CRIM PRO CHECKLIST Exclusionary Rule Arrest/Search/Seizure 4th Amendment 1. Was it a search or a seizure?

? Has there been an intrusion on a reasonable expectation of privacy? a. If answer is no, we are done. If yes b. Two Steps to determine whether or not you have an expectation of privacy: i. You have to have a subjective expectation of privacy (pretty much deadeveryone argues expectation to privacy) ii. That the expectation be one that society is prepared to recognize as reasonable c. Do you have a reasonable expectation in the following? i. Bright-line Rule: If I have a right to exclude others from a car, home, or any other area, then I have a personal reasonable expectation of privacy ii. Undercover operation - NO iii. Open Fields Doctrine NO iv. Curtilege YES 1. 4 Factors to determine whether it is open fields or curtilege: a. The proximity to the home; b. Is the area inside an enclosure that includes the home c. the nature of the uses of the area; the more the area is used domestically, the more likely it is curtilage. d. Any steps taken by the owners to protect the area from passerbys v. Trash NO vi. Things visible from the air NO vii. Beeper case ask yourself how they would have got the info with the technology. viii. Overnight Guests YES ix. Passengers in a car NO th 2. Was the 4 Amendment violated - Was the search or seizure unreasonable? a. If it is reasonable, we are done. To determine if it is reasonable b. Probable Cause need it for a search and a warrant. i. It is unreasonable if you dont have probable cause ii. Test for probable cause Probable cause is when the facts and circumstances within the knowledge of the police and of which they have reasonably trustworthy information are sufficient to warrant a prudent person in believing that 1. For an arrest the has committed or is committing an offense 2. For a search that seizable objects are located at the place to be searched iii. P.C. for Informants 1. Aguilar/Spinelli Test (no longer used) - for P.C. of affidavit (2Prongsneed both prongs)

a. Informant had a Basis for the Knowledge i. Specified; or 1. Affidavit is specific and detailed on informants basis ii. Inferred from Details b. Reliability i. Track Record of Informant; or ii. Inferred from Corroboration 2. Totality of the circumstances Rule - The cuisinart test look at everything you got and decide whether or not you have probable cause. a. Takes over for Aguillar/Spinelli c. Search Warrants i. General rule is that you need a search warrant in order to search and you must have probable cause in order to get a search warrant 1. Must have specificity ii. Knock and Announce Requirement 1. Police are required to both Knock and Announce before executing a search warrant 2. Exception: Rule is excused if there are Exigent Circumstances (case by case) a. Destruction of Evidence b. Danger to police officers c. Hot pursuit police chasing you and you run into your house iii. Plain view doctrine where police are at a place where they can be and something is in their plain view, police could seize that item. So in Marron, if a ledger was in plain view that showed liquor accounts, police could seize it. 1. If you have a search warrant for a shotgun, if you find the shotgun, the search ends and you cannot search anymore. That is why police try to stretch the warrant out as far as possible 2. Have to meet the following 2 requirements: a. Lawful intrusion b. Must have evidentiary probable cause 3. Always the last step iv. Motor Vehicle Exception 1. It allows you to conduct a warrantless search if you have probable cause 2. Suppose they had a search warrant to search your car, can they search a container inside the car? Yes, if the item for which they are searching for can be in that container. You are exactly in the position of probable cause plus a warrant. v. Inventory Search Exception 1. Reasonable police regulations relating to inventory procedures administered in good faith satisfy the 4th Amendment. By doing

inventory, police protect the property from unauthorized interference. Knowledge of the precise nature of the property help guard against claims of theft, vandalism, or negligence. Such knowledge also helps avert any danger to police or others that may have been posed by the property 2. As long as you have a policy in place, you can search. 3. Pursuant to an inventory search, it is ok to search containers vi. Consent Searches 1. Consent searches, when valid, is and exception to the warrant requirement and the probable cause requirement 2. The 4th and 14th Amendments require that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact d. Arrests i. Probable cause is always required for arrests. So, when do you need a warrant? 1. When you have an arrest for a felony or misdemeanors in a public place (any place but your home) then no arrest warrant is required. ii. Multiple Defendants 1. Always ask yourself were the rights of a particular person violated. Dont ask yourself if the police violated the 4th Amendment. a. This is b/c the answer might be different for the two questions. b. Need to look at the perspective of the citizen and not the police 2. Flight = Probable Cause iii. For overnight guests, the host party lowers his expectation of privacy, but if overnight guest they do need a warrant to arrest. iv. Exigent Circumstances 3 situations 1. Hot pursuit - will escape 2. Safety concerns danger to officer 3. Destruction of evidence v. Hot Pursuit allows police to arrest w/in home, but police cannot create the exigent circumstances vi. Deadly Force Can use it if 1. Look at the crime 2. Must be truly necessary if trying to escape look to s behavior e. Search Incident to Arrest i. There are exceptions to the warrant requirement, the probable cause requirement, and both together. ii. When the Search Incident to Arrest Doctrine applies, the doctrine is an exception to both the warrant and probable cause requirement iii. Search of Person and Area within his immediate control: You may conduct a search just by reason of an arrest even if you dont have a

