CRIMINAL PROCEDURE

I. OVERVIEW OF KEY AMENDMENTS IN CRIMINAL PROCEDURE

Fourth Amendment: prohibition against unreasonable search and seizure
Fifth Amendment:
o Privilege against compulsory self-incrimination
o Prohibition against double jeopardy
Sixth Amendment
o Right to a speedy trial; right to a trial by jury; right to confront witnesses; right to assistance of counsel
Eight Amendment: prohibition against cruel and unusual punishment
o The death penalty and prisoner rights
The death penalty may not be imposed on a defendant who was a minor at the time of the commission of the crime.

II. EXCLUSIONARY RULE MOST TESTED ON THE MBE

Illegally obtained evidence, either physical evidence obtained by an illegal search or a statement obtained through an illegal
interrogation, is inadmissible at the criminal trial of the person whose rights were violated.
The Fruit of the Poisonous Tree Doctrine
o The doctrine will not only exclude illegally seized evidence, but will also exclude all evidence obtained or derived from the
police illegality
Exception: the doctrine does not apply to Miranda violations unless the police act in bad faith in obtaining such
information
o Example: Evidence that is obtained from an unlawful arrest will be considered fruit of the poisonous tree and should be
suppressed
5 Exceptions: [meaning evidence will then come in]
o 1. Knock and announce: Although officers executing an arrest warrant at a residence are required to knock and request
admission, if they fail to do so, burst in, and discover evidence, that evidence is admissible
o 2. Inevitable discovery: If the evidence would have been discovered any way through other means, it will be admissible.
o 3. Independent source: Relevant evidence discovered on the basis of an independent source will be admissible.
o 4. Attenuation in the causal chain: Intervening acts of free will and the passage of time can remove the taint
o 5. Good faith: applies to officers who rely on either (1) an existing law that was later declared unconstitutional or (2) a
warrant that, while facially valid, is later found to be defective. If officers are acting in good faith reliance, they are entitled
to use the evidence that was obtained.
Limitations on Exclusion
o To invoke this exclusion, the search in question must either violate the constitution or a federal statute
o The exclusion does not apply to grand jury proceedings (can be compelled to testify about illegally seized evidence or
coerced statements)
o Exclusion is not an available as a remedy in a civil proceeding (the evidence can come in)
o The exclusion is not an available remedy in a parole revocation proceeding
o Exclusion does not apply to the use of excluded evidence for impeachment purposes
Since 1980, all illegally seized real or physical evidence may be admitted to impeach credibility
Only the s trial testimony may be impeached, not the testimony of other defense witnesses
o Exclusion is not available as a remedy for violations of the knock and announce rule in the execution of search warrants
The Exclusionary Rule and Convictions
o A conviction will not necessarily be overturned because improperly obtained evidence was admitted at trial.
o On appeal, a court will apply the harmless error test and the conviction will upheld if the conviction would have resulted
despite the improper evidence.

III. FOURTH AMENDMENT SEARCHES AND SEIZURES

Arrests and Detentions
o An arrest must be based on probable cause
o Arrest warrants are generally not required before arresting someone in a public place
o A non-emergency arrest of an individual in his home does require an arrest warrant
o Station house detention: the police need probable cause to arrest you and compel you to come to the police station either
for fingerprinting or interrogation
Can always ask you to come, but if they compel you, need probable cause
Investigatory Detentions (Terry Stops)

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 o Rule: The police have the authority to briefly detain a person even if they lack probable cause to arrest. In order to make
such a stop, the police must have a reasonable suspicion supported by articulable facts of criminal activity
Search is limited to reasonable pat-down
Under the plain feel exception, if an officer conducting a valid frisk feels an object that has physical characteristics
that make its identity immediately obvious as a weapon, contraband, or evidence of a crime, then the officer may
seize the object
o Automobile stops: The police may stop a car if they have at least a reasonable suspicion that the law has been violated
Exception: no reasonable suspicion need for checkpoint road-blocks.
If one is set up for routine traffic stops (not drug stops), a police dog sniff is not a search, so long as the police
do not extend the stop beyond the time needed to issue a ticket or conduct normal inquiries
o Public School Search: A search conducted by local public school personnel of a student must be based on reasonable
suspicion that the search will produce evidence that the student is or has violated school rules. It must also be reasonable in
its scope in light of the student's age and gender and the nature of the infraction. This standard applies to strip searches as
well as other less intrusive types of searches

