371 U.S. 471 (1963). Another common example with this rule is the when the police find evidence while unlawfully conducting a search of vehicle but under an inventory search it is inevitable that the police would have found the evidence anyway. (c) Intervening Act of Free Will by the Defendant: such as a subsequent confession after release. Rule/Defendant Challenging the Affidavit of Warrant: A defendant may challenge the affidavit upon which a warrant has issued by proving by a preponderance of the evidence the following conditions: (a) A substantial showing that the affidavit contained false statements; (b) that the statements were made intentionally, knowingly, or in reckless disregard for the truth; and (c) the magistrate's finding of probable cause could not have been made without the false statements. HOWEVER, if the defendant cannot prove these conditions, the warrant will be upheld if there was a "substantial basis" to issue the warrant in the first instance; [Franks v. Delaware, 438 U.S. 154 (1978); Massachusetts v. Upton, 466 U.S. 727 (1984)]. Balancing Approach on the Exclusionary Rule: Rule: The court sees that the only benefit of the exclusionary rule is to prevent future violations by law enforcement officers, and therefore will consider the benefit of the deterrence with the benefit of the remedy. The exclusionary rule precludes only he use of suppressed evidence in he prosecution's case-in-chief and does not apply to the use of evidence for impeachment. Rule/Good Faith Exception: Evidence obtained pursuant to an invalid warrant requirement will not be excluded from if a reasonably well-trained officer would have believe that the warrant was valid [United States v. Leon, 468 U.S. 897 (1984)]. Aspects for considering the good faith exception include: (a) whether the police were acting on a good faith reliance on a facially valid warrant; (b) whether the police were acting in reliance in of a valid statute; and (c) whether the police were acting in reliance of a court official rather than a police officer. This good faith exception to the exclusionary rule does not apply, however, when: (a) the police lie or mislead the court in attaining a warrant; (b) the magistrate is not neutral or detached; and (c) no reasonable police officer would have believed the warrant was valid. Rule/Good Faith Exception Extended to Police Negligence: The good faith exception has been extended to police negligence: In Herring v. United States [555 U.S. 135 (2009)], the S. Ct. held that the exclusionary rule did not apply when an illegal arrest was the result of isolated negligence attenuated from the arrest, but suggested the exclusionary rule might apply to evidence resulting from gross or systematic negligence on the part of the police. In Herring, the defendant was arrested pursuant to an arrest warrant that had been recalled by the court, but that the police had negligently failed to remove if from the computer system. Limitations on the Exclusionary Rule: Rule/Grand Jury Proceedings: The exclusionary rules has not been excluded to grand jury proceedings. A grand jury indictment may be based on illegally obtained evidence; or even or hearsay evidence [United States v. Calandra, 414 U.S. 338 (1974); Costello v. United States, 350 U.S. 359 (1956)]. Rule/Reasonable Reliance: Evidence obtained under the reasonable validity of a search warrant issued by a detached and neutral magistrate is not subject to the exclusionary rule [United States v. Leon, 468 U.S. 897 (1984); Arizona v. Evans, 514 U.S. 1 (1995). Rule/Sovereigns: Evidence excluded by the rule from use by one sovereign may be used in the civil proceedings of another sovereign [United States v. Janis, 428 U.S. 433 (1976)]. Rule/Impeachment: Evidence excluded by the rule for violating the 4th, 5th, and 6th Amendments may be used to impeach testimony given on either direct examination or cross examination [United States v. Havens, 446 U.S. 620 (1980)]. A confession obtained without giving Miranda warnings may be used to impeach a defendant's testimony unless it is: (a) coerced; or (b) immunized [Harris v. New York, 401 U.S. 222 (1971); Mincey v. Arizona, 437 U.S. 385 (1978); New Jersey v. Portash, 440 U.S. 450 (1979). Rule/Deportation and Parole Hearings: The court has also held that exclusionary rule is unavailable in, among other types, deportations and parole revocation hearings [Immigration and Naturalization Service v. Lopez-Mendoza, 468 U.S. 1032 (1984); Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357 (1998)]. Procedural and Enforcement Considerations Rule: A defendant has the right to a suppression hearing, at which time the judge, as a matter of law, determines the admissibility of evidence out of the jury's presence. (1) The government's burden is to establish admissibility of the evidence by a preponderance; (2) The defendant's testimony at the suppression hearing may not be used against him at trial on the substantive issue of guilt. An admission of illegally obtained evidence constitutes reversible error unless the error is harmless. Under this standard the government must prove beyond a reasonable doubt that the error did not contribute to a conviction. In effect, the government must prove beyond a reasonable doubt that it still would have obtained the conviction without the error. [Jackson v. Denno, 378 U.S. 368, 1964; Lego v. Twomey, 404 U.S. 477 (1972); Simmons v. United States, 390 U.S. 377 (1968); Chapman v. California, 386 U.S. 18 (1967)].

Pre-Trial Rights 1. The Right to Speedy Trial 2. Rights During Discovery Stage

1. The Right to Speedy Trial Rule: The Sixth Amendment guarantees a criminal defendant the right to a speedy trial in both federal and state courts (through the Fourteenth Amendment) [Klopfer v. North Carolina, 386 U.S. 213 (1967)]. A violation of this right results in a complete dismissal of the charges against the defendant [Strunk v. United States, 412 U.S. 434 (1973)]. Rule: The right to a speedy trial attaches once a defendant is "accused," such as upon arrest of filing of charges. Pre-arrest delays may violate due process only if sufficient prejudice is found [United States v. Lovasco, 431 U.S. 783 (1977)]. Conversely, a long interval between arrest and indictment raises the inference of a violation, even if the defendant was released after the arrest [Dillingham v. United States, 423 U.S. 64 (1975)]. Rule/Speedy Trial Act of 1974: The Speedy Trial Act of 1974 requires that federal indictment within 30 days of arrest and trial within 70 days of indictment. The court judges violations of the right to a speedy trial by balancing the following factors: (a) the length of the delay; (b) the reason for the delay: (1) the right is waived when a defendant willfully delays the trial by filing a pre-trial motion or seeking a suppression hearing; (2) if the prosecution delays, courts evaluate the good faith and the justifiability of the delay; (c) the defendant's assertion of his right of a speedy trial; and (d) the prejudice to the defendant, which may include oppressive incarceration, memory loss by witness, loss of evidence, and anxiety to the defendant [Barker v. Wingo, 407 U.S. 514 (1972)]. 2. Rights During Discovery Stage Rule: The defendant must be informed of the charges against him in sufficient detail so that an adequate defense is possible. Although state courts are not required to permit liberal pre-trial discovery, they must grant the defense the same discovery rights given to the prosecution [Russel v.United States, 369 U.S. 749 (1962); Wardius v. Oregon, 412 U.S. 470 (1973). Rule: The prosecution has a limited right to compel disclosure of some information by the defendant. (a) the defendant may be compelled to notify the prosecution in advance of an alibi defense, including the names, addresses of any alibi witnesses and any witnesses refuting the alibi; (1) the prosecutor may not comment on the defendant's failure at trial to either present the alibi or produce an alibi witness; (2) HOWEVER, a defendant may be impeached when he has given notice of one alibi. but then testifies as to a different alibi. (b) the privilege against self-incrimination is not violated by this disclosure; (c) if a defense witness has made a pre-trial statement or report. there is some authority that the prosecution can require the defendant to disclose at the trial those portions of the statement or report are relevant to the witness's testimony at trial. This rule also applies to expert witnesses who may be used to establish an affirmative defense, such as insanity. Rule/Exculpatory Information: Upon request by the defense, the prosecution must disclose evidence: (1) that is favorable to the accuse; or (2) when there is a reasonable probability that it is favorable to the accused. (a) HOWEVER, the prosecution is not required to disclose this information to a criminal defendant prior to entering into a plea agreement with him; (b) unrequested exculpatory evidence must be disclosed only in situations where it creates a reasonable doubt that did not otherwise exist; (c) if the prosecution fails to disclose evidence in violation of the discovery rules, the defendant is often entitled to a new trial: the defendant, in order to obtain a reversal must show that: (1) non-preserved evidence was actually exculpatory; and (2) he was unable to obtain such evidence on his own. [Brady v. Maryland, 373 U.S. 83 (1963); United States v. Bagley, 473 U.S. 667 (1985); United States v. Ruiz, 536 U.S. 622 (2002); United States v. Agurs, 427 U.S. 97 (1976); California v. Troinbetta, 467 U.S. 479 (1984)].

