criminal law 9-12

Legal Assistants

legal assistance are employed by both prosecutors and defense attorneys, with the latter being more common. In the defense context, legal assistance may be asked to perform several tasks including: -conducting initial interviews, -conducting legal research, -preparing drafts of motions and other documents, -maintaining and organizing files, -acting as a contact with incarcerated clients, -assisting and preparing the defendant and other Witnesses for trial, -and preparing the defendant for the presentence investigation interview. -Some paralegals are called upon to conduct investigations as employees of attorneys, legal assistance must also follow ethical guidelines and responsibilities. -Although no State has yet establish mandatory certification of legal assistance, and therefore there is no enforceable set of ethic rules, -the national Federation of paralegal organizations and the National Association of Legal assistants have promulgated codes of ethics. The NALA Code states that, first, legal assistance may not engage in the practice of law. -This includes rendering legal advice, establishing an attorney-client relationship, setting fees, and appearing in court on behalf of a client. -Further, legal assistants are to act prudently and determining the extent to which the client maybe assisted without the presence of a lawyer. -Finally, it is imperative that the attorney directly supervised the legal assistance work and criminal law. Second, all employees of an attorney are bound by the confidentiality rule. -All Communications made by a client to a legal assistant fall within the scope of the attorney-client privilege and may not be disclosed by The Legal Assistant. 3rd, legal assistance must be careful not to suborn perjury when preparing the client and Witnesses for trial. Forth, Legal Assistance or bound through their attorney supervisors by the American Bar association's model rules of professional conduct and model code of professional responsibility

analyzing constitutional claims ( constitutional rights violated)

the US Supreme Court has developed standards of judicial review for claims that constitutional rights are violated. The first standard is generally known as strict scrutiny. -a court applies the strict scrutiny test in one of two circumstances: 1. when the government burdens a fundamental right 2. and when the government groups people into suspect classes nearly all the rights found in the Constitution are fundamental, and laws that limit or set them aside or tested by the strict scrutiny test -for the second condition to apply, the government must classify people by race, national origin, or religion etc laws are actions that burden a fundamental right or have a suspect classification are invalid unless the government can demonstrate compelling governmental interest -the government must also show that the law is narrowly tailored to achieve its objectives, -i.e. not overly Broad laws that don't encroach upon individuals rights and don't classify along suspect lines are tested under an easier standard, -they are valid if rationally related to a legit government objective there's a third standard that applies to classifications based upon sex and when certain rights are at issue. -This standard Falls between strict scrutiny and rational relationship -laws are valid if they are substantially related to a legitimate governmental objective most (but not all) laws tested under strict scrutiny fail and -most (but not all) laws survive review under the rational relationship test

Fruit of the Poisonous Tree

the exclusionary rule applies to primary evidence, evidence that is the result of an illegal search or seizure. -it is possible that such primary evidence may leave the police to other evidence. ex: suppose a special agent of the FBI search is a home in violation of the Fourth Amendment. The agent discovers on the homeowners computer a plan to rob a federally insured Bank. The plan includes a list of supplies that are needed and where they are hidden. Two of the items, a gun and a mask, are buried under a tree in a public park. The agent leaves at the home, drive to the park, and digs up the items. Because the items were in a public space, the agent and didn't need to obtain a warrant to search for them. But because they were found as a consequence of the illegal search, both the primary evidence (the plan) and the secondary or derivative evidence (the gun and The Mask) are in admissible at trial. search secondary evidence is known as fruit of the poisonous tree. -Generally, evidence that is Tainted by the prior illegal conduct is inadmissible. The world is not make all evidence later obtained by law enforcement inadmissible. -in some instances, evidence may be admissible because the connection between the illegally seized evidence and the subsequently obtained evidence is marginal, or as the Supreme Court has stated it, "the casual connection... may have become so attenuated as to dissipate the taint" fruit of the poisonous tree Doctrine: the rule that evidence gathered as a result of evidence gained in an illegal search for questioning cannot be used against the person search or question even if the later evidence was gathered lawfully. Exceptions: 1. such evidence is admissible at court hearings where determinations of guilt or not made, such as grand jury proceedings, pretrial hearings, and sentencing, 2. if a defendant opens the door by referring to such evidence, a prosecutor May refer to it as well in rebuttal or to impeach the testimony of a defendant -case Kansas v. Ventris (2009) 3. when an independent Source exists an independent Source must be an alternative, unconnected, and legal Pathway to the same evidence. -the general rule that if new evidence can be traced to a source completely apart from the illegally gathered evidence that first led to the New Evidence, it may be used by the government in a criminal trial. 4. the inevitable Discovery Doctrine holds that evidence that is the fruit of an illegal search, seizure, or rest may be admitted if it is probable that the evidence would have been obtained lawfully at a later date. -evidence that would be inevitably discovered by law enforcement may be admitted 5. admissibility of secondary evidence in cases where suspects have not been given Miranda warnings but I've made voluntary statements leading to the seizure of secondary evidence because the Constitution's individual rights only limit governmental Authority, evidence that is obtained illegally by private individuals and turned over to law enforcement may be admitted. -Of course, the individual who illegally obtained evidence may be prosecuted for the underlying offense. -However, If the private individual was a store and courage to find the evidence by the government, the evidence will be excluded under the agency Doctrine

liability of governments and their officials

violation of an individual's rights by an official, even if during the performance of official duties, may lead to civil and criminal liability. states have laws that may provide remedies to the victims of improper governmental conduct -a police officer who commits an unjustified assault, battery, or false imprisonment may be liable under traditional tort and criminal law theories. -In addition, violations of federal secured rights by state or federal officers can result in both civil and criminal prosecutions under federal civil rights statutes. the Civil liability of officials is limited by immunity doctrines. -Immunities developed at common law, and the United States Supreme Court, has determined that Congress did not intend to abolish these immunities when it enacted the Civil Rights Acts. -Therefore, governmental officials May a certain immunity as a defense if sued under the federal civil rights statutes. -any action that is judicial nature is shielded by absolute immunity. -Because it is absolute, a government official is free from both suit and liability when performing judicial functions. -Issuing orders (including warrants) and presiding over hearings are examples of judicial Acts. -prosecutors perform quasi-judicial acts and are shielded with absolute immunity for the performance of these acts. -Appearing in court (including ex parte warrant application hearings) and complying with court orders are considered quasi-judicial Acts. -similar to prosecutors, police officers are shielded with absolute immunity when enforcing court orders (including warrants) and when testifying in court but not when performing non-judicial tasks. other Immunities: -a person entitled to qualified immunity is free-form liability but not necessarily free from suit. -under absolute immunity, issues of malice, intent, or the nature of the right alleged to be violated are immaterial, because the defendant is immune regardless. -In contrast, whether an official acted with malice or whether the alleged right violated was clearly established at law or material in the qualified immunity case. -Under some laws, and official is liable only if malice is shown, or, as required by federal law, a plaintiff can prove that a clearly established right was violated prosecutors enjoy only qualified immunity when performing other acts (non Judicial​ acts) such as, rendering legal advice to law enforcement officers. -Similarly, judges are protected by qualified immunity when performing non-judicial but work-related functions, such as making personnel decisions. -police officers are shielded by qualified immunity when conducting investigations, making warrantless searches or seizures, and engaging in administrative and Personnel matters the government itself may be sued in some circumstances. -A serious obstacle, which must be overcome to establish governmental liability, is sovereign immunity. -The doctrine of sovereign immunity holds that the government is immune from lawsuits. -Therefore governments must consent to be sued. -This is true of federal and state governments. -Most states have abolished sovereign immunity to some degree, some by Statute, and few by judicial decision. -through the federal tort claims act (FTCA)the United States has waived immunity from suit for a number of torts. -In 1974, the statute was amended to permit suits based upon assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution committed by federal law enforcement officers. -States may not be sued directly under federal civil rights statutes, nor May the federal government. -However, local forms of government may be sued under federal civil rights laws if the acts alleged to have violated the plaintiff civil rights or committed pursuant to an ordinance, regulation, policy, or decision of the locality.

