Crim Pro

• 1. 4th - Search and Seizure
• 2. 5th - Self Incrim, Double Jeopardy
• 3. 6th - Speed trial, jury, confront W, Counsel
• 4. 8th - Cruel and Unusual Punishment

Remedy for D who was a V of unlawful search and seizure or coerced confession. The "Fruit of the Poisenous Tree" also excluded.

• Exclusionary Rule Does not apply to:
• 1. Grand Juries
• 2. Not applicable in Civil Cases
• 3. Must violate Consitution or Fed Statute
• 4. Not available to revoke parol
• 5. Not for impeachment purposes
• 6. Does not exclude "Fruit of Poisenous Tree" for Miranda violations - Unless Bad Faith.

Only reversal if D would not have been convicted "But For" the wrongfully obtained evidence.

• Generally, can make an arrest in any public place with Probable Cause.
• Must have a warrant to arrest someone in his home

• 1. Can breifly detain even if they lack PC.
• 2. Must have Reasonable Suspicion + Articulable Facts (hunch is not enough). Totality of circumstances.
• 3. Automobile Stops - Just need Reasonable Suspicion that law has been violated
• 4. Check Points and Dogs OK

• 1. Step 1: Does D Have a Reasonable Expectation of Privacy
• 2. Step 2: Was Search Conducted Pursuant to Warrant
• 3. Step 3: Was there an Exception to a Warrant

• Must have an expectation of privacy for 4th Amendment standing.  Look for:
• 1. Owned or right to possess property searched
• 2. Place searched was his home even if no right to possess
• 3. He was an overnight guest
• 4. Sometimes if you own the property seized

• 1. Sound of Voice
• 2. Handwritting
• 3. Paint and location of car
• 4. Public, bank records
• 5. Areas outside home (barns)
• 6. Garbage
• 7. Land visable from air
• 8. Smell of lugage

• Two Requirements:
• 1. Probable Cause - Fair Possibility that there is contraband. Must submit affidavit
• 2. Particularity- Must state place to be searched and what items

• Must show all 3:
• 1. False Statement
• 2. Intentional or Reckless
• 3. Material to finding PC

** Good faith will overcome Attack

• 1. Search Incident to Arrest
• 2. Automobile Exception
• 3. Plain View
• 4. Consent
• 5. Stop and Frisk (Terry)
• 6. Hot Pursuit

Cops can search D's Grab Area for weapons, and disposable evidence, including interior of car

Can Search Entire Car if PC arises before the Search. Can search for the item you have PC for (cannot search small box for stolen TV)

Must conduct the search before Cop arrests the person.

Cop can seize contraband that is in their plain view of some place they are legitimately present

• 1. Voluntary and Intelligent
• 2. If two people have equal right to property, one person can consent, unless the other objects

• Must have reasonable, articulable suspicion.
• Pat Down is for weapons
• Plain feel contraband can be seized

Cops w/in 15 Minutes of the scence then it is in hot pursuit.

When evidence likely to disappear, like blood test with DUI. Scope is broad if suspect runs into his house, can follow and search whole house.

• Drug Test randomly children in extra-carricular activities
• Warrantless searches of public school children's purses and backpacks
• Reasonable if moderate chance of finding evidence of wrongdoing; Reasonably related to scope of search; Not excessivley intrusive

Requires Warrant

• 1. To remain silent
• 2. Statements will be used against you
• 3. Right to an attorney
• 4. Can't afford, attorney will be provided

• Custodial Interrogation -
• Custodial: Not free to leave.  Police car, home, hospital.
• Interrogation: Illicit incriminating responses

• Knowing
• Voluntary
• Inteligent
• Totality of Circumstances

• Unambiguous
• Police can reinitiate at a later time by giving new Miranda and can't be about the same crime

• Unambiguous Request
• Must Cease until an attorney provided.
• D may reinitiate

Step 1: Was Statement Voluntary - If No then (inadmissable) if Yes then next step.

Step 2: Was D in Custody or Charged if No then (admissable), if Yes then next step.

Step 3: Was statement in response to interrogatory if No (admissable) if Yes then next step. 

Step 4: Were Miranda Warnings given, if No (inadmissable), if Yes then next step.

Step 5: Did D Waive his right to counsel, if No then (inadmissable) if Yes then (admissable).