The Fourth Amendment 2. Arrests and Other Detentions

2. Arrests and Other Detentions (1). General Principles Rule/Arrest Warrants: Arrest warrants are generally not required for before arresting someone in a public place. HOWEVER, the nonemergency arrest of an individual in his own home require an arrest warrant [United States v. Watson, 423 U.S. 411 (1976)]. A person is in custody when he, in the presence of a law enforcement officer, is not free to leave, and is thus deprived of his freedom of action in a significant way [Orozco v. Texas, 394 U.S. 324 (1969)]. When a person is taken into custody for the purpose of commencing a criminal action, an arrest has occurred [Dunaway v. New York, 442 U.S. 200 (1979)]. More than a stop-and-frisk is required. Officials may strip-search individuals who have been arrested for any crime, even without reasonable suspicion that they are dangerous or carrying contraband items, the police may collect DNA samples from arrestees [Florence v. Board of Chosen Freeholders, 566 U.S._(2012), Docket No. 10-945; Maryland v. King, 569 U.S._(2013), Docket No. 12-207]. Rule/Brief Detentions: Although brief detentions are admissible by police are permissible for the purpose of questioning, even without probable cause that the person committed the crime, such a stop is not considered an arrest [Terry v. Ohio, 392 U.S. 1 (1968)]. Rule/Unlawful Arrest: An unlawful arrest is no defense to a subsequent conviction of the crime charged. (2). Warrant Requirement Rule/Arrest/Probable Cause: A valid arrest may occur either with or without a warrant. Generally, no warrant is required for an arrest; the police need only posses probable cause. (1) The police may come into possession of the requisite facts and circumstances for probable cause from their own observations of the suspect or through information obtained from third parties; (a) if a police officer personally witnesses the crime, probable cause exists to arrest the suspect(s) observed committing the crime; (b) police observations prior to a stop may provide the objective basis for a reasonable belief that the suspect is engaged in criminal activity, and thus justify limited detention and questioning. Any facts and circumstances derived from such a limited stop may then escalate to reasonable belief or suspicion to probable cause sufficient to justify an arrest. Rule/Arrest/Informant's Tip: Probable cause to arrest may also be obtained indirectly through an informant. The tip may serve as a basis for a valid probable cause arrest if the reliability is established by: (a) the informant's tip containing specific details; and (b) the reliability of the both the details and the informant being confirmed prior to the moment of arrest. Rule/Home Arrest: An arrest warrant is required before the police can arrest an individual in his own home, absent exigent circumstances or consent [Payton v. New York, 445 U.S. 573 (1980)]. The requirement for an arrest warrant are virtually identical to the requirements for a search warrant. Rule/Home Arrest/Exigent Circumstances: Warrantless in-home arrests may be justified by consent or exigent circumstances when: (a) an arrest attempt outside the home is thwarted because the suspect retreats into the home; (b) there is insufficient time to secure a warrant because the delay would allow the suspect to evade arrest or destroy evidence; or (c) the arresting officer is in hot pursuit and has probable cause to effect a valid arrest of the suspect. Rule/Property Damage During Warrant Execution: An arresting officer may only break windows or other property if reasonably required to execute the warrant [United States v. Ramirez, 523 U.S. 65 (1998)]. Rule/Arrest in Third Party's Home: Police generally may not legally search for the subject of an arrest warrant in the home of a third party absent exigent circumstances or consent without first obtaining a search warrant for those premises [Steagald v. United States, 451 U.S. 204 (1981)]. Rule/Knock and Announce: Unless exigent circumstances exist, the arresting officer must knock and announce their identity before entering to make the arrest. The violation of the knock and announce rule does not automatically trigger exclusion of evidence seized after the violation. An exigent circumstance would include reasonable suspicion that knocking and announcing would be dangerous, futile, or would inhibit effective investigation [Richardson v. Wisconsin, 520 U.S. 1154 (1997); Hudson v. Michigan, 547 U.S. 586 (2006)]. (3). Warrantless Arrests at Common Law Rule/Felony Arrest: Both police officers and private citizens may make arrests for felonies committed in their presence. (1) A police officer may arrest a person for a felony not committed in his presence when he has reasonable grounds to believe the person did, in fact, commit the felony; (2) a private citizen may arrest a person, but it will be valid only if the felony is found to be actually committed. Rule/Misdemeanor Arrest: Police officers and private citizens may make arrests for misdemeanors when: (1) the crime is committed in their presence; and (2) the misdemeanor amounts to a breach of the peace. A warrant is required for a misdemeanor when that the police did not personally observe, regardless of whether the arrest takes place inside or outside the suspects home. Rule/Deadly Force: The use of deadly force to prevent the escape of a felony suspect is allowed if: (1) the suspect poses a threat of serious physical harm to the other or others; or (2) the suspect has committed a crime involving such infliction of harm, if some feasible warning has been given [Tennessee v. Garnor, 471 U.S. 1 (1985)]. (4). Probable Cause Rule/Probable Cause: Which is required at the time of the arrest, is the measure of justification that applies to full-scale intrusions - searches, seizures, and arrests. It is defined as the quantity o facts and circumstances within the police officer's knowledge that would warrant a reasonable person to conclude that the individual in question has committed a crime (for an arrest) or that specific items related to criminal activity can be found at a particular location (for a search). (b) Probable cause is evaluated in terms of what was known at the moment of government intrusion. A police officer may establish probable cause by considering events leading up to the moment of the arrest [Maryland v. Pringle, 540 U.S. 366 (2003)]. Subjective intentions play no role in ordinary probable cause Fourth Amendment Analysis [Whren v. United States, 517 U.S. 806 (1996). In Whren, the Court held that the detention of a motorist, where the police had probable cause to believe he had committed a traffic violation, was adequate for the subsequent search of and seizure regardless of any other motive the police officer may have had in making the stop. This is true even where the stop was for a misdemeanor, such as the failure to wear a seatbelt [Atwater v. City of Lago Vista, 532 U.S. 318 (2001)]. Rule/Anticipatory Conditional Warrants: Are warrants that are conditioned on an event occurring, such as the delivery of a package. The court requires the following two showings to issue the warrant: (1) if the triggering condition occurs, there must be a fair probability that evidence of a crime or contraband will be found at a particular location; (2) there is probable cause that the triggering condition will occur. E.g., Cop saw defendant pick pocket a woman; cop pulls over and approaches the man, where he find the woman's billfold and notices the defendant is wearing a Rolex; officer has probable cause to make a valid stop and arrest but cannot seize the watch because the cop does not have probable cause to believe the watch is stolen. (5). Reasonable Suspicion Rule: Reasonable suspicion is a belief based upon articulable information that that is more than a mere hunch used by a reasonable person or police officer that the suspect has or is about to engage in illegal or criminal activity. Courts look to the totality of the circumstances of each case to whether the police officer has a particularized and objective basis for suspecting legal wrongdoing [United States v. Arvizu, 534 U.S. 266 (2002)]. Persons present on the premises during a valid search warrant may be detained [Michigan v. Summers, 452 U.S. 692 (1981)]. (6). Terry Standard Rule: In order to take the next intrusive step of patting down or frisking a criminal suspect, the police officer must be able to articulate more than a reasonable suspicion that criminally is afoot. (1) In order to frisk a stopped individual, the police must articulate reasonable suspicion that the suspect is armed and dangerous; (a) sudden flight from a high-crime area may be an adequate reasonable suspicion for an investigative stop; (b) an anonymous tip alone is inadequate. However, under the totality of the circumstances, an anonymous tip coupled with police corroboration of some of the information contained in the tip shows sufficient indicia of reliability to justify and investigative stop [Terry v. Ohio, 392 U.S. 1 (1968); Illinois v. Wardlow, 528 U.S. 119 (2000); Alabama v. White, 496 U.S. 325 (1990)]. (b). Stop and Frisk Rule/Totality of the Circumstances: An officer may stop a person if the totality of the circumstances shows that a reasonable suspicion exists. Reasonable suspicion is a belief based on articulable information that is more than a mere hunch that the suspect has or is about to engage in illegal activity. Courts must look to the totality of the circumstances of each case to see whether the police officer has a particularized and objective basis for suspecting legal wrongdoing [United States v. Arvizu, 534 U.S. 266 (2002)]. Rule/Terry Stop Based on Informant's Tip: If a police officer believes, based on the officer's own observations or those of an informant, that criminal activity may be afoot, then the officer may stop and briefly question a criminal suspect. The required reasonable belief or reasonable suspicion must be supported by some objective evidence that the suspect is engaged or about to become engaged in criminal activity, or is a wanted criminal [United States v. Hensley, 469, U.S. 221 (1985)]. The Officer's reasonable belief may be based upon hearsay, such as an informant's tip. HOWEVER, the objective evidence requirement mandates that the information be confirmed as reliable prior to actually conducting the stop. The tip must contain some predictive information so that the police may test the tip. Rule/Terry Frisk: The police may do a limited pat-down of the suspect's outer garments ("a frisk") for weapons if they have reasonable and articulable suspicion that the person detained may be "armed and dangerous," despite the lack of probable cause or a warrant [Terry v. Ohio, 392 U.S. 1 (1968)]. (a) The frisk may also extend to the interior of a car where a suspect is sitting [Michigan v. Long, 463 U.S. 1032 (1983)]. (b) If, during the frisk for weapons, the officer feels items that reasonably feel like a weapon or contraband, such as crack or cocaine, the officer may seize the items, even if they turn out to be something other than weapons or contraband [Minnesota v. Dickerson, 508 U.S. 366 (1993)]. (c) A minimum level of justification must exist for reasonable suspicion; presence in an area alone is not enough, but common sense behaviors can be enough to warrant a stop-and-frisk [Illinois v. Wardlow, 528 U.S. 119 (2000)]. Rule/Flight: Flight is not enough for probable cause but is enough for reasonable suspicion. Rule/Name Request: A police officer is justified in requesting a suspect's name as identification during a Terry Stop as long as the request has an immediate relation to the purpose of the stop [Hiibel v. Nevada, 542 U.S. 177 (2004)]. Rule/Improper Subjective Basis: The fact that the officer may also had some improper subjective basis for the stop will not result in a finding that the stop was illegal, as long as the stop was supported by an objectively reasonable belief that the suspect was engaged or about to engage in criminal activity [Whren v. United States, 517 U.S. 806 (1996)]. Rule/Past Crime Involvement: A Terry stop based on less than full probable cause is permitted when the detainee is suspected of involvement in a past crime constituting a felony or a threat to public safety [United States v. Hensley, 469 U.S. 221 (1985)].

Post-Trial Stage 3. Appeal

3. Appeal Rule/Appeal Not Guaranteed as a Matter of Right in U.S. Const.: The U.S. Constitution does not guarantee the right to an appeal. States may provide such a right by statute as long as access to appellate review is afforded in a non-discriminatory manner [Griffin v. Illinois, 351 U.S. 12 (1955)]. Rule/Attorney must be Provided to Indigents When State Grants First Appellate Right: Where a state grants a first appeal o all individuals, such as an appeal as a matter of right, indigents must be provided with appointed counsel to satisfy equal protection requirements [Douglas v. California, 372 U.S. 353 (1963)]. Consequently, indigents are entitled on appeal to be provided free transcripts of trial proceedings [Mayer v. City of Chicago, 404 U.S. 189 (1971)]. Rule/Recovery of Defense Costs: Recovery of defense costs is constitutional provided it is achieved in a non-discriminatory manner. A state can recover legal costs from an indigent who is convicted on appeal and is subsequently able to pay [Fuller v. Oregon, 417 U.S. 40 (1974)]. Rule/Second Discretionary Avenue of Appeal: Following an automatic fist appeal, some jurisdictions provide a second discretionary avenue of appeal. The right to counsel for indigents does not attach during this proceeding, nor does the right attach for a writ of certiorari to the U.S. Supreme Court [Ross v. Moffit, 417 U.S. 600 (1974)]. Rule/Prejudicial Error vs. Non-Prejudicial Error: If an error has not resulted in damage to the complaining party, it may be deemed harmless (non-prejudicial), and a new trial need not be had. On the other hand, even where no timely objection has been made, if a grave injustice might result from a serious trial error, the court may still order a new trial due to the fact that a prejudicial error has occurred [such as allowing the admission of lie detector results or alluding to the fact that the defendant refused to take a lie detector test]. Rule/Impartial Jury: A showing that a juror was biased and not impartial would most likely support a defendant's basis for a new trial, the judge should act where there is a reasonable likelihood of prejudicial new would prevent a fair trial [Shepard v. Maxwell, 384 U.S. 333 (1966)]. Rule/Retrial of Defendant Following a Reversal of a Conviction: Following a reversal of a conviction on appeal, a defendant can be retried. HOWEVER, on retrial, it is prejudicial error and a violation of both due process and double jeopardy to be tried for any crime more serious than the crime for which the defendant was convicted [Price v. George, 398 U.S. 323 (1970)].

