Criminal Law & Procedure

Involuntary manslaughter

A person commits involuntary manslaughter when he causes a death by criminal negligence.
Mens Rea -

1. When he fails to be aware of a substantial and unjustifiable risk, and this failure constitutes a substantial deviation from the standard of care that a reasonable person would have exercised in the same situation.

2. Alternately, some states use a recklessness standard for involuntary manslaughter and require that the person consciously disregard a substantial and unjustifiable risk.

Causation -

1. A defendant must be both the cause-in-fact and the proximate cause of the death.

   a. Cause in fact - if the death would not have occurred “but for” the defendant’s conduct.

2. Proximate cause - A defendant is the proximate cause of a death if the death was the natural and probable consequence of his conduct, even if he did not anticipate the precise manner in which it would occur. An intervening act can shield the defendant from liability if the act is a mere coincidence or is outside the foreseeable sphere of risk created by the defendant’s act.

Accomplice liability for involuntary manslaughter

An accomplice is a person who

(i) with the intent to assist the principal and the intent that the principal commit the crime

(ii) actually aids, counsels, or encourages the principal before or during the commission of the crime.

When the substantive offense has recklessness or negligence as its mens rea, most jurisdictions hold that the intent element is satisfied if the accomplice

(i) intended to facilitate the commission of the crime, and

(ii) acted with recklessness or negligence (whichever is required).

Recklessness - the accomplice needs to be aware of the substantial and unjustifiable risk for recklessness. Negligence - fails to be aware of a substantial and unjustifiable risk, and this failure constitutes a substantial deviation from the standard of care that a reasonable person would have exercised in the same situation.

Totality of circumstances test - situations

1. Judging reliability of informant's credibility, basis of knowledge

2. Terry stop - reasonable suspicion

3. Miranda waiver

Harmless error test

1. Exclusionary Rule

2. Prosecutor’s comment on D’s silence based on 5th amendment right against self-incrimination

Validity of stop and arrest

1. The Fourth Amendment, which is applicable to the states through the Due Process Clause of the Fourteenth Amendment, broadly prohibits unreasonable searches and seizures.

2. Stopping a car is a seizure, and so is arresting a person.

3. What is required for a seizure to be reasonable under the Fourth Amendment depends on the circumstances. Sometimes reasonableness requires a warrant based on probable cause (e.g., reasonably trustworthy facts that would lead a prudent person to believe that a crime was committed); sometimes it is sufficient if an officer has reasonable suspicion (e.g., reason to believe that criminal activity is afoot on something less than probable cause but based on articulable facts).

4. Police officers may conduct a traffic stop of an automobile if they have reasonable suspicion to believe that a law has been violated.

5. The police need a probable cause to conduct arrest. And a police officer may constitutionally arrest a person for a traffic violation if state law provides for arrest for the violation.

Seizure during automobile stop and plain view exception

1. Fourth Amendment requires searches to be reasonable, and to be reasonable searches often must be pursuant to a warrant based on probable cause that evidence will be found in the place searched.

2. Under the plain view exception, a police officer may make a warrantless seizure of evidence if (i) the officer is in a place he lawfully is allowed to be and (ii) sees in plain view items that he has (iii) immediate probable cause to believe are (iv) contraband or evidence, instrumentalities, or fruits of a crime. (three points for all four elements; two points for three elements; one point for two elements)

Suppression of confession - fruit of poisonous tree

1. Evidence obtained in violation of a person’s constitutional rights generally will be excluded from admission into evidence at trial.

2. And under the fruit of the poisonous tree doctrine, the exclusionary effect is applied not only to the unconstitutionally obtained evidence, but also to evidence derived from the unconstitutionally obtained evidence.

3. However, this rule does not always apply to Miranda violations.

4. Question first, warn later - police obtain an unwarned confession from a suspect, warn the suspect, and then requestion the suspect in a question first, warn later scheme to get around the Miranda requirements, confessions obtained during both interrogations should be suppressed.

5. But if the unwarned questioning and the warned questioning do not appear to be part of such a scheme, incriminating statements obtained during the warned questioning session need not be suppressed.

