Crim Pro

  1. Fourth Amendment applies to searches, seizures, and arrests
  2. standing: the D must be the victim of the search or seizure to assert a claim. In a traffic stop, this includes passengers and drivers. In homes, includes homeowners, overnight guests and those with a right to possession of a home
  3. seizure= an officer, through physical force or show of authority, restricts the person's movement or if actions of the police do not show unambiguous itnent to restrain, then must ask whether a reasonable person in the D's circumstances would believe he was not free to leave.
  4. seizure: In NY, police are free to approach someone, but if the individual flees when a police officer approaches, that alone does not create probable cause to arrest.
  5. arrest warrant: generally police do not need an arrest warrant
  6. police must get a warrant to arrest an individual in his home unless there is consent or exigent circumstances
  7. exigent circumstances=
    hot pursuit- if police have probable cause to believe an individual committed a felony and they are pursuing him to arrest him, they can enter a private building during the pursuit.
  8. emergency= a reasonable apprehension that evidence will be destroyed or the safety of an officer or the public is threatened
  9. police must knock and announce before making an arrest in a home, even with a warrant
  10. arrest warrant: police need probable causes that a crime has been committed and the D is the one who committed it.
  11. no reasonable expectation of privacy if: can view from airspace; in area beyond curtilage of a home; prison cell, garbage left on curb and other abandoned property, handwriting or voice samples, information given to government informants or undercover officers
  12. search warrant requires probable cause, which is established by:
    • officer's personal observation
    • information from a reliable known informant
    • information form an unknown information if the information can be independently verified
    • evidence already seized through lawful means
  13. If evidence already seized through lawful means, warrant must state objects or place to be searched with particularity. search cannot go beyond the scope of the warrant.
  14. NY: no requirement that probable cause be based on competent evidence. Probably cause can be based on unsworn hearsay
  15. NY: a warrant based on an informant's testimony must demonstrate the veracity or reliability of the source of the information (generally through past use of the informant) and the basis of the informant's knowledge
  16. 4th amendment: searches: exceptions to the search warrant requirement
    • - Incident to lawful arrest
    • - Exigent circumstances
    • - Stop and frisk
    • - Cars
    • - Plain view
    • - Consent
    • - Administrative Searches

  17. 4th amendment: searches: warrant exceptions: incident to lawful arrest rule
    Can search a person and area within the person's wingspan as long as the container being searched is large enough to conceal a weapon or evidence of a crime

    [NY: police cannot search containers within an arrestee's wingspan unless the police suspect that the person is armed and dangerous]
  18. 4th amendment: searches: warrant exceptions: stop and frisk: stop rule
    can stop if reasonable suspicion based on articulable facts that the detainees were or are involved in a crime

    - reasonable suspicion is less than probable cause and does not have to be based on personal knowledge. It can be based on informant if the tip is accompanied by sufficient indication of reliability 
  19. 4th amendment: searches: warrant exceptions: stop and frisk: frisk rule
    Can pat-down someone's outer clothing if there is reasonable suspicion that the suspect was involved in criminal activity and the frisk is necessary for safety. 

    ~ if the officer feels something that he can obviously identify, he can seize it. 

    [NY: police can make a warrantless seizure only of items they reasonably believe to be a weapon]

    - if frisking from terry stop of a car, police may frisk a driver or passenger if there is reasonable suspicion that the individual has a weapon.
  20. 4th amendment: searches: warrant exceptions: police can search car under three methods
    • 1. if probable cause that it contains contraband or evidence of criminal activity
    • ~ but cannot search passengers in the car under this basis. 
    • ~ may search passenger compartment after a terry stop of a car if reasonable belief the suspect is dangerous and may gain control of weapons but the search is limited to those areas where a weapon could be hidden
    • ~ may search entirety of the car and containers within if probable cause to search entirety of car

