Criminal Procedure

burden of proof: Miranda waivers

the prosecution bears the burden of proving a valid waiver of a suspect's Miranda rights by a preponderance of the evidence

trial rights: the right to effective assistance of counsel

two prong test: 1) deficiency requirement: counsel's performance fell below an objective standard of reasonableness (not functional as counsel) 2) prejudice requirement: "but for" the deficiency, the outcome of the trial would have been different (one of two counsels is unlicensed does not count) -very strict test: unless there is some colorable argument that the defendant is not guilty, always deny relief under an ineffective assistance of counsel claim

requirements for admitting testimonial responses obtained through custodial interrogation

unless the public saftey exception applies, an officer must do two things before initiating questioning: 1) reasonably convey to the suspect his or her Miranda rights (doesn't have to be the exact wording), and 2) reasonably obtains a valid waiver of a suspect's Miranda rights to silence and counsel.

double jeopardy: lesser included offenses

1) if you are in jeopardy for the greater offense, then retrial for the lesser included offense is barred -example: robbery (larceny + assault) bars retrial for larceny or assault 2) if you are in jeopardy for the lesser offense, it bars retrial for the greater offense

privilege against compelled self-incrimination ("taking the fifth")

*The Self-Incrimination Clause of the Fifth Amendment to the United States Constitution provides that "no person . . . shall be compelled in any criminal case to be a witness against himself" *The prohibition against self-incrimination is an individual right not to implicate ones' self in a criminal offense; The invocation of this privilege is colloquially referred to as "pleading the Fifth," "taking the Fifth," or "demanding the Fifth." One famous example of "taking the fifth" occurred when Colonel Oliver North was asked to testify before Congress regarding his role in destroying documents during the Iran-Contra Affair. 1) who can assert? -any person: defendants, witnesses, or party (only if the answer to the question might tend to incriminate him) -anyone under oath in any kind of case may assert the privilege 2) when privilege may be asserted: when a response might furnish a link in the chain of evidence needed to prosecute him. -note: the privilege must be claimed in civil proceedings to prevent the privilege from being waived for a later criminal prosecution -if someone provides sworn testimony they CANNOT take the fifth in a subsequent proceeding when asked the same question. It has to be asserted at the first opportunity or is forever waived. 3) scope of the protection: 5A privilege protects only testimonial or communicative evidence and NOT real or physical evidence (urine, blood, hair sample) -government cannot make you take a lie detector test, or undergo custodial police interrogation -protects from words compelled from your mouth, not fluids compelled from elsewhere 4) violation: when a person's compelled statements are used against him in a criminal case -also protects against negative prosecutorial comment on a defendant's decision not to testify at his trial, or invocation of his right to silence or counsel (cannot say to the jury "if this guy is so innocent, why did he ask for his lawyer?")

automobile exception to the warrant requirement (warrantless search OK)

*expectation of less privacy in your car makes this OK 1) standard: must have probable cause to believe that contraband or evidence of crime will be found in the vehicle 2) where: if they have probable cause, they can search the entire vehicle, including the trunk, and may open any package or container that may reasonably contain the items for which there was probable cause to search (but not if the container is too small for the item searching for) 3) traffic stops: routine traffic stop may result in search of the entire car. Officer does not need probable cause to search the vehicle at the time the car is pulled over, provided he acquires it BEFORE initiating the search -example: a car is pulled over for speeding, officer runs the license plate and discovers car is connected to drug trafficking. He can search the car after he ran the license plate, but not before because before he only had probable cause the guy was a speeder, not a drug possessor. Note: in crim pro, the sequence of events is key. even if a cop could have searched constitutionally, it doesn't mean he did in this instance

who has standing to challenge a search or seizure?

*key is the invasion of an individual's personal privacy rights, not those of a third party 1) owners of the premises searched 2) residences of premises searched 3) overnight guests have standing as to areas the can be expected to use 4) those who use residence solely for business purposes NEVER have standing 5) owners of seized property, but only if they have a reasonable expectation of privacy in the area from which the property was seized. 6) passengers in cars do NOT have standing as to searches of the automobile, since they do not have a reasonable expectation of privacy in vehicles in which they are merely passengers. 7) in NY, passengers can challenge the possession of weapons if the possession is attributed to them

pre-trial detention

*not needed in NY because it uses grand juries 1) standard of proof: the government needs probable cause both to bind a defendant over for trial and to detain him in jail before trial 2) detention hearings: a hearing to determine probable cause is unnecessary to justify pretrial detention if: -the grand jury has issued an indictment or -a magistrate has issued an arrest warrant 3) the "first appearance" -soon after the arrest, a defendant must be brought before a magistrate who: -advises him of his rights -sets bail -appoints counsel if necessary -exception: decisions regarding bail are IMMEDIATELY appealable

trial rights: evidentiary disclosure

*the brady rule a prosecutor MUST disclose to a criminal defendant all material exculpatory evidence

what are the fourth amendment limitations on the exclusionary rule?

