Criminal Procedure

Search & Seizure - 4th Amendment

Provides that people should be free from unreasonable searches and seizures.

1. Seizure: Any exercise of control by a government agent, over a person or thing

2. Protects from government conduct

   • Not privately paid police unless deputized with power to arrest

Standing (to challenge the search or seizure)

1. Needs to be a violation of the complaining person’s own expectation of privacy

   • Person owned or had a right to possession.

   • Live-in owners and tenants will have standing.

     • Social Guests may have standing to challenge the search of the house. This is dependent on the length of stay and the guests relationship with the area of the home searched.

   • Invited overnight guests will have standing.

2. Own the property seized → standing if reasonable expectation of privacy in item or area searched

Seizure of a Person - 4th Amendment

Was there a seizure of a person?

Was there a seizure of a person?

Two Tests for determining whether an individual is seized.

1. Physical touching (e.g. grasping, shooting, etc.) for the purpose of bringing someone under control

2. Show of authority such that a reasonable person would not feel free to leave AND individual has in fact yielded to authority

Arrest

1. Must be based on probable cause.

   • Exists when a reasonably prudent person believes a suspect has committed or is committing a crime

   • Based on the totality of the circumstances

2. Warrant not required before arresting a person in a public place

   • Warrent: May enter suspect’s home only if there is reason to believe the suspect is within it

3. Unlawful arrest - no impact on any subsequent criminal prosecution

Seizure of a Person - 4th Amendment

Was the seizure conducted reasonably?

Reasonableness: Was the seizure conducted reasonably?

Investigatory Detention (Terry Stop)

1. Reasonable if the police officer has reasonable suspicion of criminal activity based on articulable facts. A mere hunch is not enough.

   • Reasonable Suspicion: based on the totality of the circumstances

     • Informants: must be an indicia of reliability

     • Predictive information can be included, but not required

Arrest for a Misdemeanor

• Unreasonably to arrest a person for a misdemeanor without an arrest warrant

  • UNLESS the misdemeanor was committed in the officer’s presence.

Arrest for a Felony

• Reasonable to arrest a person for a felony without a warrant if the officer has probable cause to believe that a felony was committed and that the person in front of them committed it.

Automobile Stops: reasonable suspicion to believe that a law has been violated

1. Police Dogs

   • During routine stop, a sniff is not a search so long as it doesn’t extend the stop beyond needed

   • Dog alert can form the basis for probable cause

2. Passengers have standing to raise a wrongful stop as a reason to exclude evidence found during the stop

3. Roadblock

   • Valid if:

     • Stop cars on the basis of some neutral, articulable standard (for example, every car) AND

     • Designed to serve purposes closely related to a particular problem pertaining to automobiles and their mobility

   • Information roadblocks okay

4. May order the occupants of the vehicle to get out

5. Pretextual Stops okay

Detention to Obtain Warrant

• Probable cause to believe that a suspect has hidden drugs in their home, they may, for a reasonable time, prevent the suspect from going into the home unaccompanied so that they can prevent the suspect from destroying the drugs while they obtain a search warrant

Deadly Force

• May not use deadly force unless it is reasonable to do so under the circumstances

Evidentiary Search & Seizure - 4th Amendment

Was there a search?

Was there a search?

Two Tests

Trespass → The court asks if the government physically intruded on private property (person, house, papers, effects) for the purposes of obtaining information, and in a manner that exceeded the implied license.

No trespass → The court asks if the government intruded on a reasonable expectation of privacy

• A REP requires that the individual

  1. exhibit an actual expectation of privacy and

  2. that society is prepared to recognize as reasonable

Specific Circumstances where there is no REP

1. Dog Sniffs

   • Exposure of luggage to a trained canine is not a search.

     • An alert can form the basis for probable cause for a search

   • Use of a trained canine during a lawful traffic stop is not a search.

2. Third Party

   • A person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.

3. Vantage Point

   • Not a search if a police officer sees something in your yard from a place that the officer is allowed to be.

     • This counts if it is seen through aerial surveillance as long as they are in legal airspace.

4. Things held out to the public

   1. No reasonable expectation

      • Generally includes information in the hands of third parties 

      • Examples

        1. sound of your voice

        2. style of your handwriting

        3. paint on the outside of your car

        4. account records held by a bank

        5. location of your car on a public street or in a driveway

           1. installation of a GPS device on a suspect’s car → search within the Fourth Amendment

        6. anything that can be seen across the open fields

        7. anything that can be seen from flying over public airspace

        8. odors emanating from your luggage or car

        9. garbage set out on the curb for collection

   2. Exceptions

      • Person does have a reasonable expectation of privacy in their cell-site location information which is stored in the hands of third parties

      • Use of sense-enhancing technology that is not in general public use to obtain information from inside a suspect’s home that could not otherwise be obtained without physical intrusion violates the suspect’s legitimate expectation of privacy

      • Police officers may not covertly and trespassorily place a GPS tracking device on a person’s automobile without a warrant

Evidentiary Search & Seizure - 4th Amendment

Warrant and Probable Cause

The 4th amendment requires probable cause and a warrant.

