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Geoffrey Corn Criminal Procedure (Federal) 4 credits Spring 2013 Criminal Procedure: Principles, Policies and Perspectives - 4th

h edition (Dressler) Justice is the process but not the end state The goal is accuracy Our system defines justice as the process Criminal procedure is ensuring that there is confidence in the system Constitutional norms related adjudication of guilt that allows an objective spectator to respect the process The lawyer is the best one to bridge the gap between process and accuracy Every case is a call to arms for the word justice and its implementation. 4,5,6 had no applicability to the states prior to the 14th amendment The 14th amendment made the bill of rights applicaple to the states State criminal process came under the scrutiny of the federal govt Its the applicapibility of the bill of rights through the 14th amendment Scottsboro case Alabama dissenting judge the defendants lacked substantial assistance of counsel Capital case indingent illiterate feeble minded must be provided and be competent Process is more than just process This means that the spirit of the law is followed Factual guilt is irrelevant until the defendant is proven guilty by a fair trial until then they are presumed innocent. If this does not occur then there can be confidence in judgment

There must be fundamental fairness Notice and hearing proper jurisdiction Without a lawyer a hearing is a sham and not present Counsel should be present at every step of the trial Also Sutherland requires that every incidence prior to trial requires an attorney. A zealous lawyer is required not a pro forma Brown case Coercing testimony violates due process State due process cannot offend fundamental principles of justice Shocking to the conscience fundamental fairness Fundamental fairness is based in the bill of rights Duncan case Is there a right to jury trial in a non-capital felony case Louisiana only requires jury in capital and hard labor The test to determine if the rights apply to the states as well is if its a fundamental right to a fair trial This case allowed for jury in felony cases. The purpose of this case is to show that the bill of rights is a touchstone and should be used to define fundamental fairness No jury unanniiyt in a non capital case no 12 jury in a non capital case and no indictment by a grand jury these rigths are not incorporated into the states The state can always give defendants more rights but cant take away rights Entitled to be treated fairly

Weeks case A mans home is his castle indivisible rights the entering is the offense No sanction/approval should be found in the courts for those who violate the constitution Sanctioning this would write the 4th amendment out of the constitution To sanction such proceedings would be to affirm by judicial decision a manifest neglect if not open defiance of the prohibition of the constititoin inteneded for the protection of the people it was intdednt to protect. The allowance of this stains the courts as well Exclusionary rule is applied to the feds Wolf case Due process is a growing process Not for the court to say what the minimum is when there is a majority doing the oopposite also if historically it is allowed. Other methods available Is the protection of the fourth amendment limited to conduct of federal govt No because the core of the 4th amendment is privacy and via the 14th amendment due process Ordered liberty are violated by unreasonable searches due process says its a remedy Arbritary means without legal justification Exclusionary rule has not applied The state determines what the remedy is Exclusionary rule at this point has not determined if it arises from federal power or a constitutional rule Mapp case

Open with going over- precedent and stating that other methods have failed and that was the reason exclusionary rule wasnt applied disregard for the law by the government breeds contempt for the law Logical paradox in state beign allowed to break the constitution when the feds must follow it same constition being upheld Changed the wolf holding to exclusionary rule comes from the 4th amendment The right goes with the protection 3 pillars deterrence, give meaning, prevent stain Constitutional violations leads exclusionary rule Dissent felt that they were going to far Katz defined a search Trespass defines a search and without that not a search olmstead Expectation not have eavesdrop Sidenote A search is an intrusion on a reasonable expectation of privacy Public space does not end the 4th amendment Moved away for physical intrusion doctrine Phone booths purpose was to close off ears of other people Concurrence electronic intrusion is the same as physical intrusion Temporarly private door being shut major factor Dissent believes the court is overreaching and manipulating the words of the fourth amendment It adds that the fifth and fourth amendment are different the violation is complete at the search and the court is not a part of it

Questions to keep in mind What triggers the rights application What is the scope of the protection/who is protected What is the remedy for the violation Know the fourth amendment Any search or seizure will trigger the fourth amendment Warrants must be detailed Two prong approach to search and seizure 1. Is there a warrant a. Presume reasonableness that is rebuttable i. Defendant must rebut presumption 2. No warrant a. Presumed unreasonable i. Government must rebut it with a warrant exception It must be someone with substantial connection to the US this defines people We the people refers to us as a political community Assume 4th amendment applies unless facts lead to it not applying Its violated when the search occurs Remember when its triggered Sovereignty matters Reasonableness matters National searches lead to 4th amendment

Silver platter doctrine allows private citiznes to give government evidence w/out a warrant unless you were prompted by the government Learn to work through your progression step by step Exclusionary rule protects the people results in an unquestioned removal of probative evidence rochin case shocking the conscience violates due process forced vomiting searching depends where you are looking knowingly exposed to the public two part analysis of privacy subjective expectaion objective reasonable plain view doctrine garbage handwriting example bank records voice examples email header erase looking for something is a search reasonable expectation is key subjective expectation in the res and something that is objectively reasonable res is the thing being served white case

a false friend had a recording device while in a drug deal so white was convicted because officers overheard. The state wanted to provide the tape testimony but the defense claimed it was a fourth amendment issue the state claimed it wasnt a search. Applying katz would be a search to the circuit. False friend is okay via Hoffa The assumption of risk theory Harlan dissents stating eavesdropping would not end if on lee is overturned it just means that its harder to do. The point of the rules is to make it harder for the state to convict Harlan is afraid of technology intrusion into the subjective expectation of privacy Using technology to enhance what you could otherwise lawfully do does not change the nature of the intrusion Smith case The pen register case The police installed a pen register at the telephone company with their permission The claim is that the pen register information is fruits of the poisonous tree. The court finds that there is no subjective expectation but adds that there was no resanoble expectation of privacy. Assumption of the risk leads to the less things being a search The dissent feels there is no choice in most of these things Public, false friend, technological enhancement These are baseline so the feds or state can limit Following something visually is the same whether done physically or technological

Using dogs to sniff out drugs is not a search Thermal imaging can see through walls Open field is not a search Katz was not a substitute but it was a supplement The issue is what it allows you to see not the availability of the techonolgy What it accomplishes is the major point Open field is apart of your property but their expectation is a lot less There is no formalistic test Know the consequence of having an open field When you analyze a search look at each step not just one point Its not what they got how they got Faa limits is the basis for reasonableness Helicopter disruptive test Committing no physical intrusion to see it doesnt mean its a search The physical intrusion can be the search Just because you can see it without it an intrusion doesnt mean you can intrude to do the search Jones changed the dynamic by stating a gps search was unresonable The installation of the beeber was the physical intrusion so any fruits of that was a search The concurrence rejected the trespass doctrine but ruled for the Jones they felt the duration was unreasonable The technological capacity can be limited where it becomes pervasive Sotomayor states technoligcal advances are going to require us reevalute the rep doctrine Congress is being forward thinking in this department

Go back to the basics norms of the 4th amendment Put a limit on what the state can do Technology requires us to rethink what rep is and how effective it is The pervasiveness and duration of the survellience is the issue There is an easy test for seizure of property The govt must meaningful interfere with the ability of your possession Person is seized when as the result of govt action he is no longer free to leave or otherwise terminate the police encounter, application of physical force, or show of authority and submission A hunch is nothing it cant serve to bolster an affidavit. Look in both directions think about the links of the chain if a flaw occurs then get the items restricted Still need probable cause whether you have a warrant or not to commit the search or seizure How do you establish probable cause Individualized suspicion Identify parties, duration, and content for wire taps Attack the warrant by stating the affiant lied Knowingly intentionally reckless made, prove with the preponderance of the evidence establishing a causal connection and the remaing info is insufficient to uphold the warrant A two name case means it is a habeas appeal Three ways to challenge of a warrant One is warrant is depended on falsity

Two is to attack the probable cause two tiered approach, trial judge and warrant issuing judge are different Three challenge imparitlality of the magistrate Illinois v gates Under The totality of the circumstance a fair propabality exists that the contraband will be found Fair propbability through totality of the circumstance means a reasonable person would, through a common sense lens, reach the conclusion that contraband or evidence of a crime will be in that area We have a continuum, a hunch leaves no way for the magistrate to objectively critique Probale cause is based on facts and circumstances Pringle removed the more likely than not standard And reaffirmed the fair propbality that any or all of them commited the offense Learn to be really precise know what is valid and what is invalid When an automobile is seized than all occupants are seized and if the automobile was unlawfully seized than all occupants are unlawfully seized Use of informants may lead to troubling probable cause Impoundment of a vehicle is a warrant exception for a search When police rely on informant two types confidential and anonymous When police rely on informants they must co-oborate If non-incriminating facts are the only things proven is the tip enough to create probable cause The informant is like an expert witness offering an opinion on criminal activity Placing an witness under oath bolsters there veracity An anonymous tip cant be placed under oath so their veracity must be bolstered in another way