*this is an answer to the question of the extent to which prosecutors can use the evidence gathered in an unconstitutional search and seizure against the defendant in court 1) case-in-chief versus cross-examination: -unconstitutionally obtained evidence is excluded from the prosecutor's case-in-chief ONLY. It may be introduced to impeach defendant's testimony on cross-examination 2) violations of "knock and announce" rule do NOT trigger exclusionary rule and require suprression of the evidence subsequently discovered 3) evidence obtained under officer's reasonable mistake does NOT trigger exclusionary rule. -similarly does not apply to evidence erroneously obtained when executing a search warrant, provided an officer's mistake was reasonable. 4) Erroneous police conduct must be deliberate, reckless, or grossly negligent to trigger the exclusionary rule -example: exclusionary rule does not apply to a bookkeeping error by police employee that led to an unlawful arrest where the error was the result of simple tort, not gross criminal negligence 5) fruit of the poisonous tree doctrine

double jeopardy, generally

*under the 5th Amendment, a person may not be retried for the same offense once jeopardy has attached. -when does jeopardy attach? 1) at a jury trial: when the jury is sworn 2) at a judge trial: when the first witness is sworn 3) jeopardy does NOT generally attach when the proceedings are civil (like by the SEC) -you can have criminal prosecution followed by civil for damages -four exceptions permitting retrial: 1) jury is unable to agree on a verdict (hung jury), but only for those charges on which the jury disagrees 2) mistrial for manifest necessity (termination by defendant NOT constituting acquittal on the merits) 3) retrial after successful appeal 4) breach of an agreed upon plea bargain by the defendant (plea and sentence can be withdrawn, and the original charges can be reinstated)

what are the substantive challenges to pre-trial identifications available to a defendant?

- denial of the right to counsel 1) 5th amendment: there is NO 5A right to counsel under Miranda for pretrial identification procedures 2) **6th amendment: a right to counsel DOES exists under 6A at line ups and show ups that take place after formal charging, but there is NO 6A right to counsel at photo arrays. 3) NY Distinction: NY provides greater protection for suspects. You have the right to have an attorney present at a line-up before the filing of formal charges if you are aware you have counsel and you request that counsel to be present. -violation of due process 1) standard: pre-trial identification violates DP when it is so unnecessarily suggestive that it creates a very substantial likelihood of irreparable misidentification. 2) In making this determination, courts must weigh the reliability of a suggestive identification against its corrupting effects.

6th Amendment: Right to Counsel and Limitations on Right

-This is an express constitutional guarantee -Limitations: 1) it attaches when the defendant is FORMALLY CHARGED, not upon arrest 2) once they are filed, it applies at ALL critical stages of the prosecution that take places after formal charging -includes arraignment, probable cause hearings, and police interrogations. 3) *this is an OFFENSE SPECIFIC right. it applies ONLY to the charges filed against you, and provides no protection for uncounseled interrogation for other uncharged criminal activity. *4) interrogation standard: incriminating statements obtained from defendant by law enforcement about the charged offenses violate the 6th if: -AFTER formal charging, -those statements are deliberately elicited and -the defendant did not knowingly, intelligently, and voluntarily waive his right to have his attorney present.

eavesdropping "unreliable ear doctrine" and assumption of risk

-if you speak to someone who has agreed to a wiretap or some other form of electronic monitoring, you have no 4th Amendment claim, you assume the risk that the other party will not keep your conversations private.

invoking Miranda rights: the right to remain silent

-suspect must unambiguously invoke this right -once they do, police officers must honor it. This means at the very least they cannot badger a suspect into talking, and have to wait a significant period of time before reinitiating questioning and must first obtain a valid Miranda waiver.

5th Amendment: Miranda Doctrine

-these are rights that apply before you have been formally charged -miranda rights are IMPLIED RIGHTS grounded in the self-incrimination clause of the 5th amendment. -there are 4 core Miranda warnings: 1) the right to remain silent 2) anything you say can and will be used against you in a court of law 3) the right to an attorney 4) if you cannot afford one, an attorney will be appointed for you at no cost. -a suspect has 3 options: 1) waive Miranda rights and agree to talk to the cops 2) assert his right to silence 3) assert his right to counsel

what are the requirements for a valid Miranda waiver?