Attenuation exception to exclusionary rule

1. the temporal proximity between the unconstitutional conduct and the discovery of the evidence (the closer the temporal proximity, the less likely the exception applies)

2. the presence of intervening circumstances;

3. most importantly, the purpose and flagrancy of the official misconduct.

Double jeopardy - two separate crimes

Double jeopardy does not prohibit the imposition of cumulative sentences for two or more statutorily defined offenses specifically intended by the legislature to carry separate punishments, even though constituting the “same” crime under the Blockburger test (i.e., each offense does not require proof of some additional fact that the other does not) when the punishments are imposed at a single trial.

Malice aforethought - murder

The mental state of malice aforethought could be established with any one of the following states of mind: (i) intent to kill; (ii) intent to cause serious bodily harm; (iii) reckless indifference to an unjustifiably high risk to human life ("depraved heart"); or (iv) the intent to commit a dangerous felony ("felony murder").

The defendant’s choice of weapon, and the nature of the physical attack on the victim, are circumstances that can lead a reasonable jury to infer an intent to seriously injure the victim.

Causation for felony murder - Where there is a close causal relationship between the underlying felony (or the attempt to escape from it) and the death, the requirement of a death “during the commission of” the felony is generally deemed satisfied, even if the death doesn’t come until after the felony-andescape period is in some sense over.

Voluntary manslaughter

Adequate provocation will reduce a killing to voluntary manslaughter if the defendant was both reasonably provoked and actually provoked.

Defendant would be convicted of manslaughter in this scenario if

(i) he acted in response to a provocation that would be sufficient to cause a reasonable person to lose self-control,

(ii) he in fact acted in a “heat of passion,”

(iii) the lapse of time between the provocation and the killing was not great enough that a reasonable person would have “cooled off,” and

(iv) he had not in fact “cooled off” by the time he killed

Criminal negligence for involuntary manslaughter

Criminal negligence, a form of involuntary manslaughter, is an unintended killing caused by the negligence of another. Criminal negligence requires a greater deviation from the reasonable person standard than is required for civil liability, but less negligence than the reckless disregard for human life required for malice.

Intent is not an element

Accomplice liability

An accomplice is one who (i) with the intent to assist the principal and the intent that the principal commit the substantive offense (ii) actually aids, counsels, or encourages the principal before or during the commission of the crime.

Absent a statute, most courts would hold that mere knowledge that a crime may result from the aid provided is insufficient for accomplice liability, at least where the aid involves the sale of ordinary goods at ordinary prices.

If A, while having the mental state for crime X, aids, abets, encourages or assists B to commit crime X, and B in fact commits crime X, A is guilty of crime X as an accomplice. When the girlfriend lent the man her crowbar, knowing that it was to be used to break into the shed to steal the mower, she was at the very least “encouraging” the man to do the break-in.

Mental state - A conviction based on accomplice liability requires not only a showing that the accomplice aided, encouraged, or assisted the principal to commit the underlying crime, but also a showing that the accomplice had a culpable mental state sufficient for that underlying crime. The crime of larceny (theft) requires an intent to permanently deprive another of the latter’s property. So unless the passenger is shown to have intended to aid, encourage or assist the driver in the taking of the station owner’s property, the passenger cannot be convicted as an accomplice. And that intent must have existed before or simultaneously with the actual taking.

Attempted arson

To convict a person for an attempted crime, the prosecution must establish that the defendant had an actual specific intent to cause the harm prohibited by the statute and committed an act beyond mere preparation in furtherance of that intent. Those elements-specific intent and act-are required regardless of the mental state required by the target offense

A specific intent to burn the home is required for attempted arson. While malice satisfies the state of mind requirement for the completed crime of arson, it will not suffice for attempt.

Voluntary intoxication defense for attempted murder

voluntary intoxication, which is a defense to specific intent crimes, ordinarily will be a defense to any attempted murder charge. However, one who formed an intent to commit a crime and then drinks in order to work up his nerve to commit it cannot rely on the defense of intoxication, even though he may be too intoxicated to form that intent at the time he did the act.

Withdrawal from conspiracy

To successfully withdraw, the actor must notify all members of the conspiracy that he has withdrawn; this must be done in time for them to have an opportunity to abandon the planned crimes.

if one of the conspirators "withdrew" from the criminal effort before the substantive crimes occurred, he was not liable for the subsequent crimes.