warrant or probable cause to protect the officer from danger and to prevent the person being arrested from destroying evidence. Thus, an officer can search the arrestees person and the area within his immediate control. Note: The arrest must be legal in order to qualify to do a search of the person and the grabable area or it will be fruit of poisonous tree 1. The search incident to the arrest must be somewhat contemporaneous of the arrest 2. Grabable area of passenger side of car - allows police to search the passenger compartment of a vehicle incident to a lawful arrest of both occupants and recent occupants. If the person who ends up being arrested is originally encountered by police in a car, the car is contained within the grabable area to allow a search. 3. Rule: So long as an arrestee is the sort of recent occupant of a vehicle, officers may search that vehicle incident to the arrest 4. If you issue a ticket instead of making an arrest, the search is invalid iv. Protective Sweep Doctrine based on the notion that someone else is around that could endanger the police. 1. Under the doctrine, police officers that make an arrest inside a dwelling, they may make a cursory search of adjoining rooms (persons only search) to determine whether there are other persons present that may cause danger to the police officer. 2. However, you may only search areas where a person may be hiding (cant search drawers, suitcases, etc.). 3. If an officer wishes to look in non-adjoining rooms, the officer must have reasonable suspicion (have to be able to explain why you have a hunch that a person may be in that non-adjoining room such as hearing a noise or there is more than one name on the mailbox). 4. Remember the Plain View Doctrine you go into an adjoining room and see heroin in plain view in a non-adjoining room, you can seize it. As long as you are somewhere where you are lawful able to be, then you can seize items in plain view. 5. *EXAM TIP - Notice how these doctrines can be easily combined in an exam question f. Stop and Frisk i. Terry Stop & Frisk Doctrine: Baby stops require baby probable cause; full searches require full-blown probable cause. If a stop is a baby arrest, a frisk is a baby search. 1. In order to be able to stop someone, you must have reasonable suspicion that a crime is being committed or will be committed. 2. For a frisk, you must have reasonable suspicion that the person has a weapon. If so, you can do a pat down and if you find nothing, it is over. You cannot search pockets. It is a brief detention.

a. If you feel a non-biological hardness, you can remove the object. b. If you develop probable cause on the basis of the plain feel doctrine, you can then remove under exigent circumstances 3. You can frisk a bag or suitcase on that person grabbable area; more protection if soft bag. 4. Applicability to seizures of property a. You can temporarily stop property if you have reasonable suspicion b. Must proceed as fast as possible 90 minutes too long. g. Diagram on 2/7 i. What constitutes seizure? How do you define the line at the top of which is #1 on the diagram? 2 Part test 1. In view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave; AND 2. Either physical touching by police or acquiescence by . ii. Assuming you have a seizure, how do you tell that it is an arrest or a stop? 1. Focus on these 5 factors: a. Duration of the detention the longer it is, the more likely it is an arrest b. Whether police actions are threatening c. Whether the police touched the d. Whether the is told he is under arrest or similar language e. Whether the detention is in a closed area or in an area in open view. 2. Melillis original idea its a stop when a reasonable person would not feel free to leave, but thinks he will be free to leave in a little while. Its an arrest is when a reasonable person feels they wont be able to leave for a while iii. What constitutes reasonable suspicion for a stop? 1. Suspicion backed by a reason reasonable suspicion that suspect has or will commit a crime. iv. What is the basis for and scope of a frisk? 1. Basis of the frisk is protection of a police officer must have reasonable suspicion that the suspect is carrying a weapon. 2. Scope of a frisk its a pat down, cant use your fingers; cant reach in unless you feel something v. Is the Terry Doctrine applicable to seizures of property? 1. YES you can temporarily hold property if you have reasonable suspicion. 2. Must proceed as fast as possible - Remember that 90 minutes in the suitcase case was too long. vi. May the police use stops as pretexts for other things 1. Yes as long as the stop is valid h. Lesser Intrusions