1) "knowing and intelligent" -suspect understands nature of rights and consequences of abandoning them 2) "voluntary" -means simply that it is NOT the product of police coercion for all of crim pro purposes -NY parent/child rule: if the police use deception or concealment to keep a parent away from a child who is being interrogated, then the waiver may be deemed invalid. Note on executing the waiver: -a waiver need not be express; this can be implied by a course of conduct that indicates the desire to speak with police interrogators. -if a suspect has received and understood his Miranda rights, he waives his right to remain silent by making an uncoerced statement to the police.

double jeopardy: the "same offense" requirement

1) Federal standard: two crimes do not constitute the same offense if each crime requires proof of an addtional element that the other does not -example: you can have two trials for hit & run (requires proof D left the scene, but not of death) and vehicular manslaughter (requires proof of death, but not that D left the scene) 2) NY uses the "same transaction test": all criminal charges arising from a single criminal transaction must be tried together -example: manslaughter and hit and run from the same hit; felony and felony murder -four exceptions: a) the offenses have substantially different elements b) each offense contains an element not in the other and prevents different harms c) one is for criminal possession and the other for use d) each offense involved harm to a different victim

what are the three federal constitutional challenges that can be brought to exclude a confession?

1) Fourteenth Amendment: Due Process Clause 2) Sixth Amendment: Right to Counsel 3) Fifth Amendment: Miranda Doctrine NY Note: -defendants can also challenge a confession under New York's INDELIBLE RIGHT TO COUNSEL, which derives from the 6th Amendment of the NY State Constitution.

grand juries

1) What do they do? -In NY, a grand jury is a group of no fewer than 16 (12 must agree) -the grand jury investigates offenses by hearing and examining evidence to determine whether to permit prosecution of those offenses (in the common law system, an indictment is a formal accusation that a person has committed a crime. The right of one accused of a felony or serious crime to have the charges reviewed for probable cause by a grand jury before being tried by a trial jury is secured by the Fifth Amendment to the Constitution of the United States) 2) Are their proceedings public? -No. they are secret. 3) Do states have to use them as part of the charging process? -NO, and most don't. 4) But, New York does. -Indictments have to establish all elements of the offense, and provide reasonable cause to believe that the accused committed the offense. -first you are indicted, then you are convicted

exceptions to the "good faith" defense to a defective warrant (warrant cannot be saved)

1) affidavit supporting the warrant application is SO egregiously lacking in probable cause that no reasonable officer would have relied upon it -example: bare bones affidavit that states only that the police have "received information from a confidential informant" who is "known to them" and "has provided reliable information in the past" 2) warrant is so facially deficient in particularity that officers cannot reasonably presume it to be valid -example: warrant authorizes a search for "all serial numbers and identification numbers on all property" where probable cause existed only as to the presence of a stolen vehicle parked outside 3) affidavit relied upon by the magistrate contains knowing or reckless falsehoods that are necessary to the probable cause finding -if falsehoods are negligent or not necessary, this exception does not apply and warrant is OK. 4) magistrate who issued the warrant is biased in favor of the prosecution -example: salary of town official responsible for issuing warrants comprised entirely of cash rewards for each warrant issued

trial rights: judges

1) all defendants have a right to unbiased judge 2) the right to an unbiased judge means two things: -the judge has no financial stake in the outcome of the case -the judge has no actual malice toward the defendant

search incident to arrest exception to the warrant requirement (warrantless search OK)

1) arrest must be lawful 2) justifications: -officer safety -the need to preserve evidence 3) *timing: the search must be contemporaneous in time and place with the arrest 4) geographic scope: -wingspan (includes body, clothing, and any containers within the arrestee's immediate control, regardless of crime) -NY distinction: to search containers within wingspan, police must suspect the arrestee is armed. 5) for automobiles: interior cabin, including closed containers, but NOT the trunk -but once an officer has secured the arrestee, officer can search vehicle ONLY IF she reasonably believes the vehicle may contain evidence relating to the crime -NY distinction: once occupant is out of the car, police CANNOT search closed containers or bags in the car to look for weapons or evidence of crime.

trial rights: jury selection

1) cross-sectional requirement: requires that the POOL from which the jury is drawn represents a cross-section of the community (not the actual selection) -a jury that contains all white women over the age of 60 does NOT violate the cross-sectional requirement, provided the pool from which it was drawn was appropriately diverse 2) peremptory challenges: these permit both sides to exclude jurors without stating their reasons for doing so, but they cannot be used by either side to exclude prospective jurors on account of race or gender

"terry frisk" exception to the warrant requirement (no warrant required)