Probable Cause

1. Knowledge of reasonably trustworthy facts and circumstances that would lead a reasonable person to believe that the suspect has committed a crime for which arrest is authorized.

   • Informers: tip must meet the “totality of the circumstances” test

     • Informant’s reliability and credibility or their basis for knowledge are relevant factors

Warrant

Valid Warrant

1. Requirements

   1. Issued by a neutral and detached magistrate;

   2. Based on probable cause; and

      • Probable Cause: fair probability that contraband or evidence of a crime will be found in the area searched

   3. Describe with particularity the place to be searched and the items to be seized

2. Search warrant issued on the basis of an affidavit will be held invalid if the D establishes:

   1. A false statement was included in the affidavit by the affiant (the officer applying for the warrant);

   2. Affiant intentionally or recklessly included the false statement; and

   3. The false statement was material to the finding of probable cause

3. Informants

   1. If officer’s affidavit or probable cause is based on informant information, sufficiency based on totality of the circumstances

      1. Factors: 

         • Credibility

         • Basis of knowledge: how do they know?

   2. Warrant can't be based on one fully anonymous tip

Execution of the Search Warrant

1. Only by the police without unreasonable delay 

2. Required to knock and announce their presence

   • Except: 

     • No-Knock Warrants: it would be futile and dangerous or potentially lead to the destruction of evidence

   • Even if violated, the evidence comes in anyways

3. Warrant to search for contraband authorizes the police to detain occupants of the premises during a search

   • Does not authorize the police to search persons found on the premises who were not named in the warrant

If no warrant, exceptions.

Evidentiary Search & Seizure - 4th Amendment

Exceptions to the Warrant Requirement

1. Stop & Frisk

2. Search Incident to lawful arrest

3. Plain View

4. Automobile exception

5. Consent

6. Hot Pursuit

7. Exigent circumstances

8. Evanescent Evidence

9.  Emergency Aid

10. Community Caretaker

Evidentiary Search & Seizure - 4th Amendment

Exceptions to the Warrant Requirement - Stop & Frisk

Stop & Frisk (Terry Stop)

If reasonable & articulable suspicion, police without a warrant or probable cause may:

1. Briefly stop and question suspect AND

2. Firks (pat down) suspect’s outer clothing for weapons only if the officer reasonably believes the person may be armed and dangerous

   • Plain Feel Doctrine: Police may reach into suspect’s clothing and seize an item if she reasonably believes the object is a weapon or contraband based on its plain feel

     • No manipulation

Probable cause arises during Terry Stop, detention can become an arrest

• Then Search Incident to Lawful Arrest

Automobile Stops

1. Officer reasonably believes drive or passenger may be armed and dangerous, they may

   • Frisk suspected person AND

   • Search vehicle in areas where weapon may be placed

Evidentiary Search & Seizure - 4th Amendment

Exceptions to the Warrant Requirement - Search Incident to lawful arrest

Search Incident to lawful arrest

Police are allowed to conduct a warrantless search after they make an arrest so long as the arrest was lawful.

• Search on person or where they could reach

• Valid only if done contemporaneously with the arrest.

Automobile: When a person who was in a car is arrested, the police may search the interior of the car (but not trunk) if

• Arrestee is unsecured and still may gain access to the interior of the vehicle OR

• Police reasonably believe that evidence of the offense for which the person was arrested may be found inside the vehicle

Technological Searches

1. Court will balance the degree to which the search incident to arrest intrudes upon a person’s privacy against the degree to which the search is needed to promote legitimate governmental interests

2. DUI Breath Test

   • Contemporaneous with an arrest for intoxicated driving, police officers may administer a warrantless breath test to determine the arrestee’s alcohol levels but may not administer a warrantless blood test.