Search and Seizure (5-step analysis) often tested on the MBE

o 1) Is there government conduct?
Yes The publicly paid police officer (on or off duty); any private individual acting at the direction of the public
police (ex. Police ask your roommate to search your room for drugs) = government conduct
No Privately paid police actions do not constitute governmental conduct unless they are deputized with the power
arrest you
Ex. Store security guard; subdivision police, campus police = no government conduct, unless deputized
o 2) Was there a reasonable expectation of privacy Search [standing]
Automatic Categories of Standing: If you own the premises searched, you always have standing to object to the
search of the place you own;
Home, offices, hotel-rooms, backyard of your home (curtilage), luggage
No Standing Categories: you have no expectation of privacy, and therefore no standing for anything that you hold
out to the public everyday
1) The sound of your voice; 2) the style of your handwriting; 3) the paint on the outside of your car; 4) account
records held by a bank; 5) monitoring the location of your car on a public street or in your driveway; 6)
anything that can be seen across the open fields; 7) anything that can be seen flying over the public airspace; 8)
the odors emanating from your luggage or car; or 9) your garbage set out on the curb for collection (if on
property, cops need a warrant) 10) abandoned property 11) an inspection conducted from the air (ie, helicopter)
An individual generally does not have a reasonable expectation of privacy in the home of another in which the
individual was merely a visitor (although an overnight guest may have a reasonable expectation of privacy).

o 3) Did the police have a valid search warrant

Three core requirements for a facially valid search warrant: neutral magistrate, probable cause and particularity
1. Must be issued by a neutral and detached magistrate
2. The standard for probable cause: a fair probability that the contraband or evidence of a crime will be found in
the area searched
3. Particularity: the warrant must state with particularity the place being searched and the things to be seized
o a warrant need not state any condition that is precedent to its validity.
Warrants and the use of informants
A valid search warrant can be based in part on an informants tip even though the informant is anonymous
o Information from an unknown informant must be independently verifiable
No Knock entry permitted in the execution of a search warrants if exigent circumstances exist
An officer need not knock and announce if knocking and announcing would be dangerous, futile or inhibit the
investigation
o The biggest fear of inhibiting the investigation is destruction of evidence (flushing the green)
An anticipatory warrant is not unconstitutional simply because the items to be seized are not located on the premises
to be searched at the time that the warrant is issued. The probable cause requirement is satisfied where, at the time
that the warrant is issued, there is probable cause to believe that the triggering condition will occur and, if that
condition does occur, there is a fair probability that contraband or evidence of a crime will be found in a particular
place.

o 4) If the warrant is not valid, does an officers good faith defense to save the defective search warrant

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 General Rule: an officers good faith reliance on a defective search warrant overcomes defects with the probable
cause or particularity requirements
Four exceptions to a good faith reliance on a defective search warrant
o The affidavit underlying the warrant is so lacking in probable cause that no reasonable cop would have
relied on it
o The affidavit underlying the warrant is so lacking in particularity that no reasonable officer would have
relied on it
o The police officer or prosecutor lied to or misled the magistrate when seeking the warrant
o If the magistrate is biased, and therefore has wholly abandoned his neutrality
o 5) If the warrant is invalid and cannot be saved by the good faith defense or if the police never had any warrant at all, you
move to see if there is an exception to warrant requirement
7 Exceptions [ESCAPES]
1) Exigent circumstances 2) Search incident to arrest 3) Consent 4) Automobiles 5) Plain view 6) Evidence
obtained from administrative searches 7) Stop and frisk (Terry)
1. Exigent circumstances: if officers are in hot pursuit or immediate danger, they may conduct a search without
getting a warrant first.
can enter anyones home w/out a warrant, and any evidence they see in plain view will be admissible
Inventory Searches: before incarceration of an arrestee, the police may search 1) the arrestees personal
belongings and/or 2) the arrestees entire vehicle
2. Search incident to lawful arrest
if the arrest was lawful, a search warrant is unnecessary. Scope of the search is limited to things within the reach
of the defendant (the wingspan: body, clothing, and any container within arrestee's immediate control)
Automobiles: may search interior cabin, but not trunk.
Once officer has secured arrestee - officer can't search auto unless there is reason to believe evidence relating to
crime arrested for.
The arrest and search must be contemporaneous in time and place
A search incident to arrest for a serious crime can include taking a DNA sample from the arrestee.

