CRIMINAL PROCEDURE OUTLINE (Shatz, Spring 2004)

I. INTRODUCTION
1. The Constitutional Rights -The first 8 amendments are incorporated to the states through the 14th amendment -The second source of rights is the Due Process clause -The third source is the Equal Protection -This is a floor, not a ceiling a. Goals of the Criminal Justice System -Processing criminals -Protecting citizens from unfair treatment -There are two models that represent the two goals and they are in tension with each other i. Assembly Line Model -To process criminals from the point of arrest to the point of punishment -Conservative approach -The main concern is being efficient and the decisions are made administratively -Police and prosecutors must be trusted -Courts still exist as a reliable source for the mishandled cases ii. Obstacle Course Model (also the Due Process Model) -To protect citizens from unfair treatment by the state -Goal is to prevent government intrusion from an overreaching government -The courts are given more discretion -The police and prosecutors are not neutral b. The Due Process Clause of the 14th amendment makes fundamental rights applicable to the states. Adamson c. All of the rights in the Bill of Rights are fundamental Duncan 2. Three Prongs of Due Process 1. Substantive Due Process 2. Procedural Due Process -When it falls outside of the first 8 3. Incorporation of the first 8 amendments

II. RESTRAINTS ON OFFICIAL CONDUCT-SEARCHES

FOURTH AMENDMENT The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized

Attack Plan 1. Was there a search or seizure? -There is a search or seizure when there is a government invasion of your privacy or possessory interest -MUST be the government, there is no restriction on private citizen -An action by an official is not an invasion of privacy if the government official has a right to be where they were, and the object in question was in plain view a. Open Space Cases 2 Prong Test 1. Has the person manifested a subjective and reasonable expectation of privacy? 2. Is this expectation of privacy reasonable in societys eyes/average citizen? Katz i. For you to have something remain private, you must have a subjective belief that it will remain private and it should be a reasonable belief that it will remain private. If you turn it over to a 3rd party it is not a seizure, if an ordinary person could see it Greenwood ii. You do not have a reasonable expectation of privacy to an open field, state laws of trespass do not govern the 4th Amendment Oliver iii. It is not a search when it is something that an average curious citizen could have been Riley b. Sensory Enhancement Cases i. Drug sniffing dogs are legal within the 4th since they smell the air outside of your luggage, this not intrusive on privacy rights Place ii. It is a search when you use a device to obtain information that you would not have obtained otherwise Karo iii. If the technology used to obtain the information is not available to the general public then it is a search Kyllo c. Misplaced Trust Cases i. You do not have an expectation of privacy in the things that you tell someone else Hoffa ii. Turning something over to a third party is your bad iii. The 4th affords no protection to a wrongdoers misplaced belief that another wrongdoer will not betray them White iv. There is no reasonable expectation of privacy when you are in someone elses house for a transactional visit MN v. Carter 2. If there was a search, did the govt have a valid warrant based on Probable Cause? Has to specifically describe place to be searched and the thing to be seized Four Ways to Attack the Warrant Requirement a. The affidavit used to obtain the warrant was false b. The affidavit was true but insufficient to meet probable cause To give rise to probable cause an informants tip must contain:

1. A sufficient statement of the underlying circumstances from which the informant gained his knowledge, or Aguilar 2. Information supporting the applying officers belief that the informant is reliable and credible (truth telling kind of guy) Spinelli and Aguilar i. Was the tip obtained in a reliable manner? ii. Is there sufficient evidence apart from the corroborating evidence? We now look at the two things above and apply them as a totality of the circumstances Gates c. The actual warrant was valid, but it was too broad or different from the PC in the warrant i. When it is clear that the scope of the warrant has been exceeded, the search must stop ii. The reasonableness of the search will not be unreasonable if the officers fail to realize the over-breath of the warrant if that failure is objectively rational. Garrison d. The warrant was executed in an unreasonable manner or was stale i. There are no categorical exceptions to the no knock rule, it is done on a case by case basis Richards ii. Felony drug cases are always an exception iii. If they bring the media with them, it is not okay Wilson v. Lane iv. You cannot use unreasonable force 4. If the search or seizure occurred without a warrant was there an exception to the warrant requirement? a. Arrests (and seizures of things) i. Arrests 1. There is no warrant requirement for public arrests based on PC as determined by a cop, even if the cop could have obtained a warrant without jeopardizing the warrant Gerstein 2. The hearing must come in a reasonable amount of time, 48 hours McLaughlin 3. The 4th permits an officer with probable cause to make a felony arrest without a warrant Watson 4. A pretextual search is not invalidated so long as the police had a legal right to make an arrest based upon objective PC Whren 5. You can make warrantless arrests for misdemeanors/ fine only infraction Atwater ii. Arrests in the home -You have to have a warrant for this -People have a greater expectation of privacy in their homes 1. If it is someone elses house, you need a search warrant 2. If it is your house you need an arrest warrant 3. Unless there are exigent circumstances, the police are required to have an arrest warrant before entering a suspects home to make an arrest Payton