3. Cell Phone

   • May examine the physical attributes of a person’s cell phone upon arrest

     • May not examine the data on a cell phone without a warrant

Search Incident to Incarceration or Impoundment

• May make an inventory search of the arrestee’s belongings pursuant to established department procedure

• May make an inventory search of an impounded vehicle

Evidentiary Search & Seizure - 4th Amendment

Exceptions to the Warrant Requirement - Plain view

Plain View

Police may make a warrantless seizure when

1. They are legitimately on the premises

2. They see an item in plain view

3. It is readily apparent that the item is contraband or evidence, fruits, or instrumentalities of a crime

Evidentiary Search & Seizure - 4th Amendment

Exceptions to the Warrant Requirement - Automobile exception

Automobile exception

If the police have probable cause to believe that a car contains evidence of a crime, then they can search the entire car (including trunk) without a warrant

• Any area that might contain evidence for which they have probable cause to search

  • Example: probable cause regarding stolen tvs, a small box which could not reasonably contain the tvs cannot be searched

• Probable cause can arise after car is stopped

• Searches extend to items (containers) in the car that belong to passengers.

  • Doesn’t have to be contemporaneous with the search of the vehicle.

Vehicle parked within the curtilage

• May not search the vehicle without a warrant

Probable cause to believe that an automobile itself is contraband, they may seize it from a public place without a warrant

Evidentiary Search & Seizure - 4th Amendment

Exceptions to the Warrant Requirement - Consent

Consent

Police may conduct a warrantless search if they have voluntary consent to do so.

1. Voluntary: judged by the totality of the circumstances

   • Person does not have to be told they have the right to withhold consent

   • Saying you have a warrant negates consent

2. Any person who has apparent authority may consent to a search.

   • Occupant can’t give valid consent when co-occupant is present and objects

     • If co-occupant is removed for unrelated reason, police may act on consent of remaining occupant

   • Any evidence discovered may be used against the actual owner or anyone else occupying the property.

Scope is limited to the consent given.

Evidentiary Search & Seizure - 4th Amendment

Exceptions to the Warrant Requirement - Hot Pursuit

Hot Pursuit

Police can make a warrantless search or seizure if they’re pursuing a fleeing felon.

• Search can extend to wherever is reasonably necessary (even enter a home) to prevent the suspect from resisting or escaping.

  • Not for misdemeanors unless there’s a law enforcement emergency.

If the police are not within 15 minutes behind the fleeing felon, it is not a hot pursuit

Evidentiary Search & Seizure - 4th Amendment

Exceptions to the Warrant Requirement - Exigent circumstances

Exigent circumstances

Police officers can enter a home without a warrant if it’s to prevent the destruction of evidence.

• Similarly, it can exist if the police believe someone on the premises is in imminent danger.

UNLESS officers create the exigency by violating the 4th amendment or making a threat that would violate.

Evidentiary Search & Seizure - 4th Amendment

Exceptions to the Warrant Requirement - Evanescent Evidence

Evanescent Evidence

Police may make a warrantless search or seizure if the evidence will likely disappear before the police are able to get a warrant.

• Test reasonableness under the totality of the circumstances.

  • Not usually found reasonable now because you can quickly get a warrant.

Evidentiary Search & Seizure - 4th Amendment

Exceptions to the Warrant Requirement - Emergency Aid

Emergency Aid

Police can perform a warrantless search or seizure when there is an emergency that would threaten health or safety if the police do not immediately act.

• Objective determination from officer’s pov

Evidentiary Search & Seizure - 4th Amendment

Exceptions to the Warrant Requirement - Community Caretaker

Community Caretaker

Police may make warrantless searches if they come across criminal activity while they are performing community caretaker duties.

• Not related to investigation of crime

• Does not allow warrantless entry into a home.

Admissibility of a Statement / Confession

14th Amendment - Due Process Clause

• Voluntariness

6th Amendment

• Right to Counsel

5th Amendment (against compelled self-incrimination)

• Miranda Doctrine

Admissibility of a Statement / Confession - 14th Amendment

14th Amendment - Due Process Clause

Voluntariness → Requires confessions to be voluntary.

1. Determined by the Totality of the Circumstances

   • Factors

     • Suspect’s age, education, mental and physical condition

     • Interrogation: setting, duration, manner

2. Confession determined involuntary if there was actual compulsion.

   • If a suspect makes a statement as a result of a mental condition that impacts their free will, the statement’s not automatically considered involuntary.

If an involuntary confession is admitted into evidence, the harmless error test applies.

• Meaning conviction doesn’t have to be overturned if overwhelming evidence of guilt

Admissibility of a Statement / Confession - 6th Amendment

6th Amendment - Right to Counsel

• Unlike Miranda, 6th Amendment protections apply regardless of whether the person realizes he is talking to the police.

Triggered with Formal Charges

1. Have there been formal charges?

   • Examples: indictment or an information

2. If yes, the government may not elicit incriminating statements from D without aid of counsel.

   • Unless D waives the right.

     • Waiver is valid if it is knowing and voluntary.

   • Questioning is not limited to just police.

     • Example: informants

   • Offense specific.