    2. if driver is arrested and arrestee within reaching distance of the passenger compartment at the time of the search OR officers have a reasonable belief that evidence of the offense may be found in the vehicle

    3. if driver arrested and car legally impounded, can search the entire car, including the trunk and containers within the car
  21. 4th amendment: searches: warrant exceptions: plain view rule
    If officer is in a house, he can seize evidence in plain view even if it's not in the warrant as long as:

    • - the officer is on the premises for a lawful purpose; AND
    • - incriminating character of the evidence is immediately apparent
  22. 4th amendment: searches: warrant exceptions: consent by D
    - if D consents to a search there is no need for a warrant

    [NY: any individual who operates a motor vehicle is deemed to have consented to blood, breath, urine, or saliva tests for drugs and alcohol if police officer has reasonable grounds to believe that the individual was operating a motor vehicle while intoxicated]
  23. 4th amendment: searches: warrant exceptions: rules for consent by a third party 
    - A third party can give consent to search of any area over which he has joint control but not over areas where D has exclusive control

    ~ apparent authority: police can rely on the consent of someone who has apparent authority even if person did not actually have authority
  24. 4th amendment: searches: warrant exceptions: people who do and do not have joint authority or other authority to consent to search
    • joint do: 
    • - roommates
    • - spouses
    • - homeowners
    • - guests when the homeowner is the one giving consent
    • - parents, even of adult children

    • BUT All the above may be excepted if a physically present resident expressly refuses
    • joint don't: 
    • -landlords
    • - hotel managers and guests who are still registered as having the room
    • - employers and the personal lockers of employees
  25. 4th amendment: searches: warrant exceptions: administrative searches
    • - people in airplane boarding areas
    • - highly regulated businesses (i.e. liquour stores)
    • - oral statements seized by wire tap when matters of national security are at issue
    • - searches of students by public school officials
    • - special drug testing
    • - inventory searches of items in official custody [NY: must be conducted through established procedures that limit officers' conduct]
    • - borders
    • - uniform and non discriminatory vehicle check points
    • - factory searches to determine citizenship
    • - government employees' file cabinets/desks IF reasonable suspicion or work-related need
    • - travelers suspected of smuggling contraband internally
    • - parolees and their homes IF parolee agrees as condition of parole
    • - contaminated or spoiled food
  26. Exclusionary rule: evidence obtained in violation of the 4th amendment cannot be used against the victim of a search
  27. exclusionary rule applies to evidence initially seized in violation of the 4th amendment and also any derivative evidence discovered as a result of the primary taint
  28. exceptions to exclusionary rule:
    • 1. inevitable discovery: evidence inevitably would have been discovered through lawful means
    • 2. independent source doctrine: evidence discovered in part by an independent source unrelated to the tainted evidence
    • 3. attenuation principle- if passage of time and/ore intervening events are long enough, courts may find that the chain of causation bw the primary taint and derivative evidence has been broken
    • 4. good faith exception- if police officers act in good faith on a warrant that later turns out to be invalid, can still use evidence obtained from it unless [see next slide]
    • 5. back-office police negligence: if admin staff in a police dept negligently fails to remove an arrest warrant from the records, an individual is arrested in his home, and a search is conducted incident to that, fruits of search admissible. But if an isolated event and not systemic or reckless, no exclusion
    • 6. knock and announce- if a search is otherwise valid, failure to comply with the knock and announce will not lead to exclusion
    • 7. in-court identification [see slide]
  29. exlcusionary rule exceptions: good faith:
    • if police officers act in good faith on a warrant that later turns out ot be invalid, can still use evidence obtained from it unless:
    • - no reasonable officer would have relied on the affidavit
    • - warrant was defective on its face
    • - warrant obtained by fraud
    • - warrant was improperly executed or
    • - magistrate wholly abandoned his judicial role