Duress

The defense of duress requires the commission of an otherwise criminal act under the threat of imminent infliction of death or great bodily harm. Duress is a defense to all crimes except intentional homicide.

Use of force by police officers against fleeing felons

Police officers are generally entitled to use whatever force is reasonably required, including deadly force, to apprehend or prevent the escape of a felon who poses a threat of serious bodily harm to the officer or others.

Drug sniffing dog at D’s home

To have a Fourth Amendment right, a person must have a reasonable expectation of privacy with respect to the place searched or the item seized or must prove that there was a physical intrusion into a constitutionally protected area. In the instant case, the place searched was the defendant's home, which clearly is a place in which a person has a reasonable expectation of privacy. Even the entry to a home is within the curtilage and protected against unreasonable searches. A police officer nevertheless has an implied license to approach the door of a home and knock, just like anyone else. However, the Supreme Court has held that bringing a drug-sniffing dog along violates the license.

Land or field not part of curtilage

The United States Supreme Court has held that a person does not have a reasonable expectation of privacy in any land or field not a part of the curtilage. Neither has the Court found such places to be constitutionally protected. Thus, there is no Fourth Amendment protection in such areas. Therefore, the police did not violate the Fourth Amendment when they took pictures or when they cut through the fence and entered the field.

Searched by Public officials officials

Due to the nature of the school environment, reasonable grounds for a search are a sufficient basis to justify searches by public school officials. Neither a warrant nor probable cause is required. A school search will be held reasonable if: (i) it offers a moderate chance of finding evidence of wrongdoing; (ii) the measures adopted to carry out the search are reasonably related to the objectives of the search; and (iii) the search is not excessively intrusive in light of the age and sex of the student and the nature of the infraction.

Public officer informing D about charges

While the Court requires waiver of Miranda rights to be knowing and voluntary, the police do not have to inform the detainee of possible charges to meet this standard; it is sufficient that the warnings were given

Post-charge lineup

A post-charge lineup is a critical stage of the prosecution at which a defendant has the right to counsel. Once the government has initiated adversary judicial criminal proceedings, the presence of counsel is a prerequisite to the conduct of a lineup. This right attaches as soon as the accused is within sight of a potential identification witness.

Wiretaps in jail cell

Sixth amendment violation right to counsel - For Sixth Amendment purposes, a criminal prosecution begins when adversary judicial proceedings have commenced, such as the filing of formal charges in this case. Because custodial interrogation is a critical stage of prosecution, the Sixth Amendment is violated by post-charge interrogation unless the defendant has waived his right to counsel. Interrogation includes not only direct questioning, but also any other conduct by the police intended to elicit a response. The police conduct here (telling the man that the woman had implicated him and then bugging the conversation) constitutes prohibited interrogation.

The Supreme Court has held that the Sixth Amendment right to counsel attaches as soon as the defendant is indicted. Furthermore, the Court has held that once this right attaches, the right is infringed if the prosecution uses deception to “deliberately elicit” from the defendant incriminating words where counsel is not present. Massiah v. U.S., 377 U.S. 201 (1964). For instance, suppose that after D is indicted, the government then secretly recruits an informant (“I”) to meet alone with D, instructing I to try to get D to incriminate himself. If D does so, then if the prosecution tries to use D’s words against him at trial (e.g., by a tape recording made by I, or by the I’s testimony about what D said), the words will be inadmissible because D’s right to counsel has been violated.

Fourth amendment no violation - prisoners have no reasonable expectation of privacy in their cells or in any personal property that they have in their cells.

Burden of proof for grand jury

enough circumstantial evidence of an agreement to commit a crime to justify sending the case to the jury.

Robbery

A robbery is a larceny from a person, or in a person’s immediate presence, brought about by either force or fear.

fact that the drunk man never felt fear or believed that force was being used is irrelevant to the defendant’s liability for attempted robbery

Robbery is the: (1) taking, (2) of personal property of another, (3) from the other’s person or presence, (4) by force or intimidation, (5) with the intent to permanently deprive him of it.

Attempted crime

The common law of attempt required that the defendant commit some act (beyond mere “preparation”) toward bringing about the intended crime.