     • D may be questioned regarding unrelated, uncharged offenses

Stages

1. Where it applies

   • Post-indictment interrogation

   • Preliminary hearings to determine probable cause to prosecute

   • Arraignment

   • Post-charge lineups

   • Guilty plea and sentencing

     • Appeals of guilty pleas

   • Felony trials

     • Misdemeanor trials when imprisonment is actually imposed or when a suspended jail sentence is imposed

   • Overnight recesses during trial

   • Appeals as a matter of right

2. Doesn’t apply

   • Blood sampling

   • Taking of handwriting or voice exemplars

   • Prechard or investigative lineups

   • Photo identifications

   • Preliminary hearings to determine probable cause to detain

   • Brief recesses during the D’s testimony at trial

   • Discretionary appeals

   • Parole and probation revocation proceedings

   • Post-conviction proceedings

Violation → Statements that are obtained in violation of a D’s 6th Amendment right to counsel are not admissible in the prosecution’s case in chief.

• But they can be used to impeach D’s testimony.

Nontrial Proceedings → harmless error rule applies

• Trial → automatic reversal of the conviction

Admissibility of a Statement / Confession - 5th Amendment

5th Amendment (against compelled self-incrimination) - Miranda Doctrine

Miranda Rights: Police must tell someone (doesn’t have to be exact)

1. You have a right to remain silent.

2. You have a right to an attorney.

3. If you cannot afford an attorney, one will be provided to you at no charge.

4. Anything you say can be used against you in court.

Triggered with a custodial interrogation by someone who is known to be a police officer.

1. Are they in custody?

   1. 2 Steps:

      1. Would a reasonable person under the circumstances feel free to terminate the interrogation and leave?

         1. Examples:

            1. Traffic stop - No Custody

            2. Officer approaches & asks questions - Depends

            3. Typically no, unless says you can’t leave or when you attempt to leave stops you

      2. Does the environment present the same inherently coercive pressures as station house questioning?

         1. Undercover informant questioning does not.

   2. Objective Test

2. Was there an interrogation? 

   1. Any words or actions on the part of the police that they should know or are reasonably likely to elicit an incriminating response from the suspect.

      1. Not routine booking questions

      2. Not spontaneous statements

Waiver

1. A knowing and voluntary waiver is valid.

2. Invocation of Right to Remain Silent

   1. Must be explicit, unambiguous, and unequivocal. 

      1. Silence is insufficient.

      2. Police must scrupulously honor request by not badgering

   2. If D invoked the right to silence, D cannot be asked about that specific crime.

3. Invocation of Right to counsel 

   1. Must be unambiguous and specific. 

   2. If D invoked the right to counsel, all questioning about any crime must cease until 

      1. D has a chance to speak with an attorney (or D initiates) OR

         1. 5th Amendment Right to Counsel is not offense specific. 

      2. D is released from the custodial interrogation, plus 14 more days after the detainee returns to their normal life

         1. Have to give fresh set of Miranda Warnings

Public Safety Exception

• Allowed interrogation without Miranda warnings when it was reasonably prompted by a concern for public safety

Violation of the Miranda rules is inadmissible at trial under the exclusionary rule

1. May be used to impeach the D’s trial testimony

2. If the police obtain a confession from a detainee without giving them Miranda warnings and then give the detainee Miranda warnings and obtain a subsequent confession, the subsequent confession will be inadmissible if the “question first, warn later” nature of the questioning was intentional

   • Subsequent valid confession may be admissible if the original unwarned questioning seemed unplanned and the failure to give Miranda warnings seemed inadvertent

Violation of 4th, 5th, and 6th Amendment Rights

Exclusionary Rule

1. If evidence is obtained in violation, it’s generally not admissible into evidence.

   1. Fruit of the Poisonous Tree Doctrine

      1. Most evidence that was derived from the unconstitutionally obtained evidence is generally not admissible.

   2. Don’t forget standing

Exceptions to Exclusionary Rule

1. Miranda → If no compulsion (or no bad faith) was used, the unmirandized confession can be used to impeach D’s in court testimony.

2. Independent Source Rule → If prosecution can show that evidence was obtained from a source that is independent of the original illegality, then the evidence is admissible.

3. Inevitable Discovery → Unconstitutionally obtained evidence will be admissible if the prosecution can show that the police were going to discover the evidence anyway. 

   1. Executing a Search Warrant: Knock and Announce → But even if they don’t, it won’t be excluded.

4. Attenuation → Applies when the connection between the police’s unconstitutional conduct and the evidence is remote OR when an intervening circumstance breaks the chain from the unconstitutional conduct to the evidence.

5. Good Faith → Rule will not be applied if the police are acting in good faith reliance on an arrest warrant, search warrant, or law that actually turns out to be an error.

