Crim Pro I Outline – Distilled – Fall 2010

1. If it is not a search or seizure then there is no 4th scrutiny

a. Whether it is a search:
i. Did D manifest a subjective expectation of privacy?
ii. Is that expectation one that society is prepared to accept as reasonable?
b. Not a search:
i. Open fields (need warrant or exception to search cartilage – proximity to
home, within enclosure, use of area, steps taken to prevent observation);
Access by the public (consensual electronic surveillance, Financial records,
pen registers, trash, public areas, aerial surveillance, false friends);
investigations that only reveal illegal activity (dog sniffs, chemical testing for
drugs; Not urine test bc reveals other info); Electronic tracking devises (not
thermal detection devices bc reveal more than what PO could observe on their
own); investigative activity conducted by private citizens (Not if acting as
agent of govt)
2. If it is a search or seizure then it must be reasonable – must have NDM rule on whether there
is PC
a. PC requirement
i. Demonstrating PC with informants
1. Veracity – is informant to be believed?
a. Credibility – general believability
b. Reliability – believable in this circumstance – track record,
motive for accuracy
2. Basis of knowledge – how does he know what he is talking about?
a. Source of knowledge in the tip
b. Self-verifying detail
3. Corroboration by PO’s
ii. Informants
1. Paid citizen informant is presumptively unreliable
2. Identified citizen informant more reliable
3. Accomplices are reliable to establish PC and no corroboration required
iii. PC to search – whether there is affair probability that the area or object
searched contains evidence of a crime
iv. PC to arrest – whether there is a fair probability to believe that a crime was
committed and that the D committed the crime
b. Search warrant requirements
i. NDM requirement
1. Warrant must be issued by an NDM
ii. Must be based on probable cause established from facts submitted to
magistrate upon oath or affirmation that there is a fair probability that the area
or object searched contains evidence of a crime
1. PC as to location of evidence – Reasonable cause to believe that
specific things to be searched for and seized are located on property to
which entry is sought. Depends on type of crime, nature of items
sought, suspects opportunity to conceal, and normal inferences about
where criminal might hide
iii. Must particularly describe the things to be seized

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 Crim Pro I Outline – Distilled – Fall 2010

1. Things that can be seized:

a. Fruits of crime
b. Instrumentalities
c. Contraband
d. Evidence
i. Mere evidence rule – PC must be examined in terms of
cause to believe that evidence sought will aid in
particular apprehension or conviction
2. Particularity requirement for describing place to be searched
a. Warrant must set forth location to be searched with
reasonable particularity
3. Particularity requirement for describing things to be seized
a. Warrant must particularly describe the things that the
officers can look for and seize
b. PC to seize – must ordinarily be some info that reasonably
identifies it, but degree of precision will depend on facts of
case
c. Reasonable particularity is determined by info police could
reasonably be expected to know prior to search
c. Arrest warrant requirements
i. NDM requirement
ii. Specificity requirement
iii. Particularity requirement
1. Can search anywhere warrant permits and anywhere within the
building that is large enough to contain the evidence the police are
looking for
2. Must describe person to be seized with sufficient particularity
d. Details of the warrant
i. ID person/property to be searched/seized; and designate the magistrate judge
to whom it must be returned
ii. Warrant must command officer to: execute within specified time or no longer
than 14 days; execute warrant during daytime unless good cause shown;
return warrant to magistrate designated in warrant
e. Anticipatory warrant
i. Must be probable that contraband, evidence of crime, or fugitive on premises
when warrant is executed
f. Sneak and peek
i. Covert entry if govt can show reasonable cause to believe that providing
immediate notice may have adverse result (endangering life/safety of an
individual, flight, destruction of evidence, intimidating potential witness)
ii. Can seize items without notice if govt can show a reasonable necessity for the
seizure
3. Executing the warrant
a. Knock and announce
i. Must announce presence to give an opportunity for D to present himself;
reserves property from destruction; protects against violence