Guarantees of a Fair Trial 3. Right to Counsel

3. The Right to Counsel at Trial Rule: The Sixth Amendment provides that the accused shall enjoy the right to have the assistance of counsel for his defense. This right has been applied to the states through the Fourteenth Amendment [Gideon v. Wainwright, 372 U.S. 335 (1963)]. Rule/Effective Counsel: The right to counsel means the right to effective counsel. The law presumes that legal counsel is effective, and it is the duty of the defendant to demonstrate otherwise. This claim is often raised on collateral appeal. Under [Strickland v. Washington, 466 U.S. 668 (1984)], a defendant making this claim must prove both: (a) that counsel was ineffective - for example, because he deviated from reasonably prevailing norms; and (b) there is a reasonable probability that the verdict would have been not guilty had counsel been effective. Rule/Ineffective Counsel: Where counsel is inexperienced and has little time to prepare in relation to the complexity of the case, reversal is not proper unless both prongs of Strickland are satisfied. There must be a particular allegation of specific attorney errors [United States v. Cronic, 466 U.S. 648 (1984)]. Rule/Ineffective Counsel: Ignoring the defendant's requested appellate issues and arguing issues of the attorney's choosing is not ineffective [Jones v. Barnes, 463 U.S. 745 (1988)]. Rule/Ineffective Counsel: Effective assistance of counsel was denied when the government tapped into conversations between the defendant and his attorney [Beach v. United States, 386 U.S. 26 (1966)]. Rule/Ineffective Counsel: Ineffective counsel occurs when a government informant reveals accounts of the defendant's conversation with his attorney [Weatherford v. Bursey, 429 U.S. 545 (1977)]. Rule/Ineffective Counsel: In a capital punishment case, the trial counsel's failure to investigate the accused's background and to present mitigating evidence of the accused's unfortunate life history at the sentencing proceedings violated the accused's Sixth Amendment right to the effective assistance of counsel [Wiggins v. Smith, U.S. 510 (2003)]. Rule/Ineffective Counsel: The trial court ordering the defendant not to consult his attorney during an overnight recess, for a 17 hour period, that separated direct examination and the cross-examination of the defendant was held by the S. Ct. to constitute a deprivation of the effective assistance of counsel regardless of demonstrated evidence [Geders v. United States, 425 U.S. 80 (1976)]. Rule/When Strickland Test is Not Used: The Strickland test is not to be used: (1) if there is an actual conflict that adversely affect the attorney's performance, reversal is proper [Cuyler v. Sullivan, 446 U.S. 335 (1980)]; or (2) if the defense attorney indicates tot he court that such a conflict exists, the defense must be severed [Holloway v. Arkansas, 435 U.S. 475 (1978)]. Waiver of Right to Counsel Rule: A defendant may waive the right to counsel when he does no knowingly and intelligently [Faretta v. California, 442 U.S. 806 (1975)]. Rule/Defendant's Right to Represent Himself: A defendant may waive his constitutional right to the assistance of counsel provided that he does so knowingly and intelligently, which means that it must have been the product of deliberate choice based upon adequate knowledge of what the assistance of counsel encompasses. A defendant knowingly and intelligently waives his right to counsel has a right to proceed pro se, because he must be free to decide if counsel will be to his advantage in the case. If counsel is forced upon the defendant who has made a knowing and intelligent waiver, he will not be required to pay attorney's fees. The defendant has the right to represent himself: (1) Although the defendant has the right to represent himself, the court is permitted to appoint a stand-by counsel, even over the defendant's objection, provided that the defendant maintains actual control of his case [McKaskle v. Wiggins, 465 U.S. 168 (1984)]. (2) If the court appoints an attorney for the defendant who is representing himself, the defendant may not divide the actual representation between himself and the attorney [United States v. Conder, 423 F.2d 904 (5th Cir. 1970)]. (3) Even though a defendant is competent to stand trial, the trial court may still deem the defendant incompetent to defend himself [Indiana v. Edwards, 554 U.S. 164 (2008)]. Rule/Waiver of Counsel at the Appellate Level: Although an intelligent waiver of the right to counsel will generally be recognized and approved, there is no absolute right to waiver of counsel at the appellate level [Martinez v. Court of Appeal of California, Fourth Appellate Dist., 528 U.S. 152 (2000)]. Rule/No Imprisonment Without Representation: Absent a waiver, a defendant may not be imprisoned for any offense whether classified as petty, misdemeanor, or felony unless he was represented by counsel [Argersinger v. Hamil, 407 U.S. 25 (1972)]. An uncounseled conviction cannot be used in recidivist sentencing [Baldasur v. Illinois, 446 U.S. 222 (1980)]. A suspended sentence that may result in the actual deprivation of a person's liberty may not be imposed unless the defendant was provided assistance of counsel in the prosecution of the crime charged [Alabama v. Shelton, 535 U.S. 654 (2002)]. Rule/Right to Counsel/Free: The right to counsel includes the right to be provided with free counsel when the accused cannot afford an attorney. (a) An indigent must be informed of his right to free counsel before a valid waiver can arise [Kitchens v. Smith, 401 U.S. 847 (1971)]. (b) There is no constitutional standard for indigency, although some states do require a defendant to repay the amount of attorney's fees at a later time, if possible [Fuller v. Oregon, 417 U.S. 40 (1974)]. (c) An attorney must be appointed when there is a colorable issue in controversy [Penson v. Ohio, 488 U.S. 17 (1988)], although the attorney may withdraw if he feels there are no valid issues in controversy [Anders v. California, 386 U.S. 738 (1967)]. Rule/Representation of More than One Defendant: It is a violation of the Sixth Amendment to represent more than one defendant whenever a conflict of interest is shown to exists that jeopardizes the rights of any defendant or adversely affects the attorney's performance, although co-defendants may choose to share counsel [Cuyler v. Sullivan, 446 U.S. 335 (1980)]. (a) Either the defendant or the court may raise an attorney's conflict of interest; (b) to demonstrate that a violation of the Sixth Amendment right counsel resulted from the counsel's conflict of interest, the defendant must show that the conflict adversely affected the counsel's representation [Mickens v. Taylor, 535 U.S. 162 (2002)]. Rule/Failure to Provide Counsel/Consequences: Failure to provide counsel at trial results in an automatic reversal. HOWEVER, the harmless error rule applies to the denial of counsel at criminal proceedings other than trial [United States v. Wade, 388 U.S. 218 (1967)]. Rule/Right To Counsel/When Right Attaches: The right to counsel attaches to all critical stages of the proceeding that affect the defendant's right to a fair trial, including [Gilbert. v. California 388 U.S. 263 (1967)] (a) custodial interrogations; (b) post-indictment lineups; (c) preliminary hearings; (d) arraignments; (e) felony trials; (f) sentencing; (g) appeals as a matter of right. Rule/Right to Counsel/The Right Does Not Attach: The following stages are not deemed critical because they are easily re-created and right to counsel exists: (a) preliminary identification procedures; (b) pre-indictment lineups; (c) Nonadversarial detention hearings; (d) grand jury proceedings; (e) discretionary appeals; (f) parole revocations; (g) habeas corpus proceedings.

Post-Trial Stage 4. Habeas Corpus

4. Habeas Corpus Rule: Following an unsuccessful appeal, a defendant may, in certain instances, collaterally attack the lawfulness of his detention by filing a writ of habeas corpus. Procedural Considerations Rule/Standard of Proof for Habeas Corpus: The petitioner must prove unlawful detention by a preponderance of evidence. Rule/Right to Counsel/Habeas Corpus/Civil Suit: Indigent have no right to appointed counsel, inasmuch as a habeas corpus petition in a civil suit. Rule/Standing for Habeas Corpus: To bring a timely habeas corpus, the petitioner must be in custody, which include those out on bail, on probation, or on parole. Rule/Habeas Corpus/Procedural Requirements: Although a state prisoner may seek a writ in either state or federal court, the following requirements must be satisfied before a state prisoner can bring a petition for habeas corpus in federal court: (1) The petitioner must show that the detention violates the U.S. Constitution. (2) A state petitioner must have followed all procedural rules at trial or been denied relief, absent a showing of cause for noncompliance and resulting prejudice [Francis v. Henderson, 425 U.S. 536 (1976)]. (3) All available state remedies must have been exhausted before the federal court may consider the petition [Fay v. Noia, 372 U.S. 391 (1963)]. (4) The petitioner must show clear and convincing evidence of error before the federal court will review factual findings of the state court [Summer v. Mata, 449 U.S. 539 (1981)]. (5) A petitioner who had full and fair opportunity to raise a Fourth Amendment violation previously in state court will not be permitted o seek a writ in federal court based on the alleged allegation [Stone v. Powell, 428 U.S. 465 (1976)]. Rule/Habeas Corpus/Sufficiency of Evidence Claims: Claims challenging the sufficiency of the evidence may be reviewed to satisfy due process, if it is found that no rational trier of fact could have found the defendant guilty after viewing the evidence as favorably as possible for the prosecution [Jackson v. Virginia, 443 U.S. 307 (1979)]. Rule/Federal Prisoners/Habeas Corpus: Federal prisoners may bring habeas corpus proceedings only in federal court. In seeking federal habeas corpus, a federal prisoner must show both cause as to why an objection was not made at trial to the alleged constitutional violation and a resulting actual prejudice [United States v. Frady, 456 U.S. 152 (1982)]. Rule/State's Appeal the Granting of Writ: A state may appeal the granting of a writ, and the defendant may be retried for the same offense without violating the prohibition of double jeopardy.