3. Consent: Cops can search without a warrant if there is voluntary and intelligent consent
Third party consent: where two or more people have an equal right to use a piece of property, either can consent
to a warrantless search.
o Exception: if both people are present and one person consents to the search and the other does not, the one
who doesnt controls
4. Automobile exception Lesser Expectation of Privacy
If police have probable cause to believe an automobile contains contraband, they can search entire vehicle and
may open any containers that could reasonably contain item. They cannot search other areas or containers.
o In order to justify a warrantless search of an automobile incident to arrest, the Fourth Amendment requires
that law enforcement demonstrate either (i) that the arrestee is within reaching distance of the passenger
compartment at the time of the search and, as a result, may pose an actual and continuing threat to the
officers safety or a need to preserve evidence from being tampered with by the arrestee or (ii) that it is
reasonable that evidence of the offense of arrest might be found in the vehicle.
The probable cause necessary to justify the warrantless search of an auto under the exception can arise after the
car is stopped, but the probable cause must arise before anything or anybody is searched
5. Plain view
If police are legally on the premises, they can seize any item in plain view (or plain smell), even if that item
was not named in the warrant.
o It must be immediately apparent that the item is contraband or fruit of a crime (e.g, pot in a brown bag
does not count)
6. Stop and Frisk (terry stop) brief detention for the purpose of investigating suspicious conduct
Legal standard: reasonable suspicion (less than probable cause)
o Note if probable cause arises during an investigatory stop, the detention can become an arrest and the
officer can conduct a full search incident to a lawful arrest
Frisk is a pat down on the outer clothing to check for weapons (justified by concern for officer safety)
o Admissibility of the things found on the frisk of the outer closing depends on whether the cop reasonably
believes, by the plain feel, that something is a weapon or contraband (if yes, then admissible)

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 If a vehicle is properly stopped for a traffic violation and the officer reasonably believes that a driver may be
armed or dangerous, the officer may conduct a frisk of the suspected person; and may search the vehicle so long
as it is limited to the areas where a weapon could be placed
7. Evidence obtained from Administrative Searches:
Police do not need search warrants to conduct administrative searches. Two kinds:
1. Administrative warrants
o Do not require probable cause (such as fire or health inspections of a building) Evidence, instrumentality,
of fruit of a crime can be seized if seen during administrative search.
2. Warrantless administrative searches
o Conducted for non-investigative purposes, but if they turn up evidence of a crime, it can be used for arrest
and subsequent prosecution.
o Examples: Airplane boarding areas, International borders, highly regulated industries (liquor stores, gun
shops, etc.), Searches of students in public schools, Special needs searches; e.g., drug testing of railroad
employees after an accident, Roadblocks for drunk driving or seeking information.
o Wiretapping and Eavesdropping
All wiretapping and eavesdropping requires a warrant, subject to a few exceptions:
Unreliable ear and uninvited ear: everybody in this society assumes the risk that the person to whom he is
speaking will either consent to the government monitoring the conversation or will be wired & therefore has no
4th amendment objection on the basis that it was a warrantless search
A speaker who has made no attempt to keep the conversation private will not have a Fourth Amendment right
o 4th Amendment Special Considerations:
The use of a device or sense-enhancing technology (e.g., a thermal sensing device) that is not in use by the general
public to explore the details of a dwelling that would previously have been unknowable without physical intrusion
constitutes a search.
Jail administrators may require all arrestees committed to the general population of a jail to undergo a no-touch visual
strip search, even if the arrest was for a minor offense and even in the absence of reasonable suspicion that the
arrestee possesses a concealed weapon or other contraband.