Defendants will often try to place a conditional plea but prosecutors dont like it Illinois v gates case The issue was if the tip was enough to gain probable cause The Illinois court stated that only the veracity and the basis of knowledge of innocent activity The tipster prediction were mainly correct They applied the spinelli test which they thought was a two involved prongs vercity and basis of knowledge The Illinois court felt that the police had corroborated the predictions But lacked the veracity prong since they didnt know who it was The supreme court stated that the lower courts screwed up the spinelli standard The two prongs are guidelines for totality of the circumstmaces so if there is a great amount on one than it can tolerat less of the other Probable cause is a practical test its not meant to be a hyper techinal test Also it assumes the citizens are honest but the cops established the basis of knowledge A statement against interest is usally not made unless its true What makes the foundation solid The difference in spinnelli is that anyone could have obtained that info Tips about inside information is what requires coroboraiton These cases are not about the relation of the facts to each other but the relation of the truthful facts to the tipster Because the informant is right about some facts that only an insider could know it increases the likelihood they know about the other facts Susbstanil defference is standard of review for reviewing probable cause

It means that there was something there to uphold probable cause and the magistrate agreed that it was there A deferential standard of review leads to an incentive to get a warrant Always get a warrant unless you cant If the affidavit supports some reasonable determientiion then it doesnt have to be roght Reasonable doesnt always mean right If you start with the basic assumption that government is there to protect property youll have a deferential standard of review Use the learning objectives on the weekends Payton v new York case The police break into a house and seize evidene and persons . The issue is what are circumstances under which conditions can police conduct a warrantless to arrest a suspect in their homes In both cases there was a statute authorizing the search The court is trying analogize a suspect as any other piece of evidence The easiest way to remember the warrant requirement is if the police need to do a search to do the arrest then they need to get a warrant The main point is that access is available to the point of the seizure to not require a warrant What you see gives you proabable cause and you have lawful access to the seizure if you have to search for it then its not in plain view an arrest warrant implicitly gives authority to search the home for the person the statute violates the reasonableness requirement an arrest always require probable cause

this differs from a terry stop an arrest requires statutory authority and probable cause gerstien hearing is a probable cause hearing following an arrest no attorney required this determines if the arrest was valid they must bring a suspect before a judge within 48 hours the evidence is what matters during an arrest an arrest brings with it the authority do a search of the immediate area no privacy is someone elses home defendant must have of standing for something the law does not permit the vicarious invocation of someone elses right it may violate the fourth amendment to illegaly enter a thrids persons house to arrest someone else then that person has no standard to exclude your arrest independent source is an exception attenuation is another exception to the rule deadly force is a seizure so it must be reasonable tennesee v garner unreasonable to effect a seizure when there is not an imminent threat of death or grevious bodily injury to yourself or others if allowed to flee lawful presence expands plain view area the one word to remember when doing a search is SCOPE anytime the scope is exceeded then the search is unlawful a cursory sweep is allowable to ensure the safety of the offircers search warrant probale cause, specificity and neutral detatched magistrate general warrants are pernicious since it offends the purpose of creating the 4th amendment

a magistrate who participates in the search then he is not neutral it has to be reasonably specific. Basically what items you are searching for an where are they going tp be knock and announce requirement is integral in the fourth amendment unless there are extingent circumstances. Particularly if evidence is going to be destroyed or flight. It violates the fourth amendment to have a per se exception factually overbroad slipperly slope knock and announce must be a case by case basis the standard is reasonable suscipsion which is a minimal level of objective justifucations there must be a way to test or scrutinize the reasoning so an objective fact tied to a hunch 15-20 secinds is plenty for knocking Knocking and announcing lessens danger to property, lessens damage to property, lessens embarrassment If the only violation is knock and announce then the exclusionary rule is not triggered Four ways to challenge warrant 1. Execution shocking the conscience is rare and almost irrelevant 2. Magistrates not neutral 3. Warrant defect 4. No probable cause The first exception is exigent circumstances This is an exception presuposes probable cause Hot pursuit of a fleeing suspect An immnetn danger to the police or public from undue delay of getting the warrant Imminent Desturiciton of evidence

The extingency establishes the probable cause Probable cause will always dictiate scope The court is fairly liberal in allowing searches of houses for danger The police cant deliberalty create extincgey Detention in anticipation of a warrant if you are waiting for a warrant then detain the suspect so you dont create an exigency The amount of time through the exercise of due diligence to acquire a warrant One other rule Kentucky v king the police observe a drug deal then they radio back Lawful police conduct cannot be considered creating an extingency Ample opputinuty to obtain a warrnt than reliance on extingety circumstance is not reasonable Hot purist and destruction are the main siuations for an extingency What would have the cop have been allowed to do with a warrant Chimel case A house was searched following an arrest without a search warrant without consent They only thing the police could claim was sitla Search incident to lawful arrest. The state relied on Robinowitz which is the place where the arrest was made So the theory was you could search the entire house but the Court denied that because it was unreasonable to search the entire house. The court denies the requirement of a search warrant The test is not whether it was reasonable to obtaian a search warrant but if the search was reasonable Immediate control or possesion was established in robinowitz

This was a scope case because chimel was arrested as he entered his house so the area he could readily access was limited to his person and wingspan/lunge rule This type of search excepts the warrant and probable cause requirement because it places the police officer safety over the privacy right of the individual The dissent distorts things because it assumes probable caused existed prior to the arrest SITLA is automatic exception must be contemporaneous, predicated on a lawful arrest, and scope is limited. The fourth amendment is vindicated by preventing an intrusion not by suppressing evidence after it is found. This makes the assement of probable cause more neutral The dissent tries to argue it would be too difficult but there are other procedures available to overcome these problems Robinson case A search occurred of a person following a lawful arrest for a traffic violation but the police found drugs on him after the search. The court says that terry and this situation are fundamentally different because terry stop is before an arrest occurs. SITLA is automatic and the police judgment is ad hoc so the search wil not be scurtiniized unless is goes beyond the scope. The police are in greater danger when arresting someone as opposed to a terry stop. The Court places officer safety above personal privacy. The arrest must be lawfully objective for the search to be valid. An arrest is a lawful intrusion which allows for a lawful search of the person in the full area around them. No such thing as search incident to citation even if an arrest could have occurred. A search without warrant is presumptively unreasonable so if you do a search then you must have an exception

Some exception are exceptions to the warrant requirement while others are exceptions to both the probable cause requirement and the warrant requirement Inventory exception : when an individual or their property is seaized it is administratively reasonable and they must follow their own regulation. There are 3 reasons to allow this protect the government against frivolous claims, the individual against loss of property and to protect the jail population from contraband These 3 are not evidentiary searches, inventory search, checkpoint search, and 3rd is border search. These dont require individualized suspicion. There is a permutation on SITLA which is the automobile arrest. Belton A cop searches a car after detaning the men outside of the car. The Supreme Court said it was reasonable to search the interior of the car and any contianers of the car when during an arrest In the thorton case the police suspect the driver has drugs and waits until the driver is outside of the car. The court doesnt want to incetify danger. Scalia wants to overrule Belton because he thinks its being abused and now it becomes automatic. Exigent circumstances only eliminates the warrant requirement not the probable cause requirement Gant case A man is arrested for driving with a suspended license and the police full search of the car was done with him in the back of the cop car. The Court came down saying that the Belton rational has become too broad. Belton is limited. A police can search a vehicle only if the suspect is unsecured and he is within reach of the car interior to obtain evidence or weapons. The Court is going to be skeptical about Belton and make it fact specific. Belton is now rare. There is another

way to search the car. If there is reasonable belief(less than probable cause) that there is evidence relating to the arresting offense in the car then you can search the car. This is no longer considered SITLA Dont inventory always when arresting an individual from a vehicle Reasonable suscipon generates a protective search not an evidentiary search so this is now an anomaly. Sitla is automatic to a lawful arrest and stay within the scope It doesnt matter what you find but where you were looking and why you were looking Not limited to sezing for what your looking for but whatever you find is good as long as the above is valid. Consent is revocable. There are couple of overlap rules so beware of these and distinguish them Automobile exception is different from ASITLA Chambers case A through search of the car was conducted after significant time had elapsed from the arrest In order to be sitla the search must be contemporaneous to the arrest The court cited carrol for the emphasis that arrest is not always connected to the need of a search. It stated that an automobile can be searched on the side of the road if you have pc The court doesnt want question the police judgement of dangerous. A seizure is a less significant intrusion when applying to a house but not so much when applying to a car Coolidge case Def argued that there was no exigency in this case and there was plenty of time to get warrant.