The Fourth Amendment 4. Warranted Actions

4. Warranted Actions (1). Rule/Sources of Law: The Fourth Amendments prohibits only federal law enforcement officials from conducting unreasonable searches and seizures. The prohibitions is equally applicable to state law enforcement personnel by virtue of the Fourteenth Amendment. However, the Fourth Amendment allows federal and state law enforcement officers to conduct reasonable searches and seizures. (2). Rule: A search conducted by a government authority without a warrant is presumptively invalid unless it falls within a specifically carved out exception; thus, a reasonable search under the Fourth Amendment must be conducted either pursuant to a warrant or under an exception to the warrant requirement. (3). Search and Arrest Warrants Rule: A warrant is a judicial authorization for police action, either to search a particular place (search warrant) or to arrest a particular person (arrest warrant). A search warrant must be issued by a neutral and detached magistrate with particularity the place to be searched and the thing to be seized. An arrest warrant also must be issued by a neutral and detached magistrate after an adequate showing of probable cause, and must describe the identity of the suspect either by name or a reasonably specific description, so that officer may locate the suspect with reasonable effort. (4). Searches Pursuant to a Warrant Rule/Warrant Requirements: (1) The warrant must be issued by a neutral and detached magistrate who receives evidence submitted by police officers and determines that there is probable cause to issue the warrant [Giordenello v. United States, 357 U.S. 480 (1958)]; (a) A justice of the peace who also happens to be the state attorney general is not neutral and detached [Coolidge v. New Hampshire, 403 U.S. 443 (1971)]; (b) However, a court clerk is a neutral judicial officer regarding warrants for city ordinance violations [Shadwick v. City of Tampa, 407 U.S. 345, (1972)]; (c) A warrant is invalid if the magistrate takes a monetary reward in return for issuing the warrant [Connelly v. Georgia, 429 U.S. 245 (1977)]; (d) A neutral and detached magistrate may not oversee the search [Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979)]. Rule/Warrant Requirements: Either oral testimony or an affidavit must set forth the facts or circumstances relied upon by the magistrate, who must then make an independent judgment of the reasonableness of the requested search or seizure to determine if there is probable cause [Shadwick v. City of Tampa, 407 U.S. 345 (1972)]. The Fed. R. Crim. P., allows a warrant to be issued based on information submitted by reliable electronic means (e.g., fax or email) [Fed. R. Crim. P. 41]. Rule/Warrant Requirements: The warrant must describe with particularity the place to be searched and the item or person to be seized. Absent independent justification, a search warrant confers upon the police only the authority to searched named places or persons. (a) where only the search of one apartment is required, a warrant authorizing the search of the entire apartment building is imprecise and thus invalid [United States v. Hinton, 219 F.2d 326 (7th Cir. 1955)]; (b) the scope of the search is limited to the premises described in the warrant [Marron v. United States, 275 U.S. 192 (1927)]. Nonetheless, contraband not named in the warrant may be lawfully seized under the Plain View Doctrine where the police are acting under a valid warrant [Harris v. United States, 331 U.S. 145 (1947)]; (c) a location owned by non-suspects may be searched upon obtaining a warrant [Zurcher v. Standford Daily, 436 U.S. 547 (1978)]; (d) A warrant properly issued for the search of contraband carries with it the implicit authority to detain occupants on the premises during the search [Michigan v. Summers, 542 U.S. 692 (1981)]. Rule/Warrant Requirements: The warrant must be based on probable cause; probable cause is satisfied when the following two-prong test is met [Carroll v. United States, 267 U.S. 132 (1925)]: (1) the testimony or affidavit presented to the magistrate contains facts and circumstances that are still relevant and not out of date; and (2) it must be sufficient that a reasonable person would conclude it to be more probable than not that evidence of named items or persons would be found. Rule/Warrant Based on Informant's Tip: A warrant based on an informant's tip will be issued when probable cause is established under the totality of the circumstances as well as the reliability of the informant. [Note: This test is also known as Aguilar-Spinelli Test]. The relevant factors taken into account for the informant's reliability to determine whether there is a fair probability or substantial basis to conclude that contraband will be found at a particular time and place are: (1) credible information; (2) reliable informant; (3) police corroboration; and (4) declaration against interest. [Illinois v. Gates, 462 U.S. 213 (1983)]. Rule/Warrant Based on Informant's Tip: The execution of a warrant based on an informant's tip should be executed promptly because it is critical that execution is not too remote in time to justify a present finding of probable cause. Rule/Warrant Based on Informant's Tip/Informant's Identity: An informant generally need not reveal his identity [McCray v. Illinois, 386 U.S. 300 (1983)]. (b). Execution of a Warrant Rule: A search warrant need not specify the precise manner for its execution, yet limitations do apply, as follows: (1) only the police, not private citizens may execute a search warrant; (b) a search warrant must be executed promptly while probable cause still exists; and (3) absent exigent circumstances, a police officer must knock and announce his presence before attempting a forcible entry - a violation of knock and announce does not require the automatic suppression of evidence found in the subsequent search [Ker v. California 374 U.S. 23 (1964); Hudson v. Michigan 547 U.S. 586 (2006)]. Rule: The police do not have the authority to continue to search the home after discovering the item specified in the warrant to be seized is seized. Rule/Unnamed Persons at the Scene: Persons unnamed in the warrant may not be searched merely because of their presence at the search location [Ybarra v. Illinois, 444 U.S. 586 (2006)]. Rule/Media & Third Persons at the Scene: In general, private citizens may not execute warrants with the police. It is a violation of the 4th Am. for police to bring members of the media or other third parties into a home during the execution of a warrant when the presence of the third parties in the home is not in aid of execution of the warrant. Where the police enter a home under the authority of a warrant to search for stolen property, the presence of third parties for the sole purpose of identifying stolen property is proper [Wilson v. Layne, 526 U.S. 603 (1999)]. Rule/Obtaining a Warrant after Entering the Premises: When police do not obtain a search warrant or an arrest warrant until after they enter the premises and conduct a search, such a search warrant is not permissible under the 4th Am. absent exigent circumstances, even when the police believe they have probable cause to search [Kirk v. Louisiana, 536 U.S. 603 (1999)]. Rule/Warrantless Searches and the Exclusion of Evidence: Unless an exception to the warrant requirement is applicable, a search (or arrest) conducted pursuant to an invalid warrant will generally constitute a violation of the 4th Am. A search conducted pursuant to an invalid warrant does not always make the evidence inadmissible under the exclusionary rule. Evidence seized by the police acting in good faith on the basis of an objectively valid warrant is admissible if the actual invalidity is due to an error by the issuing magistrate [United States v. Leon, 468 U.S. 897 (1984); Massachusetts v. Sheppard, 468 U.S. 981 (1984)]. (5). Exceptions to Warrant Requirement Rule: Warrantless searches are generally unconstitutional unless they fall within one of the following warrant exceptions: (a). SITLA Rule: To protect the arresting officers and to prevent the destruction of evidence, the defendant's person, as well as the area within his immediate control (wingspan) may be searched incident to lawful arrest. A search incident o arrest includes a cursory scan or "protective sweep" of adjoining rooms, and the entire domicile may be scanned, provided there is reasonable suspicion of an armed accomplice [Maryland v. Buie, 494 U.S. 325 (1990)]. HOWEVER, a warrantless search of the entire house following a lawful arrest is unconstitutional [Chimel v. California, 395 U.S. 752 (1969)]. Rule/Glove Compartment: If a custodial arrest is effected while the defendant is in a car, the police may search the passenger compartment of the vehicle only if it is reasonable to believe that the defendant might access the vehicle at the time of the search or that the vehicle at the time of the search or that the vehicle contains evidence of the offense of the arrest [Arizona v. Gant, 556 U.S. 332 (2009)]. Rule/Traffic Citation: When police officers merely issue a traffic citation and do not make an arrest, they may not search the driver of the car for contraband [Knowles v. Iowa, 552 U.S. 113 (1998)]. Rule/Lawful Arrest/Cotemporaneous Search: When a police officer has made a lawful custodial arrest of an individual, he may, as a contemporaneous incident of that arrest, search the person of the individual. A search incident to lawful arrest must be contemporaneous to the arrest and may even precede it. Rule/Offense Amounts to Full Custodial Arrest: When the offense in question authorizes a full custodial arrest, a search incident to lawful arrest may follow, even when the police do not fear their safety or believe contraband will be found. [United States v. Robinson, 414 U.S. 218 (1973) (search lawful pursuant to SITLA for a traffic violation when P searched D's cigarette pack contained heroin)]. [Pennsylvania v. Mimms. 434 U.S. 106 (1977) (search was lawful when D was ordered out of his vehicle, even though arrest was only for a traffic violation)]. Rule/Cell Phone: The warrantless search and seizure of digital contents of a cell phone during an arrest is unconstitutional [Riley v. California, 573 U.S. _(2014), Docket No. 13-132]. Rule: A person's expectations of privacy in personal luggage are substantially greater than in an automobile. The rule for automobiles does not extend to personal belongings. When the circumstances are sufficiently exigent to allow the police to make a warrantless seizure of personal items, this does not permit the greater intrusion of examining the contents thereof but only the continued possession of personal affects while the warrant is sought. (b). Automobile Exception Rule/lesser Expectation of Privacy: The automobile exception is based on the idea that a lesser expectation of privacy exists in an automobile, boat, or airplane than in one's home or personal property [United States v. Chadwick, 433 U.S. 1 (1977)]. Additionally, the inherent mobility of vehicles requires prompt action by law enforcement. With respect to the automobile exception, the police must have probable cause to suspect or reasonably believe that the vehicle contains evidence of the crime. Rule/Drug Sniffing Dogs: The use of drug-sniffing dogs to detect contraband, but not other items, does not invade the privacy rights of the suspect. A trained dog's alert provides probable cause to search a vehicle [Illinois v. Caballes, 543 U.S. 405 (2005); Florida v. Harris, 568 U.S. _(2013), Docket No. 11-817]. Rule/Search Later: The S. Ct. has ruled that once the police have probable cause to search the moving or temporarily stopped vehicle, they may seize the vehicle and search it later, even if there is time to obtain a warrant between the seizure of the vehicle and the subsequent search [Chambers v. Maroney, 399 U.S. 42 (1970)]. Rule/Containers: The police may inspect a container within an automobile if they have probable cause to believe the container has contraband or evidence, even where the police do not have probable cause to search the entire car [California v. Acevedo, 500 U.S. 565 (1991)]. Rule/Warrantless Search & Seizure from an Automobile: A warrantless search and seizure of items fro an automobile may be justified under several scenarios, including: (1) SITLA; (2) Plain View; (3) An inventory search following a lawful impounding; or (a) if the police lawfully impound a vehicle, the may conduct a routine inventory search. Because the reason for the search is not criminal investigation, the police do not nee probable cause or a warrant to justify the search [South Dakota v. Opperman, 428 U.S. 364 (1967)]. Such a search is justified to: (i) safeguard the defendant's property; and (ii) to protect the police against false claims of theft. HOWEVER, in some jurisdictions, the police must give the subject the option of having someone pick up the car for him or allowing him to park and secure it himself, instead of conducting an inventory search. (4) Border Search: (a) Congress has granted executive plenary authority to conduct routine searches and seizure at the border, or at fixed checkpoints near the border, without probable cause or a warrant, in order to regulate the collection of duties and to prevent the introduction of contraband into the United States [United States v. Flores-Montano, 541 U.S. 149 (2004)]. (b) Reasonable suspicion is required for searches that are unusually intrusive, such as a body cavity search or a search that results in the destruction of property. Rule/Parked Vehicle: There are only limited circumstances under which the police may conduct a warrantless search of a parked vehicle. In such a case, because of the decreased threat of mobility there would likely be ample time to obtain a search warrant. Thus, a search warrant must be obtained unless the purpose of the search is not criminal investigation. Rule: A warrantless search and seizure of items from an automobile may be permitted where there is probable cause to believe the vehicle contains contraband (or where the vehicle could be moved before there is time to obtain a warrant). Once probable cause to search exists, the police can search the entire vehicle, including closed containers and luggage, to find the objects for which probable cause existed [United States v. Ross, 456 U.S. 798 (1982)]. Rule/Lawful Stop Based on Reasonable Suspicion: A mere lawful stop based on reasonable suspicion of a criminal violation can ripen into probable cause sufficient for a warrantless search [Colorado v. Bannister, 449 U.S. 1 (1980) (A lawful vehicle stop for speeding developed into probable cause to search when P observed fruits of a crime they had learned of through a police broadcast)]. Rule/P's Advisement of D's Right Not to Cooperate: The Fourth Amendment does not require police officers to advise bus passengers of their right not to cooperate and to refuse consent to searches, provided that a reasonable person would feel free to decline the request to search or to otherwise terminate the encounter [United States v. Drayton, 536 U.S. 194 (2002)]. (c). Automobile Stops Rule/Vehicle Checks: Police officers may not randomly stop a vehicle to check the license and registration without reasonable suspicion of wrongdoing. Such a stop is unconstitutional because it leaves too much discretion to the police officer [Deleware v. Prouse, 440 U.S. 468 (1979)]. Rule/Check Point Stops: The police officer may stop traffic to check the vehicle registration and driver's licenses of automobile drivers, as long as the stops: (1) are random; and (2) are based on some fixed formula, such as every vehicle or every fifth vehicle. If a formula is used, there is no requirement of reasonable belief or objective basis for stopping any particular vehicle. (3) Sobriety of drunk-driving checkpoints are permissible. [Michigan Department of Police v. Sitz, 496 U.S. 444 (1990)]. Rule/Check Point Stops for Illegal Drugs: When police set up a checkpoint to search vehicles for evidence of illegal drugs, the checkpoint violates the Fourth Amendment because its primary purpose is indistinguishable from the general interest in crime control and because the checkpoint is not based on individualized suspicion of wrongdoing [Indianapolis v. Edmond, 531 U.S. 32 (2000)]. Rule/Recent Crime Information: A police highway checkpoint set up to obtain information from motorists about a recent crime does not violate the Fourth Amendment [Illinois v. Lidster, 540 U.S. 419 (2004)]. Rule/Passengers: Police officers who lawfully stop a vehicle may ask all of the occupants to exit the vehicle, even without any individualized suspicion that any occupant has been or is engaged in criminal activity [Maryland v. Wilson, 519 U.S. 408 (1997)]. Rule/Customs Permanent Checkpoints: Customs officials may stop vehicles at permanent checkpoints located at or near the border. Such a stop does not constitute and unreasonable search or seizure. Therefore, there is no requirement of reasonable belief or objective basis that a vehicle's occupants or contents are illegally entering the country before this type of stop may occur. (d). Plainview Rule: The police may seize property that is clearly visible in plain view without a warrant if: (1) the police are lawfully present at the place where the object can be seen; (2) the officers have a lawful right of access to the object; and (3) it is "immediately apparent" that the object is incriminating [Coolidge v. New Hampshire, 403 U.S. 443 (1971); Horton v. California, 496 U.S. 128 (1990)]. Rule: A police officer may follow an arrestee into his house and then lawfully seize the contraband evidence that is in plain view [Washington v. Chrisman, 455 U.S. 1 (1982)]. Rule: The police may not move objects to get a better view [Arizona v. Hicks, 480 U.S. 321 (1987)]. (e). Consent Rule: Consent is a warrantless intrusion requiring no justification; an individual may simply waive his Fourth Amendment rights as long as the waiver is voluntary. Because a consent search is made pursuant to a valid consent, it does not invade the defendant's right to privacy. Rule/Search Based on Consent: To justify a search based on consent, police must establish the following three elements: (1) voluntariness, (2) scope of the search, and (3) third party consent (1) Voluntariness: (a) to be effective, the defendant's consent must be a voluntary and intelligent decision made without coercion [Schneckloth v. Bustamonte, 412 U.S. 218 (1973); (b) the police need not inform the defendant that he has a right to withhold consent; (c) voluntariness is based on the totality of the circumstances; (d) consent given pursuant to an invalid warrant is deemed involuntary [Bumper v. North Carolina, 391 U.S. 453 (1968); (e) the consent cannot be obtained by duress (such as police demanding entry to the location), fraud occurring when the police either claim to have a warrant or pose as repairmen, or coercion on the part of the police; (f) in certain situations, voluntariness is assumed by virtue of engaging in specific behavior, such as traveling by airplane or engaging in a regulated business. (g) consent may be revoked at anytime, in which case the search must cease; (h) when a person on probation agrees, as a condition of that probation, to submit to random, unannounced warrantless searches that are not based on probable cause, such searches are valid, especially where they are actually based on reasonable suspicion [United States v. Knights, 534 U.S. 112 (2001)]. (2) Proper Scope: (a) the consenting party controls the scope of the search, and any conduct exceeding the scope of consent, is unlawful. The scope is defined by the explicit or implicit terms of the consent and (b)HOWEVER, once a suspect has granted permission to search a car for narcotics, the containers within the car may also be searched; it is on the consenting party to limit the scope of the search inside the car; and (3) Third-party consent: (a) The person consenting must have either actual or apparent authority to consent, such as person who: (i) truly may consent (such as the owner or occupant of the particular premises; (ii) has apparent authority to consent, such as having a key or knowing where things are on the premises - even if it later turns out the person lacked the actual authority to consent [Chapman v. United States. 365 U.S. 610 (1961)(a landlord may not consent to the search of a tenant's home); Stoner v. California, 376 U.S. 483 (1964) (a motel owner may not consent to search a guest's room) (an employer may not consent to the search of an employee's private storage area)]. (b) The general rule is that any person who has joint control or use of shared premises may consent to a valid search, and any evidence obtained may be used against the other occupants: (i) such consent applies to common areas, but not private, reserved areas where the defendant has exclusive control; (ii) the prosecution has the burden of proving that the co-occupant had authority to grant access by virtue of "joint access or control" over the area. [Frazier v. Cupp, 394 U.S. 731 (1969); United States v. Matlock, 415 U.S. 164 (1974); Illinois v. Rodriguez, 497 U.S. 177 (1990)]. (c) A co-occupant's refusal to a search request is controlling over himself and renders a warrantless entry and search invalid against him [Georgia v. Randolph, 547 U.S. 103 (2006)]. (f). Searches Pursuant to a Stop Rule: A stop is a momentary detention, often accompanied by very limited questioning, of a criminal suspect. The stop may take place in the suspect's home or vehicle or upon the street. A stop is a seizure within the meaning of the Fourth Amendment. Thus, the seizure must be reasonable to satisfy constitutional requirements. Whether the seizure is unreasonable, and therefore violative of the Fourth Amendment, depends upon the type of stop conducted. Rule/Short Investigatory Stop: probable cause is not required for a short investigatory stop. Instead the Fourth Amendment is satisfied if the stop is supported by reasonable suspicion to believe that criminal activity may be afoot. However, as the scope of the stop increases, so should the justification for the stop. Reasonable suspicion is a belief based upon articulable information that is more than a mere hunch used by a reasonable person or police officer that the suspect has or is about to engage in illegal activity. Courts must look to the totality of the circumstances of each case to see whether the police officer has a particularized and objective basis for suspecting legal wrongdoing [United States v. Arvizu, 534 U.S. 266 (2002). Persons present on the premises during a valid search pursuant to a search warrant may be detained [Michigan v. Summers, 452 U.S. 692 (1981)]. (g.) Hot Pursuit Rule: A warrantless search is lawful when police are in actual hot pursuit of a fleeing suspect to apprehend him; they may seize mere evidence as well as any contraband they find [Warden v. Hayden, 387 U.S. 294 (1967)]. Police may enter and search a private dwelling while in reasonable pursuit of the fleeing suspect; police may enter the private dwelling of the suspect or of another person. [United States v. Santana, 427 U.S. 38 (1976)]. The police may use force reasonable under the particular circumstances of the situation, including deadly force, to stop a fleeing suspect who may be endangering innocent bystanders, even if it places the suspect in serious risk of death [Scott v. Harris, 550 U.S. 372 (2002)]. (h). Exigent Circumstances Rule: In certain emergency situations where evidence may be lost or destroyed before a warrant can be obtained, a warrantless search and seizure is permitted [Illinois v. McaArthur, 531 U.S. 326 (2001); Schmerber v. California, 384 U.S. 757 (1966)]. Rule/Evidence in Suspect's Body: The police may conduct a warrantless search and seizure of evidence in or on a suspect's body provided that: (1) there is probable cause to believe that the nature of the evidence renders it easily destroyed or likely to disappear before a warrant can be obtained; and (2) the procedure for seizing the evidence is reasonable. [Note: Murder victim w/evidence under his nails or hair may be obtained from the suspect's body by reasonable means HOWEVER, the blood alcohol level of a drunk driving suspect, which will diminish over time - may not, as of 2013, be treated the same way. Police must generally obtain a warrant before taking the blood of a drunk driving suspect; the natural metabolism of blood alcohol does not justify a blood draw without consent [Missouri v. McNeely, 569 US_(2013), Docket No. 11-1425]. Rule/Blood Sample Warrant: Police must generally obtain a warrant before taking the blood of a drunk-driving suspect; the natural metabolism of blood alcohol does not justify a blood draw without consent [Missouri v. McNeely, 559 US_(2013), Docket No. 11-1425]. The procedure for obtaining the blood sample must be reasonable. A warrantless blood draw could be lawful if the officer showed that the evidence was likely to disappear before a warrant could be obtained. Rule/Shock the Conscience: Pummeling a suspect's stomach with nightsticks an then pumping it medically to retrieve illegal drugs swallowed is not considered a reasonable procedure for obtaining evanescent evidence. Such techniques shock the conscience and violate due process [Rochin v. California, 342 U.S. 165 (1952)]. Rule/Entering the Home: Police may enter a home without a warrant when they objectively have a reasonable belief than an occupant is in serous imminent harm [Utah v. Stewart, 547 U.S. 398 (2006)]. Rule/General Emergency Exception/Non-existent: No general emergency exception exists, so courts are cautious not to over-expand the areas permissible for warrantless searches [Michigan v. Tyler, 436 U.S. 499 (1978) (A warrantless search of a fire scene was permitted at the scene and a few hours later to determine the cause of the fire. However, a search several days later to investigate the fire scene for evidence of arson was held illegal without a warrant). Rule/Searches at the Scene: Although there is no exception to the warrant requirement for searches at the scene of a crime, police may search a crime scene without a warrant to seek other victims or a remaining killer [Mincey v. Arizona, 437 U.S. 385 (1978); Thompson v. Louisiana, 469 U.S. 17 (1984)]. (i). Border Crossings and Checkpoints Rule: As an incident of national sovereignty, customs, and immigration searches, when conducted by government agents in a routine manner and not particularized for a specific person or specific property, are not an invasion of privacy and do not require probable cause [United States v. Flores-Montano, 541 U.S. 149 (2004); Alameida-Sanchez v. United States, 413 U.S. 266 (1973)]. The search may be conducted upon crossing any port of entry into the United States, such as international borders, international airports, and post offices where foreign mail enters. Rule/Reasonableness: Government officials may make routine searches of items and people crossing the border and at fixed checkpoints near the border. The court has concluded that searches made by government officials at the borders are reasonable by virtue of occurring at the national border, and do not require probable cause or reasonable suspicion [United States v. Floes Montano, 541 U.S. 149 (2004)]. Rule/Reasonable Suspicion/Intrusiveness: Reasonable suspicion is required for an unusually intrusive search, such as a body cavity or a search that results in the destruction of property. Where a suspect refuses to submit to an X-ray by customs agents at the border, and reasonable justification for detention initially exists, the detention may continue until a bowel movement occurs [United States v. de Hernandez, 473 U.S. 531 (1985)]. (j) Administrative Searches and the Balancing Justification Rule: Administrative searches are conducted by an administrative agency for the enforcement of the regulations granted to that specific agency, with a lesser showing of probable cause required. Rule: An administrative warrant will generally be required for administrative inspectors to search private homes or businesses with some exceptions as follows: (1) warrantless searches of businesses that are traditionally subject to extensive regulation and affect important interests are not unreasonable within the meaning of the Fourth Amendment; (2) the search of a locked storeroom of a firearms warehouse is permitted during reasonable hours because of the public interest involved [United States v. Biswell, 406 U.S. 311 (1972); and (3) a search for highly contaminated food is justified without a warrant [Michigan v. Tyler, 436 U.S. 499 (1978)]. Rule/Extensively Regulated Businesses/: Examples of extensively regulated industries include pharmacies, liquor distributors, and businesses that must receive and maintain a license specific to that business to operate. Rule/Airports: To protect airline passengers from weapons and explosives, warrantless administrative searches are permitted at airports. A passenger may avoid being searched by declining to board the airplane. (1) Although narcotic sniffing dogs may smell a passenger's luggage, any resulting detention must be brief, and luggage seizure is subject to Fourth Amendment limitations [United States v. Place, 462 U.S. 696 (1983)]; (2) seizure of a disembarking passenger by narcotics agents. who took a suspect's ticket and identification and then escorted the passenger to a detention room, violated the Terry stop standard for reasonable suspicion and was held unconstitutional [Florida v. Royer, 460 U.S. 491 (1983)]. Rule: When issued, an administrative warrant holds a lesser showing of probable cause [Camara v. Municipal Court, 413 U.S. 523 (1968)]: (1) Strict probable cause is not required for issuance of an administrative warrant: (a) where reasonable standards exist for inspecting buildings involving municipal, health, or safety functions; (b) if search is not for the purpose of gathering a criminal investigation; (c) for drug testing of railroad employees associated with an accident or customs agents seeking a promotion [Skinner v. Railway Labor Executives' Assoc., 489 U.S. 602 (1989); Nat'l Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989)]; and (d) within schools, where officials have the right to conduct searches as long as there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school [New Jersey v. T.L.O., 469 U.S. 325 (1985)]. (2) It is still unresolved whether a student has a legitimate expectation of privacy in lockers, desks, and other school property. HOWEVER, drug testing of student who participate in competitive extracurricular activities does not violate the Fourth Amendment [Board of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie County v. Earls, 536 U.S. 822 (2002)]. (3) Child and social service officer are allowed to inspect the home without a warrant because they are not conducting a criminal investigation.. (k) Wiretapping Rule: wiretapping is the use of an electronic surveillance device without the suspect's knowledge or consent. Any form of electronic surveillance, be it voice recording or otherwise, violates the defendant's right a reasonable expectation of privacy. A warrant must, therefore, be issued, demonstrating that: (a) probable cause has been shown that a crime has been or is being committed; (b) the warrant names the suspect and describes the particular conversation to be overheard; and (c) the wiretap is valid only for a brief period, after which time it will be terminated and the recorded conversations returned to the court [Katz v. United States, 389 U.S. 347 (1967)]. (d) A state hospital's performance of a diagnostic test to obtain evidence of a patient's criminal conduct for law enforcement purposes in an unreasonable search of the patient has not consented to the procedure. The interest in using the threat of criminal sanctions to deter pregnant women from using cocaine is not adequate to justify a departure from the general rule that a nonconsensual search is unconstitutional if it is not authorized by a valid warrant [Ferguson v. City of Charleston, 532 U.S. 67 (2001)]. Rule/Conversations: Conversations are not privileged because listening to a conversation does not invade a person's reasonable expectation of privacy: (1) each party to a conversation assumes the risk that the other party will reveal, transmit, or tape record the substance of the conversation [Hoffa v. United States, 385 U.S. 293 (1966)]. The assumption also includes eavesdropping; (2) there is no constitutional right to protect misplaced confidences. A defendant has no basis under the Fourth Amendment for objection as an unlawful warrantless search, even if the person turns out to be a police informer [United States v. White, 401 U.S. 745 (1971)]. A participant in a conversation is not eavesdropping.

