Criminal Procedure

Criminal Procedure

I.

US and NY Constitutional Protections A. Detention and arrest B. Search and seizure C. Warrants 1. Arrest (CPL Art. 120) 2. Search (CPL Art. 690) D. Right to counsel; ineffective assistance of counsel E. Confessions and privilege against self-incrimination 1. Right to counsel; indelible attachment 2. Right to remain silent 3. Miranda 4. Voluntariness 5. Right to confront witness F. Police-arranged identification procedures 1. Photographic identification 2. Corporeal identification 3. Independent basis G. Speedy trial guarantees H. Due process, double jeopardy Proceedings upon the Filing of an Accusatory Instrument A. Grand jury proceedings (CPL Art. 190) B. Pre-trial proceedings 1. Indictments and other accusatory instruments (CPL Art. 200) 2. Arraignment (CPL 170.10; 210.15) 3. Discovery and Disclosure (CPL Art. 240) C. Motions and hearings 1. Motions to dismiss or reduce indictment (CPL 210.20 et seq.) 2. Exclusion of evidence (CPL Art. 710) a. Tangible property b. Statements c. Identification d. Uncharged crimes and prior bad acts D. Pleas (CPL Art. 220) E. Trials (CPL Art.s 260; 270; 280; 300) F. Post-trial proceedings 1. Sentence (PL Art.s 55-85) 2. Motions (CPL Art.s 330; 440) 3. Appeal (CP Art.s 450-470)

II.

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Constitutional Protections The 4th Amendment: provides that people should be free from unreasonable searches and seizures The Exclusionary Rule Prohibits introducing E obtained in violation of a federal statutory or constitutional provision in court against the individual whose rights were violated o Illegally obtained E is inadmissible at trial and fruits of the poisonous tree (evidence obtained from exploitation of the illegally obtained evidence) must also be excluded Limitations on the Exclusionary Rule o 1. Inapplicable: grand juries, civil proceedings, internal agency rules, parole revocation proceedings Grand jury W may be compelled to testify based on illegally obtained evidence (unless obtained in violation of federal wire tapping statute) Inapplicable at parole revocation proceedings, in civil proceedings, or where evidence was obtained contrary only to agency rules o 2. To qualify for exclusion the search must violate the federal Constitution or a federal statute Knock and announce violations dont require suppression For police misconduct to trigger, it must be deliberate, reckless, or grossly negligent o 3. Good faith defense to exclusion (GFR ~ good faith reliance) (i) When cops rely in GF on a judicial opinion later changed by another opinion (ii) GFR on a statute or ordinance later declared unconstitutional (iii) GFR on a defective search warrant NY: does not recognize GFR on a defective search warrant as a limitation if NY police rely in good faith on a defective search warrant the search is illegal and the exclusionary rule applies 4 Exceptions to the Good Faith Reliance on Defective Warrant o (1) Underlying affidavit so lacking in PC that it couldnt reasonably be relied on o (2) Facially defective warrant (failed to state w/ particularity places to be searched or the items to be seized) o (3) Affiant lied to or misled the magistrate, or o (4) Magistrate has wholly abandoned his judicial role o 4. Excluded evidence can be used to impeach Ds trial testimony o Officers reasonable mistakes: rule doesnt apply to evidence erroneously obtained when executing a search warrant, provided officers mistake was reasonable The Fruit of the Poisonous Tree Doctrine o Exclude all evidence derived from the illegally obtained evidence o 3 Ways to break chain between original unlawful police action 1. Evidence obtained from a source independent of the original illegality 2. Inevitable discovery (i.e., the prosecution can show that the police would have discovered the evidence whether or no the police acted unconstitutionally) 3. Intervening acts of free will on the part of the D (love on the bar) Attenuation where the passage of time and intervening events purge the taint of the original illegality, and restore Ds free will Ex: D illegally arrested on Friday, returned to police station and confessed on Tuesday ~ all the intervening events break the chain

