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A remedy of American constitutional procedure whereby someone who has been the victim of an illegal search or a coerced confession can (among their other remedies) have the product of that illegal search or that coerced statement excluded from any subsequent criminal prosecution.
What are some limitations/exceptions to the exclusionary rule?
- To qualify the search must violate the federal constitution or a federal statute
- Does not apply to grand jury proceedings
- Not a remedy in civil proceedings
- Not an available remedy in parole revocation proceedings
- Not a remedy for violations of the knock-and-announce rule in the execution of search warrants
- The evidence may be used to impeach the defendant's trial testimony (although not the testimony of other defense witnesses)
Does the exclusionary rule apply to grand jury proceedings?
Is the exclusionary rule a remedy in civil proceedings?
What is required for a search to qualify under the exclusionary rule?
The search must violate the federal constitution or a federal statute.
Is the exclusionary rule an available remedy in parole revocatoin proceedings?
Can evidence excluded under the exclusionary rule be used for impeachment purposes?
Only the defendant's trial testimony may be impeached, not the testimony of other defense witnesses.
Is the exclusionary rule a remedy for violations of the knock-and-announce rule in the execution of search warrants?
How does the exclusionary rule affect convictions on appeal?
A court will apply the harmless error test where the conviction will be upheld if the conviction would have resulted despite the improper evidence.
The Fruit of the Poisonous Tree doctrine
The exclusionary rule excludes not only illegally seized evidence, but also all evidence obtained or derived from police illegally.
How can the government "break the chain" under the Fruit of the Poisonous Tree doctrine?
- Show that it had an independent source for that evidence
- Inevitable discovery -- the police would have inevitably discovered this evidence anyway
- Intervening acts of free will on the part of the defendant
Protects citizens from unreasonable searches and seizures.
What is required of an arrest to satisfy the Fourth Amendment?
- Must be based on probable cause
- Warrant not needed in public place
- Warrant necessary when individual is in his home
- Police need probable cause to compel you to come to the police station either for finger-printing or interrogation
The police have the authority to briefly detain a person even if htey lack probable cause to arrest.
Need reasonable suspicion supported by the totality of the circumstances; and the stop must be supported by articulable facts of criminal activity.
- Automobile stops -- police may stop a car if they have at least reasonable suspicion that the law has been violated.
- --EXCEPTION: checkpoint roadblocks
- --NOTE: Dog sniff is not a search
What level of suspicion is required to justify a Terry stop?
- Reasonable suspicion (supported by the totality of the circumstances)
- Supported by articulable facts of criminal activity
What level of suspicion is required to justify an automobile stop?
Reasonable suspicion that the law has been violated.
EXCEPTION: Checkpoint roadblocks
NOTE: Dog sniff is not a search
Did a search or seizure violate the Fourth Amendment? (BarBri steps of analysis)
- Is there governmental conduct?
- Reasonable expectation of privacy? (STANDING)
- Did the police have a valid search warrant?
- Does an officer's good faith defense save the warrant?
- Do any of the exceptions to the warrant requirement apply?
What is government conduct sufficient to invoke the Fourth Amendment?
- Publically paid police on or off duty
- Any private individual acting at the direction of the police
- Privately paid police deputized with the power to arrest you.
Do actions by privately paid police invoke the Fourth Amendment?
No, unless they are deputized with the power to arrest you.
When is there an automatic reasonable expectation of property?
- If you own the premises searched you always have standing to object to the search o fhte place oyu own
- You live on the premises searched, whether you have ownership interest or not
- Ovenright guests have standing to object to the legality of the search of the place they are staying
Do you have a reasonable expectation of property if you own the property seized?
Only if you have a reasonable expectation of privacy in the item or the area searched.
Over what do you not have a reasonable expectation of property?
- Anything htat you hold out to the public everyday
- Your voice
- Your handwriting
- Paint on your car
- Account records held by a bank
- Monitoring the location of your car on a public street or in your driveway
- Anything that can be seen across open fields
- Anything that can be seen flying over in the public air space
- The odors emanating from your luggage or car
- Your garbage set out on the curb for collection
What is required for a valid search warrant?
- Probable cause -- a fair probability that contraband or evidence of a crime will be found in the area searched
- Particularity -- the warrant states with particularity the place to be searched and the things to be seized
Is a search warrant valid if the probable cause is based entirely on informant information?
Its sufficiency is determined by the totality of the circumstances. An informant's reliability/credibility and basis of knowledge are relevant factors in making htis determination.
NOTE: A valid warrant can be based in part on an informant's tip even if that informant is annonymous.
What are relevent factors in determining whether informant information provides sufficient probable cause to make a search warrant valid?
