Crim Pro Essay Rules

Arrests

must be based on PC - trustworthy facts or knowledge sufficient for a rxbl person to believe that the suspect has committed or is committing a crime for which arrest is authorized by law (based on TOTC)

Stop and Frisk

• if police have rxbl suspicion of criminal activity or involvement in a completed crime supported by articulable facts, they may detain a person for investigative purposes

• if rxbl suspicion (based on TOTC) that detainee is armed and dangerous they may frisk detainee for weapons - limited to outer pat-down; only reach in and seize if officer rxbly believes based on plain feel that item is weapon or contraband

Search and Seizure

4th Amendment provides that people should be free from unrxbl searches and seizures

Seizure: under the TOTC a rxbl person would feel that they were not free to decline the officer’s requests or otherwise terminate the encounter

Search and Seizure - Standing

• person must have had their own rxbl expectation of privacy with respect to the place searched or the item seized; determined by TOTC

  • owned or had right to possession of place searched

  • home

  • overnight guest

• no rxbl expectation of privacy in things held out to the public

Search and Seizure - Warrant Requirement

generally criminal law enforcement officers must have a warrant to conduct a search

• must have PC to believe seizable evidence will be found on person or premises at time warrant is executed

• officers submit to magistrate affidavit setting forth circumstances enabling magistrate to make determination of PC independent of officer’s conclusions

• warrant describes in particularity the place to be searched and items to be seized

Warrant Exception - Search Incident to Lawful Arrest

• police may search person and areas into which they might reach to obtain weapons or destroy evidence

• may make protective sweep of area if they believe accomplices may be present

• vehicles: police may search passenger compartment if at time of search

  • arrestee is unsecured and still may gain access to the interior of the vehicle or

  • police rxbly believe evidence of the offense for which the person was arrested may be found in the vehicle

Warrant Exception - Automobile Exception

if police have PC to believe vehicle contains fruits, instrumentalities, or evidence of a crime, they may search the whole vehicle and any container that might rxbly contain the item for which they had PC to search (may extend to passenger’s belongings)

Warrant Exception - Plain View

• legitimately on premises

• discover evidence, fruits, or instrumentalities of crime, or contraband

• see such evidence in plain view

• have PC (it must be immediately apparent) that the item is evidence, contraband, or fruit or instrumentality of crime

Warrant Exception - Consent

• voluntary consent

• scope may be limited by scope of consent but generally extends to all areas to which a rxbl person under the circumstances would believe it extends

• any person with apparent equal right to use the property may consent to a search

Warrant Exception - Hot Pursuit

• hot pursuit of fleeing FELON

• may pursue into private dwelling

• if misdemeanor, flight does not always justify warrantless entry into home (consider TOTC)

Warrant Exception - Emergency

police officer may enter premises without warrant if officer faces an emergency that threatens health or safety of an individual or the public

Fruit of the Poisonous Tree

unconstitutionally obtained evidence is inadmissible at trial, and all fruit of the poisonous tree (evidence obtained from the exploitation of the unconstitutionally obtained evidence) must also be excluded unless the cost of excluding the evidence outweighs the deterrent effect exclusion would have on police misconduct

FOTPT Exceptions

• independent source from original illegality

• attenuation

• inevitable discovery

• live witness testimony

• in court ID

Attenuation Doctrine

connection btw unconstitutional police conduct and evidence is remote

• was misconduct purposeful or flagrant

• was there interruption by some intervening circumstance so that the causal link btw police misconduct and evidence is broken

FOTPT Good Faith Reliance

good faith reliance on law, defective search warrant, or clerical error UNLESS

• affidavit underlying warrant is so lacking in PC that no rxbl police officer would have relied on it

• affidavit underlying warrant is so lacking in particularity that no rxbl police officer would have relied on it

• police officer or prosecutor lied or misled magistrate when seeking the warrant

• magistrate is biased and therefore has wholly abandoned their neutrality

Harmless Error Test

• if illegal evidence is admitted, resulting conviction should be overturned on appeal unless govt can show BARD that error was harmless

• conviction upheld if it would have resulted depsite improper evidence

Double Jeopardy

under 5th Amendment, person may not be tried for same offence once jeopardy has attached

jury trial = attaches at empaneling and swearing of jury

bench trial = attaches when first witness is sworn

DJ - Exceptions Permitting Retrial

• D’s first trial ends in hung jury

• there was manifest necessity to abort the original trial, or termination occurs at behest of D on any ground not constituting acquittal on the merits

• state may retry D who has successfully appealed a conviction unless the ground for reversal was insufficient evidence to support guilty verdict

  • on retrial D may not be tried for greater offense than that for which they were convicted

• charges may be reinstated after D breaches their plea bargain

• if D elects to have multiple charges for offenses tried separately, jeopardy does not attach to the 1st trial for the other charges

DJ - Same Offense

• 2 crimes are the same offense unless each crime requires proof of an additional element that the other does not require

• attachment of jeopardy for greater offense bars retrial for lesser included offenses and vice versa

  • New Evidence Exception: unlawful conduct that is subsequently used to prove greater offense has not occurred at the time of prosecution for the lesser offense, OR has not been discovered despite due diligence

14th Amendment Voluntariness

• for self-incriminating statement to be admissible under DPC, it must be voluntary as determined by TOTC

• statement will be involuntary only if there is some official compulsion

• harmless error test: conviction need not be overturned for involuntary confession if there is other overwhelming evidence of guilt

6th Amendment Right to Counsel

• guarantees right to assistance of counsel in all criminal proceedings, which includes all critical stages of prosecution after judicial proceedings have begun

• prohibits police from deliberately eliciting an incriminating statement from D outside the presence of counsel after D has been charged, unless D waives their right to counsel

• offense specific: D may be questioned regarding unrelated, uncharged offenses

• waiver must be knowing and voluntary

5th Amendment Privilege Against Self-Incrimination

• required when a suspect is in custodial interrogation

• for admission or commission to be admissible a person in custody, prior to interrogation must be informed of: right to remain silent; anything person says can be used against them in court; person has right to presence of attorney; if person cannot afford attorney, one will be appointed for them if they so desire

Custodial Interrogation

Custody

• whether rxbl person under the circumstances would feel that they were free to terminate the interrogation and leave

• whether relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda

Interrogation

• any words or conduct by the police that they should know would likely elicit an incriminating response from the defense

Right to Waive Rights or Termination

• silence will not create presumption of waiver

• govt must show by preponderance of evidence that waiver was knowing and voluntary, looking to TOTC

• indication of wish to remain silent must be explicit, unambiguous, and unequivocal

  • police must scrupulously honor the request without badgering the detainee

  • police can reinitiate questioning if they waited significant amount of time, re-Mirandized and questions were limited to crime that was not the subject of earlier questioning

Invocation of Right to Counsel

• unambiguous indication —> all questioning must cease until counsel has been provided to detainee unless

  • detainee then waives right

  • released from custodial interrogation back to normal life and 14 days have passed

Right to Jury Trial

no constitutional right for petty offenses, only serious offenses (imprisonment more than 6 months authorized)

Introduction of Co-Defendant’s Confession

if 2 persons are tried together and one has given a confession that implicates the other, the right of confrontation prohibits use of that statement unless

• all portions relating to the other D can be eliminated

• confessing D takes the stand and subjects themselves to cross with respect to the truth or falsity of what the statement asserts

• confession of the non-testifying co-D is being used to rebut D’s claim that their confession was obtained coercively