   1. Exceptions:

      1. If police officers act on a defective search warrant and it was so defective that no reasonable officer would rely on it

         1. Can happen it the warrant lacks specificity 

      2. If the officer that applied for the warrant lied or misled the magistrate 

      3. Magistrate is biased, wholly abandoned their neutrality 

6. Knock and Announce Rule

7. Other Exceptions - Generally not excluded

   1. Live Witness Testimony

   2. In-Court Identifications

   3. Out-of-court identifications

      1. Unless the suggestive circumstances were actually arranged by the police

Exclusionary Rule doesn’t apply:

1. During grand jury proceedings, unless the evidence was obtained in violation of the federal wiretapping statute

2. In civil proceedings

3. At parole revocation proceedings

4. To violations of state law

5. To violations of agency rules

Excluded evidence can be used for Impeachment of D’s testimony

The Harmless Error Test

• A conviction will be upheld if the conviction would have resulted despite the improper evidence.

  • On appeal, the government has the burden: beyond a reasonable doubt.

Other Rights

1. Privilege against Self-Incrimination - 5th Amendment

2. Double Jeopardy - 5th Amendment

Other Rights

5th Amendment - Privilege against Self-Incrimination

A Person (natural person, not corporation) can claim the 5th Amendment against self-incrimination at any proceeding at which testimony they give might incriminate them.

1. How do you invoke the 5th (Miranda Rights)?

   • Civil

     1. Person must listen to the question, and then invoke it.

        • Has to be done for each question.

   • Criminal

     • D can refuse to take the stand altogether.

       1. Prosecutors cannot comment on it.

          • Exception: response to defense counsel’s assertion that the defendant was not allowed to explain their side of the story

          • Harmless Error Test

       2. D, upon timely motion, is entitled to have the judge instruct the jury that they may not draw an adverse inference from the defendant’s failure to testify

       3. Silence prior to Miranda Rights can be used against the suspect in court

2. Applies to testimony only.

   • Doesn’t apply to handwriting samples, records, or the production of documents that are already in existence.

   • Constitutionally valid to take DNA cheek swab after an arrest for a serious crime

3. Violation does not occur until a person’s compelled statements are used against them in a criminal case

Elimination of Privilege

1. Grant of Immunity

   1. “Use and derivative use” immunity → guarantees that the witness’s testimony and evidence located by means of the testimony will not be used against the witness

      1. Unless independent source

      2. Cannot be used for impeachment of D’s testimony at trial 

      3. Federal prosecutors can not use evidence obtained as a result of state immunity

   2. Does not protect against perjury

2. No possibility of incrimination

   1. No privilege against compelled self-incrimination if no possibility of incrimination

Other Rights

5th Amendment - Double Jeopardy

No person shall be subject to the same offense to be twice put in trial and punishment.

1. Applies only to criminal prosecution, not to civil proceedings

2. Applies only to criminal trials, by the same sovereign

   • Each state is a separate sovereignty under our system of federalism, and the federal government is a sovereign apart from the states.

Applies in 2 Circumstances

1. When a state or federal government seek to retry D for the same crime OR

2. When a state or federal government seeks to try D for violating a different law

   1. BUT that second trial is based on 

      1. The same conduct that was involved in the first trial AND

      2. The crime charged at the second trial is so closely related to the crime in the first trial that we say they constitute the same offense

         1. Blockburger Test: Two crimes are different if each has an element that the other does not.

            1. Example: Larceny and Robbery

               Robbery includes every element of Larceny plus one. Thus, Larceny is a lesser included offense.

               • If jeopardy attaches to the greater offense (Robbery), double jeopardy will bar the lesser offense (Larceny).

               • If convicted of greater offense (Robbery), double jeopardy will bar the lesser offense (Larceny).

            2. Exception to the double jeopardy bar exists if unlawful conduct that is subsequently used to prove the greater offense 

               1. has not occurred at the time of prosecution for the lesser offense OR 

               2. has not been discovered despite due diligence

         2. Multiple punishments are permissible if there was a legislative intent to have the cumulative punishments

Does not bar appeals by the prosecution if a successful appeal would not require a retrial

When does jeopardy attach?