IV. CONFESSIONS
Miranda Warnings (5th amendment)
o When Miranda warnings are required, the suspect must be given the following information: 1) you have the right to remain
silent; 2) anything you say can be used against you in court; 3) you the right to an attorney; and 4) if you cant afford an
attorney, one will be appointed for you if you so desire
o The trigger for required Miranda Warnings is custodial interrogation
1. Custody: you are in custody, if at the time of the interrogation, you are not free to leave
Not free to leave covers being in a police car or being in jail, but can also be in your home or hospital bed
Probation interviews and routine traffic stops are not custodial
2. Interrogation: any conduct where the police knew or should have known that they might elicit an incriminating
response from the suspect
Not required prior to the admissibility of whats known as a spontaneous statement (blurted out, voluntarily)
A voluntary confession made after an unlawful arrest will not automatically be suppressed. Note, however, that
the unlawfulness of the arrest may be considered as a factor when determining whether a confession was truly
voluntary. If the confession is too closely tied to the illegal arrest, it may be suppressed.
o Miranda Waiver
A Miranda waiver must be knowing, voluntary and intelligent
Courts employ the totality of the circumstances test in making this determination
*A statement taken in violation of Miranda may be used to impeach the credibility of a criminal defendant if he takes
the witness stand and gives testimony at variance with his previous admissions.
o Invoking your Miranda rights
1. Right to remain silent this must be unambiguous
Police may reinitiate questioning after invoked the right to silence if they wait a significant amount of time,
the is re-mirandized and the questions are limited to a different crime
2. Invoking right to counsel by unambiguous request
If the accused invokes this, all questions must cease until the accused is given an attorney or initiates further
questions himself
Difference between 5th amendment right to counsel and 6th amendment right to counsel
o The court-created 5th amendment right to counsel arises when a suspect invokes his Miranda rights and requests an attorney

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 It is not offense specific, and thus applies to the entire process of police custodial investigations
o The 6th amendment right to counsel attaches at all critical stages of the trial -- offense specific, meaning counsel would only
need to be present if the were being asked questions about the specific case for which the has retained counsel
Non-critical stage(s): photo identifications.

V. PRETRIAL IDENTIFICATIONS
Two substantive bases on which you can attack a pretrial identification technique
o Denial of the right to counsel
Post-charge lineups (standing in a line) and show up (one-on-one) give rise to the right to counsel
The Sixth Amendment right to counsel does not apply to any pre-indictment eyewitness identification
But there is no right to counsel when the police go out to show the victim or witness photographs
Also no right to counsel when: 1) taking of blood samples; 2) taking of handwriting samples; 3) pre-charge
lineups; 4) brief recess during s testimony at trial; 5) parole and probation revocation proceedings; 6) the
taking of fingerprints, 7) photo identifications.
o Denial of Due Process
Certain pretrial identification techniques are so unnecessarily suggestive and so substantially likely to produce
misidentification that they deny due process of law
The remedy for an unconstitutional pre-trial identification is to exclude the in-court identification
Unless the State can show that it had an adequate independent source for that in-court identification
o Most common independent source is that the victim or witness had an adequate opportunity to identify the
defendant at the time of the crime

VI. PRE-TRIAL PROCEDURES

Bail: Bails are immediately issued. Preventive detention is constitutional
Grand Juries
o The exclusionary rules do not apply to the conduct of grand juries, Therefore, a grand jury witness may be compelled to
testify based on illegally seized evidence
o The proceedings of grand juries are secret. Defendant has no right to appear and no right to send in witnesses
o 5th Amendment privilege does not extend to the custodian of corporate records (although has 5th A. priv. as an individual)

VII. PROSECUTORIAL DUTY TO DISCLOSE EXCULPATORY INFORMATION

Under the Brady rule, a prosecutor has an affirmative duty to disclose any material evidence favorable to the defendant.
o Non-disclosure of such evidence does not violate the defendant's due process rights unless the failure to disclose causes
prejudice against the defendant.

