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The Bill of Rights
and The 14th Amendment
The Bill of Rights in the Constitution originally applied only to action by the federal government.
Through the 14th Amendment, portions of the Bill of Rights have been applied to the states also.
Portions of the 4th, 5th, 6th, and 8th Amendments have been applied to the states.
The Fourth Amendment
Protects individuals against unreasonable searches and seizures.
Under the 14th Amendment, the "Exclusionary Rule" and "The Prohibition Against Unreasonable Searches and Seizures," have been applied to the states
Generally routine stops are permitted by the 4th Amendment:
- Auto Stop
- Stop And Frisk
the police may randomly stop autos if there is a reasonable suspicion or wrongdoing based on an objective Standard
Police may set up fixed checkpoints to test for compliance with laws relating to driving or if special law enforcement needs are involved, such as immigration
Stop and Frisk
- (Terry Stop)
- Police may also stop and frisk individuals for weapons without arresting them when there is reasonable suspicion of criminal activity or involvement that is supported by articulable facts
Requirements for a Warrant
Warrants must be: issued by a neutral and detatched magistrate; based on probable cause; specific; executed by police; executed after a proper announcement (unless exigency); and executed within a reasonable time.
Neutral and Detached Magistrate
- The issuing magistrate cannot be one involved
- with law enforcement.
Warrants and Probable Cause
A warrant must be based on a police officer's sworn affidavit, presenting adequate facts, to support a finding of probably cause.
Warrants and Specificity
A warrant must be reasonably specific. The key is reasonableness.
Execution of Warrants and Proper Announcements
Police must knock and announce who they are and why they are there when executing a warrant unless there are circumstances dictating otherwise. However, if police reasonably believe that knocking and announcing will lead to the destruction of evidence or create a dangerous situation, they may dispense with knocking and announcing.
Executing Warrants and a Reasonable Time
Warrants must be executed within a reasonable time after they are issued or the probable cause may no longer exist
Challenging Evidence obtained under Warrant Searches
If a warrant includes a material false statement that was deliberately or recklessly included, the evidence obtained under the warrant is inadmissible. Like the Exclusionary Rule, the rationale behind not allowing evidence obtained under a defective warrant is to prevent overzealous officers from acting improperly. Consequently if the false information was not deliberately or recklessly included, it is admissible. Remember: Probative evidence should generally be admitted
Good Faith Reliance on Invalid Warrant
Evidence discovered by police in good faith reliance on a warrant that is subsequently shown to not have been based on probable cause is admissible. Rationale: Again public policy favors preventing intentional or reckless misconduct by police. If they are acting in good faith, this policy is not advanced by suppressing probative evidence.
Standing and a Reasonable Expectation of Privacy
To raise a 4th Amendment claim regarding a search, one must either own the area searched or have a right to possess it
Reasonable Expectation of Privacy
Courts will look at the totality of the circumstances in determining whether or not there was a reasonable expectation of privacy.
Warrants and Searches
Police must have a valid search warrant in order to violate one's reasonable expectation of privacy, subject to the following exceptions: plain view; consent; automobile exception; incident to lawful arrest; investigatory detentions; hot pursuit; danger of losing evidence; emergency; border searches; INS inspections; unreliable listener, uninvited listener; and open registers
Plain View and Search Warrants
A search warrant is not required for evidence in plain view. Rationale: Remember, the 4th Amendment protects one’s reasonable expectation of privacy. Consequently, if evidence is in plain view, one does not have a reasonable expectation of privacy in it, and a warrant is not needed
Search Warrants and Consent
Police may institute a warrantless search if voluntary and intelligent permission is granted by one with authority to do so
Automobiles and Warrant Searches
If police have probable cause to believe the car contains evidence, and the evidence may be unavailable when a warrant is finally obtained due to the mobility of the car, a warrantless search may be conducted
Warrantless Searches Incident to Lawful Arrest
Whenever police make an arrest, they may search the arrestee and areas within his reach without probable cause
Warrantless Searches and Investigatory Detentions
If police detain an individual for investigatory purposes, they may frisk the detainee only if there is reasonable belief that the detainee is armed.
Warrantless Searches and Hot Pursuit
Police may search any place reasonable when in hot pursuit of a felon, without a search warrant.
Warrantless Searches and the Danger of Losing Evidence
there is a reasonable fear that evidence may be lost, police may seize it immediately without acquiring a warrant
Warrantless Searches and Emergencies
If there is an emergency, any area may be searched without a warrant.
Warrantless Searches and Borders
Warrants are not required for searches at national borders.
Warrantless Searches and the Immigration and Naturalization Service
The Immigration and Naturalization Service may check all the employees of a business to determine citizenships without a warrant.