1) defined: a pat-down of the body and outer clothing for weapons that is justified by an officer's belief that a suspect is armed and dangerous 2) what can officer take? -weapon can always be seized. -contraband can be seized, if officer recognizes it as contraband without manipulating it -NY distinction: officer can seize item ONLY IF it feels like a weapon Bag of cocaine example: if the grounds on which you are trying to admit seized contraband is a terry frisk, it won't work if there is physical manipulation of the contraband. However, if this were a search incident to arrest, for that doctrine you can search within the wingspan any clothing, containers, etc. So if this was a search incident to arrest, it was found within the wingspan, in a container, inside clothing, it would work. Terry doctrine is a more limited doctrine. 3) car frisks at traffic stops: if officer believes that a suspect is dangerous, he may search the passenger cabin, limited to those areas in which a weapon may be placed or hidden 4) protective sweeps: -when making an in-home arrest, police may "sweep" the residence to look for criminal confederates of the arrestee whose presence may threaten officer safety

law of arrest

1) defined: an arrest occurs when police take someone into custody against her will for prosecution OR interrogation 2) de facto arrest: when police compel someone to come to the police station for questioning or fingerprinting 3) standard of proof: always need probable cause to arrest 4) permission to arrest for what offenses: all offenses, even those punishable only by monetary fine

when do you need an arrest warrant?

1) do NOT need a warrant to arrest someone in public -for felonies: officer can make a warrantless arrest whenever they have probable cause to believe the person committed a felony -for misdemeanors, can make a warrantless arrest for any misdemeanor committed in his/her presence 2) absent an emergency, DO need a warrant to arrest someone in own home 3) to arrest someone in another's home, you need an arrest warrant AND a search warrant -or, if no search warrant, park on street and wait for them to come out

double jeopardy: same sovereign requirement

1) double jeopardy bars retrial for the same offense by the same sovereign only 2) Examples: -state and federal government: not same sovereign, one can try you, then the other -different states: also not the same sovereign, both can try you -states and municipalities within them: yes, same sovereign. if you are tried by NYC, you cannot be tried by NYS.

exigent circumstances exception to the warrant requirement (warrantless search OK)

1) evanescent evidence: -evidence that would dissipate or disappear in the time it would take to get a warrant -example: paint under fingernails, blood evidence in DUI. 2) hot pursuit of a fleeing felon -allows police, when looking for a suspect to -enter a suspect's home or that of a third party -into which he has fled. -during hot pursuit, any evidence of criminal activity discovered in plain view while searching for the suspect is admissible 3) emergency aid exception: -police may enter a residence without warrant when there is an objectively reasonable basis for believing that a person inside is in need of emergency aid to address or prevent injury

exceptions to the warrant requirement: ESCAPIST (where warrantless search and seizure is OK)

1) exigent circumstances 2) search incident to arrest 3) consent 4) automobile 5) plain view 6) inventory 7) special needs 8) Terry "stop and frisk"

guilty pleas: procedure

1) for a guilty plea to be valid, the judge must establish that it is voluntary and intelligent 2) "plea taking colloquy": before accepting the plea, the judge must conduct a colloquy in open court in which she addresses ON THE RECORD: -the nature of the charges (including elements of the charged offense) -the consequences of the plea (waiver of right to plead non guilty, waiver of right to a trial)

remedial considerations for substantive violations during pre-trial identification

1) for challenges of both right to counsel and DP violations in pre-trial identification, the defendant's remedy is the exclusion of the witness's in-court identification 2) however, even if there is a constitutional violation in a pre-trial identification procedure, in-court identification will still be allowed if the prosecution can prove that it is based on the observations of the suspect OTHER THAN the unconstitutional show-up, line-up, or photo array. 3) to make this showing, the prosecution can point to factors such as: -the witness's opportunity to view the defendant at the crime scene -the certainty of the witness's identification -the specificity of the description given to the police Note on big picture: the most powerful tool in the prosecution's arsenal is to have a witness on the stand point to defendant in front of the jury. If unreliable, this can lead to a miscarriage of justice if we allow it, but if reliable, it will also lead to a miscarriage of justice if we prohibit it. This is trying to balance and achieve both.

trial rights: juries

1) fundamental protections -all criminal defendants have a right to a fair and impartial jury 2) criminal defendants have the right to a jury trial when the maxim authorized sentence exceeds 6 months 3) requisite number of jurors: -the fewest number of jurors constitutionally allowed in a criminal trial is 6 -NY: requires a 12 person jury, but a defendant can waive this requirement and proceed to verdict with only 11 jurors participating in the deliberations 4) unanimity of jury verdicts: -constitutional standard is jury verdicts in a criminal trial must be unanimous only if 6 jurors are used; -in NY, jury verdicts must be unanimous (required by the state, not the US constitution)

privilege against compelled self-incrimination: elimination of the privilege

1) grant of immunity: a witness may be compelled to answer questions if granted immunity from prosecution -rule: prosecutors can grant "use and derivative use" immunity, which bars the government from using your testimony on anything derived from it to convict you (but may still be prosecuted based on evidence obtained before the immunity from an independent source) -NY distinction: NY grants transactional immunity, which shields witnesses from prosecution for any transaction they testified about in their immunized testimony (broader immunity) 2) waiver of privilege: a criminal defendant, by staking the witness stand, waives the privilege as to anything properly said within the scope of cross-examination 3) statute of limitations: the privilege is unavailable if the SOL has run on the underlying crime, since, in this circumstance, a witness's testimony could not expose him or her to criminal prosecution (not enough to just make you look bad)