Larceny

Larceny is the: (1) taking and (2) carrying away of (3) the tangible property (4) of another, (5) by trespass or without consent, (6) with the intent to permanently deprive the person of his interest in property

The only one of the above requirements that could possibly be in doubt as of that moment was whether the computer analyst satisfied the “carrying away” requirement. However, courts hold that even a small movement of the entire object will suffice. So the fact that the computer analyst “picked up” the watch was enough.

Through innocent agent - Anyone who intentionally acts through an innocent agent is classified as a principal.

Concurrence in crimes

It’s true that “concurrence” is required. But in the case of a crime defined in terms of a particular result (like murder), the requisite concurrence is between mental state and act, not between mental state and result. In other words, at the moment a defendant takes the act that brings about the result, the defendant must be actuated by the appropriate intent; it doesn’t matter whether the defendant still has that intent when the result finally occurs

Lastly, the fact that the security guard had the opportunity to avoid the harm but failed to do so is irrelevant — the employee intended to bring about a death by bomb, and his act was the butfor cause of that death by bomb, so the fact that some other actor failed in a chance to avoid the harm makes no difference. And that’s true even if the failure by the other person amounted to negligence.

Self-defense and deadly force

A person may use deadly force in self-defense if he: (1) is confronted with unlawful force; (2) reasonably believes he is threatened with imminent death or great bodily harm; and (3) uses no greater force that he reasonably believes is required to avoid the danger

Burglary

Burglary is: (1) the breaking, (2) and entering, (3) of the dwelling, (4) of another, (5) at night time, (6) with the intent to commit a felony within.

As to (1) (breaking), courts recognize “constructive breaking” — if a defendant uses fraud or threat of force to induce the occupants to let him in, that counts as breaking.

Factual impossibility for crimes

The prosecution of the inmate poses the classic question of whether “factual impossibility” can be a defense. Factual impossibility is not a defense. That is, impossibility is no defense tArdo an attempt prosecution in those cases where, had the facts been as the defendant believed them to be, the defendant would have had the mental state required for the substantive crime.

Therefore, she had the mental state for attempt. And, since she carried out the physical act of selling the substance, she meets the actus reus requirement for attempted drug sale as well

Arson

Arson, as defined by the common law, is the: (1) malicious, (2) burning, (3) of the dwelling, (4) of another.

Malice for arson does not require a specific intent, but only that the defendant acted with either: (1) the intent or knowledge that the structure would burn, or (2) the reckless disregard of an obvious risk that the structure would burn.

Solicitation

crime of solicitation is completed with the concurrence of act and intent. Solicitation consists of inciting, inducing, or urging another to commit a felony with the specific intent that the person solicited commit the crime. The offense is complete at the time the solicitation is made, whether the solicitee agrees or not. Therefore, the college student’s effort to withdraw a few days before payment was due would not be a defense to the crime of solicitation — the crime was already completed. (Nor does it make any difference that the solicitee was only pretending to agree to commit the underlying crime.)

Liability of Co-conspirator

co-conspirator need not be present at the commission of each crime in order to be guilty of a conspiracy

Furthermore, the arrest of one co-conspirator does not automatically terminate the conspiracy when other coconspirators continue to carry out the mission of the conspiracy. Accordingly, the jailed defendant may still be guilty of conspiracy, and a judgment of acquittal at the close of the government’s case is improper on these facts

Right to counsel at lineup

only a lineup, not an initial appearance, is deemed to be a critical stage in the proceedings. The Sixth Amendment right of a criminal defendant (call her “D”) to the assistance of counsel is violated only if two conditions both occur: (1) the government has “commenced a prosecution” of D; and (2) the government has then failed to appoint counsel within a reasonable time after that commencement, assuming that D has made a request for such assistance. When these two conditions have been satisfied (so that the right to counsel is said to have “attached,” and the case is in the “post-attachment” phase), it is a violation of the right to counsel for the government to go forward with any “critical stage” in the proceedings unless appointed counsel is present.