ex post facto and bills of attainder

Article 1 of the US Constitution prohibits the state and federal governments from enacting both ex post facto laws and bills of attainder ex post facto law: after the fact. -An ex post facto law is one that retroactively attempts to make an action a crime that was not a crime at the time it was done, -or a law that attempts to reduce a person's rights based on a past at that was not subject to the law when it was done its a law that: 1. makes an act illegal after the Act was taken 2. increases the punishment or severity of a crime after it occurred 3. changes the procedural rules so as to increase the chances of conviction after the crime occurs changes that benefit a defendant may be applied retroactively. -So, if the legislature increases the prosecution's burden of proof after defendant has committed a crime, but before trial, -the legislature may make the change applicable to the defendant. bill of attainder: a legislative act pronouncing a person guilty (usually of treason) -without a trial and -sentencing the person to death and attainder -this is now prohibited by the US Constitution bill of attainder is a legislative act punishing a person without a Judicial trial. -This provision reinforces the concept of separation of powers.

Arrest

Defining arrest: arrest of the deprivation of Freedom by legal Authority the court address the question whether passengers vehicles are seized during traffic stops in 2007 case Brendalyn v. California The Warrant Preference: searches must be conducted pursuant to a valid warrant, unless an exception to the warrant requirement can be shown. -Arrests are quite different. -Rather than a requirement for a warrant, in most instances, there is simply a preference for one For a warrantless arrest in a public place to be upheld, it must be shown that the officer who made the arrest: 1. had probable cause to believe that a crime was committed 2. and that the person arrested committed that crime Arrests in Protected Areas: -if the arrest is to be made in an area protected by the Fourth Amendment, such as a person's home, a warrant must be obtained, unless an exception exists. -in Payton v. New York (1980), it was held that are valid arrest warrant implicitly carries with it a limited right to enter is suspects home to affect the arrest, provided there is no reason to believe the suspect is within

defense attorneys

Ethics: defense attorneys have high, and sometimes morally challenging, ethical responsibilities. Unlike the prosecutor, whose duty is to see that Justice is achieved, the defense attorney must zealously represent the accused, within the bounds of the law, regardless of Innocence or guilt. attorneys are perceived as Hired Guns, not as advocates of civil liberties. -Defense lawyers are frequently asked how they can defend people they know we're guilty. -there are two responses to this inquiry 1. defense attorneys often do not know whether their clients are in fact guilty, as this question is really asked. 2. defense attorneys are not defending the actions that the defendant is accused of committing, defense attorneys are defending the rights of the accused, specifically, the right to have the government prove its case Beyond A Reasonable Doubt using lawfully obtained evidence. -In defending the rights of one person against governmental oppression, the rights of all people are defended. this approach, which is a vital part of the US criminal justice system, is often misunderstood by the public. An attorney is allowed, but not required, to report a client's intention to commit a crime. -therefore, if a client informs his counsel that he intends to kill a witness if he is released on bond, the attorney May disclose this information without breaching any ethical obligations attorneys are generally obligated to represent criminal defendants when a pointed by a court or upon request by a bar association. -However, an attorney may be excused for compelling reasons. -In no event is belief in a defendant's guilt or discuss with the alleged acts compelling. -an interesting ethical dilemma is presented when a defense attorney knows or has a strong belief that either the client or one of the defense Witnesses has given or intends to give false testimony. -On the one hand, the attorney is an officer of the court and does prohibited from defrosting the court. -On the other hand, the defense attorney has an obligation to the client. there is a split in the jurisdictions concerning how the situation is to be handled. There are three possibilities: 1. the most preferable, the defense attorney dissuades the client from committing perjury. 2. the attorney moved to withdraw from the case, keeping the reason Secret. 3. the attorney discloses the client's intention to commit perjury to the court defense attorneys are sometimes asked to represent co-defendants. -This can create a conflict of interest for a defense attorney if the defendants have conflicting or antagonistic defenses. -Because the inherent dangers of representing co-defendants, many defense attorneys refuse joint representation. -It is a violation of a defendant's Sixth Amendment right to the assistance of effective Council that have a lawyer with divided loyalties. Finally, trial counsel for criminal defendants have an obligation to continue on appeal unless new council is retained or the court has authorized withdrawal. -This is different from civil cases, where there is no General obligation to continue after trial.