The sufficiency of the officer's affidavit or probable cause is determined by the totality of the circumstances. An informant's reliability/credibility and basis of knowledge are relevant factors in making this determination
When is "no knock" entry permitted in the exzecution of search warrants?
If exigent circumstances exist.
- If knocking and announcing would be:
- 1) Dangerous
- 2) Futile
- 3) Inhibit the investigation (destruction of evidence)
Can an officer's good faith defense save an otherwise defective warrant?
An officer's good faith reliance on a search warrant overcomes defects with the probable cause or particularity requirements.
- Four exceptions:
- 1) The affidavit underlying that warrant is so lacking in probable cause that no reasonable police officer would have relied on it.
- 2) The affidavit underlying the warrant is so lacking in particularity that no reasonable officer would have relied on it.
- 3) The police officer or prosecutor lied to or misled the magistrate when seeking the warrant.
- 4) The magistrate is biased and therefore has wholly abandoned his or her neutrality.
What are four exceptions to the rule that an officer's good faith reliance on a search warrant overcomes defects with the probable cause or particularity requirements?
- The affidavit underlying that warrant is so lacking in probable cause that no reasonable police officer would have relied on it.
- The affidavit underlying the warrant is so lacking in particularity that no reasonable officer would have relied on it.
- The police officer or prosecutor lied to or misled the magistrate when seeking the warrant.
- The magistrate is biased and therefore has wholly abandoned his or her neutrality.
What are some exceptions to the warrant requirement?
- Search incident to a lawful arrest
- Automobile exception
- Plain view
- Stop and frisk
- Evanescent evidence
- Hot pursuit of a fleeing felon
- Inventory searches
- Public school searches
What is required for a warrantless search incident to a lawful arrest?
- The arrest must be lawful
- The arrest and search must be conteporaneous in time and place
- Wingspan -- can search the person and the areas to which he can reach either to procure a weapon or to destroy evidence
- Automobiles -- the police may search the interior of hte auto incident to arrest if a) the arrestee is unsecured and still may gain access to the interior of the vehicle, or b) the police reasonably believe that evidence of the offense for which the person was arrested may be found in the vehicle (NOTE -- community caretaker exception -- justifies a warrantless search if an officer faces an emergency that threatens the health or safety of an individual or the public)
When conducting a lawful arrest, the police can search the person and the areas to which he can reach either to procure a weapon or to destroy evidence.
When can the police search the interior of an automobile incident to a lawful arrest?
- The arrestee is unsecured and still may gain access to the interior of the vehicle, or
- The police reasonably believe that evidence of the offense for which the person was arrested may be found in the vehicle
Community caretaker exception
Justifies a warrantless search if an officer faces an emergency that threatens the health or safety of an individual or the public.
Example: abandoned car.
What is the automobile exception to the warrant requirement?
Police can search the entire car and may open any package, luggage, or other container which could reasonably contain the item they had probable cause to look for.
Can arise after the car is stopped but most arise before anything or anybody is searched.
In order for the police to search anything or anybody that falls under the automobile exception they must have probable cause.
Plain view exception to the warrant requirement
- The police officer must be legitimately present at the location where he or she does the viewing of the item seized
- It must be immediately apparent that the item is contraband or a fruit of a crime
Consent exception to the warrant requirement
Must be voluntary and intelligent.
Third Party Consent -- where two or more people have an equal right to use a piece of property, either can consent to its warrantless search. However, if both people are present and one person consents to the search and the other does not consent, then the one who does not consent controls.
Can a search be effected without a warrant if two people wiht an equal right to the premises are present, one consents and the other objects?
No. The one who does not consent controls.
A brief detention for the purpose of investigating suspicious conduct. Need reasonable suspicion (less than probable cause).
Exception to the warrant requirement.
A pat down of the outer clothing and body to check for weapons.
Justified by concern for officer safety.
Can take evidence out of pockets if the officer reasonably believes by the plain feel that something is a weapon or a contraband.
Exception to the warrant requirement.
Can an officer take evidence out of a suspect's pockets during a warrantless Terry frisk?
Yes, if the officer reasonably believes by plain feel during his pat down of the outer clothing and body that something is a weapon or contraband.
Exception to the warrant requirement.
What can an officer do without a warrant if a vehicle is properly stopped for a traffic violation and the officer reasonably believes that a driver or passenger may be armed and dangerous?
- Conduct a frisk of the suspected person; and
- Search the vehicle so long as the search is limited to the areas in which a weapon may be placed.
Evidence that might disappear quickly if the police took the time to get a warrant.
Exception to the warrant requirement.
What falls under the warrant exception for "hot pursuit of a fleeing felon"?
Rule of thumb: if the police are not wihtin 15 minutes behind the fleeing felon, it is not a valid hot pursuit exception.