  30. exclusionary rule exceptions: in court identification:
    a witness's identification of the D is not considered the fruit of an unlawful detention and therefore the ID cannot be excluded on that basis. live testimony may be excluded as the fruit of illegal police conduct if there is a sufficient link b/w the illegal police conduct and the testimony
  31. Fifth Amendment: no person shall be compelled in any criminal case to be a witness against himself
  32. 5th: cover individuals not corporations
  33. 5th: covers testimony (inlcuding a personal diary). Doesn't cover physical evidence or identification such as blood or urine samples, handwriting, breathalyzers, measurements, and voice identification, or business records (such as tax returns).
  34. Ds invoke the 5th amendment privilege by not taking the stand. Prosecution cannot comment on the D's failure to testify. Waived when D takes the stand
  35. Witnesses invoking the 5th can be compelled to testify and may invoke the privilege only after listening to the questions and specifically invoking the privilege rather than responding to the question. Waived by disclosing self-incriminating information
  36. involuntary statements cannot be used in the prosecution's case in chief or for impeachment
  37. voluntary and trustworthy statements made in violation of Miranda can be used for impeachment purposes and fruits of obtained of unwarned but voluntary statements need not be suppressed.
  38. 5th bars coerced confessions, but voluntary confessions are admissible. Police CAN lie to a suspect without rendering a confession involuntary
  39. look at totality of the circumstances to determine if involuntary: age, health, education. If a minor, absence of a parent during interrogation
  40. involuntary confessions: NY: courts look to the duration of interrogation to determine if confession is voluntary.
  41. 5th: Miranda rights: any statement made in custodial interrogation may not be used against a suspect at a trial unless the police provided Miranda warnings
  42. 5th:Miranda: custody= whether a reasonable person would believe that he is not free to leave or the person is deprived of freedom in any significant way.
  43. 5th:Miranda: custody: questioning at the scene of the crime is not custody as long as the person is free to leave.
  44. 5th:Miranda: custody: if a person voluntarily goes to the police station to talk about a crime and is informed right away that she is free to leave at any time and is not under arrest, that person is not in custody for purposes of Miranda
  45. traffic stops are generally not custodial because they are brief and temporary
  46. 5th:Miranda: custody: if public's safety at risk, police not required to give Miranda warnings
  47. interrogation= questioning and anything else police know or should know is likely to elicit an incriminating response. It does not include volunteered statements by the suspect
  48. Miranda: warnings: police must warn suspects of their rights and obtain a waiver of those rights before beginning questioning if a suspect is in custody
  49. Miranda:
    • right to remain silent
    • any statement uttered may be used in court
    • right to consult an attorney and have an attorney present during interrogation
    • right to have an attorney appointed if suspect cannot afford one
  50. Miranda: if right to counsel is invoked, all questioning must stop until counsel is present unless D voluntarily initiates communication with police or if a 14 day or more break in custody. As such, D must receive fresh Miranda warnings
  51. If right to silence invoked: police must not ask any questions. If suspect changes his mind and wants to speak, the suspect must receive fressh Miranda warnings
  52. if Miranda is violated: cannot use the statement in case in chief; can use it to impeach the D if the statements is voluntary and trustworthy
  53. if Miranda is violated:does not require suppression of physical fruits of the suspect's statements if they are unwarned but voluntary
  54. if Miranda is violated: does not require suppression of subsequent volutnary, post Miranda statements by the defendant unless circumstances make it clear that the question first warn later approach was an intentional attempt by police to circumvent Miranda
  55. if evidence is admitted in violation of 5th, as found by a court on appeal, the harmless error test applies
  56. Prosecution may compel incriminating testimoy if it grants immunity to the individual
  57. transactional immuinty= total immunity that protects a witness from future prosecution for crimes related to testimony
  58. use and derivative immunity= precludes prosecution from using the witness's own testimony or evidence derived from it