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 Crim Pro I Outline – Distilled – Fall 2010

b. Refused admittance
i. Officer can break open premises after announcing and is refused admittance,
or impliedly refused admittance (12 sec = refusal; 3 sec too short)
c. Exceptions to notice rule
i. No breaking
1. If door is open, can just go in w/o announcing
ii. Emergency circumstances
1. Standard = RS that announcing presence under circumstances would
be dangerous or futile, likelihood of destruction of evidence, or flight
iii. No-knock warrants
1. NDM can issue no-knock if police know there will be exigent
circumstances: announcing would be dangerous or futile, likelihood of
destruction of evidence, or flight
d. Exigent circumstances after knocking
i. Waiting 15-20 secs for a response created exigent circumstances bc RS to
believe D was destroying evidence
e. Remedy for violation of K&A
i. Exclusionary inapplicable
f. Timing/scope of execution
i. Search of fixed area generally extends to entire area in which object of search
may be found
g. When is search completed
i. Search must be terminated when all materials described in warrant have been
found
4. Warrant required
a. Arrest in own home or 3rd party’s home if you’re an overnight guest
i. Payton – must have arrest warrant and reasonable suspicion to believe that
suspect is home (totality of circ – care in driveway etc.), absent exigent
circumstances
ii. Payton violation is an illegal search, not an illegal arrest
b. Arrest in home of 3rd party
i. Need search warrant - Steagald
ii. Steagald violation – homeowner can suppress bc his 4th rights were violated in
the absence of a warrant
5. Exceptions to the warrant requirement
a. Warrantless arrest
i. No warrant for felony, misdemeanor committed in officer’s presence,
misdemeanor and officer has reasonable cause to believe that person will not
be caught unless immediately arrested or may cause injury to himself/others
or damage to property unless immediately arrested
b. Arrests in public
i. No warrant – need PC – Watson Rule
ii. Entitled to a prompt (within 48 hours) determination of PC
c. Stop and frisk
i. No warrant – need RS that criminal activity is afoot
ii. Frisk – reasonable suspicion to believe that D is armed

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 Crim Pro I Outline – Distilled – Fall 2010

1. Can only frisk for weapons NOT evidence

d. Search incident to arrest
i. Police may conduct a SIA whenever they arrest a person, even if arrest +
based on PC)
ii. Scope
1. Wing span/grab area
a. Limited to search of suspect and search of his grab area
b. Grab area moves with suspect
c. Look at physical characteristics of D, ratio of cops to D.
whether item searched is reasonably accessible
d. Exception
i. Arrest leading to exigent circumstances – when cops
have PC to believe evidence is in certain place and
situation triggers risk of destruction by cohort’s, cops
may conduct a search of that place
ii. Protective sweep after arrest – if cops have RS that area
swept harbors dangerous individual (plain view applies
during this protective sweep)
2. Containers in grab area
a. Searches of possession within an arrestee’s immediate
control cannot be justified by reduced expectation of privacy
caused by the arrest. Can’t search a brief case (can seize it),
but can search containers on a person (cig pack, wallet)
3. Automobiles
a. SIA only when arrestee is unsecured and within reaching
distance of passenger compartment (grab area) at time of
search OR when it is reasonable to believe evidence relevant
to the crime of arrest might be found in the vehicle
b. Grab area equals the passenger compartment and any
containers within
c. Pertains to recent occupants of car
iii. Timing
1. Grab area – outside car context - determined at time of arrest NOT
time of search
2. For cars – grab area determined at time of search
e. Automobile exception
i. No warrant – just PC to believe that car contains contraband, fruits,
instrumentalities, or evidence of a crime
ii. Scope
1. If PC to search, can search entire car and all containers that might
contain object they are searching for
iii. Timing
1. Can tow pursuant to police procedures and search later
iv. Movable containers not in car – ie footlockers, briefcases,
1. PC for seizure bc of mobility
2. Warrant required to search

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 Crim Pro I Outline – Distilled – Fall 2010

v. Movable containers in the car

1. No warrant required to search any container in car if PC to believe it
holds evidence of criminal activity
f. Exigent circumstances
i. Hot pursuit
1. Excuses arrest warrant and also search warrant where a search of an
area must be conduct in order to find and apprehend D
2. D must be aware he is being pursued
ii. Police and public safety
1. Excuses warrant if delay in obtaining it would result in a significant
risk of harm to cops or public (govt must show risk)
iii. Risk of destruction of evidence
1. Excuses warrant if evidence will be destroyed in time it takes to get
warrant
iv. Limitations
1. Police can’t create exigency (as long as activity is objectively lawful,
its fine)
2. Police had a prior opportunity to obtain warrant (PC and opportunity
to obtain warrant must be clear for this exception to be inapplicable)
g. Administrative searches
i. Balance need for a particular search/seizure against degree of invasion upon
personal rights that S&S entails
ii. S&S on basis of RS rather than PC
h. Special needs searches
i. Roadblocks
i. Need RS for individual stops without suspicion
ii. No suspicion for permanent checkpoint, temporary checkpoints for DUI
j. Inventory searches
i. Community caretaking function
ii. No suspicion needed for search of impounded car conducted pursuant to
police procedures
iii. Property carried by arrestee
k. Border searches
i. No suspicion needed for international mail
ii. No suspicion needed for routine border searches
iii. RS for non-routine/invasive searches
iv. Internal checkpoints – need PC to search at
v. Roving Patrols - need RS to stop and PC to search
l. Consent searches
i. No warrant needed if given voluntary and intelligent consent to do so
ii. Actual authority
1. Spouse can give consent to search house
iii. Apparent authority
1. Entry valid if officer’s have reasonable belief that the friend had
authority to consent