Warrantless Searches and Unreliable Listeners
Individuals are under no obligation to refrain from repeating what another has told them, absent a privilege
Warrantless Searches and Uninvited Listeners
Speakers who do not make a good faith effort to protect their conversations cannot object to their admission into evidence by one who overhears.
Warrantless Searches and Pen Registers
Pen register records are admissible into evidence without any warrant requirements.
Administrative Agencies and Warrants
Generally, administrative agencies are subject to the same requirements as police, regarding warrants.
Administrative Agencies and Exceptions to the Warrant Requirement
Administrative agencies do not require a warrant for searches regarding the following:
2. airline passengers
3. probationers’ homes
4. government employees’ desks and files
5. contaminated food
6. highly regulated industries
7. general and neutral enforcement plans
Warrantless Searches and Public School Children
Public school officials are only required to have “reasonable grounds” to conduct searches on school campus
Warrantless Searches and Airline Passengers
Searches of airline passengers before boarding do not require a warrant.
Probationers and Warrantless Searches
Generally no warrant is needed to search a probationer’s home.
Parolees and Warrantless Searches
By statute, parolees are required to submit to warrantless searches of themselves, their property, and their residences
Warrantless Searches and Government Employees' Desks and Files
A reasonable search of desks and files of a government employee by an administrative agency will be allowed without a warrant if any one of the following three situations exist:
- 1. work related,
- 2. job related misconduct under investigation,
- 3. search triggered by non-investigatory motives.
Warrantless Searches and Contaminated Food
Administrative agencies may seize food that is unfit for human consumption.
Warrantless Searches and Highly Regulated Industries
Certain highly regulated industries may be searched by administrative agencies without a warrant
Warrantless Searches and General and Neutral Endorsement Plans
Administrative agencies may hold inspections without a warrant pursuant to a general and neutral enforcement plan.
Searches and Methods that "Shock the Conscience"
Evidence that is obtained by means that “shock the conscience” will not be admissible.
Criteria to Consider Regarding the "Shock the Conscience Test"
In determining whether or not a method of obtaining evidence “shocks the conscience,” the following criteria will be weighed:
- 1. How probable is it that the evidence will be found?
- 2. How significant is the evidence?
- 3. How shocking is the method?
- 4. Are there alternative methods of obtaining the evidence?
Seizures and Owners of Property Used in a Crime
Owners of property used in the commission of a crime have no rights to due process prior to a seizure
Forfeitures and Owners of Property Used in a Crime
Owners of property used in the commission of a crime are entitled to due process prior to declaration of a forfeiture
Illegally obtained evidence is not admissible at trial.
Fruit of the Poisonous Tree
Evidence that would not have been obtained but for improper conduct is not admissible at trial
Purpose Behind Exclusionary Rule
There is a strong public policy behind protecting individual rights, and the best way to ensure that these rights are protected is to remove any “benefit” that may be obtained by violating them
Situations Where Illegally Obtained Evidence May Still be Admitted
Illegally obtained evidence may still be admissible if it was obtained through the free will of the defendant, it was obtained from an independent source, or it would have inevitably been discovered
Free Will” of Defendant
If the defendant gives evidence, of his own free will, that is not motivated by circumstances resulting from the illegal action, it will be admissible.
Evidence obtained from a source that is unrelated to the illegal act will be admissible
Evidence that would have been discovered without an illegal act is admissible.
Exceptions to the Exclusionary Rule
The Exclusionary Rule does not apply in the following situations:
- 1. grand juries
- 2. Impeachment purposes
- 3. violations of internal agency rules
- 4. civil proceedings
- 5. good faith reliance
- 6. harmless error
The Exclusionary Rule and Grand Juries
The function of a grand jury is to gather information, not to impose penalties. Consequently the defendant is not being “punished” as a result of the illegally obtained evidence. Consequently, the Exclusionary Rule does not apply to grand jury investigations.
The Exclusionary Rule and Impeachment
Witness credibility is always in issue, and an illegally obtained voluntary confession may be introduced to impeach a witness' testimony
The Exclusionary Rule and Violations of Internal Agency Rules
The Exclusionary Rule’s purpose is to protect constitutionally guaranteed rights, and incidental agency procedures do not fit this category.
The Exclusionary Rule and Civil Proceedings
Unless the proceeding involves punishment, illegally obtained evidence may be used in a civil proceeding
The Exclusionary Rule and Harmless Error
If the government is able to demonstrate beyond a reasonable doubt that the defendant would have been convicted without the admission of the illegally obtained evidence, the conviction will stand
The Exclusionary Rule and Good Faith Reliance
Suppressing evidence obtained in good faith would not achieve the goal of preventing law enforcement personnel from violating constitutional rights. Rationale: The whole concept behind the Exclusionary Rule is to prevent law enforcement personnel from violating constitutional rights. If they are acting in good faith, and the evidence is suppressed, the judiciary is losing probative information and gaining nothing.