i. 3 prong test to determine whether search was reasonable 1. Extent of the intrusion 2. Govt interest 3. Basic expectation of privacy ii. This test is only for resolving situations that havent been dealt w/ before iii. Its not whether you have PC or a warrant, the question is one of reasonableness. 3. So what? Your rights were violated, what happens now? What does the 4th Amendment or any other part of the Constitution provide for remedies? a. If we get to this third question, we know that the general consequence is that the evidence is suppressed. This is known as the exclusionary rule. b. Look at the police officers actions and determine whether applying the exclusionary rule would provide incremental deterrence. i. Although evidence that has violated the 4th Amendment can still be used to impeach the on direct or cross. c. When the Exclusionary Rule does not Apply i. Attenuation whether passage of time or an intervening circumstance that separates the fruit from the poisonous tree to the point where the exclusionary rule no longer applies 1. Factors to consider as to whether the fruit is of the poisonous tree a. whether Miranda warnings were given b. times passage between arrest and statement c. presence of intervening circumstances d. purpose and flagrancy of the violation ii. Independent Source Doctrine got the evidence independent from the illegal act iii. Inevitable Discovery Docrine - evidence would have been found without an illegal search 1. Have to be proven by the preponderance of the evidence. iv. Good Faith Exception if officer obtains a warrant and acts in good faith no matter if there was no probable cause, the evidence will still be admitted. 1. An officer would not manifest objective good faith in relying on a warrant based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. 2. A warrant may also be so facially deficient that the executing officers cannot reasonably presume to be valid Government Involvement in the Crime Three restrictions are placed upon govts involvement in a crime 1. 4th Amendment invite undercover officer in house, but no reasonable expectation of privacy 2. Due Process involvement is so substantial so as to offend (hasnt happened)

3. Entrapment Entrapment 1. Entrapment defense prohibits law enforcement officers from instigating a criminal act by persons otherwise innocent in order to lure them to its commission and to punish them. 2. Majority approach is the subjective and look to the state of mind of the and the question is whether there is predisposition a. Govt doesnt have to know that suspect was predisposed, just have to know in hindsight. b. Not predisposed = entrapment c. Predisposition means willingness to do it w/in his own person d. Not predisposed if govt changes suspects willingness to commit crime Rights to Counsel Trial 1. If it is a felony right to counsel no matter what 2. If it is a misdemeanor you must have a possibility of jail time or a suspended sentence in order to have a right to counsel. Appellate 1. There is no 6th Amendment right to counsel on appeal, however 2. On first appeal, you have fundamental right to counsel as provided by the Due Process Clause. 3. In the event of a 2nd appeal, a does not have a right to counsel b/c already has everything prepared from the previous cases. In Practice 1. Waiver of Right to Counsel a. The 6th Amendment constitutionalizes the right in an adversary criminal trial to make a defense. Although not stated in the Amendment in so many words, the right to self-representation to make ones own defense personally is thus necessarily implied by the structure of the Amendment b. For a wavier to be sufficient i. It has to be informed, knowing, and intelligent ii. It has to be voluntary c. First appeal have to be represented 2. The 6th Amendment right guarantees the effective assistance of counsel, not just counsel a. has burden to prove: i. Have to show counsel is ineffective (not to be judge retrospectively not in hindsight, must be judged prospectively) ii. The ineffectiveness prejudiced the defense (if not for the ineffectiveness, the outcome would have been different) 3. Ineffective Assistance of Counsel

a. One type of ineffective assistance of counsel claim is a lawyers conflict of interest. If you can show that there was an actual conflict, you were entitled to a reversal. Identifications 1. Out of court ID any process by which a witness makes an ID of a person out of court a. Includes a lineup (multiple), showup (single), photo identifications 2. In court ID point of trial where the atty says do you see the in court today and the witness points him out. 3. Ways in which out of court ID can be suppressed: a. Fruit of the poisonous tree i. Ex arrest you illegally for the purpose of a lineup and someone identifies you, you can claim fruit of the poisonous tree th b. 6 Am right to counsel c. Due process 4. Fruit of poisonous tree a. **EXAM** - Factors to look at to determine whether an in court ID is the fruit of the poisonous tree or if it is from an independent source [PDIIFL]: i. Prior opportunity to observe the alleged criminal act ii. Discrepancy between any pre-lineup description and the s actual description iii. Identification prior to lineup of another person iv. Identification by picture of the prior to the lineup v. Failure to identify the on a prior occasion vi. Lapse of time between the alleged act and the lineup identification 5. 6th Amendment a. You do not have a right to assistance of counsel until adversarial judicial proceedings. i. Adversarial judicial proceedings 1. At the point at which there is a formal charge (such as an indictment) or at the point at which the makes his first judicial appearance. 2. An arrest is not the start of an AJP, neither is an arrest. b. doesnt have to ask for attorney right is there unless or until that person waives it. 6. Due Process a. Factors to consider whether or not out-of-court IDs are suppressed under due process: i. Unnecessarily suggestive ii. Unreliable 1. To determine unreliability, a. The opportunity to view b. The degree of attention c. The accuracy of the description