4. You cannot arrest someone in their home for a misdemeanor Welsh 5. You have enough time to arrest an overnight guest in the home of another 6. To arrest someone in the home of another person, cops need a search warrant for that home if they use any evidence of the other parties home Steagald i. Searches incident to arrest 1. Any lawful custodial arrest justifies a full search of the arrestees person and clothes Robinson 2. There must be a strong showing that it was too hard to do otherwise to not have a search incident to arrest Edwards 3. A warrantless search incident to arrest may extend only to the person of the arrestee and the area within his immediate control Chimel 4. Officers can do a protective sweep of adjoining spaces incident to arrest Buie 5. A search is determined to be reasonable in light of the circumstances McArthur 6. The police cannot create the exigent circumstances Chuy 7. An internal stakeout is fine if it does not interfere with the occupants Segura Cars 8. An officer may, after making a lawful arrest of an occupant of an automobile, search the passenger compartment of the automobile incident to that arrest Belton 9. An officer cannot justify a search as incident to arrest after he decides to issue a citation/misdemeanor in lieu of making an arrest Knowles 10. You can only do medical procedures if is not super- invasive -Blood sample v. surgery to get a bullet wound b. Automobiles and other movable objects -Autos are inherently exigent because of their ability to mobilize -Probable Cause is still required i. Any vehicle that is readily mobile and subject to the pervasive laws regulating motor vehicles may be searched, without first obtaining a search warrant, so long as there is probable cause to support the search, except if it is being used as a home Carney ii. Police may search a closed container in an automobile without a warrant if they have probable cause to search the container Acevedo iii. You do not need individualized probable cause to search multiple containers in a vehicle regardless of whether they belong to the passenger or the driver Houghton iv. An inventory of a motor vehicle that is impounded and the containers therein pursuant to established police department administrative policy does not violate the 4th prohibition of unreasonable searches and seizures Bertine c. Detention of Persons and Things Terry Stops 1. Was there a forcible stop or seizure? -Totality of the circumstances under an objective test

2. Was there reasonable suspicion to justify the stop? a. Inception: Specific and articulable facts justifying a suspicion that the suspect is armed and dangerous b. Scope: Cops can search pockets if they have a reasonable suspicion to believe that the suspect has an unusual weapon i. Do the circumstances justify the inception? or ii. Was there reasonable suspicion to frisk? 3. Was the search incident to stop conducted unreasonably? a. Stop was too long b. Pat down was too intrusive a. Was there a stop? i. An investigative stop must be temporary and last no longer than is necessary to effectuate the purpose, must use the least intrusive methods possible to dispel their suspicion in a short period of time Royer ii. There was no seizure since the entire stop was voluntary Drayton iii. If you are not being detained, like if you are running away, your rights are not being violated Hodari D b. Was it reasonable? i. It is not reasonable to seize someone if they are just in the presence of drug dealers Cibron ii. An anonymous tip is not sufficient to give an officer authority to make an initial stop unless it contains some indicia of the reliability of the tipster, the prediction of future activity corroborated by police surveillance iii. Considerations that are relevant for reasonable suspicion are presence in a high crime area and evasive behavior. Therefore, unprovoked flight is suggestive of wrongdoing Wardlow iv. You must have suspicion for each person that you search Di Rae v. It is okay to detain someone while you search their home Summers c. What is an allowable time frame? i. The detention of luggage is the same as a person since you cannot travel without your luggage. The detention must be as brief as possible Place ii. If the search took too long Davis iii. You can also frisk things Long d. Administrative and Regulatory Searches 1.There must be some limitation on the officers 2. This is an exception to Probable Cause and the warrant requirement 3. Reasonable suspicion/individualized suspicion or a policy issue must be at the root 4. It must go beyond ordinary criminal law enforcement

