Fifth Amendment

Privilege against compulsory selfincrimination Prohibition against double jeopardy

Sixth Amendment
Speedy trial Public trial Trial by jury Confront witnesses Compuslory process (subpoena) Assistance of counsel (felony + misdemeanor jail)

Eight Amendment
Prohibiton against cruel & unusual punishment

Exclusionary rule
Prohibits introduction of evidence obtained in violation of D s federal constitutional or statutory rights Exceptions: * Grand jury, civil proceedings, parole revocation proceedings * Use for impeachment of D (not other witnesses) * Good faith reliance on search warrant * Harmless error Fruits of poisonous tree (derived evidence) prohibited unless: * Evidence obtained from source independent of original illegality * Intervening act of free will by D breaking chain between illegal conduct and confession * Inevitable discovery

Good faith exception to exclusionary rule

Good faith reliance on: * Judicial opinion or statute later overturned or found unconstitutional * Defective search warrant, unless unreasonably lacking probable cause, defective on its face, affiant lied, or magistrate abandoned judicial role. * Clerical error, not the fault of PD.

Harmless error test

If illegal evidence is admitted, conviction should be overturned on appeal unless p can show beyond a reasonable doubt that error was harmless. Harmless error never applies to denial of right to counsel at trial.

Deciding admissibility / suppression hearing

Decided as a matter of law by judge, preferably outside jury presence (but not constitutionally required). Government bears burden of establishing admissibility by preponderance of the evidence. D has right to testify at a suppression hearing without waiving 5th Amendment.

Fourth Amendment
Prohibits unreasonable searches and seizures.

When are warrants required for arrest?

Warrants generally not required to arrest someone in a public place. Nonemergency arrest in own home requires arrest warrant.

What is a seizure?
Seizure: Detentions where reasonable person would believe he is not free to leave or terminate encounter w/government. Includes arrests (taken into custody against his will for purposes of criminal prosecution or interrogation). Requires probable cause (reasonable person would believe that suspect has committed crime). Police can detain occupants of premises during lawful search.

Station house detention

PD needs probable cause to compel you to come to station house for fingerprinting or questioning.

Search & Seizure: Analysis

1. Does D have 4th Amendment right at all? Requires governmental conduct (PD, or private at direction of PD), and a reasonable expectation of privacy (standing). 2. Did government have valid warrant: Issued by neutral and detached magistrate, on showing of probable cause, and reasonably precise as to place and items (or good faith reliance). 3. Was the warrant properly executed? No unreasonable delay, after announcement (unless danger), and within scope of warrant. 4. If no warrant, was the search a valid warrantless search & seizure? Incident to lawful arrest, automobile, plain view, consent, stop & frisk, hot pursuit and fleeting evidence. 5. Does the method used shock the conscious?

When does/not a D have standing to challenge search?

* Standing exists when D has right to possession of place searched (body, your home, or overnight guest). * Standing sometimes exists when D has ownership of property seized, or is legitimately on premises during search: Passengers in cars, who dont own the car or the thing seized, have no standing. Person on premises solely for illegal purpose lacks standing. * No standing for no reasonable expectation of privacy in things held out to public: Voice, handwriting, exterior of vehicle, bank records, location of vehicle on public road, areas outside home and curtilage, garbage left for collection, land visible from public place (i.e. from air), smell of luggage, jail cells.

Requirements for validity of search warrant

* Probable cause to believe that seizable evidence will be found on person or premises to be searched. Can be based on hearsay and anonymous informers (if totality of circumstances indicates trustworthiness). Warrant invalid based on affaint if: False statement, intentionally or recklessly included, material to finding of probable cause. PD may reasonably rely on facial validity of warrant. * Precise on its face re: place to be searched and item to be seized. * Neutral and detached magistrate * Execution of warrant: Knock and announce unless dangerous or futile. Detaining occupants fine, but no search unless probable cause.

Exception to warrant: Search incident to lawful arrest

* Arrest must be lawful, and search made contemporaneous with the arrest. * Search of person and wingspan (where weapons or evidence might be). Includes entire passenger compartment of car and everything in it (not trunk). Not entire house. * Protective sweep of area ok if they believe accomplices may be present. * Inventory search of belongings and impounded vehicle upon detention.

Exception to warrant: Automobile

PD cannot randomly stop a single car to check license and registration. Can stop for traffic violation, or checkpoints using neutral articulable standard. With probable cause, PD may search entire vehicle and any container (regardless of who owns it) that may reasonably contain the item for which they have probable cause. May also tow vehicle and search later. Probable cause may arise after car is stopped, but before search commences.

Exception to warrant: Plain view

* PD legitimately on premises * Discover evidence or contraband * See such evidence in plain view (or in a place where PD has right to be or look in) * Have probable cause to believe (immediately evidence) that item is evidence or contraband

Exception to warrant: Consent

* Voluntary and intelligent (negated by claim PD has warrant) * By someone with authority to consent (reasonably apparent equal right to use or occupy premises or thing searched).