A plurality says that a car is not a tailisman that erases the warrant requrimetn. An automobile has a greater likelihood of obtaining a warrant exception but there is a temporal limit. Proximate to a road and ability to move on its own locomotion There is a good chance that if its a car then the warrant requirement wont apply if you have probable cause. Carney case A RV was searched after probable cause without a warrant the defense lawyer tried to argue that an Motor home should considered a home. The court disagrees but adds to the definition of what is an automobile. They add a privicay interest to the automobile because there is heavy governmental regulation so there is lessesned expectation of privacy the other justification is the reduced expectation there is a special category so the government doesnt need to do all the things they need to do for a home. The objective test is if an objective observer would conclude that it was being used as a vehicle not as a residence They difference is scope In this exception the police can only search where their pc leads them to search for the fruits of the crime and stop when you find the item The important thing to know is if only the warrant is excepted then what would a warrant would have allowed you to search What is the trigger, what is the scope, what is the remedy Opperman allows for an inventory exception but they must follow their own procedures As a practical matter its better to deny a warrant before you know whats there as opposed to knowing whats there and then try to get it excluded Chadwick case

Massive time lapse and heighted expectation led to the overturn of the case The government tried to argue an extreme view of the fourth amendment but the court rejected it based on the inherent mobility of a car and reduced expectation of privacy due to the extensive government regulation Just because you have probable cause doesnt mean you can search without a warrant or an exception. Acevedo case Issue what about a container in an automobile? Once you put a container in an automobile than its treated as a part of an automobile 3 rules for auto exception is that it is an automobile, you have probable cause, and limit your search to the probable cause scope is a critical limit to auto exception ITS very difficult to contest a consent search and if that is not an issue then look to see if the consent was preceded by an invalid seizure Continuum legal stop consent plain view seizure Schneckloth case The issue was whether an officer must inform a suspect of their right to decline consent? The court states that the touchstone to consent is voluntariness. This review is done under a totality of circumstances. The rule is if the defendants will was overborne then consent is not valid. The Supreme court stated that informing the right to deny consent is not required but its also recommended. The court counters the dissents argument by stating that the person giving consent is a factor in determining if consent was valid. Johnson v zerbst is the Seminole case in valid waiver, and in that case it said in order to waive the right you must know you have the right

The court distinguishes between a right to protect a fair trial and this is the fourth amendment. In order to give up a trial right it must be done knowingly and intelligently. The court operates that only a fool would waive fundamental trial rights but we give up our privacy all the time so its not a fundamental right. They add that 3rd party consent isnt valid to waive trial rights but its allowable for searches so notification of right is pointless. Acquiescence to a false claim of legal authority is not valid consent Lawful assertions are valid to obtain consent. In us v matlock A person who has common authority over an area can grant consent to search the area and the consent binds the other party Consent of one who possess valid common authority over premises or article is valid against the absent non-consenting party Third party consent cant trump doesnt trump a present and objecting co-tenant If the potential objector is nearby but not invited to take part in the threshold colloquy then they lose out. Unless the police remove the defendant for the sake of getting consent The trick is in Illinois v rodriguez The question is would a reasonable officer would have believed the supposed co-tenant had the right to give authority. The test is reasonableness not being right. A reasonable mistake prevents taint The test is did a co-tenant grant consent, did the co-tentat have authority to grant conset, was it reasonable for the officer to rely on the consent If there is consent try to find an unlawful seizure

Plain view doctrine is an exception to the warrant requirement for seizure. Its not a search because items in pain view arent found under a search. If you invade privacy to search or seize an item than you need a warrant or an exception Horton v California Inadvertence is not a requirement for a plain view seizure. If an article is already in plain view neither its observation or seizure would involve any invasion of privacy. Cant violate the fourth amendment to arrive at the area where its in plain view 3 requirents for plain views exception 1. Lawful vantage point 2. The unlawful nature must be immediately apparent/probable cause 3. Lawful access Plain touch doctrine Reasonably suspicion can lead to the plain touch which has the same requirements as plain view Terry stop is not custody These two errors are often made in connection with plain view 1. Mistake to believe is to that they confirm their suspicion after fair probability 2. And the 3rd requirement is often forgotten Arizona v hicks Enter the apartment due to exigency and seized the contraband but then they shifted the record player to find the serial number since he had a hunch that they were stolen. Four items were seized legally An invalid predicate search occurred without an exception Is there a but for link between the search and the seizure and if the search was invalid then the seizure is invalid.

Plain view doctrine cant be used to protect a search because there is no such thing as a plain view search. The majority fight with the dissent on cursory searches OConnor want a lower standard for a cursory search The majority separates an inspection and a search, with the intent of those who looking in that they are or are not looking for evidenced The majority wont dilute the standard for an evidentiary search An arrest is an full-blown arrest and an evidentiary search is a full-blown search Anything below these just requires reasonableness Governmental agencies conduct regulatory searches The supreme court said that a regulation inspection counts as search but an administrative warrant can be issued on reasonable suspicion Terry case Arrest is the initiation of the criminal process All arrests are seizures but not all seizures are arrests This case is about reasonableness If the Court doesnt sanction searches then it may lead lawlessness because police will prioritize their lives above a prosecution The test of reasonableness must respond to the reality so there must be a flexible standard otherwise it could lead to injury or lawlessness. The police wont care if the standard is too high but if you lower it than police will follow the law. A terry stop is a brief investigative detainment this can be used if they believe that crime is afoot It is not one authority there must be a suscipion of a violent crime to do the search

Req for terry stop Resonabel suscipison that a crime is afoot Req for terry frisk Reasonable suscipion that he is armed and dangerous so pat down the outer clothing for protection There needs to be an objective indicator that a seizure has incurred or there would be no way to know that this had occurred. Reasoanbel suscpion is based primarily on instinct and objective facts Probable cause is based on facts and circumstnaces The lack of objectivity make magistrates a rubber stamp on police conduct. The judge are gatekeepers so they need something to look at and determine if they would find the same thing Objective facts make an unreasonable suspicion reasonable The main test is for seizure not arrest Reasonable person would feel that their liberty had been restricted. Medenhall case Appeals court said she was seized unreasonably so that consent was invalid Supreme Court reversed The profile is what the justices felt was reasonable suspicion because it relies heavily on hunches This case defines seizure and nothing else. In totality of the circumstances a reasonable person would believe they were not free to leave As a matter of law police talking to you is not considedered being seized There is an overlap between custody and seizures so be careful.

The scopre the amount of time acting in due dillignece res req to confirm or deny the suspicion Drayton case Government action is causing the belief that you are not free to leave The test is if a reasonable person Asa result of gov act a resp in the suspect position would not feel free to leave or terminate the encounter Naturally confied space then look for coercive action We know reasonable suspicison, arrest, probable cause, arrest, terry frisk, terry stop, Cant use reasonable suspicion to conduct a search for contraband Break down the intrusion step by step Not automatic to search the car but must have reasonable suspicion to believe that the car is armed The state can require an individual to disclose his name during a terry stop and criminalize giving false info Seizure is defined as application of physical force or show of authority and submission Hodari case Seizure does not occur until submission or application of physical force. Show of authority itself is not a seizure. If you dont submit youre not seized when you start submitting you are. Also at the onset of application of physical force is a seizure. White case An anonymous tip is received and the police use it to garner reasonable search They ask to search the attach for cocaine and she consents they find marihuana and arrest her The issue is can an anonymous tip lead to reasonable suspicion?

The court states this is not probable cause because it lacks insider knowledge but we are analyzing if the seizure was reasonable so the facts needed to justify it is lower than probable cause. In order to make an anonymous tip valid to raise reasonable suspicion it must be predictive and only those predictions needed to verified to get it. A description of individual that lacks predictive information cant be used to objectively verify the tip Finding what the tip says you will find is not enough to justify the search There must be minimum indica of reliability If you get an anonymous tip you must corroborate the insider info for probable cause If you get an anonymous tip you must corroborate the predictions for reasonable suspicion If you get an anonymous tip and corroborate present facts then its nothing Wardlow case Does headlong flight on arrival of the police in a high crime area give rise to reasonable suspicion? Yes, but both must be present. Renquist says that its reasonable assume that headlong flight from the police gives rise to reasonable suspicion. This is a major characteristic of evasion flight is the opposite about going about ones business Property can be seized under reasonable suspicion just like a person but they must still act in due diligence Maryland case Is a protective sweep following an arrest of the person in the home valid? Yes but you must have reasonable suspicion that there are armed person in that area that the danger exists

Long case can search a car under a terry stop ideals must have reasonable suspicion. Corn says CHL gives rise to reasonable susp. to search for another weapon Special needs doctrine This grew out of new jersey v tlo. The compelling public interest must be considered when considering protecting the safety of school population. The court stated that the special need must be different normal needs. The thing that makes the need special is that following the fourth amendment would fail to protect the public adequately Sitz case Greater danger than that of tlo. Random seizure occurred here. The plaintiffs sued for an injuction. The primary need in this case was public safety the other need is that is if we require an low level of sus. the police could not protect the public. The 3 part balancing test must be conducted, compelling state interest, effectiveness, level of intrusion A random stop can serve the compelling state of interest of preventing public danger but it fails for law enforcement Brief duration is not factored into Two thigns create a special need Protect safety the nature of the risk defies the application of the normative practices of the fourth amendment This acts as detternce Balance the government interest to satisfy the test balance effectiveness against the level of intrusion the test is if its a reasonable effective to do it Catching a couple gives the effectivesness reasonableness