verify or

such as JL

Two Types 1. General Regulation: Intrusion is on the general public 2. Fact Specific: Invasion of specific people per regulation 2 Questions to Ask 1. Is a warrant required or is the discretion of the police limited? 2. Is the search reasonable (public interest v. intrusion on the individual)? 1. Building Searches i. To search a building you need an area warrant Camara 2. Business Searches i. A highly regulated business such as alcohol, tobacco and firearms can be searched without a warrant and also junkyards Burger 3. Car Searches Detaining a car is a seizure i. A car search to look for illegal immigrants on a known route is okay, this application is restricted to border policing Martinez-Fuerte ii. There is a strong governmental interest in catching drunk drivers, so sobriety checkpoints are okay Sitz iii. Roving patrols to check for identification and licenses are not okay since there is too much discretion in the hands of the police Prouse iv. A vehicle checkpoint program whose primary purpose is to detect evidence of criminal wrongdoing is not sufficiently separate to pass constitutional muster, this only general crime control Edmund 4. People Searches i. It is okay to test customs officials since they work for the government and the government is fighting drugs Treasury Employees ii. There is no government interest in drug testing governors Chandler iii. Schools have an interest in drug free students so you can be searched at school without a warrant, this is a setting in which a warrant just wouldnt work TLO iv. School drug testing is reasonable since students have a lesser expectation of privacy, and the intrusion was minimal Vernonia v. It is reasonable to drug test students that want to participate in extra-curricular activities as a means of deterring drug use Earls vi. If it is not related to some criminal reason it is not okay Ferguson e. Consent You cannot truly consent if you are not given a choice to say no 2 Questions 1. Was it freely and voluntarily given? i. Not due to duress or coercion, expressed or implied

was

ii. The consenter need not know that he had a right to refuse, but this can be a factor in determining if it was freely given Bustamonte 2. Did the person who gave consent have the authority to do so? i. A warrantless entry based on consent of a third party is reasonable, and thus valid under the 4th, so long as it was objectively reasonable for law enforcement to believe that the third party had the right to give consent Rodriguez 5. If there is no exception, does the exclusionary rule apply? The Exclusionary Rule Remedy 1. Due Process 14th Amendment, 5th if it is a federal prosecution The exclusionary rule requiring evidence gathering in violation of the 4th to be excluded from criminal proceedings applies equally to both the state and federal governments Mapp 2. Privilege v. self incrimination 3. Assistance of Counsel 4. Fruit of the poisonous tree i. Evidence that is a product of an illegal search/seizure will be excluded since it is a fruit of the poisonous tree ii. However, this taint can become attenuated over time Wong Sun, Nix v. Williams If an arrest is conducted in a shock and awe manner it falls under the exclusionary rule 1. Temporal proximity of the arrest and confession 2. Presence of intervening circumstances 3. The purpose and flagrancy of the violation Brown You cannot suppress a live witness since they can come forward on their own Ceccolini EXCEPTIONS 1. As long as the police have a good faith belief that a warrant has been properly issued by a magistrate and based on sufficient PC, evidence obtained pursuant to the warrant is admissible Leon 2. If the police obtain evidence based on a good faith on a statute that is also fine Krull 3. The exclusionary rule does not extend to parole board hearings Scott 4. It does not apply to the grand jury since it is not an adversarial proceeding Calandra 5. It does not apply to civil tax proceedings Janis 6. It does not apply to deportation hearings Lopez-Mendoza

III. RESTRAINTS ON OFFICIAL CONDUCT-POLICE INTERROGATIONS AND INDENTIFICATION PROCEDURES

Evidence Covered by the 5th 7

a. Who: a person who might be incriminated against and for whom the governments compulsion is directed b. When: The privilege can be exercised in any criminal case c. What: Testimonial and communicative verbal statements, not physical evidence since that is not voluntary 1. Expressly verbal: Needs to be testimonial and communicative 2. Neutral Verbal Information: Suspect is asked for a response and it contains implied or express assertions that the suspect will have to face the 3. CRUEL TRILEMMA: Truth, falsity or silence (a no win situation) i. What is compulsion: physical, psychological, subpoena, sanctions and interrogation A. Police Interrogations Confession must be voluntary 1. There are three constitutional challenges 1. Does the police behavior shock the conscience? (14th) i. If the police have overreached, then the confession can be excluded ii. The goal is to make the confessions reliable, deter the police from misconduct and prevent the state from taking advantage of a suspect Ashcraft iii. Denying a request for an attorney or using trickery to elicit information, especially that which is already known violates the 14th Spano iv. Personal Liberty v. Police Interest Balancing test of the methods used to obtain the confession Fulminante v. A confession is not rendered inadmissible merely because the police failed to inform the suspect that a lawyer tried to contact him, or because the police did not grant the lawyer access, although egregious police misconduct may violate constitutional due process Moran 2. When is something excluded according to the 6th? i. If you are a charged suspect, you have a right to an attorney during questioning Massiah ii. The right to counsel is violated if incriminating statements are obtained from the accused after judicial proceedings have been initiated and counsel Brewer v. Williams (Christian Burial) iii. After the 6th right to counsel attaches to an offense, it also attaches to other offenses, that, even if not formally charged, would be considered the same because each requires the same proof of facts Cobb iv. The test is deliberate elicitation 1. If the is making spontaneous statements to the police and they are just sitting there listening you cannot exclude it Kulhman 2. If he reinitiates conversation, all bets are off Patterson 3. Applies to a crime for which the defendant has already been indicted even though the government has other, legitimate reasons for defendants conversations, but that information regarding charges is to be excluded at the trial Multon