Exception to warrant: Stop and Frisk

No probable cause needed merely an articulable (more than a hunch) reasonable suspicion of criminal activity or involvement in crime. Frisk: Reasonable belief that person is armed. Limited to patdown of outer clothing for weapons (always admissible), but "plain feel" contraband can also be seized. Also allows search of passenger compartment of car of detained occupant with reasonable belief that occupant is dangerous. OK to order driver out of car for traffic violation for any reason.

Exception to warrant: Hot pursuit; emergencies; fleeting evidence.

* Hot pursuit of fleeing felon (even busting into the house he runs into, PD can take whats in plain view) * When evidence would disappear by the time PD gets warrant (alcohol blood test; fingernail scraping).

Administrative searches
Search warrant required for private residence and commercial buildings, but lenient probable cause. Neutral enforcement plan will justify. Examples: Contaminated food, highly regulated industry, airline passengers, probationers home, government employee desks, drug tests of railroad employees in an accident, those seeking drug customs positions, and student athletes during athletic season.

Border searches
No warrant necessary; no 4th Am. rights at border. Includes international airports and international mail. Roving patrols can stop vehicle upon reasonable suspicion of illegal aliens. Fixed checkpoint for questioning even without suspicion, but probable cause required for search.

Wiretapping
Warrant required, but no protection from a listener who tells PD or is wired. Warrant may be issued upon showing probable cause, naming suspected persons to be overheard, describing conversations to be overheard, limited to short period of time, terminated when desired information is obtained, and return to court showing what conversations were intercepted.

Confession analysis
* 4th Amendment * 5th Amendment: Right to counsel for process of PD interrogation (not offense specific); right to not give self-incriminating testimony. * 6th Amendment: Right to counsel after judicial proceedings have begun (offense specific) * 14th Amendment: Voluntariness, based on totality of circumstances. Involuntary only with official compulsion. * Harmless error test applies (not overturned if other overwhelming evidence of guilt)

Miranda warnings
* Required if D in custody (objective limit on freedom of action), prior to being interrogated (any conduct where PD knew or should have known they might get a damaging statement). * Spontaneous statement (blurting not in response to interrogation)) is not protected. * Waiver must be affirmative, knowing, voluntary and intelligent. * Not applicable to grand jury hearing or for impeachment. * Public safety exception: Interrogation prompted by rasoanble concern for public safety (hidden gun on schoolyard).

Miranda: Right to remain silent

Once invoked, PD must stop questioning. PD can resume questioning later, about an unrelated crime, after rewarning D (right is offense specific).

Miranda: Right to counsel (5th Am)

Once D unambiguously requests counsel, all questioning, about any topic (not offense specific), must cease until counsel has been provided, or until accused reinitiates questioning and waives right to counsel. Once D asserts right, counsel must be present during all interrogation unless D has waived right.

Pretrial identification
* Right to counsel at post-charge lineup or showup. No right for photo ID or physical evidence (handwriting; blood). PD can ask D to speak or move in lineup. Burden on p . * Due process standard: Attack if unnecessarily suggestive, or if there is a substantial likelihood of misidentification (i.e. D is only black person in lineup). Burden on D . * No 5th Amendment right to refuse to participate in lineup not testimonial evidence. Remedy for invalid ID is exclusion of in-court ID (rare). Except: Adequate independent source for in-court ID (which doesnt rely on invalid pre-court ID) such as adequate viewing at time of crime.

Preliminary hearing
Determines probable cause to detain. If arrest pursuant to warrant or grand jury indictment, probable cause already established, so no need for hearing. Unless D , waives, hearing must occur w/in 48 hours after arrest. Right to counsel and to present evidence

Bail
Not constitutionally required, but most states have it. Purpose is to ensure D will appear at trial. Immediately appealable. Denial of bail when right exists may be a violation of due process. Preventive detention is consitutional.

Grand jury
5th Amendment right to grand jury not applied to states. Some states use grand juries anyhow. Grand juries are secret, and D has no right to notice or to call witnesses. No right to counsel. No right to have illegally obtained evidence excluded. Witness may take the 5th. Exclusion of minorities is about the only grounds for quashing a grand jury indictment.

Jury discrimination
Equal Protection forbits use of preemptory challenges on either side to exclude jurors solely on account of race/gender. D must show inference of discrimination, at which point p must show race-neutral explanation (even if unprobable), and judge will determine if explanation is valid or pretext.

Speedy trial (6th Am.)

Evaluated on the basis of the totality of the circumstances: Length of delay, reason, assertion of right, prejudice to D . Attaches when D is arrested or charged.

Disclosure of exculpatory information

Grounds for reversal if D can prove that the evidence is favorable to D ; and prejudice has resulted (reasonable probability that result would have been different if p had disclosed). D must notify p of intent to use alibi, and dislose witnesses. p must disclose names of alibi rebuttal witnesses.

Competency to stand trial

No trial if D is incompetent put him in hospital until competent, then trial. Hospitalization may be longer than sentence would have been. Indicated if: lacks rational and factual understanding of charges ad proceedings; or lacks ability to consult with lawyer with reasonable degree of understanding.