Miranda violations: limitations on evidentiary exclusions (evidence will be allowed if)

1) incriminating statements obtained in violation of a suspect's Miranda rights are inadmissible in the prosecutors case-in-chief, BUT may be used to impeach the defendant's testimony on cross, but NOT the testimony of a third party witness. **2) failure to give a suspect Miranda warnings does NOT require the suppression of the physical fruit (the weapon) of incriminating statements, provided the statements are voluntary. The statements themselves remain inadmissible. 3) if a statement is inadmissible due to a Miranda violation, SUBSEQUENT statements made after obtaining a Miranda waiver ARE admissible, provided the initial statement was NOT obtained through the use of any inherently coercive police tactics offensive to due process -this means the cops that make a Miranda mistake get a second bite at the apple, unless their first mistake was so bad it violated due process.

questions to ask for a search and seizure essay

1) is the search and seizure governed by 4A? -was it executed by a government agent? -was it of an area or item protected by 4A? -did a government agent physically intrude on a constitutionally protected area or violate an individual's reasonable expectation of privacy? -did the individual subjected to the search or seizure have standing to challenge the government agent's conduct? -if yes, then ask 2) If the search and seizure was conducted under a search warrant, did the warrant comply with the 4th Amendment requirements? -was the warrant issued by a neutral and detached magistrate? -is the warrant supported by probable cause and particularity? -if not, did the officers rely on a defective warrant in good faith? (MBE only) -was the warrant properly executed by the police? 3) If the search and seizure was NOT conducted with a warrant, was the search valid under any of the 8 exceptions to the warrant requirement? -ESCAPIST 4) If the search and seizure was unconstitutional, is the evidence obtained in violation of 4A nonetheless admissible against the defendant in court? -4A limits on the federal exclusionary rule

inventory search exception to the warrant requirement (warrantless search OK)

1) lawful if the regulations governing them are reasonable in scope AND 2) the search itself complied with those regulations AND 3) the search was conducted in good faith, meaning motivated solely by the need to safeguard the owner's possessions and/or ensure officer safety. - Officer's subjectivity matters here. common examples: when arrestees are booked into jail; when vehicles are impounded

three types of pre-trial identifications

1) line ups 2) show up (one-on-one confrontations between witness and suspect) 3) photo array

guilty pleas: withdrawing the plea

1) once the defendant pleads guilty and is sentenced, it is very difficult for the defendant to withdraw his plea 2) four situations in which it can happen: only if -the plea is involuntary due to a defect in the plea-taking colloquy -there is a jurisdictional defect (wrong court took the plea) -the defendant prevails on a ineffective assistance of counsel claim or -* if the prosecutor fails to fulfill his or her part of the bargain (courts think of guilty pleas as contracts on bot sides; the parties have to uphold their end of the bargain)

aerial surveillance

1) over home and curtilage: highest expectation of privacy. -in non-navigable airspace: need warrant -in navigable airspace: no warrant needed -police can peer down as far as the naked eye can see (though they can still use a device to see, the device MUST be publicly available) 2) over business: -much lower expectation of privacy -police can use special equipment to observe activity 3) over open field: -no expectation of privacy (even if fenced in); not protected by 4A.

items NOT protected by the 4th amendment

1) paint scrapings on the outside of your car 2) account records held by a bank 3) airspace: anything that can be seen below while flying in public airspace 4) garbage left at the curb 5) voice 6) odors (esp. those that emanate from your car or your luggage) 7) handwriting 8) open fields **key is knowing exposure to third parties; this frustrates 4th amdnement protection

areas protected by the 4th amendment

1) person (bodies) 2) houses, including hotel rooms 3) papers (personal correspondence) and 4) effects (purses, backpacks, cars) 5) curtilage (area of domestic use immediately surrounding the house)

relying on informants' tips to establish probable cause: common law

1) police may rely on information obtained through an informant's tip, even if anonymous 2) sufficiency of informant's tip rests on corroboration by police of enough of the tipster's information to allow the magistrate to make a "common-sense practical" determination that probable cause exists based on a totality of the circumstances

proper execution of a warrant: "knock and announce" rule

1) police must "knock and announce" their presence AND their purpose before forcibly entering the place to be searched UNLESS 2) the officer reasonably believes that doing so would be: -futile, or -dangerous, or -would inhibit the investigation