Inadmissible Statements/ Right to Counsel Approach Statements made during any "critical stage" of a criminal proceeding are inadmissible unless the defendant is afforded the right to counsel.

In Violation of the Sixth Amendment right to Counsel under the Massiah rule: Rule/Unambiguous Request: Under the Sixth Amendment, a suspect has a right to counsel during questioning by the police. The accused must take the request unambiguously to the interrogator, at which time the questioning must cease. Rule/Offense Specific: The Sixth Amendment right to counsel is offense specific, and the police may continue to question on other offenses, even if those that are factually relating to the charged offense, [Texas v. Cobb, 532 U.S. 162 (2001) (police were allowed to question D without counsel about the murderers of V, even though D had been indicted on burglary charges, and represented by counsel on these charges, related to the victim's home. Counsel must be present at all questioning until the accused waives the right. Rule/Initiates Further Contact: A defendant in custody cannot be interrogated once has asserted his right to counsel UNLESS he initiates further contact, [Montejo v. Louisiana and Miranda and Edwards v. Arizona, 451 U.S. 477 (1981); overturned [Michigan v. Jackson 474 U.S. 625 (1986) (which prohibited police from a D who has counsel or who has requested counsel)]. Rule: Absent an effective waiver once formal charges have been filed, the deliberate eliciting of any incriminating statements from a defendant without the assistance of an attorney violates the 6th Am. The police agent's secret recording of a suspect's conversations while the defendant was out on bail violated his right to counsel [Massiah v. United States, 377 U.S. 201 (1964)]. Rule: The right to counsel extends not only to non-custodial settings, but also to the beginning of the adversarial process. The initial appearance in court will trigger this right because it signals the government's intent to prosecute [Rothgery v. Gillespie County, 554 U.S. 191 (2008)]. {e.g. A violation had occurred when D initiated a conversation w/his co-defendant who at that time had become a police agent (Maine v. Moulton, 474 U.S. 159 (1985))}. Rule: Although police cannot knowingly exploit or intentionally create an opportunity to confront the accused without counsel or absent a waiver, passive listening by a cellmate informant does not violate the right to counsel. The defendant must demonstrate that the police and their informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks. [Kulmann v. Wilson, 477 U.S. 436 (1986)].