Factors to consider scope/duration that is narrowly tailored minimize anxiety fixed checkpoint, public uniformed, signs uniformity of enforcement/fixed formula if they are looking from a lawful vantage then whatever is seen is legitimate the court is going to be a gatekeeper and will block use of special needs when they believe the primary purpose is not public safty Edmond case This is indingstinghable from normal police activity Lawful examples drunk driving, border search terrorism, fleeing viol. Fugit The court is going determine what is a special need This case is a limitation and a check on Sitz. If the govt is hoping to find evidence than its not likely they will be able to use it Credible threat of terroristic threat Border searches There this boat in an international port and its being searched when it finds contraband General rule national sovereignty allows general searches at international entry points. Strip search or xrays of a body require individualized suscpsicon To hold someone until they pass drugs you need reasonable suscpicion A border search of a home is treated like any other conveyance crossing the border No roaving patrols Standing

Two basic premises 1 just because the govt is using evidence agenst it doenst give you standing to object 2 no vicarious invocation of someone elses constitional protection. 3 req for standing 1 cause, injury in fact, redressability Rakas is a rights analysis case changes standing to violation of your reasonable expectation of privacy To have a remedy of exclusion the defendant must be the victim of the unlawful search or searixzure must be invaded Facts Defendants and others in the car were pulled over and evidence in the car was used against them. Testimony is a suppression hearing cant be used against a defendant for criminal puposes. It can be used for impeachment. A coerced confession cant be used for impeachment The issue in rakas was standing probable cause is needed for a plain view seizsure the fact that it wasnt his gun lead to the seizure being lawful w/out probable cause Consider standing in wong son A possessory intrest will give you standing A social overnight guest shares the homeowner standing-olson Carter case A brief commercial presence does not grant standing No sufficnet connection between guest and homeowner so no expectation of privacy Concurrent says bright line of olson Kennedy says its why your there not how long your there. Social status gives standing definitely if overnight Less clear cut if theyre there less than overnight

Good faith exception to the exclusionary rule Its applicable exclusively in criminal trials, also it can still be used for impeachment purposes The only violation that results in exclusion in its totality is if its a coerced statement. Its not a tool to help lie. The court said the excluded evidence can be used to impeach a defendant on cross examination. Us v Leon Judge issues a facilly valid warrant. Search conducted. Items found. Trial judge said there was wasnt enough in the affidavit to support probable cause. Issue if the cops acts on good faith on a facillay valid warrant does the exclusionary rule apply? Holding no, the violation occurs when the search or seizure happens. The harm occurs then and introduction into trial is superfluous, by timing the violation the court undercuts the ability to argue court intergrity. This results in the only purpose of the exclusionary rule being detternce of cop behavior. So if a cop acts in good faith then there is no detternce effect in denying evidence serves no detternt effects on cop since they are not commiting the bad behavior If you rely on good faith on a facially valid warrant then if it later turns out to be bad due to a magistrate then the evidence is still admissible After telling the court the warrant is bad abd beign reassured that its good then its ok 4 examples of no good faith, 1. officer is aware the magistrate is not neutral or detached, 2. warrant is facially defective no reasonable officer could rely on it (lacks specificity), 3. police misconduct in obtaining the warrant(sloppy affidavit via reckless behavior) bad behavior by one is imputed on all, the affidavit was so lacking in probable cause that no reasonable officer would rely on that warrant(lying to obtain it) Arizona v evans good-faith applies to warrantless searches if its based on a mistake the judiciary

Herring v united states Isolated negligence Negligence must be attenuated from the search and not at the point of the systematic search. The dissent belives that this case will make bad-faith a requirement to get something excluded. Exclusoanry rule is designed to deter gross negligence, recklessness, or utter disregard for the law Fruit of the poisonous tree the exclusionary rule applies to all items found from the unlawful activity and not just the action itself Any evidence found with a but for link to the unlawful activity then its excluded Independent source is an exception, inevitable discovery-just short of independent source, the but for link becomes so attentuoated that the posin might not affect the fruit 1. Constitutional violation 2. You defendatn rights were violated 3. There was a but for connection Wong son case Issue can illegally obtaines evidence be used against another person A poison tree occurs when there is a constitutional violation that sprouted the fruit This applies to all evidence Toy was illegally arrested and the confession arose from it. Independent source can be illegally seized and used against you if it didnt come from you violate your rights Attentuaon can occur if you come back willingly days later. Attenuation occurs must in confession cases following illegal arrests s

A Miranda waiver will lead to attenuation in a confession Lack of pc will not immunize the poisin even following a Miranda waiver but a Miranda waiver will attenuate a warrantless pc arrest even if its illegal arrest Checcolini the court held if a tree leads to a witness the testimony is always considered an independent source Inevitable discovery is almost there but falls short of independent source Govt must prove that they had already set the gears in motion Classic examples is the impound of the vehicle the big question is have you already called the wrecker Murray is an independnet source case, there can be no taint in the warrant application. Nothing in the warrant application contianted a taint of the illegall searches. So it was valid. An illegal confirmatory search does not automatically trigger exclusion so long as the illegally activyt does not affect the warrant No exclusion if the knock and announce is the only violation cant have a per se rule exceptiong the knock and announce rule Attenuation removes the taint due to distance The most common issue of attenuation is confessions The stronger the posion the longer it takes to get attnetuation A no pc arrest is a greater violation then a no warrant but pc arrest An illegal pc arrest will attenuate after an hour and a Miranda waiver A poision tree can lead to a witness but that witness will lead independetn source Make flash cards to help associatue fact patterns and rules Law of confessions

There is a difference between 6th amendment and fifth amendment violations and fruit of the posinous tree or attack the probative value of the confession Hector case A slave was accused of taking money and was whipped until he awoke others. The friend tells him to confess. Hector tells the friend hell take him to money but cant find it later. At trial the lawyer moved to suppress because the confession was forced and not bore of his free will. The judge gives a jury instruction to hold the Whether a confession is sufficiently free and voluntary to be admissible testimony is a matter of law to be decided by the court and not the jury Torture has no necessity exception. Spano case If the defendants will was overborne then the confession is invalid. Totality of the circumstance, no single dispositive factor. When you do coercion analysis you look at all of these factors to determine if the defendants free will was overborne. Cops are too smart to use physical coercion so they will use pschyological coercion and it takes a lot more. The coercion has to be a result of the government action to violate due process. Dont forget about probative value of confessions its a case by case assessment This is a distinct rule from Miranda warning and waiver. A Miranda waiver is a factor in a totality of circumstances. coercion is the only violation where you cant use the evidence for any purposes Lying is not enough to get a coercion Miranda is apart from the right against self- incrimination

The police wont be allowed to use the information unless it proved it removed the inherent coercive environment by giving a Miranda warning and obtaining any govt question where the individual has a real and substanal fear that the answer will result in self-incrimination in the US the only times the govt has to tell you that you have the right to remain is in custodial interrogation dont confuse Miranda with the privelge against self-incrimination two types of immunity tranasaciotnal immunity can never be prosecuted for the transacton you talk about it and use immunity menas they can prosecute you but cant use anything you say agiasnt you. The supreme court stated the use immunity satisfies the fifth amendment Police have to present a suspect ot a magistrate shortly after being taken into custody 6th amendment right to counsel escabedo was flawed in that there is no right to counsel until you have been charged this right is not triggered until you have been formally charged Miranda Before the govt is permitted to use any statement made during custodial interrogation the prosecution bears the burden of proving the defendant was informed of his rights and he gave a knowing voluntary waiver of those rights. The court is worried about the voluntariness of giving up your fifth amendment rights, and submit to police questioning. Miranda is saying that the inherent pressure from a custodial interrogation corrodes our confidence in the voluntariness of the person to speak to the cops. The only way to neutralize this pressure is to give the defendant a waiver of the right.

This is a question of choice not content . Custodial interrogation creats inherent coercion that gives the presumption that the statement is invalid The key is as effective as the warnings laid out it in the case There are a number of ways to restore confidence that there was an even playing field one is having an attorney there Silence is never waiver or an immediate confession after that is not a waiver. There must be an affirmative action to show waiver. To invoke your Miranda rights you must do so unequivocal. The remedy to for a Miranda violation is exclusion of the statement the prosecution case-in-chief also its not a posion tree Miranda is like a fence that the court built around the slef-incrimination so breaching the fence is a presumption of incrimination without actually being a violation of PASI. The presumption is violated but the right is not so that is why its a poison tree Mathiason case Met in hallway, two blocks away from home, lied about prints at scene, Mathiason confessed. Read rights and taped confession. Released and told D.A. would contact him. Remember cant argue that Miranda is not a poison tree so argue an invalid waiver. Majority said he was not in custody Not all coercion is enough to trigger Miranda. Also check the voluntariness of the totality of the circumstances Dissent believes that coercive issues alone can generate Miranda like warnings Custody is defined as a formal arrest or a deprivation of freedom of action in any significant way.