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 Crim Pro I Outline – Distilled – Fall 2010

2. Must inquire to extent of person’s authorized access when present with

ambiguous situation
iv. Third party consent where D is present and objecting
1. Physically present inhabitant’s express refusal of consent is dispositive
as to him
2. Can still search belongings of cohab who gave consent
v. Refusal – cannot be used as evidence of guilt to lead to PC
vi. Scope of consent
1. Search beyond scope of consent granted is unjustified
2. Scope defined by object of the search – standard of objective
reasonableness
vii. Withdrawing consent
1. Revocation of consent must be clear and explicit and occur before
search is complete
m. Plain view
i. If cops have a right to be in particular place and come upon evidence that they
have PC to believe is subject to seizure (fruit, instrumentality, contraband, or
evidence), they may seize it
1. Must have PC to seize an item viewed during course of legal activity
and that PC must be readily apparent (PC must exist w/o necessity of a
further search
n. Plain touch
i. If officer acting in course of lawful activity can determine by touch that an
object is evidence of contraband, he can seize the object
ii. Touch can’t be beyond scope of legal activity
1. Look at facts
a. Terry stop – only pat down for weapons, can’t poke and
prod
b. SITA – automatic right to search and can remove objects
and open them. Not just for weapons
6. Exclusionary rule
a. Fruits of poisonous tree
i. Not only must illegally obtained evidence be excluded, but also all evidence
obtained or derived from exploitation of that evidence
7. Exceptions to exclusionary rule
a. Standing
i. Standing – whether the person seeking to suppress the evidence had his own
4th rights violated
ii. Exclusionary rule only applies to a D who establishes that his own personal
rights were affected by the govt’s search and seizure
iii. Ownership does not necessarily confer standing
1. Ownership of property seized does not necessary provide right to
object to a search
2. Ownership of property seize does provide right to object to a seizure of
property bc a seizure is an intrusion of an ownership interest
iv. Presence in home of another

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 Crim Pro I Outline – Distilled – Fall 2010

1. Overnight guest
a. Overnight guest has legitimate expectation of privacy – can
object to illegal search and seizure
2. Temporary guest
a. No legitimate expectation of privacy – cannot object to
illegal search
v. Disassociation from property
1. No standing to object to search of that property – can be searched
without warrant
vi. Coconspirator
1. No automatic right to challenge a search or seizure simply bc he is a
member of the conspiracy that owned the property that was S&S
b. Good faith
i. Reasonable reliance on decision of magistrates later found unsupported by
PC; reasonable reliance on unreasonable warrants ok if reasonable minds can
differ on the issue of valid warrant; reasonable reliance on legislative acts
(unless its provisions are such that a reasonable officer should have known
statute was unconstitutional); clerical errors by clerk of court; error result of
negligence attenuated from arrest or search (warrant database improperly
maintained)
ii. Exception to the exception
1. When officer includes material info he knew was false or would have
knew was false except for reckless disregard for the truth
c. Attenuation
i. ER does not apply unless there is a substantial causal connection between the
illegal activity and the evidence offered at trial
ii. Factors:
1. How much time has passed; intervening circumstances during this
time; length of the causal chain; flagrancy of 4th violation; nature of
derivative evidence at issue
iii. Free will
d. Independent Source
i. Allows intro of evidence discovered initially during an unlawful search if the
evidence is discovered later thru a source that is untainted by the initial
illegality
e. Inevitable discovery
i. Govt must show by a preponderance of the evidence that the illegally obtained
evidence would have been discovered thru legitimate means independent of
the official misconduct
8. Procedural exceptions to exclusionary rule
a. Impeachment purposes
i. Opening the door on direct examination
1. Illegally obtained evidence can be used to impeach statements made
by D during his direct testimony – only for assessing credibility
ii. Opening the door on cross examination