Fair trial
* Public trial (6th and 14th). * Unbiased judge: Actual malice or financial interest. For small crimes, judge doesnt have to be a lawyer so long as D can appeal to lawyer-judge.

Jury trial
* Right only if imprisonment is more than 6 months, or probation longer than 5 years. For criminal contempt, only if sum of sentences is more than 6 months. * Must have at least 6, and they must be unanimous. If 12, the decision must be at least 9-3. Many states (incl CA) require unanimous. * Venire must be selected from cross-section of community, but D s jury doesnt have to be representative of minorities. * Right to question jurors about racial bias if relevant

Right to counsel at trial (6th Am.)

Applies at all critical stages of prosecution after judicial proceedings have begun (formal charges filed): custodial interrogation, post-indictment interrogation, preliminary hearings to prosecute (not detain), arraignment, post-charge lineups, felony trials, misdemeanor trials where incarceration actually imposed, guilty pleas, sentencing hearings, appeals as a matter of right. Not applicable at: blood or handwriting samples, precharge lineups, photo ID, prelim hearings to determine probable cause to detain, brief recesses during D s testimony (but not overnight), discretionary appeals, parole and probation revocation, postconviction proceedings. Ineffective assistance: D must show deficient performance, and that but for deficieny, the result would have been different (i.e. D not guilty). Cannot be ased on inexperience, lack of time to prepare, complexity of charges/defense, or accessability of witness to counsel. Conflict of interest is rarely adequate grounds. This right is offense-specific. After right attaches, PD may not question about the specific offense without counsel present. Can question about unrelated, uncharged offenses. Waiver must be knowing and intelligent. State can recoup expenses from D who is later able to pay.

Right to confront witness (6th Am.)

Face to face confrontation not required if important public purpose (protect child witness from trauma). Judge may remove disruptive D , and D may voluntarily leave courtroom. Basis for excluding much hearsay.

Guilty plea
Waiver of 6th Am. right to jury trial. Judge must advise D on the record: Nature of charge, maximum possible penalty, mandatory minimums, right not to plead guilty, waives right to trial, determine it was voluntary and intelligent. Remedy: D may withdraw plea. Rarely disturbed after sentencing only if involuntary, lack of court jurisdiction, ineffective assistance, or p s failure to keep plea bargain. Treated as a K. Fair for p to threaten to charge more serious crime unless D pleads.

Sentencing
* Right to attorney * No right to confrontation or cross-x; hearsay can be used. Judge can consider belief of D s perjury.

Retrial
No federal right to appeal, but if state grants right, indigents must get first appeal free. D cant get a harsher sentence after successful appeal.

Death penalty
* Any death penalty statute that does not give D a chance to present mitigating facts and circumstances is unconstitutional. There can be no automatic category for imposition of death penalty. State may not by statute limit the mitigating factors; all relevant mitigating evidence must be admissible. * No D/P for rape of adult woman. D/P for felony murder only if D s participation was major. * D must be sane to be executed. * No D/P on minors who were under 16 when they committed crime. * Juror opposition to DP not automatic exclusion unless prevents performance of duties; automatically granting DP grounds for auto exclusion b/c they wont consider mitigating circumstances.

Habeus Corpus
* Challenges lawfulness of any detention (p must be in detention, or on probation). * p must show unlawful detention by preponderance of evidence. * No right to counsel. * State can appeal grant of writ, or retry p for same offense. State prisoners can bring in federal court if p in custody; exhausted state remedies; state court findings of fact must be respected; p must prove violation of federal rights.

Double jeopardy
No retrial for same offense once jeopardy has attached. Attaches when jury is sworn, or first witness sworn. Exceptions: * Civil trial (including tax) * Hung jury (jury cant agree on verdict if state requires unanimous jury, as in CA) * Trial aborted for manifest necessity * Retrial after successful appeal, unless appeal on insufficient evidence (not weight of evidence) * D s breach of plea bargain * Two crimes not same offense: Each crime requires proof of additional element that other crime does not. Bars retrial for lesser included or greater offenses, except battery trial where V dies, D can be tried for murder. * Trials by different sovereignties (state/state, federal/state, but not state/municipal). * p can appeal dismissal if its not an acquittal on merits. * If no possibility of incrimination (statute of limitations).

Privilege against compelled testimony

* May be exercised by witness, party, or defendant. Witness must still take stand and then take privilege; D may choose not to take stand. * Anytime questioned under oath. Privilege must be claimed in civil case, else waiver in subsequent criminal case. * Only protects compelled testimony. Not documents, physical samples of blood/hair/fingernail scrape. * p may not comment on silence, except in response to D s assertion that D was not allowed to explain his side. Harmless error test applies. * Eliminated by grant of immunity. * Waiver by D (taking witness stand to extent necessary to subject him to cross, else direct is stricken)

Use immunity
Witness may be prosecuted if p shows evidence was derived from source independent of immunized testimony (received prior to grant). Immunized testimony is coerced and invalid, therefore may not be used for impeachment of D , but can be used for perjury.