Guarantees of a Fair Trial 5. Jury Trial

Jury Trial Rule/Right to Jury Trial/Fundamental Right/Applicable to the States: The right to a jury in a criminal prosecutions was held applicable to the states as being "fundamental to the American scheme of justice" guaranteed by the Sixth Amendment applicable to the states through the Fourteenth Amendment [Duncan v. Louisiana, 391 U.S. 145 (1968)]. Rule/When the Right Attaches: The right to a jury trial attaches in any criminal proceeding where the defendant faces a potential sentence of longer than 6 moths [Baldwin v. New York, 399 U.S. 66 (1970). (a) The right to a jury trial was extended in all criminal contempt cases in which the punishment imposed exceed 6 months in jail [Frank v. United States, 395 U.S. 147 (1969)]. (b) In a civil contempt case no right to a jury trial exists. Rule/Waiver of Jury Trial: The defendant can expressly and intelligently waive his right to a jury trial [Singer v. United States, 380 U.S. 24 (1965)]. Size of the Jury Rule: A six-member jury is upheld in noncapital cases in state courts as long as the jury functions as a representative cross-section of the community [Williams v. Florida, 399 U.S. 78 (1970)]. (a) A unanimous verdict is required with a six-person jury [Burch v. Louisiana, 441 U.S. 130 (1979)]. (b) Five-person juries are held unconstitutional as a denial of due process [Ballen v. Georgia, 435 U.S.223 (1978). (c) Federal trials require unanimous verdicts from 12-member juries. (d) State criminal trials having 12-member juries need not be unanimous; 10-2 and 9-3 verdicts have not been found to violate the Sixth Amendment. Rule/Jury Verdicts: In order for a defendant to be found guilty of murder under the felony rule; he must be guilty of the underlying felony; if not, then the verdicts are legally inconsistent and should lead to an acquittal of both charges. Felony Murder Rule: provides that one whose conduct brought about an unintended death in the commission or attempted commission of an inherently dangerous felony is guilty of murder. Makeup of the Jury Rule/Cross-section of the Community: The defendant has a right to a jury selected from a cross-section of the community; cross-section, however need not include all members of all minority groups [Carter v. Green City Jury Commissioner, 396 U.S. 320 (1970)]. Rule/Prosecutor/Preemptory Challenges: In contrast to striking potential jurors for cause, a prosecutor generally may exercise preemptory challenges for any rational or irrational reason (other than race or gender). The exclusion of perspective jurors based on race and gender violates the Equal Protection Clause [J.E.B. v. Alabama, 511 U.S. 127 (1994)]. (1) A prima facie showing of purposeful racial discrimination in a jury selection can be established solely on the prosecutor's exercise of preemptory challenges at the defendant's trial, placing the burden on the states to prove otherwise. A pretextual reason for exercising a preemptory challenge given by the prosecution gives rise to an inference of discriminatory intent [Batson v. Kentucky, 476 U.S. 79 (1989); Miller-El v. Dretke, 545 U.S. 231 (2005); Snyder v. Louisiana, 552 U.S. 472 (2008)]; (2) The underrepresentation of a distinct and significant racial group from the number of individuals sequestered for jury selection provides adequate grounds for a prima facie showing of discriminatory jury selection [Taylor v. Louisiana, 419 U.S. 522 (1975)]; (3) To rebut a charge of racial discrimination, the state must show it followed racially neutral selection procedures [Alexander v. Louisiana, 405 U.S. 625 (1972)]. (4) The defendant has standing to challenge the jury selection even if he is not a member of the excluded group [Peters v. Kiff, 407 U.S. 493 (1972)]. Rule/Statues Exempting Women from Jury Duty: Statues exempting women, but not men, the right to exempt themselves from jury duty are invalid [Taylor v. Louisiana, 419 U.S. 522 (1975)]. Rule/Excluding Jurors for Misgivings about the Death Penalty: It is a reversible error to exclude jurors merely because they have misgivings about imposing capital punishment [Witherspoon v. Illinois, 391 U.S. 510 (1968)].

Guarantees of a Fair Trial 7. Right of Confrontation

Rule/Confrontation Fundamental Right: The defendant has a fundamental right of confrontation, meaning he may confront all witnesses against him in any criminal prosecution, federal or state [Pointer v. Texas, 380 U.S. 400 (1965)]. The primary purpose of the right of confrontation is to give the defendant an opportunity to cross-examine witnesses at trial. this right does not apply at a grand jury proceeding. Rule/Defendant's Right to be Present at Trial: Although the defendant has the right to be present at the trial, this right is not absolute and may be waived. (a) A waiver of the right to confrontation occurs when a defendant voluntarily leaves the trial [Taylor v. United States, 414 U.S. 17 (1972)]; (b) the court may first warn and then physically remove a disorderly defendant from the courtroom - the trial judge may bind and gag the defendant, cite him for contempt, or remove him from the courtroom for disruptive behavior[Illinois v. Allen, 397 U.S. 337 (1970)]. (c) Placing a screen between a child-abuse victim and the defendant is a violation of the confrontation clause [Coy v. Iowa, 487 U.S. 1012 (1988)], BUT excluding the defendant and transmitting the child's testimony to him via television is permissible. Rule/Legislatively Protected Classes: Because informants would not assist in crime prevention unless they were reasonably certain their identities would be kept secret, the defendant does not have absolute right of confrontation. Rule/Right of Confrontation for Prosecution as well as Defense: Right of confrontation is vital to allow for impeachment of both prosecution and defense witnesses so that a court may determine the credibility of the witness and discover possible bias. Rule: The introduction of out-of-court statements must not deny the defendant the right of confrontation. The Sixth Amendment Issue predominates over the hearsay question. However, the confrontation clause does not automatically exclude all hearsay evidence. (a) The prosecution must demonstrate that the witness is unavailable after good-faith efforts have been made, and that the hearsay statement is trustworthy. Trustworthiness is shown when the hearsay statement either (1) falls within one of he recognized hearsay exceptions; or (2) is made under oath, and the defendant had the opportunity to cross-examine the witness at the time it was made. (b) Out-of-court statements that are testimonial in nature, such as statements made to the police or 911 after an emergency has ceased, are inadmissible under the confrontation clause, even if such statement would be considered excited utterances. Statements, however, are considered non-testimonial and admissible wen made in the course of a police investigation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet the ongoing emergency. Rule: A statute allowing post-indictment co-conspirator admissions does not violate the Sixth Amendment, meaning an incriminating hearsay statement of a co-conspirator is properly admitted at trial despite the defendant's absence [Dutton v. Evans, 400 U.S. 74 (1970)]. Rule: The right of confrontation is satisfied when the defendant had the right to cross-examine at an earlier hearing [Barber v. Page, 390 U.S. 719 (1968); California v. Green, 399 U.S. 149 (1970)]. Rule: A co-defendant's confession cannot be used against the defendant at a joint trial unless the co-defendant takes the stand, the defendant makes a similar confession, or references to the defendant are omitted. \

Guarantees of a Fair Trial 4. Competency,

Rule/Defendant Must Be Oriented: A defendant must be able to understand the nature of the charges against him and have the capacity to consult with his lawyer in preparing for his defense. The defendant must be oriented as to time and place and also must have a fair recollection of the events surrounding the charge [Dusky v. United States, 362 U.S. 402 (1960)]. Rule/D's Right to a Hearing to Determine Competency: The defendant has a right to a hearing by a judge to determine competency, but it is often determined by a jury. Competency is determined by a defendant's mental condition at the time of trial, not at the time of the crime (as insanity is), and may be raised after the completion of the trial [Pate v. Robinson, 383 U.S. 375 (1966)]. Rule: A defendant found to be incompetent is generally committed for treatment, but cannot remain indefinitely in a mental hospital. The criminal proceedings are suspended until the defendant regains competence. The government may administer antipsychotic drugs to a mentally ill defendant against the defendant's will for the purpose of rendering the defendant competent to stand trial on serious criminal charges [Sell v. United States, 539 U.S. 166 (2003)].

Guarantees of a Fair Trial 8. Right to Compulsory Process

Rule/Defendant's Right to Present his Own Witnesses: The right to compulsory process gives a defendant the power to present his own witnesses and a fair opportunity to present a defense free from intimidation or prejudicial exclusion of material evidence [Washington v. Texas, 388 U.S. 14 (1967)]. Rule/Applicable to the States: The Sixth Amendment right to compulsory process for obtaining witnesses has been incorporated to apply to state criminal proceedings [Washington v. Texas, 388 U.S. 14 (1967)].

The Fourth Amendment 1. Government Action

Rule/Government Action: The Fourth Amendment applies only to government, not private, conduct. This amendment was intended as a restraint on the activities of sovereign authorities only [Burdeau v. McDoweel, 256 U.S. 465 (1921)]. Where the actor is an agent of the federal, state, or local government (as well as some civil authorities), this requirement is met. Rule/Private Party at the Direction of Gov't: When a private party acting on his own acquires evidence that the government later seeks to introduce in a criminal prosecution, neither the Fourth Amendment nor the exclusionary rule is triggered. However, when a private party acts at the direction of a government agent or pursuant to an official policy, any search conducted and evidence seized is subject to Fourth Amendment scrutiny [Skinner v. Railway Labor Executives Association, 489 U.S. 602 (1989)].

Guarantees of a Fair Trial 9. Procedural Rights for Conviction

Rule/Prosecution's Duties: The prosecution must prove beyond a reasonable doubt, but not beyond all doubt, that the defendant is guilty of each element of the crime charged to satisfy due process requirement of a fair trial [Speiser v. Randall, 358 U.S. 860 (1958); Taylor v. Kentucky, 436 U.S. 478 (1978)]. Rule/Insanity Defense/Evidentiary Standard: The defendant may be required to prove an affirmative defense, such as self-defense, by a preponderance of the evidence. HOWEVER, in insanity cases, after some evidence of insanity is raised, the prosecution generally must prove sanity beyond a reasonable doubt (e.g., To reduce a charge from murder to manslaughter, the defendant may be required to prove an affirmative defense, such as extreme emotional disturbance, by a preponderance of the evidence [Patterson v. New York, 432 U.S. 197 (1977)]. Rule/Jury Instruction on the Presumption of Innocence: Because there is no absolute right to a jury instruction, on the presumption of innocence, failure to so instruct the juror cannot, by itself, amount to the denial of a fair trial [Kentucky v. Whorton, 441 U.S. 786 (1979)]. Rule/Mandatory Presumptions: A mandatory presumption, which the jury is required to accept, is unconstitutional in a criminal case because it violates the defendant's right to due process [Sandstrom v. Montana, 442 U.S. 786 (1979)]. Rule/Permissive Presumption: A permissive presumption, which the jury may accept, is allowed in criminal proceedings only when a "rational connection" exists between the prosecution's proof of the basic fact and the jury's inference of the ultimate fact or element of the crime [Ulster County Court v. Allen, 442 U.S. 140 (1979)].