d. The witness level of certainty e. The time between the crime and the confrontation b. These factors are essentially the same as the 6 factors above both boil down to whether you trust the ID. Interrogations and Confessions Voluntariness, Part One 1. Due process test is whether or not the confession was voluntary 2. Cannot impeach under DP a. Definition of voluntary Factors to look at: i. Brutality or threats of brutality by the police ii. Isolation from friends, family, and counsel iii. Five necessities of life deprived of: food, water, sleep, bathroom, and cigarettes iv. Length of the interrogation v. Whether or not the was given any warnings vi. Note: Also factored in these decisions would be the characteristics of the accused (age, intelligence, mental and physical condition, etc.) 6th Amendment Right to Counsel, Part One 4. Rule: Deliberate elicitation + Adversarial judicial proceeding = Violation of Right to Counsel 5. Deliberate Elicitation constitutes at least interrogation or the functional equivalent, and could be slightly broader than that. 6. Note: Any initiation of an adversarial judicial proceeding calls for the s right to counsel. However, in order to get a confession suppressed under right to counsel, you must have deliberate elicitation and AJP. Miranda 1. 6 Requirements of Miranda: a. The person has the right to remain silent b. Anything you say can and will be used against you in a court of law c. Right to an attorney d. If you cant afford one, one will be appointed for you e. They have to understand what their rights are (how can we determine this? ask them if they understand these rights) Miranda Applied 1. Custody & Interrogation a. Miranda only applies if two situations occur: (1) custody and (2) interrogation there must be custodial interrogation. i. It is commonly believed that they have to give you Miranda warnings if you are arrested, but this is not true. They have to give you the Miranda warnings if you are put into custody and interrogated

2.

2.

3.

4. 5.

6.

ii. What constitutes custody 1. Custody is when a reasonable person believes that he or she is not able to leave soon. 2. Same principle of an arrest under the 4th Amendment iii. What constitutes interrogation 1. Police knew or reasonable should have known that they were likely to elicit an incriminating response **EXAM** - you should be able to distinguish what the difference is between the 5th Amendment right to counsel and the 6th Amendment right to counsel b. 5th Amendment right to counsel i. You dont have a right to a lawyer, you have a right to not be interrogated without the presence of a lawyer ii. Not crime specific as long as you have custodial interrogation, you invoke your right to all crimes charged against you iii. Use prior to AJP c. 6th Amendment right to counsel i. AJP must be initiated in order to have a right to counsel you have a right to have an attorney there. ii. Is crime specific AJP could be present for one crime, but not the other d. Can use both if made 1st court appearance and you are in custody and are being interrogated or under the functional equivalent of interrogation. Waiver a. There has to be a waiver if interrogation is going to continue without an attorneys presence b. RULE: Once the has invoked his right to counsel the police can no longer try to get a waiver. i. If the says he doesnt want to talk, the police can try and get a waiver, but if the says he wants his atty, the police can no longer attempt at a 2nd waiver. Public Safety a. RULE: Overriding considerations of public safety justify an officers failure to provide Miranda warnings. b. The threat of public safety outweighs the need for the prophylactic rule protecting the 5th Amendments privilege against self-incrimination. Lawyer Waiting a. Doesnt matter Undercover Cops a. RULE: Miranda warnings are not required if the suspect is unaware that he is speaking to a cop and voluntarily gives a statement. b. Undercover cop Miranda warnings not required if being interrogated. Under 6th Amendment, undercover cop must not try to elicit anything. Constitutionality a. In Elstad, the Court was actually holding that the fruit of the poisonous tree doctrine does not apply to Miranda violations. b. In Dickerson, the Court held that Miranda is constitutionally required by the 5th Amendment