Once police enter a home in hot pursuit, any evidence they see in plain view will be admissible.
What may the police search before incarceration of an arestee? (Inventory search exception to the warrant requirmenet)
- The arrestee's personal belongings and/or
- The arrestee's entire vehicle
What warrantless searches are permissible in public schools?
- Children engaged in extracurricular activites can be randomly drug tested
- Warrantless searches of public school children's affects, such as purses and/or backpacks, are permissible to investigate violations of school rules
A school search will be held to be reasonable only if:
- It offers a moderate chance of finding evidence of wrongdoing
- The measures adopted to carry out the search are reasonably related to the objectives of the search; and
- The search is not excessively intrusive.
Does wiretapping and eavesdropping require a warrant?
- 1) Everybody in this society assumes the risk that the person to whom he is speaking will either consent to the government monitoring the conversation or will be wired and therefore has no basis for a Fourth Amendment objection as a warrantless search
- 2) A speaker has no Fourth Amendment protection if she makes no attempt to keep the conversation private.
When do wiretapping and eavesdropping NOT require a warrant?
- Everybody in this society assumes the risk that the person to whom he is speaking will either consent to the government monitoring the conversation or will be wired and therefore has no basis for a Fourth Amendment objection as a warrantless search.
- A speaker has no Fourth Amendment protection if she makes no attempt to keep the conversation private.
What does a suspect need to be informed of under Miranda?
- You have a right to remain silent
- Anything you say can be used against you in court
- You have the right to an attorney
- If you can't afford an attorney, one will be appointed for you if you so desire
When are Miranda warnings required?
When is a suspect in custody under Miranda?
You are in custody if, at the time of the interrogation, you are not free to leave.
NOTE: Probation interviews and routine traffic stops are not custodial.
When is a suspect being interrogated under Miranda?
Any conduct where the police knew or should have known that they might elicit an incriminating response from the suspect.
Miranda not implicated by a spontaneous statement.
Is Miranda implicated by a spontaneous statement by a suspect?
What is required of a Miranda waiver?
- Voluntary, and
- Courts use a totality-of-the-circumstances test in determining waiver.
What is required for a satisfactory invocation of the right to remain silent?
Must be unambiguous.
When can the police reinitiate questioning after the defendant has invoked the right to silence?
- They wait a significant amount of tme
- The defendant is re-Mirandized, and
- The questions are limited to a crime that was not the subject of the earlier questioning
What is required for a satisfactory invocation of the right to counsel?
If a suspect invokes his right to counsel, all questions must cease until:
- The accused is given an attorney, or
- The accused initiates further questioning
Is the Sixth Amendment right to counsel issue-specific?
Is the Fifth Amendment right to counsel issue-specific?
No, it covers any topic. The suspect needs help of an attorney with the process of custodial police interrogation.
Do suspects have right to counsel at line ups?
Yes, post charge.
Do suspects have a right to counsel at show ups (one-on-one)?
Do suspects have a right to have counsel present when police show the victims or witnesses photographs?
What are the due process concerns with pretrial identificaitons?
Certain pretrial techniques are so unnecessarily suggestive and so substantially likely to produce a misidentification that they deny due process of law.
- Remedy -- exclude the in-court identification.
- Exception -- the state can show an adequate independent source for the in-court identification (e.g., ample opportunity to observe the defendant at the time of the crime).
What is the remedy for suggestive pretrial identification that denies due process of law?
Exclusion of the in-court identification.
Exception: the state can show an adequate independent source for the in-court identification (e.g., ample opportunity to observe the defendant at the time of the crime).
When can you appeal bail issues?
Bail issues are immediately appealable.
How are a defendant's rights limited in grand juries?
- The exclusionary rule does not apply to the conduct of grand juries
- The proceedings are secret
- Defendant has no right to appear
- Defendant has no right to send in witnesses
A prosecutor's failure to disclose evidence, whether willful or inadvertent, violates the Due Process Clause and may be grounds for reversal of a conviction.
When will failure to disclose constitute grounds for reversing a conviction under Brady?
- The evidence is favorable to the defendant, and
- Prejudice has resulted -- there is a reasonable probability that the result would have been different had the information been disclosed
What are some of a defendant's trial rights?
- Right to an unbiased judge
- Right to a jury trial
- Jury pool must be a fair cross-section
- Right to counsel
- Right to confront witnesses
When is a judge biased?
Bias means having a financial interest in the outcome of the case or some actual malice against the defendant.
A defendant has a right to an unbiased judge.
When does a defendant have a right to a jury tial?
If tried for an offense where the maximum authorized sentence exceeds six months. Minimum number of jurors is 6. (If minimum number, the verdict must be unanimous.)