1. Depends on the type of trial

   1. Jury Trial: Attaches at the empaneling and swearing of the jury

   2. Bench Trial: Attaches when the first witness is sworn in

   3. Juvenile Proceedings: Attaches at the commencement of proceedings (when the court beings to hear evidence)

4 Exceptions to Double Jeopardy

1. Jury simply can’t decide on whether D is guilty (Hung Jury)

2. Trial is discontinued for manifest necessity

   • Such as the death of a juror when there is no alternate OR if D asked to start the trial over for some reason and the request is granted

3. D breaches a plea bargain and the deal was reached after jeopardy attached

4. Retrial after a successful appeal

   1. D is found guilty, appeals, and wins. The state might get a do-over.

      1. Can’t get a do-over if the appeals court found 

         1. Insufficient evidence to support conviction or

         2. D was found guilty of a lesser included offense

   2. But not for a more serious offense

Pre-Trial

1. Pretrial Identification

2. Preliminary Hearing

3. Pretrial Detention

4. Grand Juries

5. Right to a Speedy Trial

6. Prosecutorial duty to disclose exculpatory information and notice of defenses

7. Competency to Stand Trial

Pre-Trial - Pretrial Identification

6th Amendment Right to Counsel

1. Right to the presence of an attorney at any post-charge lineup or showup

2. Government bears the burden of proving that:

   • counsel was present; OR

   • the accused waived counsel; OR

   • there is an independent source for the in-court identification

Due Process

1. D can attack an identification as denying due process if

   • the identification is unnecessarily suggestive AND

   • there is a substantial likelihood of misidentification

Remedy → Exclude identification

• Independent Source Exception: Witness may make in-court identification if it has an independent source

Pre-Trial - Preliminary Hearing

Must be given within a reasonable time if probable cause has not already been determined and there are significant constraints on an arrestee’s liberty

Pre-Trial - Pretrial Detention

Most state constitutions create a right to be released on bail unless the charge is a capital one

Generally, bail can be set no higher than is necessary to assure the defendant’s appearance at trial

Pre-Trial - Grand Juries

Mississippi and the federal system use the grand jury as a regular part of the charging process

Conducted in secret

Witness subpoenaed to testify → No Right to Counsel or to Miranda Warnings

May base its indictment on evidence that would be inadmissible at trial

Pre-Trial - Right to a Speedy Trial

Violation determined by the totality of the circumstances

• Violation = dismissal with prejudice

Right does not attach until the defendant has been arrested or charged

Pre-Trial - Prosecutorial duty to disclose exculpatory information and notice of defenses

Grounds for reversing a conviction if the defendant can prove that:

• the evidence is favorable to the defendant because it either impeaches or is exculpatory; and

• prejudice has resulted (reasonable probability that the result of the case would have been different)

Notice of Alibi and Intent to Present Insanity Defense

Pre-Trial - Competency to Stand Trial

D acquitted by reason of insanity may not be retried and convicted

• Vs. Incompetency: D regains competency, they can then be tried and convicted

State may place on the D the burden of proving incompetency by a preponderance of the evidence

• Requiring the defendant to show incompetency by “clear and convincing” evidence is unconstitutional

Trial

1. Right to a Fair Trial

2. Right to a Jury

3. Right to Counsel

4. Confrontation

5. Burden of Proof

Trial - Right to a Fair Trial

1. Right to a public trial

2. Right to unbiased judge

3. Due Process is violated if:

   • Unlikely that the jury gave the evidence reasonable consideration

   • State compels the defendant to stand trial in prison clothing

   • State compels the defendant to stand trial or appear at penalty phase proceedings visibly shackled

   • Jury is exposed to influence favorable to the prosecution

Trial - Right to a Jury

Constitutional right to have a jury trial for all serious offenses.

• Serious Offense: possibility of more than 6 months of incarceration

• Jury of their peers

At a minimum 6, at maximum 12

• Verdicts must be unanimous

Peremptory Challenges

• Can’t use to excuse solely based on race or gender

• Equal protection-based attack on peremptory strikes involves 3 steps:

  • The defendant must show facts or circumstances that raise an inference that the exclusion was based on race or gender

  • Upon such a showing, the prosecutor must come forward with a race-neutral explanation for the strike (even an unreasonable explanation is sufficient, as long as it is race-neutral)

  • The judge then determines whether the prosecutor’s explanation was the genuine reason for striking the juror, or merely a pretext for purposeful discrimination

Impartiality

1. Standard for determining when a prospective juror should be excluded for cause:

   • whether the juror’s views would prevent or substantially impair the performance of their duties

2. Right to Questioning on Racial Bias

   • whenever race is bound up in the case OR the defendant is accused of an interracial capital crime

3. Death Penalty

   • Juror Opposition

     • State may not automatically exclude for cause all those who express a doubt or scruple about the death penalty

   • Juror Favoring

     • D must be allowed to ask potential jurors if they would automatically give the death penalty upon a guilty verdict

     • Juror who answers affirmatively must be excluded for cause

Trial - Right to Counsel

A D has a 6th Amendment right to counsel at all critical stages of a prosecution once formal proceedings have begun.