7. Tainted Fruits a. When statements are obtained in violation of Miranda lead the police to physical evidence, the physical evidence is not fruit of the poisonous tree unless the statements themselves are omitted. b. If you dont admit the statements you dont have a poisonous tree. c. Fruit of the poisonous tree does not apply to Miranda Voluntariness, Part Two 1. Involuntary confessions are only in violation of due process if they are legally involuntary. This requires action on the part of the police. 6th Amendment Right to Counsel, Part Two 1. Police are in violation of a persons 6th Amendment right to counsel if they try to deliberate elicit info from that person. 2. 6th Amendment is deliberate elicitation and Miranda is interrogation. Interrogation fits within deliberate elicitation a. Thus, it is easier to argue 6th Amendment over Miranda (Williams case) **EXAM TIP If you have a question in regards to suppress of a statement, you must talk about 4 things 1. Whether or not it is the fruit of a 4th Amendment violation 2. Due process b/c it is involuntary 3. 6th Amendment violation to counsel a. Deliberate elicitation + AJP 4. Violation of Miranda a. Custodial interrogation = custody + interrogation or equivalent of Bodily Intrusions 1. 4 things to look at w/ bodily intrusions: a. Due Process i. Test - whether the procedure would shock the consciousness b. 6th Amendment Right to an attorney i. All this would require is for the s attorney to be present when the evidence is taken (if AJP has begun) th c. 5 Amendment Privilege against self-incrimination i. Must be testimonial evidence, which is the product of a persons thought. If it is only incriminating evidence that is not the product of thought, then this is closer to plain evidence. th d. 4 Amendment Only applies to improper intrusions i. You must have probable cause and a warrant (or court order requiring the to undergo the procedure). There is also a reasonableness requirement that requires consideration of 3 things: 1. Safety of the individual 2. Extent of the intrusion on dignitary interests and personal privacy 3. Communitys interest in determining innocence/guilt

Subpoenas 1. Two authorities that will issue a subpoena a. Trial Court Subpoena only allowed to use these to direct a witness to trial b. Grand Jury Subpoena to testify or bring forth evidence in front of a grand jury 2. 3 Types: a. Subpoena ad testificandum subpoena to testify b. Subpoena duces tecum bring the stuff with you c. Grand jury directives grand jury directs them to do something outside the grand jury (e.g., stand in a line up) 3. Everytime you get a subpoena question, address all four issues 4. 4th Amendment a. A subpoena is not an seizure in the 4th Amendment sense b. Subpeonas do not trigger any significant 4th Am. issues c. Exception: You cannot subpoena a massive amount of documents for a fishing excursion. 5. 6th Amendment a. No right to counsel b/c GJ is not considered an initiation of AJP. 6. 5th Amendment a. Not considered a custodial interrogation, so no need for Miranda warnings i. does not have a right to remain silent and doesnt have a right to assigned counsel, two things that are inherent in Miranda. When a is in front of a grand jury, he or she is not in custody and is not in an isolated setting of a police station that is inherent in an interrogation. b. When a is in front of a grand jury, he has an absolute duty to answer all questions subject only to a valid 5th Amendment claim against self-incrimination. c. Federal Grand Jury must give some sort of warnings to potential : i. General duty to answer ii. Right to not answer incriminating questions iii. Possible jury liability d. Immunity i. 3 Things in order for 5th Amendment to apply: 1. Must have government compulsion 2. Must be testimonial 3. Must be incriminating a. If Govt gives immunity, you must testify. ii. 3 types 1. Use (not used anymore) 2. Transactional no prosecution of any crime subject to testimony (rarely used) 3. Derivative Use - A can still be prosecuted, but prosecution cannot make direct or indirect use of the testimony. iii. Kastigar showing requires that when the government knows it is going to prosecute someone who has immunity, it has to show that every piece of evidence used is not a product of the testimony (this is hard to do) e. In analyzing tangible evidence with regard to the 5th Am., the Court looks at the contents and acts of production

Compulsion Testimonial Incriminating

Contents NO YES YES

Act of Production YES YES - sometimes YES sometimes

f. Act of Production (above) i. Compulsion you will always have this ii. Testimonial often is testimonial implicitly telling the Govt of existence, possession, and authenticity. 1. Not testimonial when it is a foregone conclusion (Govt knows not only of existence, but that it is testimonial and incriminating) g. Collective Entity Doctrine i. Entities do not have 5th Amendment privileges, but sole proprietorships do h. You cannot assert your 5th Am. privilege if you are given immunity. Pretrial Release 1. Preliminary Info a. Once you are brought to court, if they continue to hold you, the must show PC. i. If brought in on arrest warrant, PC already met b. Delay of more than 48 hrs. b/t arrest and initial appearance is unreasonable (may be overcome w/ facts) 2. Bail a. Purpose is to ensure presence at trial if you show up, bail is returned. b. Court may consider seriousness of offense for setting bail. c. What types of facts would be relevant to determine the amount of bail: i. financial status, seriousness of the crime, ties to the community (married, job, kids), prior criminal record may be helpful to b/c it could show a track record of showing up to court, how good the governments case was. d. Bail Reform Act i. It says that from now on, there are 2 legitimate reasons for holding someone: 1. If they are flightless assure appearance 2. If they are dangerous secure safety e. You are not allowed to set bail so high to which that cannot meet it. The statute does set 4 things you can do when setting bail: i. You can release the person on his own cognizance ii. You can have a conditional release (statute names 14 conditions) 1. report once a week, get a job, etc. iii. Allow for a temporary detention for 10 days if the committed a crime while on pretrial release or parole iv. Detain without bail 1. There is a great deal of due process that the statute demands must be sent down for a hearing, the prosecution must put on evidence, etc. 2. This is immediately reviewable by an appellate division