  59. 6th amendment right to counsel applies in:
    all felon cases, and misdemeanor cases in which incarceration is imposed
  60. 6th: applies when formal charges are brought, until sentencing is over. Formal proceedings begin with indictment, arraignment, or a preliminary hearing. Not triggered if just arrested without a warrant. 
  61. 6th: applies to:
    • post-indictment/post arraignment lineups and identifications
    • custodial police interrogations
    • post-indictment interrogations
    • arraignment
    • guilty please and sentencing
    • appeals as a matter of right
  62. 6th: does not apply to:
    • witness viewing photo IDs
    • precharge investigative lineups (lineups that take place before the start of formal proceedings, so before D has been charged, indicted, arraigned, or given prelim hearing)
    • taking of fingerprints, handwriting samples, voice samples, or blood samples
    • prelim hearings to determine probable cause to detain D
    • discretionary appeals
    • post-conviction proceedings (parole or probation)
  63. 6th:NY:protects the indelible right to counsel 1) upon commencement of formal judicial proceedings whether or not D has retained or requested a lawyer; 2) at investigatory lineups only when D is represented by an atty on another charge and D requests that his atty is present
    3) where there is any significant judicial activity (including grand jury appearances) 4) when the accused is in custody where police conduct is likely to be overwhelming to a lay person and counsel is requested
  64. Can waive right to counsel once invoked if voluntary, knowing, and intelligent
  65. waiver: NY: valid from a D only if waiver is in the presence of that counsel. But if D had an attorney on a previous charge and is now suspected of a new and unrelated charge, D can waive outside the presence of that attorney.
  66. 6th: remedies: if right to counsel at trial is denied, remedy is automatic reversal of conviction
  67. 6th: remedies: if D plead guilty at a prelim hearing w/out opportunity to have counsel, right to withdraw the plea
  68. 6th: remedies: if, after indictment, police place D with an informant and try to induce D into making statements, any statements elicited in that situation will be inadmissible
  69. 6th: remedies: violation of a D's right to counsel at a post-indictment line-up --> exclusion of the identification at the lineup
  70. 6th: remedies: denied counsel at a non-trial proceeding (e.g. pre-indictment line-up) courts conduct harmless error analysis
  71. any statement and physical evidence obtained as a result of 6h right to counsel violations are inadmissible in the prosecution's case in chief under fruit of poisonous tree. Incriminating statements can, however, be used for impeachment purposes
  72. 6th: ineffective assistance of counsel- to make claim D must show deficient performance (counsel fails to meet objective standard of reasonableness) AND prejudice
  73. 6th: ineffective counsel: NY: D must show 1) did not receive "meaningful representation", 2) attorney's conduct constituted "Egregious and prejudicial error" 3) but/for deficiency, the result would have been different
  74. to overturn a conviction on the basis of conflict of interest, D must show that there was an actual conflict of interest and that such conflict adversely affected atty's performance
  75. right to jury trial only applies to offenses that carry a possible sentence of more than 6 months of imprisonment
  76. D may waive a jury trial if waiver is volutnary, knowing, intelling, and in open court
  77. right to jury: NY: D cannot waive a jury trial for a charge of first degree murder
  78. jury size: federal= 12 and unanimous verdict; state= at least 6.--> unanimous; if 7.more --> substantial majority
  79. jury size: NY: felony trials= 12 jurors; non-felony= 6 jurors
  80. jury composition: must be from a cross-section of the community, but actual jury selected need not represent a cross-section
  81. jury composition: Ds have standing to challenge jury selection without showing bias
  82. to challenge a jury as having been selected in violation of the cross-section requirement, D must show group excluded is:
    • -distinctive in the community
    • -group was not fairly represented in the venire
    • -underrepresentation resulted from systematic exclusion of the group in the selection process
    • --prosecution can rebut by showing the disproportionate exclusion manifestly and primarily advances a significant gov't interest
  83. Neither the prosecution nor the defense may exercise peremptory challenges based solely on race or gender