Miranda is not offense specific so you can be arrested for A and questioned for B and still need your Miranda warnings. A waiver cuts both ways too. Berkermer case Traffic stop that included some questioning and a sobriety test some questions and then an arrest and a ride to the jailhouse. Where he makes a wriiten statement and blows into an intoxliyzer. Govt want to offer both but didnt mirandize. They argue that there should be a misdameonr exception. The problem is that this exception was to open too abuse. 22 years after Miranda they know its a good idea to have a bright line rule. The state and defense benefits from this rule. There is no exception. There is only a bright line rule A traffic stop is a brief public encounter. The issue is pressure. A traffic stop is a seizure but brief a key to custody is duration. When areasonable person would believe that there is a depravation of liberty that rises to the level of formal arrest or a formal arrest triggers Miranda. The touchstone is whether its a terry type stop or if a situation where the suspect feels like is going to jail Miranda only applies only to testimonial evidence not physical evidence. Miranda applies to compulsory self-incrimination. If isnt testimonial then it doesnt apply Miranda. Interrogation Innis case Trial court held that there was a waiver but the court ignores it since they say ther was no questioning . direct/express questioning and words or actions on the part of the police that the police should know are reasoanbly likely to elicit an incriminating response from the suspect.

Lengthy harangue will result in interrogation so will ovacative statements will lead to interrogation Custody is based on the suspects frame of mind of being in custody. Interrogation is based on the officers frame of mind in eliciting an incriminating response Routine booking questions do not implicate Miranda The Miranda court was clear in giving waringing and asking questions is not a waiver If you dont know you are beign questioned by a cop then Miranda doesnt apply* Surreptious questioning wont trigger mirnada The point of Miranda is to prevent coercion from police conduct Miranda says that the point is not to prove the rights are known. It must be a specific waiver or infer a waiver from silence or answering question after being read your rights Butler case an express oral or written statement is a specific waiver under most circumstances The supreme court stated that the nc court confused specific and express waiver. It doesnt have to be express to be specific waiver Burgess v thomkins Silence is not invocation and invocation must be unequivocal. You must say you dont want to talk to them without a lawyer. They must prove that is knowing and voluntary. The court doesnt like a perse rule so they are trying to make it apply to a totality of the circumstances If you understand your rights and then you talk to them it will count on the waivers Miranda is not offense specific they just need to read you them and have a valid waiver Remember it must be unequivocal

Reinitaion problem a suspects invokes Miranda and is questioned again but the questioning must be preceded by a waiver What right did the suspect invoke? Standing on the right to counsel is very different right than the right to remain silent Edwards case A defendant was informed of his Miranda rights, waived them but was previously told that he had to cooperate with the detectives. He signaled that he had a weakness and was approached and exploited that weakness to get the waiver. We now hold that a valid waiver of the right to counsel cannot be waived by the cops reinitiating the interrogation and then getting a waiver The only way to become unapproachable is to express your desire to to stand on counsel. Unless the suspect reiniaties the conversation and a waiver must be sought if you want to ask follow up questions They dont want another per se rule In the absence of counsel after the right is invoked the cops cannot reinitiate the interrogation Shatzer case The unapproachable rule has an expiration date of 14 days after being released to your normal life Edwards minic rule now has expiration Right to silence Mosley case When a suspect doesnt want to talk he is saying he doesnt want to talk the detective, time, location, crime Scrupulous honor the suspects desire to control the questioning Badgering the defendant to release his rights will not be valid

Know the difference between invoking the right to counsel and right to silence Exception to Miranda Quarles case Public safety exception exists to Miranda. A suspect was arrested and lead to the gun then read Miranda rights. The trial court suppressed it. The supreme court reverses and adopts the public safety exception. The intent was not calculated to coerce. There was no time to plot or conspire. The issue here was blatant in getting the gun. Underwear bomber was questioned for 50 minutes without Miranda warning. The court upheld the testimony. Oregon elstad case Kid questioned in the living room in custody. Time expired then read Miranda rights. The Oregon court stated that attenuation was not valid. The supreme court stated that a Miranda violation is not a poison tree. To violate the constitution you must coerce a confession anything short of htat is a presumed coercion. This leads to multiple statements beign analyzed seperatley. The second argument was also held invlaid since it would expand the protection of Miranda to a broader scope than the original protections. The court has never held that voluntary psychological effects will invalidate subsequent waiver. If this exception is adopted then any response elicited outside of Miranda will prevent a later wiaver the court does not like this. Clenaisng document is not required or practical. A Miranda violation is not readily known. Occonor qualifies this rule by stating that coercive tactics on the first testimony will invalidate the latter wiaver Siebert case The cop admitted that the first admission was a violation and deliberate

The court stated that this was a deliberate effort to bypass the protectection provided by the constitution. The plurality emphazies that a bad faith refusal to give Miranda warning will prevent a latter wiaver from being valid. This means the police officer cant use this to do a continuing questioning A cleanising warning may help in overcoming bad faith Dickerson case Miranda is here to stay. Congress cant overrule Miranda with statute The govt can make an interlocutory appeal only when the trial court makes a case dispositive ruling. Almost impossible to win a due process challenge when you waive your rights Sixth amendment right to counsel Trigger formal adversarial process Scope protects defendant during all critical stages of the adversarial process 1. Trial 2. Deliberate elicitation of statements 3. Corporeal id(physical) 4. Preliminary hearing The absence of your lawyer in that stage will devastate your lawyers ability to defend you at trial Messiah case An informant who is working as agent for the state cannot be used to question an acussed without the presence of a lawyer.

Cant do a waiver for a secret informant this is different from Miranda remember that The remedy is exclusion and its a poison tree The point of the sixth amendment right is all about the ability for your lawyer to effectively represent you not to prevent coercion from your govt. In 1985 the police are seeking info on an unindicted but get a confession on both offenses so the court suppress only the indicted offense. The sixth amendment is an offense specific right. Brewer case An indicted criminal is being transported back to another jurisdiction and is tricked into confessing the location of the body. The counsel moves for suppression and losses it at trial due to the fact claiming that the defendant waived the right. None of the courts stated that this was spontatnoues statement but that is was a result of the functional equivalent questioning. Federal habeas corpus statute allows for petition to a federal court if incarcernated in violation of the bill of rights. This allows any arrestee to petition the fed. Govt for violating federal law. Raised 3 arguments on appeal violation of rights to counsel, denied Miranda rights precedes minic so the reapproach rule was not invented yet, involuntary argument the supreme court found that it was in direct violation of sixth amendment right to trial. This is a waiver case, about a fundamental trial right. Johnson v zerbst requires knowing and voluntary waiver of a fundantmental trial right and it is presumed invalid no implied waiver of a fundamental trial right. There was an inference that he tried to stand on his rights to trial. Dissent agrees with iowa supreme court What is important once your right to counsel is activated and w/out a waiver prevents the admissibility of the testimony also that a valid waiver would have allowed the testimony in. this is the birth of the inevitable discovery doctrine

Fruit of the poison tree is presumptively inadmissible not conclusively inadmissible Montejo v louisana He never invoked the right to counsel so the right does not apply to him. So Brewer is controlling law so that a valid waiver is required. The sixth amendment right does not require your lawyer to be present to waive this right. Brewer requires that your lawyer is present in questioning after being a defendant but can get around this by getting a valid waiver under the Johnson v zerbst waiver. Patterson A Miranda waiver is a valid waiver of the sixth amendment right to counsel Mcniel case Asking for a lawyer is not an unequivocal invocation of the fifth amendment rights so the protections does not apply. Cant preemptively invoke Miranda rights Minnic is about coercion No waiver invalidation rule under the sixth amendment Two ways to attack an opinion Get them to change it or attack the foundation so look at the out of court identification procedures and see if there was any suggestibility Wade case A lawyer is required to be present at any critical stage of the trial. So anything that follows an indictment is considered a judicial proceeding. This includes a lineup that followed indictment Testimonial or communicative evidence is the only thing protected by the fifth amendment

The sixth amendment right at a post-indictment lineup is there to question the accusers. Any proceeding where the absent of the defense of the lawyer will derogate the right to a fair a trial /of the lawyer to defend the accused at trial. A corporeal identification is different from a non-corporeal identification is that a non-corporeal is preserved The court suggests that this is a per se rule in that a lawyer must be present at a live lineup. Gilbert case Gilbert subjected to unaccompiened out of court live ID and not incourt id then it is per se inadmissible If there are two identifications then The in-court ID must be independent of the illegal out-of court id and the govt must prove with clear and convinving evidence that these are independent If the proceeding is without a lawyer than the out-of court id is completely inadmissible The more suggestive the out of court id the lower likelihood that the in court id is not a product of that Wade-gilbert factors Prior opportunity to observe the act Discrepenancy between preineup description and defendant description Any identification prior to lineup of another person Identification by the picture of the defnadant prior to lineup Failure to identify the denfenadt on prior occasion Lapse of time between identification and alleged act

Remember accused is a key part of the sixth amendment and that it is offense specific Two constitutional basis of an identification procedure is due process