Exceptions to the Probable Cause and Search Warrant Requirements

Exigent circumstances: a situation where law enforcement officers must act so quickly to prevent the distraction of evidence, the successful flight of a suspect, or serious injury or death to any person, that there isn't time to obtain a warrant. -warrantless searches that occur when exigent circumstances exist are valid Consent: voluntary and active agreement Factors that courts use to determine if Consent was voluntary: 1. the suspects knowledge of the right to refuse 2. the age, intelligence, and language skills of the suspect 3. the degree of cooperation exhibited by the suspect 4. the suspects attitude about the likelihood of discovering Contraband during the search 5. the length of detention 6. the nature of the detention, including the nature of the questions and whether police intimidated the suspect or coerced the statements police must respect any limitations placed on a subjects consent. -So, if I suspect indicates that police May search the family room of a house, but no more, any evidence discovered in another room of the house would be excluded. -Also, consent may be revoked anytime before the search is completed. 3rd party consent: in U.S. v. Matlock (1974), the supreme Court found that a third party may consent as long as the parties share access, control, and use of the property. -the Supreme Court said that neither landlords nor Hotel managers make consent to the search of their tenants rooms Stop And Frisk: two of the most important exceptions to the probable cause and warrant requirements are the stop-and-frisk. -As stop is less than an arrest and a Frisk is less than a search. -The Terry Stop: the officer testified that he conducted the frisks because he believed the men were carrying weapons. The first man frisked was defendant Terry -probable cause is not required, however officers must have a reasonable suspicion that the person to be stopped his committed, is committing, or is about to commit a crime -when reviewing an officer is reasonable suspicion decision, A court is to examine the totality of the circumstances as known to the officer. -Facts that may not be admissible at trial may be considered -the supreme Court has said that once a person is lawfully pulled over and Probable Cause exists to believe a crime, including a traffic violation, has occurred they may be ordered out of the vehicle, even tho there is no reason to believe the driver is a threat. -to conduct a frisk, an officer must have a reasonable belief that the person is armed and dangerous -again the officer must be able to point facts to support this conclusion -if that person is in a vehicle, the officer may search those areas within the person's immediate control (wingspan doctrine) Plain Feel: 1. stops must be supported by reasonable suspicion. 2. Pat Downs May Be conducted only when an officer possesses a reasonable suspicion based on specific and articulable fax that the suspect may be armed and dangerous 3. the pat-down must be limited -exploration of the clothing beyond what is necessary to determine dangerousness is not permitted, unless probable cause to believe that there is Contraband is created through the officer sense of touch Plain View: the rule that if police officers see or come across something while acting lawfully, that item may be used as evidence in a criminal trial even if the police did not have a search warrant -it's a valid warrantless seizure of evidence by an officer who is lawfully in a position to see the evidence Elements: 1. the officer must lawfully be in the area 2. from which the object to be seized is in Plainview 3. and the officer does infact see the item 4. there is a probable cause to believe the object is connected to a crime 5. the officer has the right to access the object itself -as a general rule, the police have no right to enter private property to seize evidence that was in plain view from a public area (1.) -only the senses of sight and touch may be used to establish Plainview (2.) -contraband, property that's used to commit crimes, has been used in a crime, or has been stolen can be siezed (4.) Search Incident to Arrest and the Protective Sweep: Two search issues arise during/immediately following an arrest: 1. May officers search theater Rusty's person without first obtaining a warrant? 2. May officer search Thea Rusty's home, apartment, or other structure where the defendant is arrested? the issue of searching the person was addressed in U.S. v. Robinson (1973) -the Court held that, after a lawful arrest, the defendants person may be fully searched without first obtaining a warrant the issue of protective sweep was given const recognition in Maryland v. Buie (1990) -a protective sweep is a brief and limited warrantless search of an arrest ease home, -which is permitted if the defendant is arrested therein Preservation of Evidence: in some instances evidence may be destroyed before a warrant can be obtained -in such cases an officer and they make a warrantless search and seizure to protect the evidence -Ex: in one case a defendant, who is arrested for drunk driving, was subjected to a warrantless blood alcohol test. -The court concluded that the warrantless test was reasonable under the Fourth Amendment so, any evidence that may be destroyed, intentionally or not, before work can be obtained can be the foundation of a warrantless search and seizure under the preservation of evidence exception to the fourth amendment's warrant requirement Emergency Responses and Hot Pursuit: -police officers are permitted to enter areas protected by the Fourth Amendment without a warrant if there is an emergency. -for example, an officer May respond to cries for help from within a home or may enter a building that is on fire to assist firefighters. -an officer who is chasing a suspect does not have to end the pursuit at the door of a home or business -the normally unlawful entry into the structure is permitted to catch the defendant. -Again, once inside, the Plain View exception Applies Open Feilds: the Supreme Court has held that the Open Fields around one's home or not protected by the Fourth Amendment, so officers are free to intrude upon such areas without first obtaining a warrant. -In addition, officers will not be liable for trespass if they make such an intrusion while performing a lawful Duty Curtilage: the area directly around someone's home. It is treated as part of the home, as the court has recognize that a person's privacy interest does not end at the front door of the home. 4 factors in determining if it's an open field: 1. the proximity of the area claimed to be curtilage from the home 2. whether the area enclosed is enclosed with the home 3. the nature of the use of the area 4. the attempts of the residents to keep the area private (i.e. if they have a fence) -the proximity of the area in question to the home, the fact that is enclosed by fencing, that is commonly used by the residents, and that the residents have taken measures to ensure privacy in the area, all increase the probability that the area will be determined to be curtilage -open Feilds can be protected if it appears that one took measures to assure privacy the Advent of aerial surveillance has made it possible for law enforcement officers to see what were once remote areas. -5 factors to be considered when examining the validity of aerial surveillance: 1. the height of the aircraft 2. the size of the objects viewed 3. the nature of the use of the area 4. the number of flights over the area 5. the frequency and duration of the aerial surveillance Finally, although the Fourth Amendment speaks of houses, its protection extends to businesses and other structures as well Border Searches and Profiles: -it is a long-standing principle of international and US law that the nation's authority to protect itself is at its Zenith at its borders. -For this reason, search is at the borders of the United States do not require probable cause. In fact, no suspicion is required whatsoever. -For example, border agents May remove, inspect, and reassemble a car's gas tank with no suspicion of wrongdoing. -However, border searches must comply with the reasonableness requirement of the Fourth Amendment. -For a strip search to be conducted, a customs official must have a real suspicion that illegality is a foot -the Border search exception to the Fourth Amendment actually extends Beyond The Border. -For example, first arrival airports in the United States of international flights are treated as borders for purposes of the Fourth Amendment. -Roadblocks style checkpoints miles from and Border intended to discover illegal aliens have been approved. -random stops a Vehicles away from the border must be supported by Reasonable Suspicion, because they are treated as Terry detentions. -A profile is an established set of criteria that are believed to indicate a probability that a person is involved in illegal activity -Ex: a person who makes frequent trips between the United States and Colombia, who carries little or no luggage, who is paid for airline tickets with cash, who's visits to Columbia or for short periods of time (i.e. 48 hours or less), and who behaves nervously at the Customs desk, would meet a drug carrier profile -two issues are raised by profiles: 1. weather a profile may be used to establish a reasonable suspicion, there by permitting a Terry stop 2. weather profiles justify searches Factors to account for when profiling: 1. the characteristics of the area, including the proximity to the border, the usual patterns of traffic on the road, and experience with alien traffic 2. information concerning recent illegal border crossings in the area 3. the driver's Behavior, such as erratic driving and obvious attempts to evade officers 4. the type of vehicle, such as a station wagon with large compartments, which are frequently used for transporting concealed aliens 5. what are the vehicle appears heavily loaded or has an extraordinary number of occupants 6. whether passengers are attempting to hide 7. the characteristics of persons living in Mexico, including mode of dress and hairstyles 8. other meaningful factors in light of the officers experience in detecting illegal aliens -profiles are only used to conduct Terry stops, -to conduct a frisk, there needs to be a reasonable belief of dangerousness Automobile and Roadblocks: privacy and Automobiles is protected by the Fourth Amendment. However, the Supreme Court is not extended full fourth amendment protection to the occupants of automobiles. -Roadblocks are used in two situations: 1. roadblocks assist the apprehension of a particular suspect 2. and serving the regulatory function of protecting the public from unsafe drivers, officers may stop vehicles to determine if the car satisfies the state safety requirements, whether the driver is properly licensed, and whether the vehicle is properly registered -the Supreme Court also upheld roadblocks intended to discover drunk drivers. -Michigan State Police vs sitz (1990) upheld to Highway sobriety checkpoint program -where 126 Vehicles pass through the checkpoint, the average delay for each vehicle was 25 seconds, and 2 drivers were arrested. -The court found that the stocks for seizures under the Fourth Amendment, but that they were reasonable. -roadblocks are proper, however, discretionary spot checks are not Stops: of course, a motorist may be stopped if an officer has probable cause. -In addition, a Terry stop may be made if there is reasonable suspicion that an occupant has committed a crime or that Contraband will be found. Inventory Searches: once impounded, and inventory search may be conducted. -The purpose of inventory search is to protect the owner of the vehicle from vandalism, protect the safety of the officers and others and protect the police department from claims of theft -because inventory searches are not conducted with an intent to discover evidence, there is no requirement of probable cause. -it is unreasonable under the fourth amendment to search glove compartments and Trunks if they're locked Probationers and Parolees: 4th amendment doesn't apply to them, they are allowed to be searched and seized at any time for any reason. Administrative Search: these searches require less than probable cause and a warrant to be conducted. -this is largely because the purpose of such searches is not to detect and punish criminals. -it is to protect the public from health and welfare threats -the 4th amendments reasonableness requirement is satisfied if there is 1. reasonable suspicion 2. or a comprehensive regulatory scheme in place