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 Crim Pro I Outline – Distilled – Fall 2010

1. Illegally obtained evidence can be used to impeach D’s testimony no

matter when it is elicited, but only for limited purpose of assessing
credibility
iii. Impeachment of defense witnesses
1. ER prevents impeachment of D’s witness with illegally obtained
evidence
9. Procedural aspects of exclusionary rule
a. Attacking the warrant issued
i. D has limited right to attack truthfulness of statements made in warrant
application
1. Must show that officer engaged in deliberate falsification or reckless
disregard for the truth and that this disregard had a material effect on
the issuance of the warrant
b. Challenging a warrantless search
i. State must prove by preponderance of the evidence that an exception to the
warrant requirement was satisfied
c. Limitation on use of suppression hearing testimony at trial
i. When D testifies on the question of standing at a suppression hearing, the govt
may not use his testimony against him on the question of guilt/innocence
ii. State can use D’s witness’s testimony at a suppression hearing against D
10. 5th amendment and privilege against self-incrimination
a. Timing
i. Applies to trial and pre-trial questioning
b. Scope – Testimonial evidence
i. If person is forced to give information other than what a witness would
provide, the privilege is inapplicable
ii. Revealing one’s thought process is testimonial
iii. Occurs when witness is faced with cruel trilemma
1. Where suspect is asked for a response to communicate a fact or
belief, suspect confronts the trilemma of truth (giving accurate
response), falsity (lying), or silence (not answering at all)
c. Griffin Rule – prosecutors cannot make adverse inference to the jury on D’s choice to
remain silent
i. Carter instruction – D is entitled to have judge give jury instruction to not
draw adverse inference from D’s failure to testify
d. Biographical info
i. Info attendant to booking must be given
e. Immunity
i. Transactional immunity
1. A promise that D will not be prosecuted at all for his testimony
2. Must testify or face contempt of court
ii. Use/derivative use immunity
1. A promise that D’s testimony will not be used against him,
including any evidence derived from that testimony
2. If evidence independent of the testimony is found, D can be
prosecuted with that

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 Crim Pro I Outline – Distilled – Fall 2010

a. Can be proven through wall of silence between the

prosecutor exposed to the testimony and those who bring the
case against the D
3. A witness who testifies under a grant of use immunity in one case
must receive another grant of use immunity before being forced to
testify in another case
11. Confessions and Due Process
a. Voluntariness
i. Involuntary confessions are not valid
ii. Test for voluntariness
1. Force/threatened force
2. Psychological pressure
a. Isolation, humiliation, length, food, use of friends
3. Characteristics of the D
a. Sometimes irrelevant – there must be police coercion. Ie.,
dude with hallucinations confessed but later said voices told
him to confess did not equal involuntariness bc no police
coercion
4. Promises of leniency
a. Forbidden bc when police make specific promise of
leniency, it impedes the D to make an informed choice
5. Deception
b. An involuntary confession is not admissible at trial for any purpose
12. Miranda
a. Warnings
i. Right to remain silent, anything you say can and will be used against you in
court of law; and right to counsel, if you can’t afford one, one will be
provided to you
ii. This is a constitutional rule after Dickerson
b. Testimonial evidence
i. Miranda protects against self-incrimination so it deals with only testimonial
evidence
ii. Not testimonial evidence – lineups, handwritings/voice samples, blood
samples
c. Timing
i. Miranda warnings are an absolute prerequisite to custodial interrogation
d. Custody
i. When a person is deprived of his freedom in any significant way ie. arrest
ii. Whether a reasonable person in that position believes he is free to leave
e. Interrogation
i. Express question or its functional equivalent (words or actions that police
should have known were reasonably likely to elicit an incriminating response)
ii. Confronting suspect with incriminating evidence = interrogation
iii. Questions attendant to custody ie. biographical info is not interrogation
f. Miranda is not offense specific – police cannot initiate interrogation on any crime
after invocation of right to counsel