The Law of Arrest and Other Detentions

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Government seizures of persons are seizures w/in the scope of 4A and so must be reasonable Seizure ~ occurs when a reasonable person would believe that he is not free or leave or terminate an encounter w/ the government o An individual is seized when, based on a totality of the circumstances, a reasonable person would not feel free leave or to decline an officers request to answer questions o Factors to consider (a) Whether a cop brandishes a weapon (b) The officers tone and demeanor when interacting w/ the person questions (c) Whether the individual was told it had the right to refuse consent o Police Pursuit: an individual is seized only if it submits to the cops authority by stopping or if the cop physically restrains it NY: police pursuit is seizure in and of itself Arrest ~ occurs when the police take a person into custody against his will for the purposes of criminal prosecution or interrogation o Arrest warrants generally arent required prior to arresting someone in a public place o Arrests must be based on probable cause Trustworthy facts or knowledge sufficient for a reasonable person to believe that the suspect has committed or is committing a crime May be established based on police radio bulletin o PC to Arrest reasonable cause to believe individuals committed offense o Non-emergency arrest of individual in home requires an arrest warrant o Arrest of someone in the home of a 3P requires an arrest warrant and a search warrant Station House Detentions ~ cops need probable cause to arrest you to compel you to come to the police station either for finger printing or for interrogation Investigatory Detentions (stop and frisk) o Terry Stop a brief detention or seizure for the purpose of investigation suspicious conduct o Terry Frisk a pat-down of the body and outer clothing for weapons that is justified by an officers belief that the suspect is armed and dangerous If a weapon is found it can always be seized If officer finds contraband w/o manipulating the object, it can seize it as well NY: officers can only seize an item if it feels like a weapon Car Frisks when conducting a traffic stop, if an officer believes that a suspect is dangerous, it may search the passenger cabin of the vehicle, limited to those areas in which a weapon may be placed or hidden o Reasonable Suspicion = knowledge sufficient to induce an ordinarily prudent and cautious person under the circumstances to believe criminal activity is at hand Automobile Stops o Traffic Stops: both the driver and passengers are seized, such that either can challenge the legality of the stop Dog sniffs at traffic stops are permissible provided the sniff doesnt prolong the stop unreasonably o NY: PC that violation of VTL has occurred or reasonable suspicion of criminal activity Reasonably believe that either automobile or occupant is associated w/ criminal activity

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Common Enterprise Theory in a traffic stop, where a cop discovers evidence of crime that suggests a common unlawful enterprise between the driver and passengers, the cop may arrest any or all of them, based on the reasonable inference of shared dominion and control over the contraband

Occupants of the Premises o 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 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 For more remote areas, must have additional facts sufficient to allow a reasonably prudent officer to conclude that an individual who may threaten officer safety is present in the area swept

NY: Sliding Scale of Police Authority o Requesting Info (most minimal intrusion) They can approach you and ask for info except on a whim or caprice Individual has the right to not respond and can even run away without giving the police PC to make an arrest o Common Law Right to Inquire Cops need a founded suspicion that criminal activity is afoot May ask questions Detention must be short If individual gives explanations the cops must release him o Stop and Frisk ~ cops need reasonable suspicion to do this o Arrest ~ requires probable cause The Law of Evidentiary Search and Seizure Model for answering any search and seizure question on the bar CMR page 5 flow chart (i) Does D have a 4A right (seizure by the government concerning a place or thing in which D had a reasonable expectation of privacy)? (ii) Did the government have a valid warrant (issued by a neutral and detached magistrate on a showing of probable cause and reasonably precise as to the place to be searched and items to be seized)? (iii) If the police didnt have a valid warrant, did they make a valid warrantless search and seizure? STEP 1: First look to see if person in Q even has a 4A right (i) Governmental conduct o Whose conduct is government conduct for the 4A? 1. Publicly paid police on or off duty no matter what theyre doing 2. Any private individual acting at the direction of the public police 3. Privately paid police government conduct unless deputized w/ power to arrest 4. Public school administrators (ii) Person must have a reasonable expectation of privacy w/ respect to the place searched or the item seized determination is made on the totality of the circumstances 2 part inquiry: standing & o No reasonable expectation of privacy when: o When you have no standing to object to the legality of the search