requirements for a valid warrant

1) probable cause 2) particularity

probable cause requirement

1) proof of a "fair probability" that contraband or evidence of crime will be found in the area searched 2) hearsay is admissible for this purpose

government agents

1) publicly paid police, on or off duty 2) private citizens if (and only if) they are acting at the direction of the police 3) private security guards are government agents only if they are deputized with the power to arrest (campus security guards at many public universities)

fruit of the poisonous tree doctrine

1) rule: evidence that is obtained by exploiting prior unconstitutional conduct is inadmissible in the prosecutor's case-in-chief 2) to defeat rule, prosecutor must show a break in the causal link between original illegality and the criminal evidence later discovered. 3)Three doctrines break the causal link: -independent source doctrine: there is a source for the discovery that is distinct from the original illegality (ex. independent parallel process initiated by other officers) -inevitable discovery doctrine: evidence would necessarily have been discovered through lawful means (ex. dead body would have been found through grid search anyway, so admission through unlawful interrogation is admissible) -attenuation doctrine: defendant's free will has been restored through passage of time and intervening events. (ex. defendant is illegally arrested on Friday, released on Saturday, and meets with his attorney on Monday. On Tuesday, he returns to the police station and confesses. admissible.)

particularity requirement

1) search warrant must specify the place to be searched AND 2) the items to be seized (no general warrant fishing expeditions!) Note: -if the warrant in question satisfies both the probable cause and particularity requirements, you do not need to look further. If the warrant is lacking in one, see if it can be saved by good faith (MBE only, not in NY)

consent exception to the warrant requirement (warrantless search OK)

1) standard: consent must be voluntary and intelligent. -Police officers DO NOT need to tell someone that she as the right to refuse consent -scope is determined by consenting party; extends to all areas for which a reasonable officer would believe permission to search was granted. 2) "apparent authority": consent from the wrong person is still valid if the officer reasonably believed that the consenting party had "actual" authority 3) shared premises: when adults share a residence, ANY adult can consent to a search of the common areas 4) disagreeing co-tenants: if co-tenants with equal rights live together, one co-tenant has veto power. Can consent to private areas regardless.

8th amendment and the death penalty

1) statutory limits: a death penalty statute would violate 8A if it created an automatic category for the imposition of the death penalty 2) evidentiary requirements: in deciding whether to impose the death penalty, jurors must be allowed to consider ALL potentially mitigating evidence 3) categorical exclusions: the 8A prohibits the imposition of the death penalty against three categories of defendants: -defendants with mental retardation -defendants who are presently insane (if they regain mental health, they can be executed) -defendants who were under the age of 18 at the time of the relevant offense

ways in which searches and seizures by government agents implicate an individual's 4th Amendment rights:

1) the agent physically intrudes on a constitutionally protected area in order to obtain information OR 2) the agent's search or seizure of a constitutionally protected area violated an individual's reasonable expectation of privacy NOTE: to meet this standard, an individual must show 1) an actual or subjective expectation of privacy in the area searched or items seized AND 2) that the privacy expectation must be one that society recognizes as reasonable -a police search is presumptively unreasonable under the 4th A when it uses a device not in public use (if there was a search and seizure by a government agent of an area or item protected by the 4A, and that search/seizure either physically intruded on that protected item or violates a reasonable expectation of privacy, see if the suspect has standing to challenge the conduct (if the protections apply to him)

searches and seizures conducted by government agents satisfy the Fourth Amendment if:

1) they are supported by a valid and properly executed warrant, or 2) on the MBE only, they are supported by a properly executed by defective warrant saved by officer's "good faith," or 3) they are warrantless and comply with the requirements and limitations of one of the 8 categorical exceptions to the warrant requirement 4) if none of these three apply to the facts, it is an unconstitutional search and seizure and you need to address whether the evidence is nonetheless admissible against a defendant in court.

"terry stop" exception to the warrant requirement (warrantless search OK)

1) this is a brief detention or seizure for the purpose of investigating suspicious conduct; can take place anywhere 2) when are you seized?: totality of circumstances, a reasonable person would not feel free to leave or to decline an officer's request to answer questions -note: interactions between police officers and individuals are presumptively voluntary and consensual; if you want to turn it into non-consensual, look below -to evaluate, consider: whether officer brandished a weapon, officer's tone and demeanor, whether individual was told she had a right to refuse consent. 2) police pursuit: when you are being pursued by an officer, seizure happens only when you submit to the officer's authority by stopping or if the officer physically restrains him -NY distinction: police pursuit is a seizure in and of itself. If a cop is chasing you, you are seized. 3) *traffic stops: both driver and passengers are seized such that either can challenge legality of the stop -in a traffic stop, the officer may in his discretion order both the driver and the passengers out of the car. -dog sniffs: permissible if does not prolong the stop unreasonably

saving a defective warrant

1) warrant that is invalid due to the absence of probable cause or particularity can still be saved if the officer relied on it in "good faith" 2) this exception does NOT apply in NY

search and seizure overview: four "global issues"