f. If the court sets bail and you cannot meet it, the court must reduce it g. Underlying Principle If court decides no combo of conditions will accomplish one of the dual objectives, you can be held without bail. Pretrial Proceedings 1. Initial Appearance 2. Preliminary Hearing a. Differs from GJ b/c both sides present b. In fed. system, prelim hearings held in all felony prosecutions used to determine whether or not there is probable cause. c. Return of GJ indictment moots prelim hearing Grand Jury 1. Takes the place of a preliminary hearing. 2. The exclusionary rule does not apply to grand jury hearings. There is no incremental deterrence. 3. The only limit on GJ proceedings is the 5th Am. right against self-incrimination. 4. Indictment can be validly based on hearsay evidence 5. Judicial branch of government does not have the authority to tell the grand jury what to do, which evidence to hear 6. The federal courts do have the power to enforce the rules of a grand jury. But, they do not have authority to make rules for the grand jury Discovery The Duty to Disclose FRCrP 16 is entitled to know what his statements are b/c the client will tell you, I didnt say a word. They are entitled to know what the defense record is, any material physical evidence, the results of any tests. These latter two items (material physical evidence and results of tests) opens the door to reciprocal discovery prosecution is entitled to know anything of the defense records in regards to these two Discovery is so wrapped up with plea-bargaining. The defense atty is not going to recommend to his client to plead guilty without being able to know what the prosecution has against his client. Even if there is no interest in a plea, the prosecution wants a reason to tell more than what the statute has to b/c they want a plea bargain Jencks Requirement Upon request, the Govt is required to turn over all prior written and recorded statements of witnesses that the Govt intends to have testify. Has to be material to their testimony. a. However, what the government can do is have the officer interview the witnesses, take their statements, and have officer testify to GJ. Then call the witnesses to the stand which will prevent the requirement of giving defense witnesses statements. b. Reverse Jencks When has to give the material. To get out of this, defense can interview witnesses and then take notes after the interviews dont take notes while interviewing or else this will constitute a written statement. 1. If take notes during interview have to produce (Twinkle case) 2. Brady Request

3. 4.

5. 6.

a. Court held that DP in both fed. and state prosecutions, requires the Govt to disclose exculpatory info within the govts possession upon request. Upon request means you must bake a BRADY request. b. What is exculpatory? Material exculpatory info is info that can be useful to the defense either at trial to determine guilt or innocence or at sentencing. c. If its not failure to produce, but rather failure to preserve must be willfully malicious FRCrP 12.1 Notice of an Alibi Defense - Defense must make the prosecution aware of any alibi that it may use. This in turn allows the defense to ask for a list of any material witnesses it intends to use. FRCrP 12.2 Notice of an Insanity Defense; Mental Examination - Defense must give notice of the use of an insanity defense that it may use. Why? B/c this will allow the prosecution to get a psychologist to examine the . In the absence of this rule, the prosecutor would have to have every to be examined by a shrink. FRCrP 12.3 Notice of a Public-Authority Defense - Defense must give notice of a claim of right (that it was authorized by a government official). Triggers a reciprocal rule that the government must do the same It is not a violation of a s 5th Amendment privileges to require the to disclose his alibi or alibi witnesses prior to trial.

Guilty Pleas Plea Bargaining 1. Plea bargaining is contract law you can plea bargain anything 2. Can negotiate the status of the in between the guilty plea and the sentencing (federal determinant sentencing) as well as probation, but you cannot plea bargain parole. 3. In the give-and-take of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecutions offer 4. Have to memorialize everything in writing. 5. Look at outline for examples and cases on this. Plea Procedure 1. RULE: It must be a knowingly and intelligent waiver for a guilty plea to be valid. 2. must be informed of every right he has in going to trial and must understand all elements of the crime that the prosecution will have to prove at trial, etc., etc., etc 3. Once you give your plea, it is very hard to revoke in order to revoke you need to show: a. Coercion b. Not fully informed (all those rights and factual basis and agrees to what occurred) c. Must understand all elements of the crime 4. Conditional Plea - pleads guilty with the reservation of right of taking an appeal on an issue 5. The 5th and 6th Amendments do not require federal prosecutors, before entering into a binding plea agreement with a criminal , to disclose impeachment information relating to any informants or other witnesses. a. But has to disclose it if you go to trial b. NO right to exculpatory evidence if you plea no Brady requirement if you plea