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 Crim Pro I Outline – Distilled – Fall 2010

i. Miranda warnings not required for conducting undercover activity

g. Invoking Right to silence or counsel
i. Right to silence
1. Invocation of right to silence must be unequivocal
2. Invocation of right to silence must be scrupulously honored (2 hrs)
– cooling off period
3. Interrogation must cease during the cooling off period
ii. Right to counsel
1. Request for counsel must be unambiguous and specific
2. Police-initiated interrogation after an invocation of counsel may
occur only if counsel is actually present during the interrogation
3. Miranda is not offense specific – police cannot initiate
interrogation on any crime after an invocation of counsel
h. Waiver
i. Knowing and voluntary
1. Knowing – full awareness both of the nature of the right being
abandoned and the consequences of the decision to abandon it
2. Voluntary – the product of a free and deliberate choice rather than
intimidation, coercion, or deception
ii. Test for knowing waiver is whether the suspect actually understood the
Miranda warning
iii. Waiver after invocation of Miranda – state must prove waiver by a
preponderance of the evidence
1. Right to silence
a. Once invoked, must be scrupulously honored, ie., given a
cooling off period – 2hrs
b. Then D should be given fresh set of warnings and may be
asked if he wants to waive
2. Right to counsel
a. Police may not interrogate a D while in custody unless the
accused D initiates further communications and then
knowingly and voluntarily waives his Miranda rights
b. Initiation
i. D must initiate communication
1. Eg., discussing the investigation
2. Not initiating – can I have water; can I use
the phone
ii. Totality of circumstances test of knowing and voluntary
waiver
c. Edwards protection – when an accused has invoked his right
to have counsel present during a custodial interrogation, a
valid waiver of that right cannot be established by showing
only that he responded to further police-initiated custodial
interrogation even if he has been advised of his rights
i. Police may not interrogate D while in custody unless
the accused D initiates further communications and

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 Crim Pro I Outline – Distilled – Fall 2010

then knowingly and voluntarily waives his Miranda

rights
d. Shatzer – Edwards protection is terminated 14 days after
suspect is released from custody
i. Effect of violation
i. Miranda defective violation
1. Confession can be used to impeach D who takes the stand but can’t
be used as evidence of guilt – only to assess credibility
ii. Involuntary confessions
1. If confession involuntary but not Miranda defective it cannot be
admitted at all, not even for impeachment purposes
iii. Pre-Arrest, Pre-Miranda silence
1. Can use pre-arrest silence to impeach a D
iv. Post-arrest pre-Miranda silence
1. Can use post-arrest silence that precedes the reading of Miranda
rights for impeachment purposes
v. Post Miranda silence
1. Cannot be used for impeachment purposes, and it violates DPC
vi. Public safety exception
1. Police may ask questions reasonably prompted by a concern for
public safety without first advising a suspect in custody of the
Miranda warnings
a. Eg., D ditched gun during pursuit, cop asked where it was
without giving Miranda warnings bc fear of public safety –
that kid would find gun – D’s statements were admissible in
prosecution’s case-in-chief
13. 6th amendment right to counsel
a. Deliberate elicitation
i. Cannot deliberately elicit incriminating info from a formally charged D in the
absence of counsel
ii.
b. Timing
i. After the D has been formally charged – when adversary judicial proceedings
have begun
c. Use of undercover officers
i. Undercover agents cannot deliberately elicit info from D after being formally
charged (compare with Miranda – undercover doesn’t need to read Miranda
rights)
ii. Listening post exception
1. As long as undercover just overhears and doesn’t say anything, this is
fine
iii. Informant is not a state agent if the govt is not responsible for the deliberate
elicitation
d. Offense specific – police are allowed to question D regarding other crimes if he did
not invoke counsel for those other crimes.
e. Waiver

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 Crim Pro I Outline – Distilled – Fall 2010