  84. to determine if peremptory challenges were imperssibly based on race, apply 3 part test
    • -moving party must establish a prima facie case of discrimination
    • - the party who exercised the challenge must provide a race-netural for the strike
    • - moving party has ultimate burden of proving that the proffered reason for the strike was pretextual and strike was instead motivated by purposeful discrimination
  85. before accepting a guilt plea, judge must advise D of right to trial, right to plead not guilty, right to representation by counsel, elements of the charge, max and min possible sentence, waiver of right to appeal from the sentence, gov'ts right to use D's statements under oath in a subsequent perjury action
  86. balancing test to determine if no speedy trial:
    • length of delay
    • reason for delay
    • D's assertion of right to speedy trial; and
    • prejudice to D
    • if speedy trial right is violated, charges are dismissed with prejudice
  87. speedy trial: NY:
    • 1. felony: 6 months
    • 2. class a misemeanor: 90 days
    • 3. class be misdemeanor: 60 days
    • 4. violation: 30 days
  88. right to confrontation: Ds entitled to confront and cross-examine the witnesses against them
  89. right to confrontation: prosecution may not admit-out-of court statements by a witness that are testimonial unless the witness is unavailable and the D had a prior opportunity to cross-examine those witnesses
  90. testimonial= declarant would reasonably expect it to be used in a prosecution i.e. affidavits, custodial examinations, prior testimony; statements given in response to police interrogation; certificates of analysis that state the results of lab tests
  91. testimony: NY:the introduction of a DNA report from a labratory that tested the victim's rape kit is permissible because it provides incontrovertible data instead of testimony.
  92. confession of a non-testifying co-defendant at joint trial: Admisison of a confession of a non-testifying co-D at a joint trial against a D violates 6th; does not apply if the co-D testifies
  93. burden of proof: prosecution must prove all the elements of the case beyond a reasonable doubt. The D may bear the burden of proof for affirmative defenses
  94. In NY, the defendant bears the burden of proving affirmative defenses by a preponderance of the evidence. Insanity, duress, and entrapment are affirmative defenses.
  95. When a D is acquitted or convicted, he may not be re-prosecuted for the same offense
  96. to determine if offense is the same, look to see if each provision requires proof of an element that the other does not
  97. Blackburger rule: double jeopardy bars successive prosecutions for greater and lesser included offenses EXCEPT
    • -prosecution for the great offense can follow a conviction for a lesser offesnse if despite the exercise of due diligence by the government, the facts necessary to prove the greater crime are not discovered before the first trial
    • - a guilty plea on a lesser included offense doe snot preclude prosecution for the greater offense, the prosecution can request that, as part of his plea on the lesser ofense, the D waives his right to challenge on double jeopardy grounds if the gov't brings charges on the greater offense
  98. double jeopardy: NY: crimes arising out of a single transaction must be tried together or it will violate double jeopardy unless:
    • 1. each offense has different elements
    • concerns possession and the other use; OR
    • 3. each offense invovles the death or injury to different victims
  99. double jeopardy attaches when: jury is empaneled and sworn (if jury trial) or when 1st witness is worn (if bench trial)
  100. retrial:
    • after reversal due to an error at trial is okay
    • after reveral due to insufficiency of the evidence not ok
    • retrial after a mistrial is okay if there is a manifest necessity for declaring the mistrial
  101. retrial: a manifest necessity exists and retrial is therefore permissible when:
    • a judge or juror is sick
    • the jury hanges (As long as judge declares a mistrial and not acquittal)
    • when the D asks for a mistrial, he can be tried again
    • --IF prosecution asks for a mistrial because a witness cannot be located, double jeopardy will attach
  102. appeal by prosecution: can appeal an adverse ruling in a criminal case as long as it does not relate to a D's innocence
  103. prosecutors can also appeal orders dismissing indictments, orders suppressing evidence, post-verdict new trial orders, bail determinations, and sentences
  104. double jeopardy does NOT preclude sentence modifications, even more severe sentences
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