searches and seizures

The Warrant Requirement: -the use of warrants protects citizens from overzealous law enforcement practices warrantless searches are permitted only in special circumstances, and it is the responsibility of the government to prove that the facts of the case fit into one of the exceptions to the warrant requirement. Requirements for Obtaining a Warrant: 1. the evidence presented must establish probable cause to believe that within the area to be searched, the items sought will be found. 2. there must be probable cause to believe that the items sought are connected to criminal activity. 3. the area to be searched and any item to be seized must be described with particularity. -EX: a warrant to search for a book must be more specific than one for drugs. The description book is clearly insufficient, whereas a warrant to search for Cocaine probably is sufficient -EX: as to location, a street address is normally sufficient. If there is no street address, the warrant should describe the location, owner, color, and architectural style of the property 4. the facts that are alleged to establish probable cause must be supported by oath or affirmation. 5. the Warren it must be issued by a neutral and detached Magistrate. -Although judges are most commonly given the authority to issue warrants, a state may Grant this authority to others. -warrants for the seizure of items that are illegal in themselves do not have to be as particular as others. Scope of Warrants: warrants may be issued to search and seize any item that constitutes evidence of a crime, is the fruit of a crime, is contraband, or is used to commit a crime. -A warrant may be issued to search or seize any place, whether belonging to a suspected criminal or an innocent third party. -A warrant may be prospective. -that is, it may be written to be executed when a triggering event occurs -As a general proposition, a warrant to search premises does not authorize the police to search the occupants of the premises. Executing Warrants: the one that made direct a particular officer or an entire unit of police officers to conduct a search. -The language of the warrant itself contains the duties of the officers executing the warrant, as well as their limitations. -as a general proposition, warrants or to be executed during the day. -This is because of nighttime search is considered to be more intrusive than a daytime search and because the probability of resistance is greater at night -Most states have statutes requiring that warrants be executed within a specific amount of time after issuance. -Warrants issued under federal law must be executed within 10 days of issuance -at the premises of a search, the police must knock and announce their purpose before entering the premises. -This is true whether entry is gained through the use of force or not. -However, to prevent the destruction of evidence or injury to the officers, judges May issue no-knock warrants if the facts indicate that one or the other is likely to occur. -Judges and police make no-knock decisions based on the facts of each case -after a search is completed, the officers are required to inventory items seized. -Federal rules require that the owner of the property be given a receipt for the goods taken

standing

a person's right to bring (start) or join a lawsuit or to raise a particular issue because they are directly affected by the issues raised first, the person challenging the evidence must have an adversarial interest in the preceding. -Basically, only defendants in criminal cases made challenge evidence as seized in violation of the Fourth Amendment. the second aspect concerns the defendants interest in the area search or thing seized. -A defendant must have a reasonable expectation of privacy to a place or thing before he or she can have it excluded at trial note that in Simmons v. United States (1968), the Supreme Court held that a defendant May testify at a suppression hearing without waiving the right not to testify at trial and that any testimony given at a suppression hearing by defendant may not be used against him or her at trial

Double Jeopardy

a second prosecution by the same government against the same person for the same crime (or for a lesser included offense) once the first prosecution is totally finished and decided. -This is prohibited by the US Constitution The Double Jeopardy Clause applies only to criminal proceedings there are actually two prohibitions in the double jeopardy Clause. -The Clause prevents: 1. a second prosecution for the same offense and 2. a second punishment for the same offense it is generally held that a person has been put in Jeopardy once a plea of guilty has been entered and accepted by a court. -An unapproved plea will not suffice, and a subsequent prosecution will not be prohibited by the double jeopardy clause. -In jury trials, Jeopardy attaches one surgery has been selected and sworn. -State Street bench trials differently, although the prevailing view is that the Jeopardy attaches when the first witness has been sworn once Jeopardy attaches, the defendant may not be tried again. -However, there are a few exceptions. -A defendant may be retried if the first trial was terminated by a properly declared mistrial -if an appellate court later determines that a mistrial should not have been declared, the defendant has been put into Jeopardy -a defendant who was previously charged but whose charges were dismissed prior to Jeopardy attaching can be prosecuted again -if a defendant appeals a conviction and prevails, the defendant may be retried -if defendants are acquitted on a serious charge and convicted on a lesser and then Prevail on appeal, they may be retried only on the Lesser -a conviction may be reinstated by an appellate court if a trial Court's order setting aside the conviction is found invalid -but an appellate court may not order a new trial where the trial judge entered a judgment of acquittal following a hung jury -the Supreme Court has also held that double jeopardy does not bar correcting a sentence on a peel or rehearing because such a procedure is not retrial of an offense the Clause does not prevent second punishments for the same offense by different sovereigns ex: a person who robs a federally insured bank and be prosecuted by both the state where the bank resides and the United States municipalities are not independent beings they owe their existence to a state. -Accordingly, prosecution's by cities are treated as being brought by the state, and it's a violation of the double jeopardy clause for a state and a city to punish one for the same offense