retained offense

intercepting the pending

would admit

4. The has the burden of showing that the police and their informant set the stage for someone to be set up in a situation in which they to certain things Henry 5. MacNeil 3. When do you exclude a statement based on the 5th? i. If a statement is taken before or in absence of Miranda rights 1. You have the right to remain silent 2. Anything you say can be used against you in a court of law 3. You have the right to speak to an attorney and have an attorney present during questioning 4. If you cannot afford an attorney, one will be provided for you at the Governments expense a. Involuntary or coerced statements cannot be used to impeach you b. You cannot use silence to impeach a witness c. You can re-question someone if time has passed and you give them a new set of warnings

ii. Two elements needed to make Miranda apply a. Custody: substantial interference with your rights to move around freely 1. Roadside questioning is not a stop Berkemer 2. Even if a suspect is in police custody, police officers statements are not deemed interrogation unless they are either express questions or equivalent statements which are reasonably likely to elicit an incriminating response, and in fact do elicit such a response Innis 3. When you are talking to your probation officer, you are not in custody Murphy b. Interrogation 1. Questioning from a cop only 2. The questioning must be the type that a reasonable cop would know would get a response 3. Miranda warnings are not required when the suspect is unaware that he is speaking to a law enforcement officer and gives a voluntary statement Perkins 2. Waviers a. The Public Safety Exception i. Police may ask questions reasonably necessary to ensure public safety without reciting Miranda warnings and suspects replies are Quarles ii. Not involuntary if they give him his four rights and nothing else b. Assertion of Rights

admissible

i. Once a suspect requests counsel, police may not reinitiate questioning unless counsel is present Minnick ii. If a suspect refuses to answer questions, the police must stop questioning, but may restart later under some circumstances Moseley has iii. When a suspect asserts his right to counsel, the police cannot try again. He may not be subjected to further interrogation until he counsel or he does something to start the contact again Edwards iv. The has to give a valid and voluntary wavier of his rights before the cops can question him again v. If a suspect requests counsel and a dialogue ensues with the police, the police may be deemed not to have initiated it, thus avoiding Bradshaw 3. Failure to Warn and Readvisment a. A suspect who has once responded to unwarned yet uncoercive questioning not thereby disabled from waiving his rights and after he has been given the requisite Miranda warnings 4. Congress attempt to repeal Miranda a. Miranda announced a constitutional rule, which Congress may not supersede legislatively Dickerson B. Identification Procedures (5th: you can argue it violates your right to self incrimination, but physical IDS do NOT trigger the 5th) 1. 6th Amendment Right to Counsel a. There are two stages of the argument i. Suppression of the out-of-court ID ii. Suppression of the in-court ID because it is tainted by an illegal out of court ID 1. You apply taint with Totality of Circumstances to find out whether he can id him in court 2. It is okay if there is an independent basis for the ID b. The 6th is violated if the right to counsel has attached and an out of court ID is done without the attorney present (Wade-Gilbert Rule) i. 6th right to counsel if indicted and charged and a line up is a critical stage Wade ii. There is a per se rule that any ID without the presence of counsel must be excluded as evidence at trial iii. Except: 1. The ID was pre-indictment Kirby 2. It was a photo array and not a line up, since this environment can be recreated at trial Ash

Miranda

confessing Elstad

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2. 14th Amendment: Due Process Argument a. If the ID is so suggestive and conducive to irreparable mistaken identification then it violates DP Stovall b. Even if a witnesss identification is based on suggestion and is unnecessary, it does not violate the s due process rights if it is reliable based on the totality of the circumstances Braithewaite Totality of the Circumstances Test 1. Opportunity to view the criminal at the time of the crime 2. The degree of attention 3. The accuracy of prior description of the criminal 4. The level of certainty demonstrated at the confrontation 5. The time between the crime and the confrontation

IV. RESTRAINTS ON OFFCIAL CONDUCT-INVESTIGATION BY SUBPOENA

The Grand Jury issues subpoenas -They do not require a showing of probable cause 1. 4th Amendment i. A subpoena is not a seizure Dionisio ii. In criminal or forfeiture proceedings, courts may not order s to produce documents which will be used to incriminate them, under the 4th ban on unreasonable search and seizure Boyd iii. Grand juries may subpoena witnesses personal testimony and voice exemplars, without showing such subpoenas are reasonable Dionisio iv. You can only bring a 4th amendment claim for a subpoena if it is really broad and sweeping in its terms Hale -Also Davis, when they rounded up all black youths since they were black v. The 4th limitation was described as requiring that the subpoena be sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance would not be unreasonably burdened See 2. 5th Amendment a.There are five areas to the argument 1. No person is limited to individuals 2. A voluntary writing is not compelled i. Voice recordings are available to everyone and are not covered Dionisio ii. Miranda warnings need not be issued to grand jury witnesses, and their false answers are punishable as perjury, even if the question was improper Mandujano iii. The act of producing documents in response to a subpoena has communicative aspects that may constitute self-incriminating testimony that is protected by the 5th Fisher 3. In any criminal case