• If a D was entitled to a lawyer at trial and they didn’t get one, their conviction will automatically be reversed.

Non-Trial Proceedings

1. When there’s a violation of D’s 6th Amendment right to counsel, during non-trial stages, there isn’t an automatic reversal

   • Harmless Error Test:

     • Government has the burden: beyond a reasonable doubt

Waiver

1. Must be knowing and intelligent.

   • D has a rational and factual understanding of the proceeding.

   • D is competent.

Effective Assistance of Counsel

1. Criminal Ds have a right to effective assistance of counsel. 

   1. Presumed unless D can show that:

      1. Counsel had a deficient performance AND

         1. Points to specific errors that counsel made

            1. Attorney’s failure to notify D of a plea offer can constitute deficient performance if D can show that:

               1. had the plea agreement been communicated, the defendant likely would have accepted; AND

               2. the plea likely would have been entered without the prosecutor’s canceling it

            2. Deficient for counsel not to inform a client whether their plea carries a risk of deportation

      2. But for the deficiency, reasonable probability that the result would have been different 

   2. Not ineffective assistance: trial tactics and failure to raise a constitutional defense that is later invalidated

Joint Representation: Denies the 6th Amendment right to counsel if there’s a conflict of interest between the co-defendants

1. Conflict of interest: when the lawyer would be unable to zealously argue for one D for fear of harming the other

   1. If conflict arises after representation: Lawyer can ask the judge to appoint separate counsel

      1. Automatic reversal if the judge refused and a conflict was present.

2. Timeliness: If D’s lawyer fails to bring up a conflict of interest in a timely manner, then D will have to show that the attorney actively represented conflicting interests.

Trial - Confrontation

The 6th Amendment gives Ds the right to confront witnesses against them at trial.

1. Face-to-face Confrontation isn’t required if an important public purpose intervenes. 

   1. Examples: protecting young children from the trauma of facing the accused, D is disruptive during trial

2. Prevents admission of other prior testimonial statements

   1. Testimonial Evidence: 

      1. Includes at a minimum statements: from a preliminary hearing, grand jury hearing, a former trial, or police interrogation conducted to establish / prove past acts

      2. Does not include: statements intended to aid police responding to an ongoing emergency 

   2. Exception: May be admitted at trial if

      1. Declarant is unavailable AND

      2. D had an opportunity to cross-examine when the statement was made

3. D can be held to have forfeited a Confrontation Clause claim by wrongdoing. 

   1. Wrongdoing: done with the intent to keep the witness from testifying

4. Introduction of Co-Defendant’s Confession

   1. Right of confrontation prohibits use of that statement, even where the confession interlocks with the defendant’s own confession, which is admitted

      1. Such a statement may be admitted if:

         1. All portions referring to the other D can be eliminated

         2. Confessing D takes the stand and subjects themself to; OR cross-examination with respect to the truth or falsity of what the statement asserts; OR

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

Trial - Burden of Proof

State must prove every element beyond a reasonable doubt

• Exception: affirmative defenses shift the burden of proof to D

Guilty Please and Plea Bargaining

Taking the Plea

1. Must be voluntary and intelligent and on the record

2. Judge must be sure that the D knows and understands things such as:

   • Nature of the charge to which the plea is offered and the crucial elements of the crime charged; amd

   • Maximum possible penalty and any mandatory minimum; and

   • D has a right not to plead guilty and that if they do plead guilty, they waive the right to trial

Plea can be set aside for

1. Involuntariness (failure to meet standards for taking a plea), or

   • Threat for a more serious charge not enough

2. Lack of jurisdiction, or

3. Ineffective assistance of counsel, or 

4. Failure to keep the plea bargain

Never admits the legality of incriminating evidence nor waives Fourth Amendment claims in a subsequent civil damages action

Post Trial / Plea

1. Sentencing

2. Appeal

3. Collateral Attack Upon Conviction

4. Rights During Punishment

Post Trial / Plea - Sentencing

Right to counsel

Usual Sentence: may be based on hearsay and uncross-examined reports

1. Magnified Sentence reuqiing new findings of fact: right to confrontation and cross-examination

2. Capital sentencing: right to confrontation

Greater resentencing after successful appeal and reconviction requires judge to put in the record why the harsher sentence

1. Exception: Judge need not give reasons if the greater sentence was imposed upon a de novo trial or in a state that uses jury sentencing, unless the second jury was told of the first jury’s sentence

Substantive Rights in regard to punishment (8th Amendment)

1. Death Penalty

   1. For murder

      1. Statutory scheme that gives the jury reasonable discretion, full information concerning defendants, and guidance in making the decision