This applies at all time and to all types of identification procedures No per se rule and defendant must prove through totality of the circumstances. Stovall case Cant invoke the 6th amendment because at the time of final appeal the rule didnt require Suggestive procedures are acceptable when necessary and does not violate procedure Manson case This is uneccesarily suggestive case that clarified the rule. Reliability is the lynchpin The procedure must be both unnecessarily suggestive and unreliable to violate due process Three interest to guard against suggestiveness, deterrence, administration of justice. The dissent disagrees and believes that burden should be on prosection The touchstone of any due process identification is reliability unless it was necessarily suggestive It is really hard to get a due process identification thrown out on reliability Under all the circumstance s of this case there is a very substantial likelihood of irreparable misidentification short of that point such evidence is for the jury to weigh Just because you comply with the sixth amendment doesnt mean you comply with the fifth amendment Know how they interact Stack case Smith act was passed to be against communism Other people who were charged with the same act fled on lower bail Capital offense never is an appropriate since ti wont deter you from fleeing

No right to bail but its presumed to be given. The two principles are that is the principle of presumed innocence and helps assists in your own defense. The rule of thumb is to look at the punishment and compare it to bail. There should be an evidence hearing to prove why you need more than the norm. bail cant be excessive arbitarly no constituonal right to it and if its going to be denied or raised it must be an individualized hearing Case screening The most of the law and policy related to charging is left with the prosecution and not included in the constitution. Deciding what to charge someone with and what to offer in a plea is the hardest decisions a prosecutor makes. Politics will always play a factor in deciding case charges police actions may factor into prosecutor decisions 2 limits due process and equal protection violation of due process to use prosecutorual discretion that has a discriminatory purpose and discriminatory effect. Violation of due process to punish valid use of constitutional authority Armstrong case Anecdotal evidence that there is a discriminatory prosecution of drug cases. Similar situated persons are treated differently based on race or religion creates an inference of discriminatory purpose The govt. denies it to prevent a floodgate from opening, The district court then dismisses the indictment and the govt appeals and the ninth circuit reverses, The supreme court come down and states that a claimant most first make a colorable claim to gain discovery

Every charge by the prosecution is presumed valid and the defense must overcome that. Its hard to make a claim of selective prosecution Must show that both races are committing the same offense and are getting different sentences The other way to attack prosecution is to establish a vindictive prosecution. Factual inefficacy on appeal no new trial double jeopardy kicks in Legal inefficacy on appeal new trial is ok Blackledge case Defendant invokes appeal right from a bench trial to a jury trial. On appeal the prosecution ups the charge to attempted murder from a simple assault. The record of trial must reflect that the increase sentatnce was due to new evidence at trial or it will be assumed that the higher sentence will be because you appealed So because there was no new facts the inference is that it was upped because of the appeal cant be punished for exercising a constitutional or statutory right On appeal the facts are solidified so there can be no new facts to raise the charge. There must be something new on the record on retrial to substantiate the higher sentencing. This does not apply to plea deals This is an exteremly narrowing ruling only applies to a post-conviction setting and there is no other plausible reason on record why the charge or sentence was increased. A preliminary hearing is a proceeding to determine if there is enough pc to support the charge to be brought against you. A grand jury indictment removes the necessity of a preliminary hearing Coleman case A pretrial hearing is a critical stage of the criminal process so they have a right to counsel or must waive

1st it maybe an early and excellent oppurtuinity for discovery. This may be the best chance to see the govt hand 2nd preservation of testimony to create points to impeach them 3rd prior statements subject to cross under oath can be used under a hearsay exceptions Material (remedy) Motive Reasonable possibility Irrelevant that had evidence been disclosed the outcome would be different overrulled Gener/no AGURS Evidence that is Reasonable Irrelevant request clearly exculpatory; it probability of a creates self notice to different outcome the govt creates reasonable doubt* Bagley specific Evidence that tends to Reasonable Irrelevant request exculpate or reduce probability of a the sentence different outcome creates reasonable doubt* bagely made it too hard *same test for ineffective assistance counsel harmless error discovery violation Specific request Brady There is a duty to search the files and possession of evidence in any govt actor posseson is imputed to all govt persons Must states courts use the term prosecutors team so basically those mean from police and upward The SC presupposes that if you have helpful evidence then you must give it over This applies to sentencing and findings alike Brady was a sentencing case defense filed for discovery for any info that would be helpful to the defense it violates due process whrn the goc fails to disclose prior to trial evidence that is favorable and material to defence Evidence is information that the govt believes will be admitted into evidence No disclosure required prior to plea bargaining Favorable (disclosure) Evidence that tends to exculpate or reduce the sentence

This is an analysis Favorable is the trigger to disclosure and the remedy is triggered if its material. Brady case failure to disclose favorable evidence will rarely be forgiven Vilardi case What happens after the trial and the defendant asks for something and didnt get it. If you dont do a specific request We work backwards from an error in discorvery Reciprocal discovery evidence rule Document everything and send it the defense attorney Williams case Reciprocal alibi rule many jurisdictions requires the defense to give up alibi witnesses and failure to do so will barr alibit witinesses. This does not violate PASI and restricting the right to give alibi witness does not violate due process Youngblood case Id by victim and he wants to test the fliud to show that he picked the wrong person Failure of proof theory- if the govt does a crappy investigation that in of it itself can create reasonable doubt Absent bad faith failure by police to preserve potentially exculpatory evidence does not violate due process Where the state has an equal interest in testing the evidence its inconsistent with the notion of bad faith. Hard to win on a destruction of evidence case

Joinder and severance Different crimes can be joined if they are similar character or continioung transactions Different defendants they can be joined if they are commiting the same crime Greater likelihood of conviction if tried together Joinder brings them together and severance seperates them motion by def Def bears the burden on motion to sever but they must show unfair prejudice Redlan case 2 women murdered killed by crushed hyoid unique way to kill Defense makes a few justification like inability to testify but judge doesnt want to do it on speculation The other justification is allegation offenses but that fails because of 404b evidence The last one is the jury may culmulate the evidence and that prejudice him but that failed to meet the burden that of unfair prejudice 99% of the time appellate wont overturn a severance Each criminal impulse is a different crime so double jeopardy doesnt apply Joinder is onesided and at the discretion of the prosecutor Greater chance of acquittal is not enough of a basis for severance Speedy trial If there is a sealed indictment then the clock doesnt start But the pre-trial custody counts for speedy trial If the charge is dismissed and then reinitiated the gap is not counted Pre-trial delay prior to charge or confined then the 6th amendment does not count but an excessive pre-trial delay may violate due process

An 18 month delay occurred while evidence was destroyed this didnt violate due process Prejudice is a requirement but not the only requirement. Two things must eb shown bad faith to harass or bother and that harmed you The reason for delay must be bad faith Only one remedy to violation of speedy trial is dismissal with prejudice One can comply with the statutory rule and violate the constitutional rule Barker case An elderly couple was killed 2 men was arrested and made bail 10 months afterwards but not tried until 5 years later. Tries to claim violation of speedy trial The court said that this right protects both society and the defendant so the prosecution has the burden to bring a quick end Two rules overturned 1. Immediately demand speedy trial or waive it cant work since its a fundamental trial right. Failure to demand is a factor but not dispositive 2. Fixed time period does the same thing. All we can do is give guidance thorugh 4 factors so Length of delay, -complexity of the case reason of delay, -good faith bad faith 3 reasons govt seeks unfair advantage, crowded docket, missing witness defendants assertion of right, hard to win without demanding because it creates an inference that you think the delay is good prejudice of the delay- 3 types of prejudice oppressive pre-trial incarnceraiotn, anxiety, degradation of the defenseprimary interest of the 6th amendment is accuracy of adjudication a one year delay will trigger the inquiry

more important the length was that the delay didnt affect his defense greatly since he didnt object til really late if its a reason outide control its a good reason the worse the reason the less prejudice you need the better the reason the more the prejudice if the delay is based in bad faith than the court will dismiss w/out prejudice Powell v Alabama Must provide counsel for all capital cases for indigent Betts v brady There must be special circumstances for indigent defendants to receive counsel in non-capital cases Gideon case 6th amendment right to counsel in all felony cases created here. Watershed rule exception allowed Gideon to use habeas corpus to advocate a new rule. Scott case Jail time is required for the imposition of appointed lawyer. It only violates the sixth amendment if you sentence a person to jail without a lawyer. Argensinger stated that jail time is what is required for a lawyer. The right to an attorney is triggered by being sentenced to jail not the threat of being sent to jail Shelton case Suspended sentence activates the right to trial attorney Felony or misdemeanor Douglas case An indigent has the right to an attorney if its an automatic appeal based on griffin.