VIII. TRIAL
Right to an unbiased Judge
o Bias means have a financial interest in the outcome of the case or some actual malice against the defendant (high standard)

Right to a jury trial

o The constitutional right to jury trial attaches anytime the defendant is tried for an offense for which the maximum
authorized sentence exceeds 6 months (anything under, no constitutional right to jury trial)
o Number and Unanimity
The minimum number of jurors permissible is 6. If the court uses the minimum, the verdict must be unanimous
There is no federally protected constitutional right to a unanimous twelve-juror verdict.
o Cross sectional requirement
You have the right to have the jury pool reflect a fair cross-section of the community, BUT, no right to have the
empaneled jury reflect a fair cross section of the community
o The Use of Preemptory Challenges [3 allowed]
A peremptory challenge is a challenge to exclude a prospective juror for any reason whatsoever
Exception: unconstitutional for the prosecutor or defense to exercise them to exclude prospective jurors based
on race or gender
o Any fact, other than a prior conviction, that can be used to increase a sentence beyond the statutorily prescribed maximum
must be charged in an indictment, submitted to a jury, and established beyond a reasonable doubt. A fact is considered an
element of a crime, as opposed to a sentencing enhancement, when it can increase the maximum sentence imposed. The
failure to abide by the above procedure is a violation of the defendants due-process rights under the Fifth Amendment and
Sixth Amendment rights to notice and a jury trial, both of which are incorporated against the states through the Fourteenth
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 Amendment.

Right to Counsel
o A criminal defendants right to counsel applies to all stages of a prosecution, including trial
o Ineffective assistance of counsel (Strickland Test)
(i) the representation of a defendant by the defendant's attorney must fall below an objective standard of
reasonableness, and (ii) the attorney's deficient performance prejudiced the defendant.
More than vague allegations of inexperience or ineffective trial tactics or strategies
Typically, these claims can only be made out by specifying particular errors of trial counsel
Right to self-representation
o A defendant has the right to defend himself so long as his waiver of trial counsel is knowing and intelligent and he is
competent to proceed pro se
A can be found mentally competent to stand trial, yet incompetent to represent himself, as determined by trial
judges discretion
Right to confront witnesses (6th amendment confrontation clause)
o Not an absolute right: the absence of face-to-face confrontation between the defendant and accuser does not violate the 6 th
amendment when preventing such confrontation serves an important public interest and the reliability of the witness
testimony is otherwise assured
Ex. testifying on closed circuit t.v.
o The admission against a defendant of a confession that implicates the defendant made by a non-testifying co-defendant at a
joint trial violates the defendants Sixth Amendment right to confrontation.
However, when the co-defendant testifies, the defendant cannot complain that this right has been denied because he
could confront the witness on cross-examination
o A defendant who is disruptive may be removed from the courtroom, thereby relinquishing his right of confrontation.

IX. GUILTY PLEAS AND PLEA BARGAINING

The Supreme Court will not disturb guilty pleas after sentencing
If a defendant pleads guilty, the judge must specifically address the defendant on the record about the following:
o The nature of the charge;
o The maximum authorized penalty and any mandatory or minimum penalty; and
o Must tell the defendant that he has a right to plead not guilty and to demand a trial
Four reasons for withdrawing a guilty plea after sentence:
o The plea was involuntary (not involuntary merely bc it was entered in response to threat to charge with more serious
crime)
o Lack of jurisdiction
o Ineffective assistance of counsel (commonly raised, but rarely successful)
o Failure of the prosecutor to keep an agreed upon plea bargain (after the plea, they try him for more than what was plead)

X. DEATH PENALTY
Any death penalty statue that does not give the defendant a chance to present mitigating facts and circumstances is
unconstitutional
There can be no automatic category for the imposition of the death penalty*
o Ex. statute says if you kill a cop, automatic death penalty (unconstitutional)
State may not by statute, limit the mitigating factors; all relevant mitigating evidence must admissible or the statute is
unconstitutional
Only a jury, not a judge, may determine the aggravating factors justifying imposition of the death penalty