How to Assert the Exclusionary Rule
At a pre-trial suppression hearing, conducted outside the presence of the jury, the issue of whether or not evidence was illegally obtained is decided.
Defendants and the Exclusionary Rule
The Exclusionary Rule may not prevent a defendant from presenting probative evidence.
Placing an individual in custody where he is not free to leave. Note: Reasonableness is the key.
Arrests and Warrants
Warrants are not required for arrests in public places. Warrants are required for arrests in one’s home unless there are exigent circumstances
Warrantless Arrests and Common Law
Police officers may arrest without a warrant if there are reasonable grounds to believe that there has been a felony committed by the arrestee, or if the arrestee has committed a misdemeanor in the conscious presence of the officer.
Detentions for Purpose of Investigation
Police may detain a person for purposes of investigation if they have a reasonable suspicion supported by articulable facts that the detainee has information regarding criminal activity, without a warrant
Investigatory Detentions vs. Arrest
While one is not free to leave when being detained, if the detention is brief and specific, it is likely to be considered a detention rather than an arrest, and a warrant is not necessary.
Unless they have a reasonable belief that a law was violated by the driver of an automobile, the police may not stop an automobile
Statutes Regarding Loitering
Statutes aimed at preventing loitering, that require individuals to produce “credible and reliable” identification, are generally considered unconstitutionally vague, because it is not clear what exactly is “credible and reliable identification.”
Confessions and Admissibility
For confessions to be admissible, they must be reliable and must be obtained by proper means
Confessions and Reliability
Confessions must be voluntarily made by one who has the capacity to appreciate the significance of what is being done
Confessions and the Proper Means
The following should be considered in determining whether or not a confession was obtained under the proper means:
- 1. Police action
- 2. Miranda warnings
- 3. Right to counsel
- 4. Waiver
- 5. Grand jury
- 6. Public safety
- 7. Impeachment
- 8. Confessions made subsequent to invalid confessions
Confessions and Police Action
A confession that is not given in response to police action is admissible, as long as requirements for capacity and voluntariness are met. Rationale: The Exclusionary Rule has been established to protect the public from overzealous police activity. Consequently if police activity is not an issue, there is not a valid reason for excluding probative evidence.
Confessions and Miranda Warnings
Prior to a custodial interrogation, police must inform the person being interrogated that:
- 1. He/she has the right to remain silent.
- 2. Anything he/she says can and will be used against him/her in a court of law.
- 3. He/she has the right to an attorney.
- 4. If he/she cannot afford an attorney, one will be appointed for him/her, if he/she so desires.
Confessions and the Right to Counsel
After an individual has been placed under arrest, she has a right to counsel at any interrogation.
Confessions and Waivers
When an individual who has capacity and appreciates what she is doing, voluntarily waives her rights and makes a confession, it will be admissible.
Confessions and Grand Juries
Individuals testifying before a grand jury may not refuse to testify, or assert any right to counsel
Confessions and Public Safety
If the motive behind the questioning is an immediate fear for the safety of others, a confession may be admitted even though the questionee was deprived of her right to counsel and did not receive Miranda Warnings
Confessions and Impeachment
A reliable confession, that was voluntarily given before Miranda Rights were given, is admissible only for purposes of impeachment. Situations to look out for:
- • If the confession was given under duress it is not voluntary, and thus inadmissible for any purpose.
- • If the confessor lacked capacity or did not appreciate what she was saying, then the confession is not reliable and thus inadmissible for any purpose.
- • Remember that any evidence may be excluded if it is more prejudicial than probative. Be sure to argue that a confession given under reliable circumstances may be very prejudicial, and it may be unrealistic to expect a jury to consider it only for purposes of impeachment and not as substantive evidenc
Confessions Made Subsequent to Invalid Confessions
If a confession is made while in custody, but prior to Miranda warnings, a subsequent confession made after Miranda warnings will not be inadmissible.
Confessions and "Fruit of the Poisonous Tree"
While it is unsettled, courts have held that physical evidence discovered from an invalidly obtained confession is admissible, even though the confession is not.
The Juvenile Justice System
The Juvenile Justice system is designed to rehabilitate rather than to punish minors.
Juveniles and Delinquency Hearings
At a hearing to determine delinquency, juveniles are afforded the same rights as adults, except there is no right to a jury
Equal Protection, Indigency and Fines
An indigent defendant cannot be imprisoned for his inability to pay a fine.