Attachment at initial appearance - The Supreme Court has held that the right attaches at the initial appearance. Therefore, as soon as the initial appearance occurred, since the defendant did not validly waive his right to counsel during the appearance, the government was required to appoint counsel for him “within a reasonable time,” and was not permitted to carry out any “critical stage” of the proceeding until counsel was appointed and able to be present. But, importantly, although the right to counsel “attached” during the initial appearance, an initial appearance is not deemed to be, itself, a critical stage in the proceeding (since nothing of importance to the defendant’s rights is decided or even discussed during that appearance). Therefore, no violation of the right to counsel occurred by virtue of the fact that the defendant was not furnished with the assistance of counsel during the initial appearance.

Lineup (depends on whether right to counsel was attached) - On the other hand, the conducting of a pretrial lineup is a critical stage in the proceedings. See U.S. v. Wade, 388 U.S. 218 (1967), reasoning that this is so because “the confrontation compelled by the State between the accused and the victim or witnesses to a crime to elicit identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously . . . [interfere with] a fair trial.” Therefore, it was a violation of the defendant’s rights for the lineup identification to occur without appointed counsel present. But this is true only because the prosecution had already “commenced,” by means of the initial appearance. By contrast, if the defendant had merely been an uncharged suspect, and the same lineup had occurred, this would not have been a violation of the defendant’s right to counsel: since no prosecution would yet have “commenced,” there could be no violation of the defendant’s sixth amendment right

Right to jury trial

Judge cannot direct jury verdict - for a criminal verdict in a jury trial to be constitutional, the jury, not the judge, must find that all elements of the crime were proved beyond a reasonable doubt. A criminal defendant has a Sixth Amendment right to a jury trial. This right includes the right not to be convicted unless the jury finds that each element of the crime has been proved beyond a reasonable doubt. “a judge may not direct a verdict of guilty no matter how conclusive the evidence.”

Ineffective assistance of counsel

an ineffective assistance of counsel (“IAC”) claim, the defendant has to show both that

(i) counsel’s performance was so deficient that counsel was not functioning as the sort of counsel guaranteed to the defendant by the Sixth Amendment; and

(ii) “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different” (i.e., the defendant would not have been convicted).

Traffic stop

persons subjected to a roadside stop like the one here are not “in custody,” given the “comparatively nonthreatening” and “presumptively temporary and brief” character of the stop.

Double jeopardy - mistrial

the trial judge failed to consider an alternative to a mistrial (like a continuance), and thus failed to establish that there was manifest necessity for the mistrial. For centuries, the Supreme Court has held that once a jury trial has begun, the trial judge should declare a mistrial only if there is a “manifest necessity” for this drastic step (and if there is, then a retrial is ordinarily permitted despite the Double Jeopardy clause)

trial court must take “all the circumstances into consideration” in determining “whether there is a manifest necessity for [the mistrial], or the ends of public justice would otherwise be defeated”

judge who is considering a mistrial should give lawyers for both sides the chance to object to the mistrial and/or to suggest an alternative like a continuance.

Protective search

conditions for a protective search during an arrest are satisfied, the police may seize any contraband they discover in plain sight during that search.

Valid arrest warrant - To begin with, we have to decide whether the police — with their validly-issued warrant in hand — were entitled to enter the house through the open front door. The answer is yes: once police are entitled to execute an arrest warrant at a dwelling where they have reason to believe the arrestee is present, then as long as they first “knock and announce” and receive no response, they are entitled to enter. (The fact that they could hear a radio playing was enough to give them a reasonable suspicion that the man named in the warrant was home.) Then, when the man emerged from the basement, they properly arrested him pursuant to the warrant. The next key issue is whether, following the arrest, the officers (1) properly went into the basement to look for the accomplice; and if so, (2) properly opened the closet door

Protective sweep -

The answer to these two sub-questions, too, is “yes,” because of the case law governing so-called “protective sweeps.” In the case establishing the police’s general right to make such sweeps, Maryland v. Buie, 494 U.S. 325 (1990), the Supreme Court defined a protective sweep as “a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others.” The Court in Buie also set the limits on such a sweep: “It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding.” And, finally, in Buie the Court articulated what it would take for the police to have a reasonable belief in the need for their protective sweep: the Fourth Amendment permits the sweep “if the searching officer ‘possessed a reasonable belief based on “specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warranted” the officer in believing’ . . . that the area swept harbored an individual posing a danger to the officer or others.”