i. Waiver must be knowing, voluntary, and intelligent

f. Effect of violation
i. Failure to provide counsel at trial results in automatic reversal of the
conviction
ii. Impeachment purposes
1. Cannot be used in state’s case-in-chief
2. Can be used to impeach D’s contrary trial testimony
14. Identifying suspects – 6th Amend and Due Process
a. 6th Amendment
i. Trigger – D has been charged and there is an ID process issue
ii. A post-indictment line-up conducted in the absence of a lawyer, and without a
valid waiver, violates the D’s 6th right to counsel
1. In person lineup is considered a critical stage of the proceedings,
so attorney must be present
iii. Remedy
1. Per se rule of exclusion as a remedy for post-indictment out of
court ID’s that take place absent counsel – regardless of reliability
2. In court ID would be excluded if it was tainted by the previous,
illegal line-up – govt must show through clear and convincing
evidence that witness has an independent source upon which the
in-court ID is based
a. The rule that in-court ID excluded if it was tainted by
previous, illegal line-up only applies to line-ups conducted
to obtain evidence as to the crime charged
iv. D has no right to counsel at a photographic ID conducted either pre or post-
indictment
15. Limits on right to counsel ID procedures
a. Trigger – D has NOT been charged and there is an ID process issue
i. 6th right only attaches after formal adversarial proceedings begin
ii. Cannot deliberately delay adversary proceedings such as indictment to avoid
having to provide counsel
b. Where 6th’s right to counsel does not apply to an ID procedure the ID must still satisfy
the requirements of the DPC
i. Unnecessarily suggestive - Requires exclusion of evidence of an ID if police
suggestiveness created a substantial risk of mistaken ID
ii. Test:
1. D must show ID procedure was impermissibly suggestive
a. Necessarily suggestive under certain circumstances may be
OK
i. Victim may have died before an unsuggestive line-up
could be performed
2. If impermissibly suggestive, D must then show the ID was
unreliable under the totality of the circumstances
c. Remedy for when ID procedure was unnecessarily suggestive
i. Violation - requires exclusion of the in-court identification
d. Reliability of the ID can cure under the totality of the circumstances

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 Crim Pro I Outline – Distilled – Fall 2010

i. Determining reliability factors:

1. Degree of police suggestiveness; opportunity to view D; degree of
attention; accuracy of the description; level of certainty; time
between the pre-ID opportunity to view and the ID itself; character
of the witness
16. Right to appointed counsel

Right to appointed counsel for all felonies and misdemeanors only if any jail is actually imposed

Charge State Max Actual Sentence Counsel?

Felony assault 2 years $500 fine Yes
Misd assault 1 year $100 fine No
Misd 1 year 2 days in jail Yes
Misd 1 year Probation yes

a. Establishing indigency
i. D has the burden to establish indigency and D has no right to appointed
counsel at a hearing to establish indigency
b. Test for IDing those events that are part of a criminal prosecution where counsel’s
assistance is needed
i. The event must occur after adversarial judicial proceedings have begun and
ii. The event must be a critical stage of the trial process
1. Preliminary hearing; post-indictment line-up; guilty plea negotiation;
sentencing hearing;
c. Right to counsel on appeal
i. Indigent D has right to appointed counsel for his first appeal of right from
criminal conviction; not for discretionary appeals; not for habeas corpus
d. Right to expert witnesses
i. Not automatic – only triggered when the D will be deprived of a fair
opportunity to present his defense without expert assistance
17. Effective assistance of counsel
a. Govt violates right to effective assistance when it interferes in certain ways with the
ability of counsel to make independent decisions about how to conduct the defense
b. Defense counsel can also deprive a D of the right to effective assistance by failing to
render adequate legal assistance – both must be satisfied
i. D must show that counsel’s performance was deficient
1. Requires showing that counsel made errors so serious that counsel was
not functioning as the counsel guaranteed by the 6th – held to
reasonableness/custom of the trade standard
2. Courts are deferential to counsel when its strategy; ignorance/failing to
investigate = defective performance, go to 2nd prong
ii. D must show that the deficient performance prejudiced the defense
1. Requires showing that counsel’s errors were so serious as to deprive D
of fair trial, a trial whose result is reliable
2. Fact specific inquiry; more overwhelming state’s case is, harder for D
to prove

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 Crim Pro I Outline – Distilled – Fall 2010

c. Per se ineffectiveness and prejudice

i. D doesn’t need to prove the 2 prong test if circumstances exist that are so
likely to prejudice the accused that the cost of litigating their effect in a
particular case is unjustified
1. Applied when likelihood that any lawyer could provide effective
assistance is so small that a presumption of prejudice is appropriate
without inquiry into actual conduct
2. Ex – conflict of interest with counsel and D; not admitted to bar
d. Self-representation
i. 6th amend grants to the accused personally the right to make his defense
1. D must be warned of consequences of a waiver of counsel
2. Make a voluntary decision
3. Be competent and understand his rights
a. Competency to waive counsel is same as standard for
competency to stand trial
4. Unequivocally state that he wishes to represent himself
ii. D denied right to self-representation after unequivocally invoking that right
requires a per se reversal

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