vagueness and overbreadth

a statute is void for vagueness whenever men of common intelligence must necessarily guess at its meaning and differ as to its application vagueness Doctrine: the rule that a criminal law may be unconstitutional if it does not clearly say -what is required or prohibited, -what punishment may be imposed, or -what persons may be affected -a law that violates due process of law in this way is void for vagueness it is under the void for vagueness doctrine that many vagrancy laws have been attacked. If not for the doctrine, legislators could dress statutes so that nearly everyone would be engaged in criminal activity at one time or another, -and police and prosecutors would have the unfettered discretion to decide who to arrest and prosecute overbreadth doctrine: a law will be declared void for overbreadth if it attempts to punish speech or conduct that is protected by the Constitution -and if it is impossible to eliminate the unconstitutional part of the law without invalidating the whole law ex: a city ordinance made it illegal for one or more persons to assemble on a sidewalk and conduct themselves in an annoying manner. -The US Supreme Court found that the law was unconstitutional not only because it made and protected activity at legal (fighting words or riotous activity) -but also because it included activity that is protected by the first amendment's free assembly and Association provisions

A common law, adversarial, and accusatorial system

adversary system: the system of law in the United States. -The judge acts as the referee between opposite sides (between two individuals, between the state and individual, Etc) rather than acting as the person who also makes the state's case or independently seeks out evidence. also, in the common law, judges are expected to remain impartial, neutral, and attached. -This is believed to increase the fairness of the proceedings. In civil law jurisdictions, judges sometimes develop an opinion or Theory, which may limit their consideration of Alternatives and accordingly, limit the facts that are sought and the theories that are advanced. in the adversarial system, the parties were largely responsible for development of the case that is, discovery of the evidence and the issues of law as well the adversarial system has its critics. Opponents contend that the truth is not found because the system encourages the opposing parties to present distorted, misleading, and sometimes untruthful accounts of the facts the adversarial system is also challenged as being unfair because it is assumes two equally competent competing parties. -However, because of differences in the abilities of counsel and their respective powers of the parties, this premise is questionable

privileges and immunities

article IV, sec 2 commands that the citizens of each state shall be entitled to all privileges and immunities of citizens in the several States the purpose of the Clause is to prevent States from discriminating against citizens of other states. -The Clause applies only to the most fundamental of Rights, -and even then a statement overcome the prohibition if it can demonstrate a compelling reason one of the few rights protected by the Privileges and Immunity Clause is the right to travel freely between the states. -The right to travel abroad is subject to reasonable restrictions and regulations because of National Security and Foreign Affairs concerns. the Fourteenth Amendment contains the sister Claus that forbids States from abridging the Privileges or immunities of citizens of the United States. -While the fourth amendment's privileges and immunities clause forbids States from discriminating against each other citizens, -the 14th Amendment privileges or immunities clause forbids the States from abridging any person, local or not, from exercising federally secured rights. most (but not all) criminal consitutional defenses appear in the Bill of Rights don't forget that each state is free to design its criminal law in any manner it wishes, so long as its design is consistent with the US Constitution.

the participants

besides the accused and witnesses, there are six primary participants in the criminal adjudications: law enforcement officers, prosecutors, judges, defense attorneys, victims, and jurors

Criminal procedure defined

criminal procedure, as a field of law, describes the methods used in bringing an alleged criminal to Justice. To State it in another way, criminal procedure put substantive criminal law into action

the 4th amendment

first, note that while the amendment is a single sentence, not divided into Clauses by periods or semicolons, it has been interpreted as having separate clauses. -the Baseline Claus that applies to all searches and seizures is the requirement of reasonableness. -additional Clauses require that some searches and seizures be supported by probable cause, but can be warrantless -other searches and seizures can occur only if supported by probable cause and upon a warrant several remedies are available to the defendant whose 4th amendment rights have been violated by the government: 1. in a criminal prosecution they may invoke the exclusionary rule. 2. they may have a civil action against the offending officer under a civil rights statute, under constitutional tort Theory, or under traditional State tort Theory 3. individuals can request criminal prosecution by state and federal authorities for civil rights violations, assault, battery, trespass or other criminal violations by officers. 4. honden visuals can't complain to an officer's department or other officials (some State officials have the authority to revoke a police officers peace officer status), seeking administrative discipline. in 1967 the rule for determining whether a search occurred changed in Katz vs United States. -the Supreme Court held that the fourth amendment protects people, not places. Do ppl enjoy the right to privacy in hotels? several factors are considered when determining whether an individual possesses a reasonable expectation to privacy in a hotel room, including: -whether the defendant is a registered guest -and if not, what is their relationship to the registered guest, -whether the defendant paid any of the hotel charges, -and the total time the defendants spent in the room

judges

judges are not executive branch officials, as are prosecutors and Law Enforcement Officers. Judges are part of the Judiciary in regard to criminal law, judges are responsible for issuing warrants, supervising pretrial activity, presiding over hearings and trial, deciding guilt or innocence in some cases, and passing sentence on to those convicted. a judge has the obligation to remain unbiased, fair, and impartial and all cases before the bar. Ethics: Most states have enacted the code of judicial conduct. Judges are to be fair and impartial. -In criminal cases, judges must be sensitive to defendants rights and be careful not to imply to a jury that a defendant is guilty.