6. Prosecution has to assure factual basis for plea. 7. Two types of pleas: a. Nolo contendre I am guilty here, but you still have to prove it somewhere else b. Alford Plea i. Allows you to plead guilty without factual guilt. Otherwise, the must admit guilt factually Double Jeopardy Second Prosecution After Conviction 1. Double Jeopardy Clause is a fundamental right that is deemed to be incorporated by the 14th Amendment; governs federal and state prosecutions 2. Prohibits a second prosecution following a conviction. 3. is convicted and appeals and appellate court reverses the conviction. May be retried? YES 4. Where conviction reversed on appeal: a. Retrial not permitted if reversal for erroneous denial of MJOA b. Retrial permitted if reversal for any other trial error 5. Reversal due to trial error can try in a second case 6. Reversal due to evidentiary insufficiency cannot retry

Second Prosecution After Acquittal

1. FRCrP 29. Motion for a Judgment of Acquittal a. It is the criminal equivalent for a civil judgment as a matter of law. Only the can make the motion at the moment when the government rests, before the matter goes to the jury, and even after the jury rules 2. When there is judgment of acquittal, the case is dismissed and there can be no retrial. 3. RULE: If a is successful in obtaining a JOA on appeal, the cannot be retried without violating DJ 4. You cannot retry a if App. Ct. finds that JOA should have been granted, but you can for any other reason. Lockhart holds that for DJ purposes needs to be decided in regards to all the evidence that had been admitted. Pretrial Trial This is jeopardy Post-Trial

5. SO, when does jeopardy attach? b. In a bench trial, jeopardy attaches when first witness is sworn c. In a jury trial, jeopardy attaches when the jury is sworn
6. Suppose the trial court dismisses the case during pretrial, may the government take an appeal on a dismissal?

d. YES b/c there has not been a trial yet. If the appellate court reverses the pretrial
7. dismissal, it will be put back where it left off. When it goes to trial, this will be the first time the gets to jeopardy. Main impact of DJ is whether the prosecutor may or may not appeal Now, suppose that the jury at trial or the judge at a bench trial finds the not guilty, may the government take an appeal on anything? e. NO b/c the remedy would be a new trial and this would violate DJ. f. Rarely do you get a second chance if the trial court finds for the . g. Any ruling made by the trial court either pretrial or trial cannot be appealed by the government. If the jury finds the guilty, the government consequence of the appeal could require the to go through another trial and that would put him in jeopardy and second time, and that violates DJ. DJ effectively bars the government from taking an appeal. h. The only way around this is if the jurisdiction allows the government to take interlocutory appeal prior to the attachment of jeopardy but subsequent to a jurys pretrial ruling. i. Without such interlocutory mechanism, the government is powerless Suppose the case ends during the trial, but it doesnt end by a verdict by the jury or judge. It just comes to an end (either a dismissal or mirstrial). Dismissal v. Mistrial j. a dismissal is a ruling that contemplates that the case is over cant retry . k. With prejudice you cannot refile; w/o prejudice can refile (this doesnt matter for us l. Mistrial simply aborts the case, but still can restart the case can retry .

8.

9.

10. 11.

m. For mistrial, it depends on which side is asking for mistrial: i. Govt court must be satisfied there was manifest necessity must have really good reason (i.e., hung jury) ii. Defense can be retried again as long as govt didnt ask to ask for mistrial or provoke into asking for mistrial.

1. RULE from Scott Based on this case, DJ would bar dismissals for factual reasons relating to
guilt or innocence (which is only on a motion for JOA) a. The government may not take an appeal if the trial court dismisses by granting for MJOA. b. But, if the court dismisses for any other reason during trial, such as in this case government delayed in bringing the case to trial, DJ would not be violated Two things that prevents retrial by government no matter what a. If court grants motion for JOA b. If jury finds you innocent RULE (from Washington): If it is a mistrial and it is the prosecutor that motions for the mistrial, there is a violation of DJ unless there is manifest necessity to grant the motion a. Classic case of manifest necessity is hung jury When motions for mistrial - TEST : If motions for mistrial, DJ will not prevent a retrial unless the prosecutor intentionally engaged in conduct for the purpose of goading the to make the mistrial motion Overview a. Pre-Trial i. Govt may appeal pretrial dismissal b/c effect of reversal would not be second trial b. Mid-Trial

2.