The Fourth Amendment 3. Evidentiary Searches and Seizures

Rule/Reasonable Expectation of Privacy: A person may assert his Fourth Amendment rights only when there is government intrusion into his reasonable expectation of privacy, or when the government's investigatory conduct results in a physical trespass against his person, home, papers, or effects. When government action qualifies as a search pursuant to either of these tests, a defendant may seek the remedy of exclusion of the evidence discovered during the search, BUT only if the defendant has standing to object to the government conduct. Rule/Standing: (a) A defendant whose rights are violates must establish standing to assert a Fourth Amendment claim. (1) Ownership or possessory interest in the premises is sufficient; (2) a passenger in an automobile lacks standing to challenge the validity of a search of the vehicle, simply because they were present at the time of the search; mere lawful presence in the car is only one factor the court consider in determining existence of a legitimate expectation of privacy. (3) HOWEVER, a passenger does not have standing to challenge a police stop of an automobile, all occupants of a car are "seized" for purposes of the Fourth Amendment during a traffic stop, not just the driver. So when the police may a random stop of an automobile, the passenger has standing to challenge the search and seizure of items inside the vehicle as fruit of the wrongful stop [Rakas v. Illinois, 439 U.S. 128 (1978); Brendlin v. California, 551 U.S. 249 (2007)]. (4) A defendant who is an overnight guest in another's home has standing; HOWEVER, short-term guests, non-overnight social guests, and commercial guests have no reasonable expectation of privacy in a hosts home [Minnesota v. Olson, 495 U.S. 91 (1990); Minnesota v. Carter, 525 U.S. 83 (1998)]. Rule/Standing based on Ownership: Standing based on a legitimate expectation of privacy is not necessarily determined by mere ownership of the item seized. Where a defendant is charged with possession of an illegal item, Fourth Amendment standing is not automatic: (1) the defendant must show a legitimate expectation of privacy in the items seized or in the premises searched; (2) there must be a fairly substantial nexus between the defendant ad the place searched [United States v. Salvucci, 448 U.S. 83 (1980); Rawlings v. Kentucky, 448 U.S. 98 (1980)]. (E.g., D had no legitimate expectation of privacy when P seized drugs from girlfriend's purse, although D immediately claimed ownership). Rule/Reasonable Expectation of Privacy Available When: A defendant has a reasonable expectation of privacy when the objects identified by the government investigation are not held out to the public. (a) A defendant has no reasonable expectation of privacy when the objects identified by the government investigation are not held out in public. (b) Furthermore, a defendant does not have a reasonable expectation privacy in the following items, even if they are not held out to the public: (1) handwriting exemplars; (2) voice exemplars; (3) bank records; (4) pen registers; and (5) private conversations, including eavesdropping [United States v. Mara, 410 U.S. 19 (1973); United States v. Dionisio, 410 U.S. 1 (1973); United States v. Miller, 425 U.S. 435 (1976); Smith v. Maryland, 442 U.S. 735 (1979); and Hoffa v. United States; 385 U.S. 293 (1966)]. (6) A person in a closed telephone booth does have an actual (subjective) and reasonable expectation of privacy such that the attachment of electronic eavesdropping devices on the exterior of the phone booth constitutes an impermissible search [Katz v. United States, 389 U.S. 347 (1967). Rule/Technology Not in General Public Use: When the government uses a device or technology that is not in general public use that enables them to observe the interior of a private home when they would be unable to observe that area with the naked eye, the surveillance falls under the Fourth Amendment and is presumptively unreasonable without a warrant [Kyllo v. United States, 533 U.S. 27 (2001); United States v. Jones, 565 U.S. _(2012), Docket No. 10-1259 (the government's attachment of a GPS device to a vehicle, and its use of that device to monitor the vehichle's movements also constitute a search under the Fourth Amendment); Florida v. Jardines, 569 U.S. 1 (2013) (the use of a police trained detection dog to sniff for narcotics on the front porch is also a search under the Fourth Amendment)]. Rule/Open Field Doctrine: Under the open fields doctrine, any unoccupied or underdeveloped area outside of the curtilage, the living space directly around the home, is not extended Fourth Amendment Protection. The protection also does not apply to naked-eye observations of private property by air. These areas are not considered part of the home within the meaning of the Fourth Amendment so a physical trespass into open fields does not qualify as a search [California v. Ciralo 476 U.S. 207 (1986) (the court upheld observations made from aircraft of marijuana crops growing in a secluded area of the suspect's property). The open fields away from home are not close or "intimate" to the home to provide protection from government interference or surveillance [Oliver v. United States, 466 U.S. 170 (1984); Dow Chemical Co. v. United States, 476 U.S. 227 (1986) (aerial photography of the outdoor areas around a large fenced-in industrial complex was not a search. Reasonable Expectation of Privacy/Discarded Property: A defendant loses any privacy right that may have existed with discarded property, such as commingled garbage and abandoned rental premises. Searches and Seizure and the Use of Police Dogs Rule/Searches and Seizure and Use of Police Dogs: (a) In general, a canine search dos not constitute an unreasonable search unless the canine physically intrudes upon a constitutionally protected area (curtilage, home, person). (b) Police use of a trained detection dog to sniff for narcotics on the from porch of a private home is a search within the meaning of the Fourth Amendment to the United States Constitution, and therefore, without consent requires both probable cause and a search warrant. This rationale was that this was a physical intrusion on constitutionally protected property - an area in which the homeowner has a reasonable expectation of privacy. Rule/Automobile Exception: The use of drug sniffing dogs trained to detect contraband, but not other items, does not invade the privacy rights of the suspect [Illinois v. Caballes, 543 U.S. 405 (2005)]. Rule/Administrative Searches: To protect airline passengers from weapons and explosives, warrantless administrative searches are permitted at airports. A passenger may avoid being searched by declining to board the plane. Although narcotics-sniffing dogs may smell a passenger's luggage, any resulting detention must be brief, and luggage seizure is subject to Fourth Amendment limitations [United States v. Place, 462 U.S. 696 (1983)]. Rule/Traffic Stops: Drug sniffing dog use is allowed during traffic stops, brief prolongations of those stops to allow such inspections does not violate the Forth Amendment [Illinois v. Caballles, 543 U.S. 405 (2005)]; police may not prolong traffic stops to waits for drug-sniffing dogs to inspect vehicles. A police stop exceeding the time needed to handle the matter for which the stop was made violates the Fourth Amendment [Rodriguez v. United States 575 U.S. _(2015)].

Guarantees of a Fair Trial 1. Right of Severance

Rule/Right of Severance: When two defendants are tried together, if either co-defendant is unfairly prejudiced at any stage of a joint trial, a right of severance may be granted. In a joint trial where a co-defendant's confession implicates the other defendant, the right of confrontation prohibits the use of such a confession and dictates that the defendants are entitled to separate trials [Bruton v. United States, 391 U.S. 123 (1968)]. Rule: The traditional approach of giving the jury instructions to consider the confession only against the confessing defendant is constitutionally inadequate, unless: (a) incriminating portions of the confession can be adequately deleted; (b) the co-defendant takes the witness stand after making a confession and is subject to cross-examination - this applies even when the co-defendant testifies at trial that he never made the confession; or (c) the co-defendant's statement is subject to the harmless error rule.

Post-Trial Stage 1. Defendant's Right's During Sentencing

Rule: A defendant's case is ready for sentencing once a verdict or plea of guilty is entered. The sentence is determined according to applicable sentencing statutes, which must comply with the Eighth and Fourteenth Amendments. The accused has a right to counsel during the sentencing hearing. Rule/Misdemeanor Offenses: Offenses punishable by fine, by imprisonment for not more than one year, or both - if the defendant gives written consent, the court will permit sentencing to occur by video teleconferencing or in the defendant's absence [Fed. R. Crim. P. 43(b)(2)]. Rule/D's Right to Remain Silent: A defendant in a sentencing hearing has a Fifth Amendment right to remain silent, and no adverse inferences may be drawn from the exercise of that right [Mitchell v. United States, 432 U.S. 314 (1999)]. Rule/Use of Hearsay at Sentencing: During sentencing, the court may use hearsay evidence and testimony not subject to cross-examination, or evidence obtained in violation of the Fourth Amendment - when the death penalty is involved, however, the defendant s given greater confrontation rights [Williams v. New York, 333 U.S. 241 (1949); Gardner v. Florida, 430 U.S. 349 (1977)]. Rule/Increasing the Penalty Beyond a Statutory Minimum: Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond a the prescribed statutory maximum must be submitted to the jury and proved beyond a reasonable doubt. These rights may be waived by a defendant being sentenced by a judge (siting without a jury) or subsequent to a plea [Apprendi v. New Jersey, 530 U.S. 466 (2000); Blakely v. Washington, 542 U.S. 296 (2004)]. (a) A sentencing judge, sitting without a jury, may not find an aggravating circumstance necessary for imposition of the death penalty; (b) a jury must be able to consider and give effect to a defendant's mitigating evidence in imposing the sentence; (c) a defendant's Sixth Amendment rights are, however, violated when a sentencing judge enhances a sentence based on facts that are neither admitted by the defendant nor found by a jury; (d) with regard to the Federal Sentencing Guidelines, a sentence outside the advisory Guidelines range does not require extraordinary circumstances and is reviewed under an abuse of discretion standard, regardless of whether the sentence falls above or below the guidelines range [Ring v. Arizona, 536 U.S. 584 (2002); Penry v. Johnson, 532 U.S. 782 (2001); Gail v. United States, 552 U.S. 38 (2007)]. Rule/Harsher Penalty: Generally, if a D wins on appeal and is then reconvicted, a more severe penalty cannot be imposed on retrial; to prevent vindictive punishment, a harsher sentence may only be imposed when it is based on new, objective information of the defendant's conduct occurring after the first sentence was decreed. In a trial de novo, where no review of the original trial or appeal is considered in reaching a new verdict, an increased punishment can result because a different court is rendering the sentence [Colten v. Kentucky, 407 U.S. 104 (1972)].

Inadmissible Statements/Fruits of illegal Conduct/4th Am. Exclusionary Rule Even voluntary statements obtained as fruits of prior illegal searches and seizures are inadmissible.u

Rule: Even a voluntary statement or confession made after a waiver of Miranda rights bay be inadmissible if it is the fruit of an illegal arrest, search or seizure [Wong Sun v. United States, 371 U.S. 471 (1963)]. Rule: Entrapment will result in the exclusion of a confession or statement to the police. Thus, if the defendant is personally predisposed to commit the crime entrapment is not a defense. Rule: In order to have authority or standing to challenge the lawfulness of a search or seizure by a government agent, an individuals personal privacy rights must have been involved (and not those of a third party).

Post-Trial Stage 2. Punishment

Rule: The Eighth Amendment guarantees against cruel and unusual punishment is applicable to the states via the Fourteenth Amendment [Francis v. Resweber, 329 U.S. 459 (1946)]. Requirement Rule: In order to comply with the Eighth Amendment, the sentence must be proportional to the crime committed and the sentences of other similarly situated criminals having conducted similar crimes. Rule/Harsher Punishment for Repeat Offenders: The concept of imposing harsher sentences for repeat offenders has been held constitutional [Rummel v. Estelle, 445 U.S. 263 (1980)]. Rule/Executive Jail Terms: Executive jail terms that are grossly disproportionate to the crime committed violate the Eighth Amendment [Weems v. United States, 217 U.S. 349 (1910)]. Rule: Imposition of the death penalty for the crime of rape is grossly disproportionate to the offense and unconstitutional under the Eighth Amendment [Cooker v. Georgia, 433 U.S. 584 (1977); Kennedy v. Louisiana, 554 U.S.407 (2008)] Rule/Imprisonment for Inability to Pay: A defendant cannot be imprisoned because of his inability to pay a fine [Tate v. Short, 401 U.S. 395 (1971)]. Rule/Doubling Inmates: Doubling up inmates into one jail cell is neither cruel nor unusual [Rhodes v. Chapman, 450 U.S. 906 (1981)]. Rule/Addicts: Conviction of an individual because he is addicted to narcotics is a cruel and unusual punishment [Robinson v. California, 370 U.S. 660 (1962)]. Being an addict or an alcoholic cannot in and of itself be criminal; however, being drunk in a public place can be a punishable crime [Powell v. Texas, 392 U.S. 514 (1968)]. Rule/Mandatory Capital Punishment: Mandatory capital punishment for specified crimes, such as shooting police officer, is unconstitutional because it precludes consideration of mitigating factors [Woodson v. North Carolina, 428 U.S. 280 (1976); Lockett v. Ohio, 438 U.S. 586 (1978); Eddings v. Oklahoma, 469 U.S. 368 (1986)]. Death Penalty Rule: The death penalty is not considered cruel and unusual punishment nor grossly disproportionate to the crime, provided the court's review procedure affords procedural safeguards to prevent arbitrary or discriminatory sentencing [Gregg v. Georgia, 428 U.S. 153 (1976)]. The following procedural safeguards exists to prevent violations of the Eighth Amendment: (1) a bifurcated trial, where one jury determines guilt and a second jury recommends the sentence, was established to lessen the likelihood of discriminatory sentencing; (2) evidence concerning the aggravating circumstances must be presented before imposing the death penalty. Furthermore, a killing cannot be raised to a capital offense under a vague state statute when the none of the expressed aggravating factors are proved [Godfrey v. Georgia, 446 U.S. 420 (1980); (3) the court must review mitigating factors before imposing the death penalty, although a jury need not receive instructions on the concept of mitigation or mitigating factors allowed by a state [Buchanan v. Angelone, 522 U.S. 269 (1998); The Jury's Role In Punishment; (4) A jury may not impose a death sentence unless it is also permitted to return a verdict of guilty to a lesser-included offense supported by the evidence; a state need not instruct the jury on offenses that, under state law are not considered lesser-included offenses of the crime charged [Beck v. Alabama, 447 U.S. 625 (1980); Hopkins v. Reeves, 524 U.S. 88 (1998)]; (5) when a capital defendant's future dangerousness is at issue, and the only sentencing alternative to death is life imprisonment without a possibility of parole, due process entitles the defendant to tell the jury that he is ineligible for parole [Kelly v. South Carolina, 534 U.S. 246 (2002)]; and (6) there must be a review procedure to prevent imposition of the death penalty for arbitrary or discriminatory reasons. The Jury's Role in Punishment Rule/D's Right to Have Jury Determine the Sentence: There is no express right to have a jury determine a sentence. Even the death penalty may be imposed by a judge acting alone or with jury advisement as to sentence [Spaziano v. Florida, 468 U.S. 447 (1984)]. Rule: A state statute may not exclude from a jury all individuals who express some opposition to the death penalty. The state may exclude all potential jurors who indicate that they would never, under the circumstances, impose the death penalty [Witherspoon v. Illinois, 391 U.S. 510 (1968)].