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Three automatic categories of standing (show one and you always have standing to object to the search) 1. Own the premises searched 2. Live on the premises searched (w/ or w/o an ownership interest) 3. Overnight guests have standing to object to the legality of the search of the place theyre staying o NY: when Ds guilt is predicated solely on the criminal inference of possession (weapons/drugs) due to Ds presence in a car or dwelling, that D is given automatic standing to challenge the search Two categories of sometimes standing o 1. Ownership of the property seized o 2. If you are legitimately present when the search takes place On the bar Qs re standing will probably be: o Overnight guests do have standing to object to search of place theyre saying o Passengers in car who dont claim they own the car and dont claim the stuff taken out of the car do not have standing to object to the search of that car just b/c they were present when the search took place o A drug dealer briefly on the premises of someone else solely for the business purpose of cutting up drugs for sale doesnt have standing to object to the search of those premises o Bar examiners like to ask about the facts of decided cases these are the facts of the 3 leading cases on standing

When the item the government wants to seize from you is held out to the public one does not have a reasonable expectation of privacy in objects held out to the public (held out in public privacy expectation) Things which implicate no right to privacy o 1. Sound of voice o 2. Style of handwriting o 3. Paint on the outside of your car o 4. Account records held by a bank o 5. Monitoring the location of your car on a public street or in your driveway o 6. Anything that can be seen across the open fields (marijuana garden) NY Constitution: warrant is required to search an open field that is fenced in or posted w/ no trespassing signs o 7. Anything that can be seen by flying over in a public airspace o 8. The odors emanating from your luggage o 9. Your garbage set out on the curb for collection Use of sense enhancing technology that isn't in general public use to obtain E from inside a suspects home that could not otherwise be obtained w/o physical intrusion violates the suspects reasonable expectation of privacy NY: use of cop dogs in a hallway outside a Ds apartment is a search but not so intrusive as to require a warrant (only requires reasonable suspicion of drugs to call in a dog to sniff) If yes to both, then you have a 4A right and the search is challengeable under 4A

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STEP 2: Did the police have a search warrant (question of fact) If yes test the validity of it under search warrant law o Requirements for a valid search W 5 considerations + GFR exception o (1) Warrants should be issued on PC PC to believe that seizable evidence will be found on the person or premises at the time the warrant is executed Multistate: can have a valid W based in part on an anonymous informants tip ~ all thats required is that the sum of whats in the affidavit is enough to allow the magistrate to make a common sense evaluation of PC NY: Informants - firm rule: to get warrants based in part on an informants tip the affidavit must: (i) Set forth sufficient underlying facts and circumstances to permit magistrate to know how the informer got the info; AND (ii) Establish informants reliability and credibility (e.g., prior use) NY applies the Aguilar/Spinelli test in which the reliability of the informants hearsay is based on: (i) veracity or trustworthiness of the informant, (ii) reliability of the basis of the informants knowledge (i.e., is the information so detailed as to set it apart from rumor, surmise or suspicion Reliability of an identified witness is presumed and may be sufficient to provide cops w/ probable cause (2) W must be precise on its face ~ must state with particularity the place to be searched and the things to be seized (3) W issued on the basis of an affidavit is invalid if D establishes: (i) False statement was included by the affiant (officer applying for the warrant) (ii) The affiant intentionally or recklessly included the false statement; and (iii) The false statement was material to the finding of PC (4) Must have been issued by a neutral and detached (from the often competitive business of law enforcement) judicial officer State attorney general = no US AG = no (principal law enforcement officer for the US) Anyone paid per W = no NY porno shop seizure magistrate sent police to seize all things he found obscene (9-0 no way neutral) Court clerks = yes (under civil service, cant be fired for not issuing neutral sufficient to allow them to issue Ws for city ordinances) Non-neutral magistrates cant save E by use of GFD (this is what it means to say wholly abandoned judicial role) (5) Execution of Warrant Must be executed w/o unreasonable delay Must knock and announce purpose and wait a reasonable time for admittance unless theres reasonable suspicion based on facts that announcing would be dangerous or futile or would inhibit the investigation