prosecutors

prosecutors are government attorneys responsible for prosecuting violators. -This role includes preparing and filing documents; engaging in pretrial activity, such as Discovery; and appearing in court. -Prosecutors often also act as legal counsel to Law Enforcement Officers, rendering advice on the law of searches, seizures, arrest, surveillance techniques, and similar matters. -Prosecutors appear at Grand Jury hearings, where they present evidence and assist the jury in other ways. -Finally, in some jurisdictions, prosecutors act in a supervisory capacity as the head of a law enforcement agency, such as the Attorney General of the United States, who is the head of the Department of Justice. -At the federal level, the highest law enforcement official and prosecutor is the attorney general, who undergoes the presidential nomination and senatorial confirmation process. -The Attorney General is a Cabinet member who heads the Department of Justice. similar to the federal government, each state has an attorney general. -The state's vary in the structure of their prosecutorial agencies, but most of locally elected prosecutors, who may be titled prosecutor, district attorney, or state attorney Discretion: the power to act within General guidelines, rules, or laws, but without either specific rules to follow or the need to completely explain or justify each decision or action the decision whether to prosecute an individual is one aspect of discretion most cases are initiated directly by a prosecutor, grand jury, or as usually the case, the police (through the arrest and complaint procedure). -a case may not proceed under a complaint; rather, the prosecutor must follow and information or an (indictment used by a grand jury), which replaces the complaint. -If a prosecutor refuses, or follows a nolle prosequi, they case precedes no further -first, the prosecutors ethical obligation requires that he or she seek Justice, not convictions. -Prosecutors are not to maintain a prosecution simply because there is a probability of prevailing. -economics is the second reason prosecutors cannot pursue every case. -The resources of the prosecutor and law enforcement agencies are limited. -Not every case can be prosecuted because there are inadequate investigators, police officers, prosecutors, and other resources. -Prosecutors must prioritize cases for prosecution the decision whether to prosecute is influenced by many factors. -The facts of the case; -the accused criminal, social, and economic history; -the likelihood of success the cost of prosecution, including the probable time investment -public opinion -the seriousness of the crime -the desires of the victims -police expectations and desires -political concerns and -whether the prosecution will further the administration of justice are all considered. first, the authority to fall and no prosequi, or dismissal, may be limited. -The further along the case is in the process, the more involved the court becomes in the decision. -Once the formal charge has been filed, judicial approval of dismissal is the rule rather than the exception. -This is true in the federal system, which also requires leave of court to dismiss complaints. Second, decisions to prosecute that are motivated by improper criteria May violate equal protection. elements needed to establish improper, discriminatory prosecution: 1. that other people similarly-situated we're not 2. that the prosecutor intentionally singled out the 3. that the selection was based upon an arbitrary classification for there to be an equal protection violation, it must be shown that the selection was deliberately based upon an unjustified standard. -What is an unjustified standard? Prosecution based upon race, religion, and gender are examples. -A prosecution intended to punish an individual for exercising a constitutional right is also improper Ethics: all attorneys are bound by ethical rules. -Two sets of rules are used in the United States: -the model code of professional responsibility and -the model rules of professional conduct. ethical violations may result in discipline by the bar, and offended court, or both. -Common sections include private and public reprimands, suspension, and disbarment. -The model code of professional "responsibility states that the responsibilities of a public prosecutor differs from that of the usual Advocate; his duty is to seek Justice, not merely to convict." -prosecutors have an ethical obligation to be sure that a prosecution is warranted and to seek dismissal immediately upon discovering that one is not. -Prosecutors are not to Trump up charges to increase their power during plea negotiations. -Prosecutors are only to request a fair sentence from a court. -Of course, prosecutors may not use perjured or falsified evidence to obtain a conviction. -In addition, you will learn later in this text that prosecutors have a constitutional duty to disclose exculpatory evidence. evidence that mitigates the degree of an offense or reduces a sentence must also be disclosed. -Further, prosecutors or not to avoid pursuing evidence because it made damage the government's case or assist the defendant.

self incrimination and immunity

the 5th amendment also states that no person shall be compelled in any criminal case to witness against himself however, if immunity from prosecution is granted to a witness, he or she may be compelled to testify. -If a witness refuses to testify because of the fear of self-incrimination, the government may offer the witness immunity from prosecution so that the testimony may be compelled there are two types of immunity: 1. transactional immunity: freedom from prosecution for all crimes related to the compelled testimony, so long as the witness tells the truth ex: if a witness testifies concerning a robbery, the government may not prosecute the witness for that robbery, even though the government may have evidence of guilt independent of the witness's testimony. -this immunity give more protection to the witness than required by the Constitution (when granted, witness may be ordered to testify) 2. use immunity: freedom from prosecution based on the compelled testimony and on anything the government learns from following up on the testimony -all evidence that is independently obtained may be used against the witness -the minimum immunity that must be provided to a witness to overcome a fifth amendment claim is derivative use immunity States vary and how immunity is granted, some permit the prosecutor to give immunity whereas others require both the request of the prosecutor in the approval of the trial judge a person may also waive the Fifth Amendment privilege against self-incrimination. -Generally, once a person testifies freely, the privilege is waived as to the subject discussed during the same proceeding. -A witness (defendant) may not testify selectively concerning a subject. -It is often said that testifying to a fact waives to the details. the fact that a witness May waive the Fifth Amendment privilege against self-incrimination on one occasion does not mean it is waived forever. 1. a defendant may speak to the police during the investigative stage and later refuse to testify at the trial, provided such testimony may be incriminating. 2. it is generally held that a person who testifies before a grand jury without claiming the fifth does not waive the right to raise the defense at trial. 3. even with the same preceding a person may invoke the Fifth Amendment privilege against self-incrimination if the two hearings are separate and distinct. ex: a defendant May testify at a suppression hearing without waiving the privilege not to testify at trial the fifth amendment applies to all proceedings, whether civil, criminal, or administrative

due process and equal protection

the Fifth Amendment to the US Constitution prohibits the government from depriving a person of life, liberty, or property without due process of law. -This amendment acts to constrain the power of the federal government the Fourteenth Amendment expressly requires the states to extend equal protection of the laws to the people. -The Supreme Court has found it to be implied in the due process clause. -Equal protection concerns classifications and discrimination due process has two aspects, substantive and procedural. -The protection of privacy discuss later in this chapter is an example of substantive due process. -On the procedural side, due process is the Constitutional source of the principle of legality principal of legality: the procedural side of due process, which requires that criminal laws and punishments be written and enacted before an act may be punished

First Amendment and religion

the First Amendment contains many protections, -freedom of press, -freedom to choose and practice a religion, -freedom of speech, -and freedom to peacefully Assemble although the first amendment is directly applicable only against the national government, the 14th Amendment extends its prohibitions to the states concerning freedom of religion, the First Amendment states that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise clause is of the most importance in criminal law. -The freedom to believe is, of course, absolutely. -Any law prohibiting a certain religious belief is void. -However, the Supreme Court has held that some religious practices may be regulated ex: the Mormon practice of polygamy is regulated -also a parent who depends upon prayer to save a dying child may be charged with manslaughter for failing to seek competent Medical Care on the other side, the California Supreme Court disallowed the conviction of a member of the Native American church for possession of peyote, a drug made from Cactus. -The court found that pod was an important part of worship in the Native American Church, and -California's interest in regulating the use of the drug was outweighed by the drugs religious significance -note further that Congress reacted to this decision by exempting use of peyote by Native Americans from the controlled substance Act first, Native Americans use of peyote as a religious ritual was specifically Exempted from the controlled substance act. -Second, the religious freedom restoration Act was enacted. -Through the statute, courts are required to apply the strict scrutiny test when applying statutes of generally applicability to religious practices how does the court distinguish between fraudulent and bona fide religious practices? First, it must determine that the defendant is asserting a religious belief, not a personal or philosophical belief. Several factors are considered: how well established is the religion in the world? -if the defendant is the only adherent, or one of only few followers of a religion, it is less likely to be deemed legitimate. How old is the religion? For how long has the defendant practice the religion? what is the nature of the practice and question? How important is the practice to the religion? Once it's determined that a religious practice is being regulated by the state, -the state's interest in regulating the defendant's conduct must be weighed against the defendants First Amendment interest. -If the state's interest is compelling, then the conduct may be regulated