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i. You can plead the 5th if it may lead to criminal sanctions 4. Witness i. Giving testimonial information (Documents) ii. There is no right in papers iii. There is a potential exception for personal papers iv. If the production of documents is so sweeping it amounts to answering rogs or admitting to things that the prosecution may not even be aware of, it can protected Hubbell 5. Against himself i. False statements to the grand jury may not be suppressed in prosecution for perjury Mandujano b. Immunity 1. Transactional Immunity: witness will never be prosecuted 2. Use and Derivative Use Immunity: you can be prosecuted even if the evidence against him is not from himself i. The burden on the police is to show that the evidence used to prosecute the person is not from what they were told 3. You can be forced to testify if you are just granted use and derivative use immunity Kastigar 4. Business papers i. there is no 5th but ther might be a right to refuse production, but not for the content ii. TEST: would the production amount to an admission 1. Hubbell: so broad that the was answering rogs

be

V. DEFENDANTS RIGHT TO COUNSEL

A. The Right to Counsel and the Right to Waive Counsel *6th Amendment right even if the sentence is suspended 1. The Warren Court held that there is an affirmative duty to make things fair 2. The right to counsel exists if the potential punishment includes imprisonment i. This extends to situations in which you can get a fine or imprisonment ii. You get counsel for any critical stage of the proceedings (Gilbert v. CA) The Accused has Five Rights 1. Pleading guilty 2. Waiving jury trial 3. Waiving the right to be present 4. Testifying ion his own behalf

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5. Waiving an appeal 3. The 6ths right to counsel, through the 14th, requires states to appoint counsel for indigents Wainright i. The State must provide the indigent defendant the tools to make sure there is a meaningful access to justice 4. Misdemeanors i. You can be appointed counsel for misdemeanors Argersinger ii. If there is any risk of prison with a misdemeanor you get counsel Shelton 5. In parole or probation revocation hearings, you do not get counsel Gagnon 6. You are entitled to counsel for the first appellate review since you are entitled to bring it forth under the 6th Douglas i. This does NOT apply to appeals that are self generated 7. The State does not have to appoint counsel for discretionary appeals Ross i. An appointed counsel is not required to argue all non-frivolous points at a trial, he can limit what he wants to present as a matter of strategy Jones 8. You have a right to refuse counsel and to represent yourself if you want to Farretta i. This has to be timely and unequivocal ii. Having a standby attorney to explain procedure and stuff is not a violation of someone wanting to represent themselves McKaskle 1. If they interfere too much, the rights of the may be violated 2. If it undercuts and interferes with the tactical choices of the and denies him the appearance of representing himself, it is a violation iii. If your right to represent yourself is violated, you get an automatic reversal iv. The Miranda warnings are enough of an advisement 9. You have a Due Process right to other types of assistance to make your case, such as expert witnesses or psychiatrists Acke B. Adequacy of Representations 1. There are Four Challenges a. The government has interfered i. The court cannot deny you the right to see your counsel during an overnight break in a trial Getters ii. You have no right to chose or retain specific counsel, it can be changed Morris v. Slappy b. Infer Ineffectiveness i. Powell v. Alabama

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ii. TEST: There was no counsel that could have done okay (Jabor) c. Actual Ineffectiveness This is the usual challege i. Strickland Test 1. Was the performance so deficient that they were not working as counsel? Performance Factors (Cronic) 1. The limited time for preparation 2. The inexperience of counsel 3. The gravity of the charge 4. The complexity of possible defenses 5. The limited accessibility of witnesses 2. Was the poor performance so prejudicial that it affected the outcome of the trial? But for the actions, there would have been a different result ii. You have to look at the reasonable probability of a different result Lockhart iii. The right to counsel is not violated when counsel does not want to present perjured testimony, or it would have been a windfall to the Nix d. Conflict of Interest i. TEST: Was it actual conflict that affected performance? (Cuyler v. Sullivan) ii. The court is allowed substantial latitude in refusing waivers of conflicts of interest with respect to a criminal s chosen counsel both in cases where there is an actual conflict and in those where a serious potential for conflict exists Wheat iii. The must prove that the conflict actually affected the performance Mickens 1. The court has discretion to prevent this