o o

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May seize any contraband or fruits or instrumentalities of crime discovered whether or not specified in the W Knock and announce violations will not result in suppression of E otherwise properly obtained Authorized to detain occupants of the premises during proper search but not authorized (by the W) to search persons found on the premises who werent listed in the W NY: must be between 6am and 9pm unless court authorizes nighttime entry clause

If its good you have a valid search If its not see if you can save the evidence anyway w/ the good faith defense

STEP 3: If no W see if it can fit into one of the 6 exceptions to the W requirement Exceptions to the warrant requirement E-S-C-A-P-I-S-T o (1) Search incident to a lawful arrest May S person and areas into which he might reach to obtain weapons or destroy evidence; may make a protective sweep of the area if believe accomplices may be present Requirements: (i) Arrest must be lawful (ii) S must be contemporaneous in time and place w/ the arrest (iii) Person and the areas in which that person could reach to get a weapon and destroy evidence ~ the wingspan rule When a person is validly arrested in a car, their wingspan will include the entire interior compartment and everything in it, but not the trunk (Belton) Once secured, (cuffed/in squad car) officer can search the vehicle only if it has reason to believe the vehicle may contain evidence relating to the crime for which the arrest was made NY Distinctions: Scope ~ officer must suspect that the arrested persons may be armed to search containers in the wingspan Once an occupant has been removed for the car, police may not remove closed containers or bags to look for weapons or other E (2) The automobile exception PC to believe vehicle contains fruits, instrumentalities, or E of a crime cops may S the whole vehicle and any container that might reasonably contain the item for which they had PC to S (can tow and S later as long as warrantless S is valid) The police need PC to come under this exception; PC to believe that car contains contraband or fruits of the crime (same as requirement for W) PC can arise after the car is pulled over but must arise before anything or anybody is searched If the cops have PC, they can search the whole car (interior compartment and trunk) and open any package, luggage or other container that could reasonably contain the item for which they had PC to S could reasonably be contained (3) Plain view To make a warrantless seizure of an item in plain view, officer must have: 1. Lawful access to the place from which the item can be plainly see

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2. Lawful access to the item itself 3. The criminality of the item must be immediately apparent NY: plain view seizure of obscene material requires prior judicial authorization

(4) Consent Must be voluntary and intelligent Saying that they have a W negates consent Cops dont have to warn you of your right not to consent Authority to consent where 2 or more people have an equal right to use a piece of property or premises any one of them can consent to its warrantless search Apparent authority if consent is received from someone who lacks actual authority to grant it the consent is still valid provided the officer reasonably believed that the consenting party had actual authority Occupant cannot give valid consent to a S when a co-occupant is present, objects to S and S is directed against the co-occupant TEST TIP: be careful to check whether the person has reasonably apparent authority to consent NY: cops cannot seek consent w/o a founded suspicion that Ds engaging in criminal activity (5) Stop and frisk Standard: reasonable suspicion (< PC) For Stops: need specific and articulable facts that inform an officers belief that criminal activity is present o Subjective intent is irrelevant in evaluating the legality of the stop o 4A is concerned only w/ objective reasonableness For Frisks: need specific and articulable facts that suggest a suspect is armed and dangerous o Justified by concerns for officer safety, not a general search for evidence Can do a pat down search for weapons May require detainee to state his name and if the cop reasonably believes the person may be armed and presently dangerous, it may conduct a protective frisk May order passenger out of a stopped vehicle and frisk him and S the passenger compartment of the vehicle if the cop has a reasonable belief that an occupant is dangerous Admissible Evidence Weapons are always A so long as the stopping was reasonable E of crime that is not a weapon the legal standard for admissibility is how much like a weapon or contraband could it have seemed like from the outside Any item the cop reasonably believes based on its plain feel is a weapon or contraband will be A NY: rejects the plain touch/feel exception (6) Exigent Circumstances Evanescent Evidence: E that might go away if we took the time to get a W Ex: scraping under the Ds finger nails NY: no forcible removal of blood, but you forfeit your license if you dont consent Hot pursuit of a fleeing felon ~ how hot, real hot