Guarantees of a Fair Trial 2. Impartiality

Rule: The due process right to an unbiased judge requires the defendant to be tried before a magistrate who is neither prejudiced against the defendant nor financially interested in the outcome of the trial [Ward v. City of Monroeville, 409 U.S. 57 (1971)].

Guarantees of a Fair Trial 6. The Right to a Public Trial

Rule: Under the Sixth Amendment, the defendant has the right to a public trial in all criminal prosecutions. Rule/Exclusive Right of Defendant: Because the Sixth Amendment right to a public trial belongs to the defendant, not the public, the defendant may choose to waive this right and exclude the press and public [Garnett Co. v. De Pasquale, 443 U.S. 368 (1979)]. Rule/Rights of General Public and Members of Press: Members of the press and thee general public have a Sixth Amendment right to be present at all criminal proceedings EXCEPT the grand jury, unless the judge specifically finds some overriding interest to necessitate a closed trial [Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982)]. (a) this right can supersede the defendant's waiver of a public trial; (b) the trial judge has the right to place limitations on the public and media, but public and media exclusion must be to protect the defendant's right to a fair trial [Irwin v. Dowd, 366 U.S. 717 (1961); Groopi v. Wisconsin, 400 U.S. 505 (1971)]; (c) In states that use preliminary hearings instead of grand juries, there is no general right for the media to be present at those proceedings even those that take place in a courtroom.

Inadmissible Statements/Miranda Standard/5th Am. Priv. against Self-Incrim. Statements made during custodial interrogation are inadmissible in the absence of Miranda warnings

a. Miranda Rule: The Miranda rule states that no statement made by the D will be admitted into evidence unless, prior to custodial interrogation, the defendant has been given certain warnings. [Miranda v. Arizona, 384 U.S. 436 (1966)]. Rule: The Miranda rule is now the main basis for excluding a confession, but does not replace the case-by case analysis used in the "voluntariness approach." Any involuntary confession, to which Miranda did not apply would still be excluded on due process grounds. b. Miranda Warnings Rule: Miranda warnings need not be given verbatim, provided the defendant is sufficiently informed of his rights. Miranda requires that the suspect be given the following four warnings: 1. you have the right to remain silent; 2. anything you say could be used against you in court 3. you have the right to the presence of an attorney; and if you cannot afford an attorney one will be provided to you. [California v. Prysock, 453 U.S. 355, (1981)]. c. Interrogation Rule: Miranda only applies when an interrogation occurs. An interrogation occurs where police know or should reasonably know that their actions or inquires are reasonably likely to illicit a criminal response. [Rhode Island v. Innis, 446 U.S. 291 (1980)]. Rule: Volunteered, spontaneous, or unsolicited statements are not considered he product of an interrogation and thus admissible. Rule: The test focuses on the susceptibility of the suspect. Thus, if there are no objective indications of particular susceptibility, such as youth, then the police may talk in the presence of the suspect provided that there is no direct questioning, even though such conversations in the presence of a juvenile suspect would constitute a Miranda violation. Rule: Miranda only bars official interrogation. Thus, informant questioning in jail does not require giving Miranda warnings [Illinois v. Perkins, 496 U.S. 292 (1990)]. Miranda also does not apply to questioning by a private security guard [People v. Baugh, 311 N.E.2d 607 (III. 1974)]. d. Custody Rule: The Miranda rule applies only to statements made during custodial interrogation where the suspect experiences significant deprivation of freedom of movement and may not leave. Courts apply objective criteria o determine whether the suspect is in custody; [Yarborough v. Alvarado, 541 U.S. 652 (2004)]. Rule: Factors to be considered in determining whether the suspect is in custody for Miranda purposes: 1. When and where it occurred; 2. how long it lasted; 3. how many police officers were present; 4. what the officer and the defendant said and did; 5. the presence of physical restraint or the equivalent, such as drawn weapon or a guard stationed at the door; and 6. whether the defendant was being questioned as a suspect or as a witness Rule: Subjective factors are not considered. This means that neither the subjective belief of the police nor the suspect determine whether the interrogation was, in fact, custodial. Whether the suspect actually believed he was free to leave or not, or whether the police would have allowed the suspect to leave or not, does not matter. What matters is whether the suspect experienced a significant deprivation of freedom of movement from an objective perspective. Rule: For Miranda purposes, a terry stop is not considered to be custodial; therefore Miranda warnings are not required. [Berkemer v. McCarty, 468 U.S. 420 (1984)]. Rule: During a roadside stop, a Miranda Warning is not required because a person is not considered to be in custody because the person being stopped is not considered to have given up his freedom. Rule: On the scene questioning, is not considered custodial. Questions that are investigatory in nature do not require Miranda warnings before hand. Rule: statements made before a grand jury investigation are not products of custodial interrogation, [United States v. Mandujano, 425 U.S. 564 (1976)]. Rule: Interrogation of a taxpayer during a criminal investigation by IRS is not custodial interrogation, [Beckwith v. United States, 425 U.S. 341 (1976)]. Rule: A defendant's statement during a lineup is not testimonial in nature. Appearing in a lineup and being required to make statements during a lineup procedure are not testimonial activities, but demonstrative in nature. A suspect does not have a right under the Fifth Amendment privilege against self-incrimination to refuse to appear or make a statement in a line up. Rule/Booking Procedures: Where an officer reads a defendant his Miranda rights and have the defendant sign a form acknowledging his Miranda rights is not a violation of Miranda because the officer is not making an effort to question the defendant or have him waive his rights, at this point no interrogation is occurring; thus, the defendant's Miranda rights are not being violated. e. Special Exceptions Rule: Miranda does not apply to: 1. questions by police officers regarding age, date of birth, height, weight, and the like, [Oregon v. Mathiason, 429 U.S. 492 (1977); 2. a slurred response when answering a question is admissible in a drunk-driving case, [Pennsylvania v. Muniz, 496 U.S. 582 (1990)]. 3. questioning by a parole officer when defendant was free to leave the police station. Rule: The right to receive Miranda warning may in some case b[e outweighed by immediate threat posed to public safety, [New York v. Quarles, 467 U.S. 649 (1984)]. f. Admissibility Rule: Statements obtained in violation of Miranda may not be used in the prosecution's case-in-chief. Statements obtained from the defendant in violation of Miranda rights are admissible to impeach the defendant's testimony at trial, [Harris v. New York, 401 U.S. 222 (1971)]. Rule: The Miranda warnings do not necessarily prevent the inclusion of physical evidence, even if oral statements are not allowed, [U.S. v. Patane, 542 U.S. 630 (2004)]. Rule: A co-conspirator does not have automatic standing to challenge the seizure of illegally obtained evidence from another co-conspirator. To have authority standing to challenge the lawfulness of a search or seizure by a government agent, and individual's personal privacy rights must be invaded (rather than those of a third party). Rule: Admission of evidence in violation of a person's Miranda rights does not result in automatic reversal, but may be a harmless error, [Milton v. Wainwright, 407 U.S. 371 (1972)]. g. Waiver of Miranda Rights Rule: A knowing and intelligent waiver of one's Miranda rights is permitted, but the prosecution has a heavy burden to prove that there was compliance with the warnings requirement and that the waiver was voluntary, knowing, and intelligent. Thus, if there are no objective indications of a particular susceptibility, such as youth, then the waiver is valid as long as it was made voluntarily, intelligently, and knowingly. Rule: The waiver need not be in writing [North Carolina v. Butler, 441 U.S. 369 (1979)]. Rule: The waiver can be express or implied but it cannot be assumed by the defendant's silence [Fare v. Michael C., 442 U.S. 707 (1979)]. Rule/Mentally Disability: An admission from a mentally disabled person may be used because the personal characteristics of the defendant existing at the time of the purported waiver are relevant only as they relate to whether there was police overreaching [Colorado v. Connelly, 479 U.S. 157 (1986)] EXCEPTION: However, if the mental disability is such that it made the defendant unable to understand the meaning of the warnings, the waiver cannot be intelligent. Rule: Miranda waiver have been upheld even when obtained after the police had misrepresented the strength of the case and seriousness of the crime being investigated. E.g., [Moran v. Burbine, 475 U.S. 412 (1986)], A defendant's waiver of counsel was sufficiently knowing and intelligent when the police withheld from the defendant information that an attorney had sought to counsel with him. Rule: A waiver is valid as long as the defendant was aware of he Miranda rights and understood the waiver. The defendant need not be warned of possible charges facing him [Colorado v. Spring, 479 U.S. 564 (1987)]. E.g., a defendant validly waived his Miranda rights when making oral statements, even though he refused to sign a statement without the benefit of counsel, [Connecticut v. Barrett, 479 U.S. 523 (1987)]. Rule: Courts have held waivers invalid where the defendant have been held in custody for an extended period of time before being given warnings, or where the defendant has been subjected to persistent questioning. Rule/Intoxication: Defendants have generally been unsuccessful in claiming that their Miranda waivers should be held invalid because they were either intoxicated or under the influence of drugs or medication at that time. Rule/Parole officer: the Court held that a juvenile's request to have his probation officer present was not a per se invocation of his Miranda rights. Rule/Attorney on Retainer: The mere fact that one has an attorney on retainer does not preclude him from waiving his Miranda rights. h. Invocation of Miranda Rights and Repetition of Warnings Rule: If a defendant either requests an attorney or states that he wishes to remain silent, all interrogation must stop. These requests can be made at any point of the interrogation. Rule: The general rule is that a defendant's right to terminate interrogation, at anytime and in any manner, must be scrupulously honored. Rule: To resume questioning anew, the police must allow for a significant time period of time to elapse and must provide a fresh set of Miranda warnings. Rule: A defendant who has exercised his right to remain silent may properly be questioned about a unrelated crime following a significant lapse of time, provided a new set of warnings is given, [Michigan v. Mosley, 423 U.S. 96 (1975)]. Rule: A defendant who has requested an attorney may not be further questioned until either counsel is furnished or the defendant voluntarily initiates a discussion beyond a necessary inquiry arising out of the incident of the custodial relationship, [Oregon v. Bradshaw, 462 U.S. 103 (1983)]. Rule: Provided there is no Fourth Amendment violation, admissions obtained after the giving of Miranda warnings are admissible, even if prior admission on the same matter were obtained in violation of Miranda, [Oregon v. Elstad, 470 U.S. 298 (1985)]. However, the police may not give a Miranda Warning in the middle of questioning and then ask the defendant to repeat the statements made before the Miranda warning was given, [Missouri v. Siebert, 542 U.S. 600 (2004)]. Rule: However, a suspect does not invoke his right to remain silent by simply not answering questions. The S. Ct. has recently held that a suspect must unambiguously invoke is right to remain silent before the police are required to end their questioning, [Berghuis v. Thompkins, 130 S. Ct. 2250 (2010)]. Rule: Miranda warnings need not be repeated because of a short (as opposed to significant) break in interrogation or because a new police agent begins questioning, [Westover v. United States, 384 U.S. 436 (1966)]. Rule: When inmates are offered minimal incentives (such as visitation rights, work opportunities, ability to send money to family, canteen expenditures, access to personal television, or incarceration in a lower level security facility to participate in sexual abuse treatment programs in which they "accept responsibility" for and admit to their criminal offenses, such statements are not compelled self-incrimination, prohibited by the 5th Am, [McKune v. Lile, 536 U.S. 24 (2002)].