3. 4.
5.

i. Dismissal 1. Government may not appeal verdict of not guilty or pre-verdict grant of MJOA 2. Govt may appeal mid-trial dismissal on ground other than factual guilt/innocence ii. Mistrials 1. Where Govt moves for mistrial, retrial permitted only if manifest necessity for mistrial (trial court discretion) 2. Where moves for mistrial, retrial permitted unless Govt intended to provoke mistrial motion b. Post_trial a. Post-Trial i. Govt may appeal post-trial dismissal b/c effect of reversal is simply reinstatement of verdict of conviction, and does not require second trial.

Same Offense Limitation

1. Two offences are not the same only if each has an element that the other does not have. If they have the same elements, they are the same offence for purposes of DJ. So, with regard to a single event, you cant be charges with murder and manslaughter for the same person. But, different victims or different times is not the same offense (Blockburger Test) 2. Where an individual is convicted of a lesser offence, and then the additional element that makes it a greater offence does not occur until after convicted, DJ does not bar trying the greater offence, and if convicted of the greater offence, it substitutes the lesser offence 3. Collateral Estoppel means that if an issue has been resolved against you in the form of a judgment, you may not relitigate the issue a. Collateral estoppel is embodied in the DJ Clause of the 5th Amendment 4. Sovereigns - DJ is a principle that only prevents a particular sovereign from twice putting you in jeopardy. DJ does not prevent you from being twice charged for the same crime by two separate sovereigns. In the U.S., there are 51 sovereigns a. Many times, a can be twice convicted by the state and the federal governments.

Speedy Disposition
1. Right to a speedy trial only applies in criminal prosecutions must be charged first before criminal prosecution takes place. 2. Cuisinart Test - 4 Factors were given by the Court in Barker v. Wingo to use in a balancing test along with other considerations to determine whether a s right to a speedy trial has been violated. They are: a. Length of the delay i. Anything over a year is going to implicate this factor in s favor b. Reason the Government assigns to justify the delay i. Must be valid reason such as prosecutions main witness ill in order to not go against the government. c. Defendants responsibility to assert his right to a speed trial d. Prejudice to the defendant i. 3 types of Prejudice: 1. Oppressive pretrial incarceration 2. Anxiety and concern of the accused 3. Possibility that the accuseds defense will be impaired by dimming memories and loss of exculpatory evidence (Most significant)

e. Note: These factors do not have talismanic qualities they are related factors and must be
considered together with such other circumstances as may be relevant.

3. Hobsons Choice if you object to continuance on right to speedy trial, you increase your
chances of a dismissal. However, if you object on grounds of a speedy trial, you might actually get just that

Trial by Jury Jury Selection 1. 2-Step Process a. Jury venire b. Jury Selection
2. 2 grounds for challenging jury selection a. Equal protection i. If you want to raise this, you have to show intent to discriminate, discrimination against a suspect class ii. s and potential jurors can bring equal protection challenges. iii. Can be brought for challenges in the venire and the jury selection itself b. 6th Amendment right to impartial jury i. you do have to show discriminatory intent against a distinct group ii. Must be large iii. Must be identifiable iv. Must meet 3-part test (Bla, bla) v. is the only one who can bring a claim under 6th Amendment 3. You are entitled to a fair cross-section of the community. However, this cross-section only applies to the selection of the venire and not the selection of the jury

4. Death Penalty a. Witherspoon you dont just ask if they have opposition to death penalty, you have to
ask if that opposition would preclude them from decided for the death penalty b. 2 phrases i. Witherspoon excludable person who can be challenged for cause b/c they would never impose the death penalty ii. Death qualified jury jury w/ no Witherspoon excludable 5. Peremptory Challenge a. Def - challenges for which you do not have to give a reason and you can knock people off for no reason b. No constitutional right to a peremptory challenge c. has to show 3 things in order to raise a Batson challenge show discriminatory selection of the venire: i. is member of a cognizable racial group, and that the prosecutor has exercise peremptory challenge to remove from the venire member of the s race [This requirement overruled by Powers below] ii. is entitled to rely on the fact that peremptory challenges constitute a jury selection practice that permits those to discriminate who are of a mind to discriminate. iii. These facts raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race iv. Note: Once the does this, this shifts the burden to the prosecutor to show a racially neutral reason for excluding the juror.

Right to Jury Trial

1. You have a right to jury trial for all felonies and for all misdemeanors where potential max sentence is greater than 6 months. 2. There is no constitutional requirement that a jury has 12 members or must reach a unanimous decision. 3. A jury can have as few as 6 members. 4. There is no constitutional right to a bench trial if the prosecution doesnt allow waiver.