1) whether a search or seizure is governed by the 4th amendment 2) whether a search or seizure conducted with a warrant satisfies the 4th amendment requirements 3) whether a search or seizure conducted without a warrant satisfies the 4th amendment requirements, and 4) the extent to which evidence obtained through a search and seizure that violates the 4th amendment is nonetheless admissible in court

right to confrontation: 6th Amendment

Generally: - the right is to have a face-to-face confrontation with witnesses who are offering testimonial evidence against the accused in the form of cross-examination during a trial. The Fourteenth Amendment makes the right to confrontation applicable to the states and not just the federal government. -The right only applies to criminal prosecutions, not civil cases or other proceedings. At trial: -If a statement is testimonial, the person making the statement must generally be available for cross examination. An exception to this rule is if the witness is unavailable. But even where the witness is unavailable, the defendant must have had a prior opportunity to confront the witness through cross examination

if testimonial evidence that should have been excluded as violative of Miranda was improperly admitted at trial and the defendant was convicted, is the court required to vacate the guilty verdict?

It depends: -the guilty verdict will stand if the government can prove, beyond reasonable doubt, that the error was harmless because the defendant would have been convicted without the tainted evidence anyway (harmless error rule) -note: this rule also applies to physical evidence improperly admitted under the 4th amendment (search and seizure)

relying on informants' tips to establish probable cause: new york

NY uses the stricter Aguilar-Spinelli test in evaluating probable cause. Under this test, when applying for a search warrant, the government must establish two things: 1) the informant's basis of knowledge, AND 2) his or her veracity or reliablity

special needs exception to the warrant requirement (warrantless search OK)

These are for the special needs of law enforcement, governmental employees, and school officials BEYOND their general interest in law enforcement 1) **random drug testing: you need some nexus to public health and safety (like railroad operators, customs agents, public school children who participate in ANY extracurricular activity, and NOT drug trafficking checkpoints but YES to sobriety checkpoints, as one is to gather criminal evidence and the other is to protect motorists and bystanders) -suspicionless drug tests are NOT permitted where their primary purpose is to gather criminal evidence for general use by law enforcement 2) government employees desk and files: -to investigate work-related misconduct 3) students and their "affects" in public schools: -to investigate violations of school rules, provided the search is reasonable at its inception and is not excessively intrusive in light of the age and sex of the student and the nature of the infraction 4) border searches: neither citizens nor non-citizens have any 4A rights at the border with respect to routine searches of persons and effects.. 5) Parolees: warrantless, suspicionless searches of a parolee and his home are permissible as a condition of parole

when are Miranda warnings required?

during custodial interrogation. 1) the custody requirement: -when a suspect is in custody. -for Miranda purposes, this occurs when the atmosphere, if viewed objectively, is characterized by police domination and coercion such that his or her freedom of action is limited in a significant way. -does not have to be in an official setting 2) the interrogation requirement: -during interrogation -Miranda doctrine defines interrogation as any conduct the police knew or should have known was likely to elicit an incriminating response -Note: Miranda DOES NOT apply to incriminating statements made spontaneously, since they are not the product of interrogation. -Note: Miranda is meant to remedy overbearing interrogation by police officers; if a suspect thinks he is talking to a friend, the atmosphere is not coercive and no Miranda rights attach, even if he is being tricked. 3) public safety exception: -if the custodial interrogation is prompted by an immediate concern for public safety, then Miranda warnings are unnecessary and any incriminating statements are admissible against the suspect.

what is the federal exclusionary rule?

evidence, whether physical or testimonial, that is obtained in violation of a federal statutory or constitutional provision, is inadmissible in court against the individual whose rights were violated. there are many exceptions to this.

evidentiary standards applicable to "terry stops and frisks"

general standard: reasonable suspicion (less than probable cause) 1) terry stops: reasonable suspicion requires specific and articulable facts that inform an officer's belief that criminal activity is present -officer's subjective intent is irrelevant here. 2) terry frisks: reasonable suspicion requires specific and articulable facts that suggest that a suspect is armed and dangerous -justified by a concern for officer safety ONLY, not a general search for criminal evidence informants tips: -these can satisfy the reasonable suspicion standard, provided the tip contains sufficient predictive information corroborated by the police to establish the informant's reliability protective sweeps: -officers may sweep the area immediately adjoining the place of arrest, provided there is a reasonable suspicion that the house harbors a person who poses a danger to those on the arrest scene -to justify a sweep of more remote areas, the officers must have additional facts that lead them to conclude an individual who may threaten their safety is present in the area swept.