First Amendment and speech

the First Amendment provides that Congress shall make no law abridging the freedom of speech. 1. the Clause limits the authority of Congress, but in reality it limits all three branches of the federal government including state and local governments 2. the term speech is used. Regardless, the Supreme Court has held that more than the spoken word is protected. -all forms of Expressions, nonverbal, artistic, written, and visual, are protected by the Free Speech clause 3. as is true of all the amendments, there are exceptions: -any law that burden speech must be narrowly tailored and it must be supported by a compelling governmental interest. -underline the first amendment's protection of speech is the philosophical belief that a free-market of ideas will advance both democracy and a society's development. The price of free market speech is the protection of provocative, annoying, offensive, and insulting speech although the lawlessness and clear and present danger exceptions commonly referred to violence (i.e. fighting words discussed previously), -there are examples of speech that may be prohibited because it creates a likelihood of eminent nonviolent lawlessness. -Encouraging jurors not to follow the law during deliberations is an example -slanderous and libelous statements also fall outside the protection of the first amendments -fighting words, obscenity and, some threats, and slanderous and libelous words are all content-based doctrines (the content of what is being said is regulated) -in some instances, a state may regulate speech not because of its content, but by its time, place, and manner of being Expressed. -it is unlawful to stand in the middle of the street to make a speech. The interest in maintaining a safe, consistent flow of traffic outweighs the First Amendment interest -the result would be different if a state attempted to prohibit all speeches made in a public place. -commercial speech is also protected by the First Amendment, but is subject to Greater controls and other speech, particularly political speech -expression of ideas through acts is also protected, although to a lesser degree than pure speech. -Picketing is an example of protected expression, -as is flag burning 1st Amendment free exercise of speech claims also arise in the context of hate crime legislation. -Such legislation either makes it illegal to express Prejudicial opinions or enhances the penalty for a crime that is motivated by prejudice - as to the latter, Most states enhance the penalties for crimes such as trespass, assault, battery, and harassment if the motive of the crime was the victim's race, religion, color, or other characteristic

Due process model

the due process model places at premium on the Integrity of individual rights in the fairness of process, as well as factual guilt. -Efficiency (speed, cost, identifying and punishing offenders) is secondary. the balance is different in Crime Control Systems. -Factual guilt and efficiency or emphasized. Factual guilt refers to whether a defendant has in fact committed a crime. -Legal guilt is concerned not only with factual guilt, but also with whether the defendants rights have been observed and respected by the government in the process of investigation and prosecution. it is possible, under the due process model, to have sufficient evidence to prove a defendant factually guilty; but because of a civil rights violation, the defendant must be declared legally not guilty. -The due process model has little tolerance for conviction of the innocent -The Crime Control model equally abhors crimes going unsolved and defendants unpunished. Investigation and adjudication of defendants is less efficient and more costly under the due process model than under the Crime Control no system Falls squarely into either of the two models, although most systems can be generally characterized as adhering to the principles of one more than the other. Individual rights and fair procedures are the Hallmark of the US system of Criminal Justice. -All individuals are innocent until proven guilty. -The process itself presumes innocence, and deprivations of Liberties are sharply limited and regulated before guilt is found. also, as the severity of the government's intrusions or deprivation increases, so most evidence of guilt. -For example, less evidence is required to establish probable cause to support a search of an automobile then to bond a defendant over to trial.

exclusionary rule

the exclusionary rule often means the rule that illegally gathered evidence may not be used in a criminal trial. -The rule is several exceptions, such as when the evidence is used to impeach a defendant's testimony and when the evidence was gathered in a good faith belief that the process was legal the rules simple: evidence that is obtained by an unconstitutional search or seizure is inadmissible at trial Case Mapp v. Ohio when it applies, the exclusionary rule prevents the admission into evidence of any item, confession, or other thing that was obtained by law enforcement officers and unconstitutional manner. -However, if a private citizen working on their own obtained evidence illegally and then turns it over to the police, it may be admitted. -People hired or authorized to assist the police are considered agents of the government, and therefore the exclusionary rule applies to their actions. the government may not use the evidence if the defendant does not open the door. -That is, the government may use the evidence if the defendant refers to it in its case. most exclusionary rule issues are resolved prior to trial by way of a motion to suppress,(or exclude) evidence. -In some instances the motion may be made at the moment the prosecutor attempt to introduce such evidence at trial. -This is known as a contemporaneous objection.

law enforcement officer

the front line of law enforcement in the United States is what the public commonly referred to as the police Law Enforcement Officers exist at the national, state, and local levels federal law enforcement agencies include the Federal Bureau of Investigation, The Drug Enforcement Administration, Customs, the Coast Guard, US Marshals, the Secret Service, and the Bureau of Alcohol, Tobacco, and Firearms, to name only a few. Each state has a police department, and many have a counterpart to the FBI, such as Kansas Bureau of Investigation (KBI). -in addition, with each state, county sheriff's and Municipal police departments enforce the laws of the state as well as the laws and their locality. There are more than 20,000 local law enforcement agencies in the United States (other law enforcement numbers are on pg 338) Discretion: law enforcement Personnel are expected to keep the peace, investigate possible wrongdoing, enforce the laws, and further crime prevention. -Although it is generally held that the police must enforce the laws, it is also recognized that not all the laws can be or should be enforced. -Deciding whether to conduct an investigation, whether to arrest an offender, or whether a search is necessary all usually fall within the individual officer's discretion Ethics: police officers have a legal and ethical obligation to keep themselves within constitutional limits when performing their duties (as do prosecutors and defense attorney) the International Association of chiefs of police (IACP) has formulated a set of ethical principles intended to guide the law enforcement officer in performance of their duties. -The IACP has issued to ethics documents: the law enforcement code of ethics and the police code of conduct. -The code of ethics is a general statement of ethical responsibilities that may be used as an oath of office. -The code of ethics recognizes that police officers hold a special public trust and that they have an obligation to not violate that trust. -the police code of conduct is more specific than the code of ethics. The code of conduct prohibits discriminatory treatment of individuals based upon status, sex, religion, political belief, or aspiration; the unnecessary use of force; the infliction of cruel, degrading, or inhumane treatment; violation of confidences, except when necessary and the performance of duties or as required by law; bribery; the acceptance of gifts; refusals to cooperate with other law enforcement officials; and other unreasonable and inappropriate behavior. the code of conduct further qualifies the necessary force requirement by stating that force should be used "only with the greatest restraint and only after discussion, negotiation, and persuasion have been found to be inappropriate or ineffective."