Waiving sixth amendment right to assistance of counsel

When a criminal defendant wishes to waive his Sixth Amendment right to assistance of counsel, and to instead represent himself at trial, he has a Sixth Amendment right to elect to do so. However, because the right to assistance of counsel — especially at trial — is so important, the Supreme Court requires that the defendant’s waiver of that right be not only (1) voluntary; but also (2) made “knowingly and intelligently.” Faretta v. California, 422 U.S. 806 (1975). Requirement (2) (“knowingly and intelligently”) means that the trial judge must ensure that the defendant is “made aware of the dangers and disadvantages of selfrepresentation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ ”

Eighth amendment - cruel and unusual punishment

Juvenile - “This Court now holds that for a juvenile offender who did not commit homicide the Eighth Amendment forbids the sentence of life without parole.”

Privilege against self-incrimination for documentary evidence

By the way, even if it was a human that was resisting a subpoena for business records on self-incrimination grounds, as long as the records were originally created by that human voluntarily (rather than their creation having been statec ompelled), it’s almost certain that the subpoena could be enforced without granting the human any sort of immunity (transactional or use). It is only where a human is forced to testify as a live witness (not forced to produce pre-existing documents) that the government’s grant of immunity can overcome what would otherwise be a valid invocation of the self-incrimination privilege. (And even in that “live testimony” scenario, the government never needs to give more than use-and-derivative use immunity, i.e., never needs to grant transactional immunity.)

But the Fifth Amendment has also been held to protect against orders compelling a person to produce (i.e., deliver to the government) a document or other thing, if the act of production would have testimonial significance by, say, authenticating the document or thing.

Two immunity - Of the two sorts of immunity — transactional and use — mere use immunity, the narrower of the two, suffices for Fifth Amendment purposes. So here, as this choice indicates, the government would have to give “use and derivative use immunity from the act of production”; what this means is that the diary would be admissible, but only if the government had some other, wholly-independent, way to prove to the jury that this was a diary kept by the suspect

Transactional immunity - It’s true that transactional immunity (which in this case would mean that the suspect would not be prosecuted for any crime described in the diary) would 340 also suffice to avoid the Fifth Amendment problem. But that sort of immunity is overkill — it’s more than the Constitution requires.

in some circumstances the Fifth Amendment privilege does apply to the compelled production of documents. Under the “act of production” doctrine, there can be circumstances in which, when a human is compelled to produce documents in response to a subpoena, the human’s very act of production will constitute a form of compelled testimony. For instance, suppose the government subpoenas from a criminal suspect, D, “any handwritten diary in your possession that was prepared by you and that refers to your communications with Jones in which either of you discussed the possibility of robbing the XYZ bank.” D possesses a handwritten diary, but is worried that if he produces it in response to the subpoena, his very act of producing it will be used against him as establishing that (1) the diary was by him, and (2) at least some entries in it referred to Jones and the possible robbery of XYZ; in other words, D is worried that his act of production will amount to a compelled testimonial authentication of the diary as being responsive to the subpoena. In this situation, D (keeping in mind that he is a human, not a corporation) would be able to decline to produce the diary on Fifth Amendment grounds, unless the government grants him use immunity in the limited sense that the government agrees not to use his act of production to authenticate the diary (so that the government can introduce the diary against him, but only if it uses some other authentication method, such as handwriting analysis to show that the writing in it is D’s writing).

Confrontation clause and due process components of 5th and 14th amendment

The Sixth Amendment’s Confrontation Clause — as well as the due process components of the Fifth and Fourteenth Amendments — include the right of a criminal defendant to be present in the courtroom at every critical stage of the proceeding against him. In particular, once the trial begins, every part of the trial is deemed to be critical.

“One of the most basic of the rights guaranteed by the Confrontation Clause is the accused’s right to be present in the courtroom at every stage of his trial.” The “trial” is deemed to begin with the selection of the jury — the defendant has a constitutional right to assist in selecting the jury, as part of his more general right to assist in conducting the defense

Unnecessarily suggestive identification procedure

even an unnecessarily suggestive identification procedure will not violate due process if the identification itself was reliable under all the circumstances.