Griffin stated that indigent must be given a free record of trial. Ross case However if its a discretionary appeal then there is no right to a free lawyer. Youve already had a lawyer for automatic appeal so youve been able to develop the issues. This also stated that discretionary appeals are an equal protection issue. Indigent is determined by state law Faretta case Charged with a felony and wants to represent himself originally grants it but then reconsiders and forces him to have a counsel One must know that you have the right and the consequences of not having a lawyer. One does not have to be competent to represent oneself. The sixth amednemnt gives right to the defendant to waive. Cant complain of ineffective assistance of counsel A standby counsel performs two functions 1 is to be the legal adviser. 2 to take over if the defendant realizes he is incapable of continuing Standby counsel cant act in a manner that erodes the perception of pro se representation Martienez v court of appeals A state can force a lawyer on appeal but they must provide one not a violation of pro se 2 questions for competency must understand the nature of the proceedings and be able to assist your counsel in trial Godienz v mirand Minimally competent invoked right to pro se fired lawyer and then plead guilty

On appeal tried to say that the standard for pleading guilty should be higher than the standard for pro se Edwards case Does it violate the 6th amendnment to force a lawyer on a minimially competent defendant No, it does not violate the 6th amendment in this case because of the lengthy mental history and there is an implication that you will have a lawyer. Pleas are strategic choices so they are left with the client to make minimally competent to stand trial is different from minimally competent to defend yourself stirckland v washingtion the standard for effective assitnace is extermly low objective standards is a minimally competent lawyer the court wont do hindsight critique if there is no other constitutional error than you can always claim IAC which allows you to get into federal court Florida man commits a serious of crimes and confesses mutliples times and then pleas guilty against the advice of counsel, also goes against the Lawyers advice that he should get a jury panel Admission of guilt under oath is the strongest proof of guilt under the law The defendant said he was remorseful and accepting resbosibility for crimes, said he was under a lot of stress, and stated no prior criminal history but this was a lie At the sentencing hearing the lawyer provided no evidence to support what the client said Defendant tries to argue all these things but the only two with neri

Performance is behavior was so insufficient that it fell below the reasonable standards and fell below professional standards Whether it predjudiced the defendant in the outcome of the case so under a totality of the circumstances would if had made a difference under proof for a reasonable doubt The point of the rule is reliability not just fairness but the only goal is not reliability its a balancing act of the two The purpose is to have confidence in the outcome Just outcome means reliable process to the SC The standards in professional norms and reasonable objective norms Violations of basic lawyer duties would lead to ineffective assistance of counsel eg zealousness, conflict of interest, duty of loyalty, duty of confidentiality etc Duty to investigate take action to look into what the client asks you to do if you call a witness and decide not use htat witness then your decision will be practically unassailable but failing to investigate will not afford you this benefit. You are rewarded for your diligence Conflict of interest prejudice is presumed, but it is automatic when the govt interfers with your right to counsel so you get an automatic lawyer eg the judge says not to talk to your lawyer Have a right to appointed counsel but not appointed counsel of your choice Recent news you can claim iac to combat a plea offer. To show prejuidcie they must a reasonable probablility that they would have accepted it, and the prosecution would have honored it, and the judge would have allowed it IAC may occur when the rejection of a plea only occurred because of the attorney overconfidence attorney in a motion may lead to this

The remedy may be the benefit of the deal you could have had. Neutralize the taint but dont give a windfall circumstance may offer the prosecution to reoffer the plea agreement Pleas Waiver requires knowing and voluntary Voluntary means cant be a result of coercion or unlawful threat Knowing means you know that you the right to preserve it Intelligent means one must know the consequnces of your pleas and the statute you are charged with Brady case Fear of a severe penalty and desire to avoid that is not coercion Prosecutor can do anything that is lawful and in good faith in charging to encourage a plea It is a solem act accepted only with discernment because he waive the package of trial rights. Compulsory process means the ability bring witness and documents forth with the courts power The plea must be knowing, voluntary and intelligent Rules intelligent plea means that its not an accurate assesemnt of all motivating factors must be awarw the direct conseqneces of the plea lose all constitutional rights, will be a witness against yourself, and know its a parties agreement also that its a strict performance and no misrepresentation about what is going to happen In order for a plea to be valid the defendant must know what he is pleading for but he was never informed of what the elements meant. The court said a voluntary pleas is an intelligent acceptance guilt requiring the defendant be on notice of the true natute of rhe crime Two ways 1 for the judge to explain the elements

2 the defense lawyer can fully explain the charge and state that he did so on the record Without this on the record the plea is not knowing so not vlaid Also must have notice of the rights being waived potential sentence conviction and immigration but dont need to know about collateral consequences Immigration consequences are direct consequences of the pleading guilty Alford case Wants the benefit of the deal without pleading guilty Alford doesnt want to risk the death penalty but wont admit plea. Evidence on the record that proves the element of the crime An Alford plea allows the prosecution to present a summary of case but gives the defendant the benefit of the deal. This deal requires the defendant not to object to the evidence. This is not allowed in some jurisdictions. The record must contain strong evidence of the crime meaning that there is enough evidence to prove every element of the crime One knowing and voluntary waiver and string evidence of guilt is required for this An admission of guilt removes the need to present this evidence There must be some evidence of guilt accompanying a plea because a plea is not evidence of guilt. Duncan case The jury is a fact-finder. The jury has the power to ignore the law. The right to trial by jury attahces when if in federal court the defendant would have had that right. Right ot trial by jury fundamental trial right. This protection the citizen agianist 3 dangers unfounded charges, overzealous prosecutor, and bias judge this is an implicit approval of jury nullification The trigger is when you get a potential sentence of more than 6 months

Face one count of more than six months Jury waiver requires knowing, voluntary wiaver with the consent of the govt. Singer case There is no right to waive a trail. There is no constitutional right to a bench trial but it may be statutory Federal and state capital case -12 juror unanimous Federal unanimous verdict for all charges Misdemeanor 6min 75% for non-capital cases Distinguish the jury pool from the petite jury Taylor case Whether systematic exclusion of a distinct group violates the 6th amendment right to trial by jury? This applies to the pool in this case not the petite case A requirement for a fair cross section of the community is required for confidence in the system and partly as assurance of impartiality of justice and it represents the civic duty of community Fair cross section is necessary for administration of justice Batson prohibits exclusion while Taylor requires inclusion Durin case This was a refinement of Taylor and added the procedure To challenge a venire they def must show that the group is distinctive in the community, the group is not proportionally represented on the venire, the underrepresentation is result of systematic exclusion Challenges for causelack of impartiality- actual or implied biases

Salomone case about firearm violations that excluded a member of the nra and was summarily execluded. The court drew a distincition between presumed basis and implied biasis. Cant presume bias solely from membership of an association does the juror hold the particular belief or opinion that will prevent or substantially impair her role as a juror. There must a specific inquiry into the cause. Hesitation in the inquiry can lead to implied bias There is a special rule for death penalty Wainwright v with A death penalty case is held to the same standard for jury exclusion as all other cases In gray v missippi if a qaulifed jururo is improperly removed from a death panel to the detriemtn of the defendant and the defendant is sentenced to the death . the defendant gets a new sentencing hearing regardless of leftover premptory challenge In locket v mcriegh this does not enable a new trial because it only affected sentencing not the trial Morgan v il That a court must exclude a juror whose bias in favor of death will prevent its ability to consider mitigation and extenuation In ross v Oklahoma It doesnt matter if the judge errs on excluding a juror for cause if the defense still excludes them with the preemptory challenge Swain case Cant exclude a juror based solely on race via peremptory challenges to get rid of that race The defendant had to overcome the presumption but they couldnt

Batson case Its a r about how to show that juror has been improperly excluded. The court said due to the hsitoryu we no longer trust you so you know have to share with te court reason for excldign it. Batson requires if a peremptory challenge is used against a minority or a women This alone create a prime facie inference of discrimination this menas the prosecuton must come forward with a race or gender neutral basis then the defense must prove the race/gender neutral is not enough to overcome the presumption What is a race neutral basis the proponent of the challenge does not have to equal to cause exclsuon but has to be more than trust me Any objective will be accepted for cause Mcculen v Georgia The court extends batson to defendants The court has also said that you dont have to share the race or gender of the juror to raise a batson claim. This is valid third party standing Batson is about not allowing the mentality of a person is not good enough for a jury 6th amendment right to confrontation Olden case An unfair prejudice against the witness will harm her probative value. Assume that it was valid but state that it violated the right to confront the witnesses against him. The 6th amendment trumps the rule of evidence. The defendant has the right to confront a witness agiasnt him. Adverisal testing is how the truth is exposed Maryland v criag Does 6th amendment require face to face confrontation?