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Police are always in pursuit of people If not about 15 minutes behind the felon do not call it HP Once cops enter a home on HP theres no legal limit to what they can do there May enter anybodys home if really in HP Emergency aid cops can enter a residence w/o a warrant when there is an objectively reasonable basis for believing that a person inside is in need of emergency aid to address of prevent injury Contaminated food and drugs, persons injured or threatened with injury, and burning fires justify warrantless searches and seizures (7) Inventory Most commonly occur when arrestees are booked into jail or when vehicles are impounded. They are constitutional provided: 1. The regulations governing them are reasonable in scope 2. The search itself must be comply w/ those regulations, and 3. The search is conducted in GF: that is, it is motivated solely by the need to safeguard the owners possessions and/or to ensure officer safety (8) Special needs Requires special needs of law enforcement, governmental employers and school officials beyond a general interest in law enforcement 1. Random drug testing is allowable for o a) Railroad employees, following an impact accident; o b) Customs agents, who are responsible for drug interdiction o c) Public school children, who participate in any extracurricular activities o Suspicionless drug tests are not permitted when their primary purpose is to gather criminal evidence for general use by law enforcement 2. Government employees desks and files permitted to investigate workrelated misconduct 3. Students effects in public schools, including purses and backpacks, may be searched to investigate violations of school rules, such as the prohibition of smoking on school grounds 4. Border Searches: neither citizens nor non-citizens have 4A rights at the border, with respect to routine searches of persons and effects

Wire Tapping and Eavesdropping General Rule: All wire tapping and eavesdropping requires a warrant Warrant authorizing wiretap will be issued if: Screen Telephone Calls Carefully o (1) Suspected persons: warrant must name the suspected persons whose conversations are to be overheard o (2) Crime: there must be PC that a specific crime has been committed o (3) Conversations: W must describe w/ particularity the conversations that can be overheard o (4) Time: must be for a strictly limited time period Exception o The unreliable ear ~ everyone in this society assumes the risk that the person theyre talking to will either have consented to the letting the government listen or will be wired Confessions Generally

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14A DPC standard for excluding involuntariness, which means that the confession is the product of police coercion that overbears the suspects will 6A Right to Counsel express guarantee that attaches when D is formally charged o Applies at all critical stages of the prosecution, including arraignment, PC hearings, police interrogation and sentencing o Offense specific applies only to the charges filed, provides no protection for uncounseled interrogation for other uncharged criminal activity o Incriminating statements obtained violate if those statements are deliberately elicited and D did not knowingly, intelligently, and voluntarily waive its right to have atty present NY Indelible Right o Attaches whenever there is significant judicial activity or activity overwhelming to an ordinary person before the filing of an accusatory instrument such that D may benefit from the presence of outside counsel o If D is taken into custody for questioning on a charge and the cops are aware that its represented by counsel on that charge they cant question it about that charge or any other matter w/o atty present o If D is represented by counsel waiver must take place in the presence of the atty Provides greater protection than 6A An indelible right to counsel attaches: o (1) When D is in custody and cops are engaging in activity overwhelming to the lay person, and D requests counsel; o (2) At arraignment; o (3) Upon filing an accusatory instrument (e.g., indictment); o (4) When there has been significant judicial activity o Once right to counsel attaches o Wavier of Rights a WOR may be obtained from a criminal D who is actually known to be represented by an attorney in the pending case only if counsel is present o Refusing to allow D to confer w/ council overnight is a denial of right to council May restrict access during a 15 minute recess