victims

the legal victim of crimes is the government. -However, most crimes have another victim, the victim in fact. This is the person assaulted, battered, right, or robbed. -Victims of fact criminal adjudications in a number of ways. 1. Law Enforcement Officers May decline to make an arrest or conduct an investigation if the victim is disinterested and having the matter pursued 2. the prosecutor may file a nolle prosequi, if there has been an arrest, or otherwise refused to proceed with a prosecution if that has the victims desire 3. if the matter proceeded to trial, the victim may be required to testify at both pretrial hearings and trial. -A victim may choose to attend even if their testimony is not required. 4. the victim May participate in the sentencing portion of the trial the Arizona Constitution was amended to include victims Bill of Rights. Through that Amendment and its enabling legislation, Crime Victims: -are allowed to participate in the initial appearance, -be heard on conditions of release, -be present at all Court proceedings, -confer with the prosecutor concerning disposition of the case, -refuse a defense interview or other Discovery request, -provide an impact statement for sentencing, -receive restitution and other damages, -receive notice of probation modifications of the perpetrator, -and receive notice of parole or death of the perpetrator. -Rape shield legislation is another form of victims rights laws. in 1982, only four states had victims bills of rights. -That number increased to 44 by 1987. -In 1982, only eight states allow the use of Victim Impact statements at sentencing. -By 2013, the number of states permitting Victim Impact evidence to be considered by sentencing judges and juries increase to 50 and 32 states now provide for victims rights in their constitutions. -laws have been enacted for the protection of both victims and Witnesses. -These laws provide for the relocation of a witness or victim who's cooperation with an investigation or prosecution and dangers their life. The federal laws well known. It provides for relocation of the victim or witness and their immediate family at taxpayer expense. Victim Impact Statement: at the time of sentencing, a statement made to the court concerning the effect the crime has had on the victim or on the victim's family. finally, Victim Assistance organizations are available in many jurisdictions. Summer independent, non-for-profit corporations, and others are governmental entities. -Most states have enacted victim compensation programs. -In many instances restitution proves inadequate, such as when the perpetrator is Indigent. -In these instances, a victim can request compensation from estate victim compensation fund. -These programs reimbursed victims for medical expenses, and sometimes loss of income.

Probable cause

the u.s. Constitutional requirement that law enforcement officers present sufficient facts to convince a judge to issue a search warrant or an arrest warrant, and the requirement that no warrant should be issued unless it is more likely than not that the object saw it will be found in the place to be searched or that a crime has been committed by the person to be arrested. probable cause is the minimum amount of evidence necessary for a search, seizure, or arrest to be proper under the Fourth Amendment. there is no one universal definition of probable cause. -In fact, the definition of probable cause differs depending on the context. probable cause maybe established by an animal as well as a human. -Dogs can be trained to discover bombs, drugs, and people. -At Borders, dogs are used to sniff vehicles for the presence of illegal aliens. -At airports, dogs are used to detect explosives. -Many police departments depend upon dogs to detect drugs and track fugitives. -The Supreme Court has stated that the act of having a dog sniff a person or thing is not a search. the question then becomes whether a dog's indication (a dog alert) that Contraband is present is probable cause to issue a warrant or to pursue a warrantless search or seizure. - That is the issue the 10th Circuit Court of Appeals address in the Ludwig case Good Faith Reliance on a Warrant: judges can different opinion. Judges can make mistakes. -What happens if a judge finds that probable cause exists and accordingly issues a warrant, only to have the probable cause finding reversed later? -Should the evidence discovered during the search be excluded? The Supreme Court has answered this question in the negative. -The court found, and United States vs Leon, 468 U.S. 897 (1984), -that the exclusionary rule does not apply to evidence seized by police officer, acting in good faith Reliance on the warrant, while executing a facially valid warrant.

privacy and other unenumerated rights

unlike some state constitutions, the US Constitution does not expressly protect privacy. -Many of the expressly stated rights in the Bill of Rights protect privacy, such as the Fourth Amendment, -which has been interpreted as applying to searches that encroach upon a person's reasonable expectation to privacy the issue is whether the Constitution protects privacy to a greater extent and through its Express provisions. -Stated another way, is there an independent and inherent privacy right in the Constitution? -If so, what is the textual source of that right? -Supreme Court answered the former question affirmatively in 1965 in Griswold vs Connecticut. -a Connecticut statute that prohibited the use of contraceptives, even by married couples, was held unconstitutional as invasive of a right to privacy the second issue, the source of the right, the court found that the right to privacy grows out of the 1st, 4th, 5th, 9th, and 14th amendment's -the court stressed that the First Amendment right to Association protected and marriage relationship in that the intimate subjects thought to be regulated was especially protected Justice Douglas found that the right to privacy was a penumbra of other fundamental, Express rights. -He did not find the right to privacy to be an independent constitutional right. -this is because he believed that the Fourteenth Amendment was intended to extend the rights found in the Bill of Rights to the States, -but that it was not intended to create independent rights -this principle is known as total Incorporation privacy is also been an issue in abortion cases. -Abortion cases are Complicated by a competing interest that did not exist in Griswold, that is, the interest of the state and protecting the fetus. -in 1973 the Supreme Court handed down the landmark decision of Roe versus Wade, -in which the court declared that the right to privacy protects a woman's right to elect to abort a fetus in some situations -the court adopted a trimester analysis during the first trimester, States could not regulate abortion procedures. -During the second trimester, States could regulate abortions and so far as necessary to protect the health and life of the woman. -Finally, States could protect the fetus during the third trimester, including prescribing abortion, - except in cases in which abortion was necessary to protect the life or health of the mother -in some cases, such as Casey v Planned Parenthood, the court rejected the trimester anaylsis -in some circumstances the decision whether to abort a fetus is so private and intimate that it is protected by the Constitution from governmental intrusion. although the court reaffirm the right to privacy in the abortion context, it also rejected the trimester analysis in favor of an undue interference test. -that is, a regulation is invalid if it unduly interferes with a woman's Choice. -Also, the court reaffirmed the Rowe holding that until a fetus is viable outside of the mother's womb, a state may not prohibit its abortion. -Further, even after viability, abortion is permitted to save the life or health of the mother the court concluded that: 1. requiring information concerning abortions and abortion procedures to be distributed to patients before the procedure is performed is not unduly burdensome 2. mandating 24-hour waiting periods between receipt of the information and performance of the procedure is not unduly burdensome 3. requiring parents Will consent with a Judicial bypass by minor girls is not unduly burdensome 4. requiring spousal notification by married women is unduly burdensome and therefore, invalid