      2. Must consider all mitigating evidence

      3. If partly based on the aggravating factor of the D’s prior conviction, sentence must be reversed if the prior conviction is invalidated

      4. A death sentence that has been affected by a vague or otherwise unconstitutional factor can still be upheld, but only if all aggravating and mitigating factors involved are reweighed and death is still found to be appropriate

   2. For Rape or Felony Murder

      1. Prohibits imposition of the death penalty for the crime of raping an adult woman or a child if the rape was neither intended to result in nor did result in death

      2. Precludes the death penalty for felony murder 

         1. Unless the felony murderer’s participation was major and they acted with reckless indifference to the value of human life

   3. Must be sane at time of execution

   4. Cannot be intellectually disabled

   5. Doesn’t need to have memory of crime just ration understaning of the reson for the sentence

   6. Must be over 18 years old

   7. Lethal injection may be cruel and unusual if condemned can prove that there is

      1. serious risk of inflicting unnecessary pain or that an alternative procedure is feasible; and

      2. may be readily implemented, and 

      3. in fact significantly reduces substantial risk of severe pain

2. Status Crimes

   • A statute that makes it a crime to have a given “status” violates the Eighth Amendment because it punishes a mere propensity to engage in dangerous behavior

   • Life without parole

     1. No LWOP for minors for non-homice crime

     2. LWOP possible for homicide crimes but no mandatory LWOP 

   • Determining the sentence: trial judge may take into account a belief that the defendant committed perjury while testifying at trial on their own behalf

   • Imprisonment of indigents for nonpayment impermissible discrimination

Post Trial / Plea - Appeal

No federal constitutional right to an appeal

Indigents must be given counsel at state expense during a first appeal granted to all as a matter of right and for appeals of guilty pleas and pleas of nolo contendere.

• In a jurisdiction using a two-tier system of appellate courts with discretionary review by the highest court, an indigent defendant need not be provided with counsel during the second, discretionary appeal.

Supreme Court announces a new rule of criminal procedure in a case on direct review → rule must be applied to all other cases on direct review

Post Trial / Plea - Collateral Attack Upon Conviction

After appeal is no longer available or has proven unsuccessful, defendants may generally still attack their convictions collaterally

1. Habeas corpus proceeding (new and separate civil proceeding)

   • No right to appointed counsel

   • Petitioner has burden of proof by preponderance of evidence to show an unlawful detention

   • D generally may bring a habeas petition only if the D is in custody

Post Trial / Plea - Rights During Punishment

Right to counsel at parole and probation revocation

1. Revocation of probation + imposition of a new sentence = D entitled to representation by counsel

2. If, after probation revocation, an already imposed sentence of imprisonment springs into application, or if the case involves parole revocation = Right to counsel is available only if representation is necessary to a fair hearing

Prisoners’ Rights

1. Due Process → Prison regulations impinge on due process rights only if the regulations impose “atypical and significant hardship” in relation to the ordinary incidents of prison life

2. No Fourth Amendment Protection in Cells

3. Prisoners must be given reasonable access to the courts

4. Prisoners’ First Amendment rights of freedom of speech, association, and religion may be burdened by regulations reasonably related to penological interests 

   • Incoming mail can be broadly regulated, but outgoing mail generally cannot be regulated

5. Right to adequate medical care

6. No right to be free from disabilities upon completion of sentence

Juvenile Court Proceedings

Following rights must be given to a child during trial of a delinquency proceeding:

1. written notice of charges;

2. assistance of counsel;

3. opportunity to confront and cross-examine witnesses;

4. the right not to testify; and

5. the right to have “guilt” established by proof beyond reasonable doubt.

Pretrial detention of a juvenile is allowed where it is found that the juvenile is a “serious risk” to society, as long as the detention is for a strictly limited time before trial may be held

Double Jeopardy

• If the juvenile court adjudicates a child a delinquent, jeopardy has attached and the prohibition against double jeopardy prevents the child from being tried as an adult for the same behavior.

Forfeiture Actions

Brought directly against property and are generally regarded as quasi-criminal in nature

Right to pre-seizure notice and hearing

1. Personal Property

   • Hearing required before final forfeiture of the property

2. Real Property

   • Required unless the government can prove that exigent circumstances justify immediate seizure

May be subject to 8th Amendment

• Penal forfeitures are subject to the Clause, but civil forfeitures are not.

  1. Penal forfeitures

     • Forfeiture will not be “excessive” unless grossly disproportionate to the gravity of the offense

  2. Civil forfeitures

     • Forfeitures made under the federal drug forfeiture statute are penal

  3. Money forfeitures

     • Brought in civil actions generally are not subject

Protection for “innocent owner” not required