Miranda For an admission or confession to be admissible under the 5A privilege against self-incrimination, a person in custody must, prior to interrogation, be informed, in substance, that: o (i) He has the right to remain silent; o (ii) Anything he says can be used against him in a court; o (iii) He has the right to presence of an attorney; and o (iv) If he cannot afford an attorney, one will be appointed for him if he so desires The constitutional prerequisite for the admissibility of anything said while in police custody is Public Safety Exceptions - if custodial interrogation is prompted by an immediate concern for public safety, Miranda warnings are unnecessary and any incriminating statements are admissible against suspect Conveying must reasonably convey and obtain valid waiver before questioning Triggering Miranda Must Have Two Things: Custody o At time of the interrogation person was not free to leave = custody o Probation interviews and routine traffic stops custodial o MW only necessary if D knows that hes being interrogated by a government agent Interrogation o MWs not required prior to a spontaneous statement

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o o o o

Legal definition of interrogation: involves more than the asking of questions Words or conduct that cops should know would likely elicit a response Routine booking questions not interrogation Conduct that police knew or should of known might get a damaging statement

Waiver of Miranda Rights Valid waiver must be (prosecution must prove by a preponderance) o Knowing and intelligent waiver complies w/ this when suspect understands the nature of the rights and the consequences of abandoning them o Voluntary not the product of police coercion Considerations o No waiver of MW rights by either shoulder shrugging or silence o May be implied by a course of conduct that indicates the desire to speak to interrogators if suspect received and understood rights, it waives his right to remain silent by making an uncoerced statements o NY: if cops use deception or concealment to keep a parent away from a child who is being interrogated, the childs waiver may be deemed invalid Invoking the Right to Silence must unambiguously invoke ~ the cops must scrupulously honor o Cannot badger into talking o Must wait significant period of time before reinitiating questioning o Must obtain valid waiver before reinitiating questioning Invoking the Right to Counsel once asked for interrogation must cease unless initiated by suspect o Request must be sufficiently clear that a reasonable officer in the same situation would understand the statement to be a request for counsel o Right is not offense specific, interrogation following request is prohibited as to all topics o Request expires 14 days after suspect is released from custody waiver provided after this period is valid provided that its knowing, intelligent and voluntary Consequences of Miranda Violation Incriminating statements obtained in violation are inadmissible in prosecutions CIC o May use to impeach Ds trial testimony (not testimony of 3P witness) o Subsequent statements made after obtaining waiver are admissible provided initial nonMirandized statement wasnt obtained through the use of inherently coercive police tactics (original unwarned questioning seemed unplanned and the failure to give MWs seemed inadvertent) Failure to give warning doesnt require suppression of physical fruits of incriminating statements, provided the statements are voluntary If evidence is wrongly allowed in, guilty verdict will stand if government can prove BRP, that the error was harmless b/c D would have been convicted w/o the evidence Pre-Trial Identification o 1. Line-ups witness asked to identify perpetrator from a group o 2. Show-ups one-on-one confrontation between witness and suspect o 3. Photo arrays witness asked to pick perpetrator from series of groups Right to Counsel o No 5A right under Miranda for pretrial ID procedures o 6A right exists at line-ups and show-ups that take place after formal charging o NY: right to have atty present at line-up conducted before filing formal charges if youre aware that you have counsel and request to have counsel present Violation of DP