No a valid substitute can be allowed despite a preference for face to face but there must be safeguards for reliabitly. It can only be triggered by a compelling govt interest. The defendant must be able see the witness, the defendant must be able to communicate with the defense lawyer, the jury must be able to see the witness, the defense lawyer must be with the witness The presumption of innocence is obliterated in this case. Confrontation produces reliability they are not synonymous. This is about process. If you are representing the co-denfendatn who has been implicated by the brother who doyou want to get in Scalia in dissent says that confratiation is a method of producing reliability not a substantive outcome Maddox Witness was unavailable due to death. prior statement under oath and it was subject to cross. So it was admissible Roberts case Prelim hearing witness turns against def, at trail transcript is offered because the witness was absent. States no violation since it reliable Inanti case Hearsay law says it realible White Reliability is the key to 6th amendment or if witness absent its reliability for admission but if the wintess is there then you have face to face Wright case

Statement excluded but close call under reliability Crawford case An out of court statement of the wife admitted over the defense objection and no ability to cross. Trial convicts him 1st circuit court states its not reliable Washington supreme court states that it is reliable so it reinstates the conviction goes to supreme court The confrontation clause is created to protect against trial by jury civil law method of trial by affidavit was the evil that the 6th amendment was meant to protect against Roberts is overbroad and under inclusive Just because a statement is reliable doesnt mean your 6th amend. right is satisfied The confrontation clause dictates the way we test reliability This is a procedural not a substantive right. It commands that reliability be tested in a specific manner not that it is the end goal. The only way to comply with the confrontation clause is to have cross of all witnesses This is triggered only when there is testimonial evidence Would a reasonable person expect that the statement is being made was going to be used for purposes at a trial. Exclusion is the remedy. Davis and Hammond are key to testimonial In one and says she is being beaten in the second the witness told them what happened When the witness calls after the fact it is testimonial when telling what is happening its not testimonial Combination of who you are talking ot and what you are talking about Lab reports are testimonial bullcoming The author of the report must appear in court

Doctrine of forfeiture by wrongdoing prosecution must show that defense misconduct caused the witness not to be present for the purpose of preventing him from testifying standard is preponderance All motion are preponderance unless otherwise stated Witness on death bed verge of dying aware of death Bruton rule creates a functional equivalne of offerend agiasnt the defendant When the proesectuoin offers a confession in a joint trial against def 1 that implicates def 2and def 1 doesnt testify then we will treat it as it is being offered agenaist him Cruz case Is there an exception to Bruton? When the confession interlock they validate each other. When a nontestyfying codefendant confessions incriminates the defendant is not directly admissible against the defenadatn the confrontation clause is bars its admission even if the defendant confesses Gray case Burton problem can be cured with redaction but the redaction cant invite the jurors to fill in the blanks Compulsory process Washington v texas A statute prohibited a codefendant from testifying against each other. Overturnd by supreme court. Us v burr Claimed that he had orders and wanted to subpoena the president

No person is above the law and not even the president is above the compulsion powers. And it includes papers in their possession Relevant witness are included in this power but they must be in the U.S. Taylor case A court sanction can lead to the exclusion of a witness if the defendant fails to follow discovery rules. Normal remedy for discovery violation is you should continuance only do so in an extreme case you should only do so when its willful and was done to trick the court Right to testify Fergunson there is no per se incompetence rule for defendnats Rock case hypnotically refresh testimony cant be per se banned Egelhoff v Montana The state can eliminate a defense and that is legal or restrict it Griffin case No adverse inference rule. De facto force testimony Carter v Kentucky No adverse inference instruction is a right Mithchell No adverse inference instruction appeals to sentneicng Double jeopardy What it protects, trigger, remedy Beign in jeopardy for the same action more than once Former conviction and former acquittal The soviegn who put you in jeopardy for the same action know when jeopardy charges

The federal govt and the state govt can charge you with the same offense Military and federal district court are the same sovriegn Jeopardy attaches in a bench trial when the first witness is sworn Jeopardy attaches in a jury trial when the jury is sworn Must show that the trial had started Fong foo case If a directed verdict is entered even without power to do so Final judgment brought after indictment no matter how erroneous foundation to do that If the judge is bribed then jeopardy wont stick because your theory is that youwere never in jeopardy Us v scott It doesnt matter what the judge calls if a case is terminated as the result of a resolution in the defendant of some or all the facts its a final judgment A dismissial not the result of a factual issue than jeopardy wont attach A govt can always appeal an acquittal but its wasting its time When a conviction is reversed for legal error than jeopardy does not attach When a conviction is reversed for factual insufficiencies than jeopardy attaches because you should have been acquitted in the first place* some states allow appeallate courts to reverse the conviction agaist the great weight of evidence than jeopardy doenst attach . the state wants to do it again because the evidence was lakcing A conviction of a lesser included offense is an implicit acquittal of the greater offense The issue of mistrial usually bars from a double jeopardy rule unless the court concludes that the defense was bated into a mistrial by govt to avoid an acquittal

It becomes more complicated when the prosecution requests a mistrial the defendant will usually always gain double jeopardy. A deadlock jury will not result in a double jeopardy Downum case Jeopardy attached and the record indicated that the mistrial was requested because it was trying to avoid an acquittal Summerville case A mistrial for a defective indictment will not result in jeopardy because it was a legal error. Washington case defense bait The basis for the mistrial and detremones that a curative instruction would not be effective a second trial wont be barred For a mistiral to not to attach a manifest necessity must occur. Collateral estoppel When a case is resolved in favor of the defendant double jeopardy attaches. Each criminal impulse is the same offense. Ashe case Several suspects charged in robbery of a poker game of six people Under blockburger each victim is a different opportunity for the prosecution to charge the defendant. The judge told them that there was only issue to resolve and that was identity and the jury returned a verdict of not guilty showing that they did not believe he was there. Double jeopardy attaches when an issue of ultimate fact has once been determined by valid judgment in favor of the defendant then you cant relitigate it. This issue will depend on the jury charge.

The record of the first trial must show that this was the only issue he was convicted upon. A stipulation of fact is a tactic to get this also a special verdict will accomplish the same goal Blockburger case For sentencing its called multipllcity you caant be punished for the same act multiple times Selling morphine to the same person on 3 counts. Count 2,3,5 they are convincting him selling the drugs without the proper procedure. Each impulse that violates the statute is a separate offense. The two charge arising out of one sale are not the same offense because the elements were factually separate not mental state. An additional element will offend double jeopardy Where one transaction two or more statutes the test to determine whether there are one or two offense is if the statute requires proof of an additional factual element. If you are acquitted of a greater offense you are implicitly acquitted of the lesser offense and vice-versa. Brown case Does double jeopardy bar prosecution for gta when convicted for joyriding? Trial judge says its two impulses the SC reversed saying its one tresspassory taking. The only difference is a mental element. Reversal based on evidence In re winship case All material elements must be proven to a reasonable doubt Thompson case No evidence standard for factual insufficens If there is some evidence on the record to support an element then the conviction will be sustained. This is overturnd in Jackson v Virginia

Jackson case Tried by judge states he was applying proof beyond reasonable doubt and there was some evidence to support the elements. But he claims that the evidence was insufficient. The court changed the rule to that a reasonable jury could conclude without reasonable doubt that the defendant not guilty. There must be enough evidence that the jury could reasonably conclude that the defense is guilty. Iac and discovery errors without remedy Arizona v fulimonante case Harmless error doctrine on appeal even if there is a constitutional violation. Chapman v cali Prosecutors improper comment adversely on defendants silence SC in the meantime had changed the rule so it was retroactively applied just because a right is violated does not mean you get reversal. Some errors may be so insignificant and unimportant that it doesnt require reversal of an otherwise good conviction Case is final when you have exhausted your last direct appeal The real questions is whterh there is a reasonbale probability that exclusion of the evidence imprpoaley admitted led to a different outcome After the court determines there is a constitutional violation the state must show that it was harmless error. Fulminante case Coerced confession can be harmless error if there is other evidenced that the jury could reasonable rely on other evidence to convict the person.

There are some errors that are per ser harmful. Total depravation of counsel, bias judge, flawed reasonable doubt instruction, impartial jury errors A trial error can be offset by other evidence but a structural error corrupts the entire process because it removes our confidence in the process. Trial error the standard for reversal is a reasonable probability that but-for the error the outcome would have been different Structural error is automatic reversal Teague v lane Retroactivity doctrine is there for finality purposes. Its also there to prevent Taylor v louisana jury pool requires a fair cross section Habeas challenge petitioners cant advocate new rule since you would be the only one to get it. Habeas petition is a show cause order to show that youre detention is unlawful via federal law(statute or constituion). Federal courts have no competence to determine if your conviction violates the state law. They applied the federal law improperly its a procedural tool. Federal habeas statute, treaty, or constitution its the date your direct appeal ends the principal of comity state vs federal authority presumptively final 2 exceptions If it the criminal proscription is unconstitutional. Procedures that are implicit in our notions of ordered liberty i.e. a watershed rule-gideon v wainwright However the court states that this is over. Wainwright v skyes Procedural default failing to make an objection waives the right on appeal.

The federal law wont judge how the state followed the its own law Quorum nobus- verdict not valid No objections equals waiver of right so there was no preservation of error Fay v noyo standard only under deliberate bypass can you not raise a new objection on appealknowing and voluntary waiver-guilty plea this is overturned since it harms memory, harms comity, waste of time. Does our respect for state subt. law extend to state procedural law yes it does. If you are procedural defaulted a federal constitual claim based on state procedural law then you forfeit it. State v murray If you fail to raise the issue on appeal then you lose the ability to raise it on habeas. If you can show good cause of why the issue wasnt raised at trail and prejudice (reasonable probability that the outcome would be different). Miscarriage of justice exception No need to show cause and prejudice if the defaulted issue produced a miscarriage of justice Due to a constitutional error a factually innocent person was convicted. The only truly viable exception is the law is itself unconstitutional.