VI. THE PROSECUTOR

A. The Decision to Prosecute 1. The prosecutor has complete discretion in the decision to charge subject to two limitations i. He cannot discriminate that has a class based effect ii. There was a discriminatory motive in prosecuting only certain classes under the statute iii. MUST PROVE: To contend that there is selective prosecution, the must make a credible showing of similarly situated persons Armstrong 2. Vindictive Prosecution i. When the prosecutor has chosen a harsher sentence since the exercised some right ii. s seeking review must prove vindictiveness was actually present; it is not presumable from a revised charge pretrial Goodwin 1. However in some cases there is a presumption of vindictiveness

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iii. You cannot bring a harsher sentence on retrial after a criminal successfully attacks an initial conviction on appeal Pierce iv. DP is not offended by all possibilities of increased punishment upon retrial after appeal, since there is a expenditure of prosecutorial resources if a misdemeanor offender seeks a trial through de novo means to federal court, so therefore, upping to felony charges is not always wrong Blackledge v. Due Process and 14th do not apply to vindictiveness charges in the pretrial setting Bordenkircher B. The Right to Speedy Prosecution 1. What interests are served? a. Society b.Defendant i. So there is less prejudice to your defense ii. Jail is not fun iii. There is a stigma iv. There are collateral issues to being charged 2. The 6th Amendment speedy trial a. This starts when you are charged with the crime It stops for when the charges are dropped b. There is a Four Factor Test Barker v. Wingo i. These factors are to be balanced for the and the prosecution 1. Was there a delay? 2. What was the reason for the delay? -Deliberate? -Neutral? -Valid Reason? i. If the delay is due to governmental negligence, the right to a speedy trial has been violated Doggett ii. If the delay is due to appeals, it doesnt count Loud Hawk iii. If the delay is because charges were dropped and then refiled that is okay McDonald 3. Did he choose to assert his right? 4. Was there prejudice in the delay? 3. The 14th Amendment right under Due Process a. This starts with the discovery of crime by the b. There is a 2 Factor Test Lovasco (You must meet both elements) i. Was there prejudice to the case? ii. Was there something other than investigatory delay/was it done in bad faith?

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C. The Prosecutorial Duty to Disclose Evidence 1. The Prosecution must provide evidence that would have a reasonable probability of changing the outcome of the trial Brady/Strickland a. The burden is on the to prove this 2. There are Four Situations a. The state submits perjured testimony i. This always results in a new trial ii. This is a violation of Due Process Napue iii. The burden is on the state to prove that this did not affect the outcome of the trial Mooney iv. The conviction is set aside if the State violates this rule b. The defendant makes a discovery request and the State does not comply/ The State does not turn over evidence, but the defendant did not ask for it c. The governments failure to retain evidence must be proven by the to be in bad faith Youngblood d. Emergence of new evidence (Rule 33) i. This is not the states fault in any way 3. 3 Standards a. Probable Acquittal Standard i. There is no suppression of evidence ii. The burden is on the defendant 51% b. Reasonable Probability Standard i. The defendant bears the burden ii. Lesser showing than the PA standard iii. You have to look at all of the evidence together Kyles c. Harmless Error Standard i. The prosecution bears the burden ii. The burden is beyond a reasonable doubt 4. The right of confrontation is for the trial, not discovery Ritchie D. Pleas and Plea Bargaining -You challenge the plea, not the process 1. 2 Models a. Crime Control Model i. Guilty pleas are necessary and desirable to the efficient working of the system ii. This is the best way to do it since it speeds the process up iii. They are necessary since there is no way that we can have trials for everyone iv. Most of these people are guilty v. Because they are a good thing, we should not always be second guessing them vi. The TC should be looked at as being in charge in this type of situation b. Due Process Model

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i. A trial is the only way that we can be sure if it is okay ii. The trial is the preferred method of handling cases iii. Plea Bargaining is a necessary evil iv. We have to surround them with safeguards v. We should also be much more willing to set them aside vi. Setting aside a guilty plea sends someone back to trial vii. We should always let someone have a trial if they want to have one again