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Standard: violates DPC of the 14A when it is unnecessarily suggestive that it creates a very substantial likelihood or irreparable misidentification o Proof: court must weigh reliability of a suggestive identification against its corrupting effect Remedy: exclusion of the in-court ID (wont let the victim or witness ID the guy) o Can defeat by showing an independent source ample opportunity to observe at the time of the crime Admissibility should be determined at a suppression hearing o Government bears the burden of proving that: (i) Counsel was present; (ii) The accused waived counsel; or (iii) There is an independent source for the in-court identification o The defendant must prove an alleged due process violation Can attack as denying DP if the ID is unnecessarily suggestive and there is a substantial likelihood of misidentification

Grand Juries issue indictments in private proceedings 1. States dont have to use grand juries as part of charging process 2. Exclusion doesnt apply to the conduct of grand juries 3. The proceedings of grand juries are secret D has no right to appear and no right to send witnesses In NY Must establish all elements of the offense and provide reasonable cause to believe that the accused committed the offense 16-23 people (12 must concur to indict) Witness granted immunity may consult w/ counsel but not in the grand jury room Witness who waives immunity may be accompanied in grand jury room by counsel Indictment must be based on legally sufficient (admissible) evidence Witness receives transactional immunity (cant be prosecuted for any transaction they testify about) ID is entitled to testify before GJ upon request provided he waives immunity Pretrial Detention government needs PC both to bind a D over for trial and detain in jail before trial Detention Hearings to determine PC (Gerstein hearing) o Unnecessary to justify pretrial detention if: (1) GJ has issued an indictment or (2) Magistrate has issued arrest warrant First Appearance soon after arrest D must be brought before a magistrate who will o (1) Advise of rights o (2) Set bail o (3) Appoint counsel if necessary Bail decisions are immediately appealable (preventive detention is constitutional) Trial Rights Evidentiary Disclosure prosecutor must disclose to D all material, exculpatory evidence (Brady) Judges right to unbiased judge: (i) no financial stake in outcome, (ii) no actual malice toward D Confront W doesnt apply if face-to-face confrontation wld contravene impt public policy concerns NYs Rosario Disclosures NY provides that upon demand, D may obtain for inspection and copying: o (a) His own or co-Ds statement to law enforcement officer (including grand jury testimony) o (b) Tapes or bugged conversations intended to be used at trial o (c) Relevant photos or drawings prepared by the police
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o (d) Reports of physical, mental or scientific tests o (e) Any property obtained from D o (f) Approximate date, time and place of offense charged o (g) Anything that state or federal constitution requires be disclosed to D by P prior to trial o (h) Specific instances of Ds conduct the P intends to use at trial to impeach Ds credibility Between the time the jury is sworn in and Ps opening statement, P must give the D any prior written or recorded statements of persons to be called as witnesses and the criminal records of the prosecutions witnesses D must notify P w/in 30 days of a not guilty plea, if he plans to raise the insanity defense Within 20 days after arraignment, P may serve demand for an alibi defense ~ must reply w/in 8 days Before Ds direct case, D must make available relevant prior written or recorded statements by Ws Failure to make Rosario disclosures results in reversal only if D can show that there is a reasonable possibility that the nondisclosures materially contributed to the result of the trial or other proceeding

The Right to Jury Trial Attaches when tried for an offense w/ maximum authorized sentence > 6 months If the sum of the sentences for criminal contempt > 6 months youve got right to jury trial Number and Unanimity of Jurors o Minimum number to work is 6 (only 6: must be unanimous) o No federally protected right to a unanimous 12 person verdict o NY: 12 person jury required; D can waive right and have 11 (unanimous verdict required) Cross Sectional Requirement o Key is to know what youve got a right to o Right to have jury pool reflect a cross section of the community (not your actual jury though) o Unconstitutional to exercise preemptory challenges to exclude solely b/c of race or gender Speedy Trial Rights Statutory Speedy Trial Ready Rule prosecutor must be ready for trial w/in the following periods o Felony 6 months o Class A Misdemeanor 90 days o Class B Misdemeanor 60 days o Violation 30 days Motion to Suppress 45 days from arraignment Prosecutor has BOPn legality of the officers conduct o Untainted clear and convincing evidence Accusatory Instrument Written accusation stating crimes alleged and sufficient facts to support charge o Filing begins criminal proceedings and cops can get an arrest warrant o Indelible right to council will have attached Warrantless arrest arraign w/in 24 hours or presumptively unreasonable Ineffective Assistance of Counsel NY: meaningful representation standard claimant must show: o (i) Deficient performance by counsel and