XI. DOUBLE JEOPARDY (CANT BE TRIED FOR SAME CRIME TWICE 5 TH AMENDMENT)
Jeopardy attaches in a jury trial when the jury is sworn in | in a bench trial, jeopardy attaches when the first witness is sworn in
o Jeopardy does not generally attach when the proceedings are civil (e.g., ok to have criminal prosecution for tax fraud, and
then a civil proceeding to collect back taxes)
Exceptions that permit retrial
o Jury is unable to agree upon a verdict (hung jury); mistrials for necessity (usually medical emergencies like a burst
appendix);
Generally, if a mistrial is declared because of a hung jury, then the defendant may be retried
o A retrial after a successful appeal is not double jeopardy

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 Note: upon retrial after a successful appeal, the defendant cannot be retried for a more serious offense than he was
convicted of at the first trial (ex. convicted of manslaughter, appealed successfully, cannot then be tried for murder)
o Breach of an agreed upon plea bargain by the defendant
If a defendant breaches a plea bargain agreement, his plea & sentence can be withdrawn and the original charges
reinstated
o Manifest Necessity: where a mistrial is declared despite the defendant's opposition, the defendant cannot be retried unless
the mistrial is due to a manifest necessity.
A hung jury constitutes a manifest necessity
Dual Sovereignty Doctrine prosecution of a defendant by the federal government for a crime arising out of an event does not
prevent a state from prosecuting the defendant for a crime arising out of the same event.
The Double Jeopardy Clause encompasses the doctrine of issue preclusion.
o Where a jury acquits a defendant of an offense that is a lesser included offense of another offense over which the jury
deadlocks, the jury determination that the defendant did not commit the lesser included offense precludes the prosecution
from retrying the defendant on the greater offense
The Fifth Amendment protection against double jeopardy applies to the states through the Due Process Clause of the Fourteenth
Amendment and protects against multiple punishments for the same offense. If a defendants conduct may be prosecuted as two
or more crimes, then the Blockburger test is applied to determine whether the crimes constitute the same offense for double
jeopardy purposes. Under this test, each crime must require the proof of an element that the other does not in order for each to
be considered as a separate offense. The double jeopardy clause generally bars successive prosecutions for greater and lesser
included offenses. A lesser included offense is one that does not require proof of an element beyond those required by the
greater offense.

XII. FIFTH AMENDMENT PRIVILEGE AGAINST COMPELLED TESTIMONY

*The Fifth Amendment privilege against self-incrimination only applies to testimonial evidence
can be asserted by anyone in any type of case. Anyone asked a question under oath, in any kind of case, wherein the response
might tend to incriminate her, is entitled to the 5th amendment privilege
o Must assert the privilege first before the question is asked or you will have waived your 5 th amendment privilege for all
subsequent criminal prosecutions
o The privilege must be claimed in civil proceedings to prevent the privilege being waived for a later criminal prosecution
o If the individual responds to the questions instead of claiming the privilege during a civil proceeding, he cannot later bar
that evidence on 5th amendment grounds

The Scope of the Protection only protects against the compelled disclosure of incriminating testimonial evidence.
o The Fifth Amendment protects citizens from compelled testimony
o The Fifth Amendment does not protect citizens from having the government use of physical evidence in ways to
incriminate them
o Does not protect against searching for and seizing documents that would incriminate a person even when those documents
were prepared by the person.
o Examples of non-testimonial evidence that the prosecution can compel a person to produce:
A persons blood sample; a persons voice sample; a persons hand-writing sample; a persons hair sample
The Fifth Amendment and Prosecutorial conduct
o It is unconstitutional for the prosecutor to make a negative comment on the defendants failure to testify or on a defendant
choosing to remain silence after being given the Miranda warnings
Exception: the prosecutor can comment on the defendants failure to take the stand when the comment is in response
to defense counsels assertion that defendant was not allowed to explain his side of the story
o When a prosecutor impermissibly comments on a defendants silence, the harmless error test applies, and thus, the
prosecutors conduct many not be fatal to an otherwise sound conviction
The three ways to eliminate the 5th amendment privilege
o Under grant of immunity
o No possibility of incrimination
Ex. if the statute of limitations has run on the underlying crime, you are not entitled to a 5 th amendment privilege
o Waiver: the criminal defendant who takes the stand waives the 5th amendment privilege as to all legitimate subjects of cross
examination