2.There are three common outcomes of plea bargaining a. He pleads guilty to a lighter sentence b. He pleads to the crime in exchange for the lightest version of the sentence c. He pleads to one crime so that the others are dropped or reduced 3. Requisites of a valid plea a. Inform the and determine that he understands the nature of the charge and the possible penalty and various rights that he is surrendering by pleading guilty i. TEST: whether he had the ability to consult with his lawyer with a reasonable degree of rational understanding and a rational and factual understanding of the proceedings against him Pate ii. This does not require that he have a high level of intelligence Godinez iii. You must be told about the critical elements of the crime Henderson iv. You do not get impeachment information if you accept a plea bargain Ruiz b. Determine that the plea is voluntary and intelligent i. When someone pleads guilty we have to make sure that it was a knowing and voluntary wavier Boykin ii. If the prosecution has coerced the plea, then it might be involuntary Bordernkircher c. Require disclosure of any plea agreement and accept or reject the agreement d. Make sufficient inquiry to ensure that there is a factual basis for the plea i. You do not have to admit to being guilty to accept the result of a guilty plea Ashford 4. As long as a prosecutor has probable cause to support each charge, the choice of which charges to bring rests in his discretion, and his basing that choice on a desire to induce a guilty plea does not violate due process Bordenkircher 5. When a plea rests in any significant degree in a promise of the prosecutor, such that it is part of the inducement or consideration for the plea, that promise is enforceable Santobello

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6. A prosecutor may withdraw his offer for a plea bargain before the enters his plea of guilty if the has not relied on the offer to his detriment. The potential negligence involved is irrelevant Mabry a. He cannot make the claim before the trial if he knew what he was doing b. He has to go to trial and deal with it then 7. The prosecution cannot threaten 3rd parties 8. There are 3 ways to attack a guilty plea a. Plea was not voluntary or knowing See above b. There was inadequate assistance of counsel i. 6th Amendment challenge ii. Same as Strickland iii. EXCEPTION: if the law changes, if there is some arcane aspect of law Tollet v. Henderson c. There is some antecedent Constitutional violation that would disallow the charges being brought in the first place (Blackledge v. Perry) 9. Plea bargains are enforceable since they are like contracts Rumery 10. If the waiver is contingent on some act that is not performed, then it can be revoked Ricketts

VII. TRIAL
A. Right to Trial 1. When do you have a right? a. You have a right to a trial in serious cases Duncan v. LA b. You do not normally have a right to a jury trial for a misdemeanor unless you can show that the total potential punishment demonstrates that the legislature thought the offense was serious Blanton c. When a case involves multiple offenses, it is the maximum penalty for each offense, and not the potential aggregate penalty, which is the basis for determining whether the accused has a right to a jury trial Lewis d. This is different since there is no set penalty for criminal contempt and the jury trial is to guard against arbitrariness, which is an issue in criminal contempt cases Codispotti e. The potential imprisonment must be for at least six months 2. How big does the jury need to be? a. The jury can be as small as 6 if unanimity is required Williams b. Unanimity is not required for larger juries, although a substantial majority should agree Apodaca c. Smaller juries favor the prosecution, as there will be fewer hung juries 3. What kinds of sentencing factors are considered?

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a. The court looks to what factors increase the maximum, not the minimum Apprendi b. If there is an aggravating factor that results in a serious increase, the jury must decide about the existence of the aggravating factor as well as the crime Apprendi c. A judge cannot find for an aggravating circumstance that increases something to death without it going to a jury first Ring B. Jury Selection There are Four Stages of Jury Selection 1. There is a jury venire a. This is a violation of the 6th as it is applied through the 14th b. The 6th Amendment claim does not require proof of intent c. The 14th Amendment claim requires proof of intent i. You cannot exclude people from the jury based on their race Carter This is a right of the jury pool ii. The jury venire must include a cross section of the population and you cannot exclude groups from it Taylor iii. TEST: Is there a numerous and distinct segment that is excluded systematically across the board? iv. REBUTTAL: There is a compelling State interest to do it this way 2. They go through voir dire a. If someone commits an interracial crime, they have a right to ask the jurors about potential bias regarding race Turner b. It is up to the judge to determine how to do this Ristiano 3. The attorneys can challenge for cause a. Only the venire has to be a cross section, not the actual petit jury Lockhart b. You cannot let a death sentence stand if people were excluded from the jury that just had scruples or a general objection to the death penalty Witherspoon 1. You cannot exclude people who have an open mind even if they have qualms 2. You can exclude people that cannot evaluate all of the facts c. You can also object to people that would vote for the death penalty in every case Morgan 4. The attorneys can make peremptory challenges a. The attorneys on both sides are given a certain amount of challenges that they do not have to explain b. Baston Test i. The must show that there is an inference of discrimination in a prima facie case