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This could be a conflict of interest (e.g., Ds attorney once in the past represented victim) ~ 3 recent COA cases on conflicts of interest (ii) But for such deficiency the result of the proceeding would have been different (strict) Unless theres a colorable argument that D guilty, relief is denied

Guilty Pleas To be valid judge must establish its voluntary and knowing Plea-Taking Colloquy to ensure validity o On the record the judge must address the D directly about: (i) Nature of the charge (ii) The maximum authorized sentence and any mandatory minimum sentence (iii) Right to not plead guilty and demand a trial Consequences of the plea: waiver or right to plead not guilty and of right to trial o Remedy to violation: D may w/draw his plea and plead again Basis for w/drawing after sentence o (1) The plea was involuntary (due to defect in colloquy) o (2) Lack of jurisdiction (by the court who took the plea) o (3) Ineffective assistance of counsel o (4) Failure of the prosecutor to keep an agreed upon plea bargain Punishment May not be given a harsher sentence on retrial after successful appeal 8A: disallows penalties that are grossly disproportionate to the seriousness of offense committed Death Penalty o (1) Death penalty statute, must give D chance to present mitigating facts and circumstances o (2) Can be no automatic category for imposition of the death penalty o (3) May not by statute limit the mitigating factors; all relevant mitigating E must be A or the statute is unconstitutional. o Groups Categorically Excluded from DP by 8A 1. Retards 2. Presently insane 3. Under 18 when offense occurred Double Jeopardy Attaches When o Jury Trial: when the jury is sworn o Bench Trial: when the first W is sworn o Guilty Plea: when court accepts the plea unconditionally o Civil Proceedings: does not attach Exceptions Permitting Retrial o (1) Jury unable to agree on a verdict (jury has to be unanimous in either direction) o (2) Mistrials for manifest necessity (ex: midway thru D gets appendicitis) o (3) Successful appeal, unless reversal on appeal was based on insufficiency of evidence o (4) Breach of an agreed upon plea bargain by D Same Offense o GR: crimes same offense if each contains an element the other does not o NY Approach: the transaction test requires D be charged w/ all offenses arising from any single transaction unless: 1. Offenses have substantially different elements 2. Each offense contains element not in the other and they vindicate different harms

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3. One is for criminal possession and the other for use, OR 4. Each involved harm to different victim o Lesser-Included Offenses: if only one offense has an element contained in the other prosecution for wither precludes later prosecution for the other Separate Sovereigns bars retrial of the same offense by the same sovereign o Can be tried by both the state and federal government or different states o State and locality are the same sovereign

5A Privilege Against Compelled Self-Incrimination Anyone may assert in any proceeding in which an individual testifies under oath Must be asserted at the first opportunity or it is waived forever May be asserted whenever response might furnish a link in the chain of evidence needed to prosecute Doesnt protect us from government use our bodies in ways to incriminate us It protects from compelled testimony (cant make take lie detector or undergo custodial interrogation) Disallows negative prosecutorial comment on failure to testify or invoking right to silence/counsel Elimination of the Privilege o (1) Grant of use and derivative use immunity bars the government from using testimony or anything derived from it NY: transactional immunity: cant be prosecuted for any transaction about which you testify (broader) o (2) There is no possibility of incrimination (ex: SOL has run on the underlying crime) o (3) Wavier: by taking witness stand D waives 5A privilege for scope of cross examination

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