"common enterprise" theory of arrest

if in a traffic stop, police officer discovers evidence of a crime that suggests unlawful enterprise between driver and passenger, they can arrest any or all based on an reasonable inference of shared dominion and control over the contraband.

terry stops and frisks background

in the Terry case in the 1960s, the court for the first time said maybe if the infringement on liberty or privacy is fairly minimal, we shouldn't require probable cause to allow the cops to briefly stop people they think might be involved in criminal activity and just investigate their suspicions if the intrusion is minimal

what is the standard for excluding a confession under the due process clause of the 14th amendment?

involuntariness, which means that the confession is the product of police coercion that overbears the suspect's will

proper execution of a warrant: compliance with the warrant's scope

officers are allowed to search only those AREAS and ITEMS authorized by the warrant -areas: any rooms listed on the warrant -items: any containers large enough to hold whatever the item is, but not containers that are too small

wiretapping

requirements for a valid wiretap warrant: "Screen Telephone Conversations Carefully") 1) suspected persons: warrant must name suspected persons whose conversations are to be overheard 2) time: the wiretap must be for a strictly limited time period 3) crime: must be probable cause that a specific crime has been committed 4) conversations: the warrant must describe with particularity the conversations that can be overheard

plain view exception to the warrant requirement (warrantless search OK)

requirements no matter where encountered: 1) lawful access to the place from which the item can be plainly seen, 2) lawful access to the item itself, and 3) the criminality of the item must be immediately apparent 4) NY Distinction: plain view seizure of obscene material requires prior judicial authorization example: -a police officer enters a residence in "hot pursuit" of a fleeing felon. The officer enters an upstairs bedroom and opens a closet door to see if the felon is hiding inside. He is not. Noticing a backpack on the floor, he opens it and finds a baggie containing a white powder labeled heroin. He seizes it. -The seizure of the heroin is invalid under the plain view doctrine -he had lawful access to the bedroom and the closet and seized what he knew to be contraband, but he did NOT have lawful access to the backpack. His right to enter the house is a function of hot pursuit to look for a felon; the felon could not fit inside the backpack.

**invoking Miranda rights: the right to counsel

standard: 1) once a suspect asks for counsel, all interrogation must cease unless initiated by suspect 2) the rquest for counsel must be sufficently clear that a reasonable officer in the same situation would understand teh statemetn to be a request for counsel 3) unlike the 6th amendment, the 5th amendment right to counsel is NOT offense specific. -therefore, interrogation following a request for counsel under Miranda is PROHIBITED as to ALL topics outside the presence of a suspect's attorney. this is one of the strongest cornerstones of the criminal justice system. 4) the request for counsel expires 14 days after a suspect is released from custody -a waiver of the Miranda right to counsel obtained after this period is valid, provided it is knowing, intelligent, and voluntary. Summary: -this means that if a suspect says "i want my lawyer," then not only can't the interrogators question him about the matter they brought him in for, they cannot question him about anything. -this prohibition continues not only as long as he is in custody, but for the first two weeks he is outside. -they have to wait until day 15 to get a Miranda waiver again. -the only way around this for the cops is if the suspect himself reinitiates and asks to talk to the interrogators, or if they interrogate him in the presence of his attorney (which they hate)

punishment: 8th amendment standard

the 8A prohibition against cruel and unusual punishment disallows criminal penalties that are grossly disproportionate to the seriousness of the offense committed

confronting adverse witnesses (6th amendment): exceptions to the right

the defendant's right to confront an adverse witness under the Confrontation Clause of the 6th Amendment does NOT apply where face-to-face confrontation would contravene important public police concerns

New York: indelible right to counsel

this provides greater protection than the 6th amendment: -the indelible right attaches not only at formal charging, BUT ALSO whenever there is significant judicial activity (issuance of warrants) before filing of an accusatory statement, such that defendant may benefit from the presence of counsel -if defendant is taken to custody for questioning on a charge, and the police are aware that he is represented by counsel on that charge, they may not question him about that charge or any other matter without his attorney present. -if a defendant is represented by counsel, waiver of the indelible right to counsel MUST take place in the presence of the attorney. example: Police have been investigating Gary's involvement in an armed robbery. During the investigation, Gary has consistently referred all police inquiries to his attorney. After finding incriminating evidence in search of Gary's apartment, the police secure an arrest warrant and remove Gary from his home to the station house for questioning without notifying his attorney. They question him about the armed robbery and about an unrelated murder. Does interrogating Gary violate NY's indelible right to counsel? -as to the armed robbery? Yes -as to the murder? Yes there has been significant police activity (two warrants) and the police are aware that Gary has counsel