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ii. The burden then shifts to the prosecutor to show that it was a neutral reason (They have a lot of latitude in what is considered neutral) iii. The ultimate burden of proof then goes back to the c. The challenges may not run counter to the Equal Protection Clause Batson i. If it appears that people are being excluded based on race this can be a concern d. The challenges of the defense are under scrutiny just like the prosecution McCullom e. If a race neutral reason disproportionately affects one race, the judge can consider this as a pretext for racial discrimination Hernandez f. The Equal Protection Clause to protect against peremptories applies to gender as well as race J.E.B. e. The person bringing the charge does not have to be the same race/gender as the group they are claiming is excluded C. Rights of Confrontation and Compulsory Process 1. QUESTION: Does the s presence at a particular proceeding have relevance to the fullness of his opportunity to defend himself? a. The defendant has a right to be present, to have the witness present and has a right to cross examine a witness 2. Right of Presence a. This is a constitutional right b. There is also a Due Process Element c. RULE: A trial court may order a defendant removed from the courtroom, if necessary, to preserve order in the court (Il. v. Allen) -If this is a good method, fine 3. The Confrontation Clause a. Admission of out-of-court statements 1. HISTORY: We do not want to be like the European courts and use evidence obtained in secret 2. HEARSAY: Testifying to a third party statement -EXCEPTIONS TO HEARSAY EXCEPTION: i. Testimonial (Crawford v. Washington) 1. Hearsay made in response to interrogation by the government 2. Left open: local hearsay law that is not testimonial 3. Scalia is vague about if this is new standard or old standard 4. OLD TEST: Roberts The jury could hear the evidence if the judge determined it was reliable

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5. NEW TEST: We can only use evidence that can be tested by cross examination ii. Excited Utterances: It is reflexive and therefore must be true iii. Deathbed Statements: why would you lie right before death? 3. CONFESSIONS: i. A is deprived of his rights under the Confrontation Clause when his nontestifying co-defendant naming him as a participant in the crime is introduced at the trial, even if the jury is instructed to consider that confession only against the co-defendant (Bruton) ii. RULE: If it is things outside of the confession that link the person to the confession, then it is okay
with the Marsh: The confession of the co did not mention her at all and it was only thru her testimony plus his confession that a person could link the two concepts together to realize she was co Bruton: The confession was edited so that the was not mentioned. It was rather obvious if you read between the lines

b. Restrictions imposed by law or by the trial court on the scope of cross examination 1. There are limitations on the state as to how far they can go in preventing a cross examination to serve a state interest (Davis v. Alaska) 2. RULE: The State cannot require the petitioner to bear the full burden of vindicating the states interest in the secrecy of juvenile criminal records 3. Davis: The state refused to allow the cross examination of the juvenile
witness about his record, tried for which included burglary, the charge was being

4. This does not apply to pre-trail stuff Ritchie

VIII. DOUBLE JEOPARDY

A. Reprosecution after Final Judgment 1. The Double Jeopardy Clause is primarily concerned with multiple trials 2. It extends to both misdemeanors and felonies 3. It does not start until: a. The jury is empanelled and sworn in for a jury trial b. The first witness is sworn in case involving a bench trial 4. Same Offense Limitations: a. After an issue of ultimate fact has been finally determined, the same issue cannot be litigated between the same parties in any future proceedings, Collateral Estoppel (Ashe v. Swenson) b. Blockburger Test (Upheld in Dixon) i. Two offenses are different if they require proof of fact that the other does not ii. The crimes cannot be greater or lesser included offenses

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iii. We take account in contempt the crime and the contempt order as well in ruling on Blockburger iv. This overruled Grady c. You can be tried for the same offense in two different states since each state is their own sovereign (Heath v. Alabama) B. Reprosecution after Mistrial 1. A mistrial is different from a mid-trial dismissal 2. Manifest Necessity: i. There was no meaningful and practical alternative to a mistrial ii. The trial court considered all of the alternatives and a mistrial was the only meaningful choice iii. Who is at fault/who is to benefit? iv. If not, then there is no bar to Double Jeopardy 3. A defendant can move for a mistrial and invoke Double Jeopardy if: i. The prosecutor acted in such a manner that it provoked the into moving for a mistrial ii. Use deference to trial judge C. Reprosecution after Appeal 1. HISTORY: i. The common law had the ideas of (1) formerly acquitted and (2) formerly convicted ii. This is the basis of the Double Jeopardy Clause 2. When the defendant wins the appeal i. If the appeal is a pretrial motion, there is no bar to double jeopardy since the trial has not yet started Serfass ii. If the appeal is going to be decided by the appellate court it is okay, since if the is found to be guilty again, then the guilty plea is reinstated and there is no new trial Wilson iii. When a moves to have his trial dismissed for reasons that do not relate to his guilt or innocence, the State is able to bring charges again after a governmental appeal (Scott) 3. When the defendant loses the appeal i. The consents to a potential re-trial if he appeals his conviction ii. When the conviction is reversed on appeal due to an insufficiency of the evidence, the State cannot bring the charges again 1. The government has failed to prove their case 2. Otherwise, the idea would be try, try again 4. When the defendant convicted of a lesser offense he cannot be retried on the greater offense since there is an implied acquittal of the greater offense (Greene v. US)

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