When is a unanimous verdict required in a criminal jury trial?
If there are 6 jurors (minimum number).
- Jury pool must be a fair cross-section; the impaneled jury does not need to be
- Preemptory challenge - can exclude a prospective juror for any reason whatsoever (but cannot be used in a manner that discriminates based on race or gender
When can you use a preemptory challenge?
- To exclude a prospective juror for any reason whatsoever
- BUT cannot be used in a manner that discriminates based on race and gender
When does the criminal defendant's right to counsel attach?
A criminal defendant's right to counsel applies to all critical stages of a prosecution.
(Including post-charge line ups and post-charge show ups)
Does a criminal defendant's right to counsel apply to post-charge line ups?
Does a criminal defendant's right ot counsel apply to post-charge show ups?
At what stages of a prosecution does the criminal defendant's right to counsel not apply?
- Showing the victim or witness photographs
- Taking of blood samples
- Taking of handwriting samples
- Pre-charge lineups
- Preliminary hearings to determine probable cause to detain
- Brief recess during defendant's testimony at trial
- Parole and probation revocation proceedings
Ineffective assistance at trial (as a violation of the right to counsel)
Deficient performance by counsel, and but for such deficiency, the result of the proceeding would have been different (otherwise harmless error).
Need to specify particular errors of trial counsel.
What is required when a defendant exercises his right to self-representation?
- Knowing and intelligent
- Trial judge's discretion
Right to confront witnesses
- The absence of face-to-face confrontation between the defendant and accused does not violate the Sixth Amendment when preventing such confrontation serves an important public purpose and the reliability of witness testimony is otherwise assured
- A defendant who is disruptive may be removed from the courtroom, thereby relinquising his right of confrontation
How can a defendant relinquish his right of confrontation (i.e. right to confront witnesses)?
If he is disruptive and his removed from the courtroom.
Will the Supreme Court disturb guilty pleas after sentencing?
What must the Judge specifically address the defendant about on the record at sentencing?
- The nature of the charge
- Maximum authorized penalty
- Any mandatory minimum penalty
- He has a right to plead not guilty and to demand a trial
- All of this must be on the record
When can you withdraw a guilty plea after the sentence is imposed?
- The plea was involuntary
- Lack of jurisdiction
- Ineffective assistance of counsel
- Failure of the prosecutor to keep an agreed upon plea bargain
What are the restricitons on imposition of the death penalty?
- Any death penalty statute that does not give the defendant a chance to present mitigating facts and circumstances is unconstitutional
- There can be no automatic category for imposition of the death penalty
- The state may not by statute limit the mitigating factors; all relevant mitigating evidence must be admissible or the statute is unconstitutional
- Only a jury - not a judge - may determine the aggravating factors justifying imposition of the death penalty
When does double jeopardy attach?
- Jury trial -- the jury is sworn
- Bench trial -- the first witness is sworn
- Civil proceedings -- generally not
When does double jeopardy attach at a jury trial?
The jury is sworn.
When does double jeopardy attach at a bench trial?
The first witness is sworn.
When does double jeopardy attach at a civil proceeding?
What are exceptions to double jeopardy permitting retrial?
- Jury is unable to agree upon a verdict
- Mistrials for manifest necessity (defendant suddenly became very ill)
- Retrial after a successful appeal is NOT double jeopardy (the defendant cannot be retried for a more serious crime than he was convicted of at the first trial)
- Breach of an agreed upon plea bargain by the defendant
What is the rule for when two crimes do not constitute the same offense?
Each crime requires proof of an additional element that hte other does not.
How does the double jeopardy rule affect lesser included offenses?
Being put in jeopardy for a greater offense bars retrial for any lesser included offenses.
EXCEPTION: If a person is tried and convicted on a charge of battery, and the victim of the battery later dies due to the injuries, the person can also then be prosecuted for homicide.
Can a person be prosecuted for the same offense by separate soereigns without violating double jeopardy?
Yes, double jeopardy bars retrial for the same offense by the same sovereign.
Who is entitled to the Fifth Amendment privilege against self-incrimination?
The Fifth Amendment privilege against self-incrimination can be asserted by anyone in any type of case. If asked a question that will incriminate him he is entitled to Fifth Amendment privilege.
Does the Fifth Amendment protect physical evidence?
No, only compelled testimony.
Can a prosecutor make a negative comment on the defendant's failure to testify or on a defendant choosing to remain silent after giving the Miranda warnings?
EXCEPTION: The prosecutor can comment if the defendant argues that he was not allowed to explain his side of the story.
When can a defendant not invoke the Fifth Amendment privilege against self-incrimination?
- Under a grant of immunity
- No possibility of incrimination )statute of limitations)
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