Look at the totality of circumstances to determine if there is Official Compulsion (look at cops not D)

The 5th amendment right to counsel is court made, it attaches at Miranda unlike 6th amendment attaches at judicial proceedings

• Whenever judicial proceedings have begun
• It is a specific right for a specific charge, so if he invoked on a prior charge does not count on the current charge
• As oppossed to 5th amendment court made rights that attach at Miranda

• D has a right to counsel for line-ups after he has been charged. 
• No right to counsel when police show V photographs

6th Amendment: Right to an attorney- Can attack Post Charge Line-ups.  Cannot attack writing samples, blood, fingerprints

14th Amendment: Due Process.  Can challenge the ID as unecessarily suggestive and a substantial liklihood of mis-identification

Rarely excluded even if outside of court ID is excluded

D can only be charges with PC.  If he was arrested pursuant to a warrant or a Grand Jury indictment then PC exists.  If not needs PC hearing.

• 8th Amendment of non-excessive bail only applies to Fed Gov
• Most states constitutions provide a righ to bail

• Danger; or
• Risk of Running

Bail issues are immediately appealable

No exclusionary rule in grand juries, they can see all evidence

• Prosecuter must disclose all exculpitory evidence. Failure to disclose is cause for a reversal if
• Evidence is favorable to D and reasonable probability result would have been different if disclosed

• Biased means:
• 1. Financial interest
• 2. Actual Malice against D

Whenever the maximum authorized sentence exceeds 6-mmonths in jail

• Minimum jurors is 6.  If you only have 6 then it must be unanimous
• There is no constitutional right to have 12 unanimous jurors, the SC has upheld 10 to 2 and 9 to 3

• You have a right that the jury pool reflect a fair cross-section of the community
• You have no right for the impaneled jury to be a cross-section

The right to exclude a jurror for any reason.  But, race or gender cannot be the primary factor

D's right to counsel applies to all criticle stages of a prosecution

• Must be a deficiency that "but for" the deficiency the result would have been different
• Must specify particular errors

• D has right to defend himself if the waiver is:
• 1. Knowing
• 2. Intelligent
• 3 He is competent to proceed pro se.

• D has the right to confront, two exceptions:
• 1. Serves an importan public purpose, like child witnesses, so long as proceedures to protect D.
• 2. D that is disruptive can be removed from courtroom

• Must go on the record and make sure D understands:
• 1. Nature of charge
• 2. Tell D the maximum and minimum manditory penalty
• 3. Tell D he has a right to a jury
• 4. All must be on record

• 1. Plea was involuntary (mistake in plea taking ceremony) - Not enough that P threatened a more serious crime
• 2. Lack of jurisdiction
• 3. Ineffective assistance of counsel
• 4. Failure for prosecutor to keep an agreed upon plea bargain

• 1. A statute that does not allow D to give mitigating circumstances is invalid
• 2. There can be no automatic category for death penalty
• 3. Statute cannot limit mitigating factors, all relevant mitigating evidence must be admissable
• 4. Only a jury may determine aggrivating circumstances justifying death

• 1. Jury Trial: When jury is sworn
• 2. Bench trial: when first witness is sworn
• 3. Jeopardy does not attach for civil trials

• 1. Hung Jury
• 2. Mistrials: for necessity, like needs medical help
• 3. After Successful Appeal (but cannot be retried for a more serious crime
• 4. D's breach of plea bargain

You cannot be tried for any lessor included offenses (larceny) nor can you be tried for the greater offense (battery) if originally charged for the lesser charge.

Can be tried for same crime by different soverigns

It applies to anyone, in any type of proceeding, when asked under oath, and the response could incriminate him

• Must assert the privledge the 1st time it is asked under oath or you waive the right for all subsequent prosecutions
• Must assert the privledge in civil proceedings to preserve the right for criminal proceedings

• Prosecutor cannot comment on D's failure to testify or choosing to remain silent after miranda.
• Exception: Prosecutor can say something if D's attorney tells the jury that D was not allowed to explain his side of things
• The harmless error test is used to determine if the slip was fatal

• 1. Under a grant of immunity
• 2. No possibility of incrimination (past SOL)
• 3. Waiver by taking the stand - as to all legitimate subjects of cross-examination