In a series of cases, the Supreme Court has held that an identification procedure may be so “unnecessarily suggestive” that allowing the results of that identification into evidence violates the accused’s due process rights. See, e.g., Stovall v. Denno, 388 U.S. 293 (1967). In fact, in extreme cases the unnecessarily suggestive procedure may so irreparably taint the out-of-court identification that the witness is even forbidden to make an incourt identification of the accused at trial.

Here, the out-of-court identification was certainly needlessly suggestive, both because it used only a single photograph, and because the officer told the store owner before the identification that the police were pretty sure the person in the photo was the culprit. However, even where an unnecessarily suggestive identification procedure is used, neither the out-of-court identification itself, nor the witness’s later in-court identification, will be excluded unless the trial court concludes that there is “a very substantial likelihood of irreparable misidentification.”

The likelihood of misidentification is to be determined by considering the “totality of the circumstances,” including such factors as how good an opportunity the witness had to observe the perpetrator. So, here, as long as the prosecutor convinces the court that the in-court identification is reasonably reliable, the fact that it may have been influenced by earlier unnecessarily-suggestive out-of-court identification methods will not cause the in-court testimony to be excluded.

Double jeopardy attaches

Therefore, if a proceeding is terminated before jeopardy has attached, the Double Jeopardy Clause does not limit the prosecution’s right to try the defendant for the same charge in a new proceeding. In a case to be tried before a jury, jeopardy is deemed to attach when the jury has been selected and all its members have taken the oath. Crist v. Bretz, 437 U.S. 28 (1978). In a case that is to be tried by a judge sitting without a jury, jeopardy is deemed to attach when the first witness has been sworn in.

Basis of search warrant

A police officer submits a written, signed affidavit to a neutral, detached magistrate, who decides if there is probable cause to issue the warrant. The affidavit must set forth the underlying circumstances to a degree sufficient for the magistrate to determine probable cause. If the information is stale, it will defeat probable cause by diminishing the possibility that the items in question are still at the location.

Fifth amendment - only communicative evidence

The key here is that a handwriting sample is considered physical, not communicative, evidence — and the Fifth Amendment only covers communicative evidence. As a result, handwriting samples are not covered by the Fifth Amendment, and will be admissible even if the suspect wasn’t given the opportunity to obtain counsel, or told any other Miranda warning.

Warantless searches - highly regulated industry

Businesses subject to extensive regulation may be subjected to warrantless, unannounced searches, at least where frequent unannounced inspections are the only effective way to enforce the regulatory requirements. (warrantless inspections of weapons dealers are constitutional, because such dealers are subject to heavy regulations, which can only be enforced by “unannounced, even frequent, inspections”).

Acting as government agent - fourth amendment

Therefore, with regard to the second search, the woman was acting as a government agent and a warrant was required. Lacking a warrant, the second search violated the Fourth Amendment. On the other hand, the woman’s first entry of the computer and copying of the file constituted an entirely private search and did not trigger Fourth Amendment protections, as she was not acting as a government agent. Accordingly, only the second set of photographs should be suppressed.

Exception for incriminating testimony by witness

the woman can be prevented from justifying her refusal to answer by claiming a risk that her answer would tend to incriminate her. A witness cannot be compelled to provide potentially incriminating testimony unless she is granted both “direct” use immunity (so her answer can’t be used directly in a prosecution against her) and “derivative” use immunity (so the prosecution can’t take her answer and give it to the police to help them find additional evidence to be used against the woman). As a practical matter, once the woman is given these two types of use immunity, the subsequent criminal trial must be conducted by prosecutors who did not witness, or read the transcript of, the woman’s grand jury testimony.

Brady doctrine

if acquittal would have been reasonably probable, the denial of disclosure violated the defendant’s right to due process. Under the so-called “Brady doctrine,” the prosecution has an obligation to disclose to the defense any exculpatory evidence within the prosecution’s possession.

This obligation includes evidence that could be used to impeach a prosecution witness. So here, the fact of the witness’s prior perjury conviction — which if available would strongly tend to impeach the witness — falls squarely within the prosecution’s Brady disclosure obligation. The prosecution’s failure to make timely disclosure will entitle the defendant to a new trial if the non-disclosure is found to have been “material.” A nondisclosure is material if there is a “reasonable probability” that had the disclosure been timely made, the “result of the proceeding would have been different.”