Pretrial Hearings and Detentions
Before significant restraints can be placed on one’s liberty, the defendant is entitled to a determination that probable cause exists
What Constitutes a Probable Cause Determination
Probable cause may be established by:
- 1. issuance of an arrest warrant
- 2. prior indictment
- 3. informal hearing
What Constitutes a Significant Restraint on One's Liberty
The following are examples of significant restraints on one’s liberty:
- 1. incarceration
- 2. imposing bail
- 3. pretrial restrictions
Post Probable Cause Appearance
Soon after probable cause is established the defendant is brought before a magistrate who will explain his rights, appoint counsel if necessary, and consider bail. Note: Speed and timing are significant. There is a strong public policy against holding a person for any length of time without a showing of probable cause, or when bail is appropriate. Consequently a probable cause hearing may frequently be incorporated into the appearance before the magistrate.
Bail should reasonable; Failure to grant bail or the amount of bail can be appealed immediately; and Bail should almost always be granted unless a capital offense is involved.
The purpose of bail is not to punish, but only to insure that an individual will present himself for trial. In determining bail issues, courts will look at the totality of the circumstances. Things to consider are the defendants prior actions when granted bail, the severity of the crime, the potential sentence, and whether or not the defendant poses a threat to society. Note: Generally, unless the defendant possesses a threat to society or is being charged with a crime that carries a potential for the death penalty, bail will be granted.
Any reasonable security measure may be instituted even though the individuals incarcerated are awaiting trial
Determinations of Probable Cause to Prosecute
In some states and in the federal system, grand jury hands down an indictment, while in others, charges are filed by the prosecutor.
Prosecutors and Disclosure
Prosecutors must turn over to the defense evidence that tends to indicate innocence of the defendant. Note: A prosecutor’s client is the public. The public’s interests are best promoted by obtaining a just result. A “just result” is not a conviction of an innocent person
Defendants are entitled to a reasonably speedy trial
Reasonableness and Speedy Trials
In determining whether or not a defendant was given a speedy trial, courts consider the following questions:
- 1. How long was the delay?
- 2. Why was there a delay?
- 3. Did the defendant object to the delay?
- 4. Was the defendant prejudiced by the delay?
When One is Entitled to a Speedy Trial
Once an individual is arrested or charged, he is entitled to a speedy trial.
Remedy for Violation of One's Right to a Speedy Trial
If one’s right to a speedy trial has been violated. The case must be dismissed.
Pretrial Personal Identifications
After a suspect has been charged, he is entitled to have his attorney present if he is being subjected to a “show up” or a “line up.”
Pretrial Non-Personal Identification
Police are not required to allow a defendant to have her attorney present when witnesses are being shown her picture for purposes of identification.
Physical Evidence of a Defendant and the Right to an Attorney
When Police are obtaining physical evidence from a defendant, there is no right to counsel.
Due Process Consideration and Identification
In order for an identification to be inadmissible, it must be shown that it was rendered under circumstances that are unnecessarily prejudicial and that the identification was substantially likely to be unreliable
Prejudicial pre-trial identifications may taint an in-court identification, making it inadmissible. However, in-court identifications are generally admissible because they are considered independent
Test for Admissibility of a Potentially Tainted, In-court Identification
The in-court identification must be based on factors other than the prejudicial identification
Defendant's Burden and Tainted Identifications
The burden is on the defendant to establish that the pre-trial identification was unreasonably prejudicial and unreliable
Government's Burden and Tainted Identifications
Once the defendant establishes a prima facia case, the burden is on the government to demonstrate that the in-court identification was based on a source independent of the pre-trial identification
Competency and Standing Trial
An individual is incompetent to stand trial unless she understands the facts presented against her, appreciates the charges against her, understands the proceedings, and is capable of working with her attorney to prepare her defense
Judges and Competency of a Defendant
A judge has an obligation to raise the issue of a defendant’s competency if it appears to be an issue
Incompetent defendants may be briefly detained in a mental institution to evaluate and treat. However, a longer detention may only be made pursuant to a civil commitment proceeding.
Burden of Proof
In a criminal case, the state has the burden of proving it’s case “beyond a reasonable doubt.”
The defendant and the prosecution may enter into a binding contract whereby the defendant performs an act in exchange for the prosecution charging him with a lesser crime.
People cannot be compelled to make statements that may tend to incriminate them.
Prosecutor's Inability to Comment
A prosecutor may not comment on a defendant’s failure to: testify, raise alibis raised in discovery, nor produce alibi witnesses presented in discovery.
Confrontation and Confession of a Co-Defendant
A confession of a co-defendant that implicates the other defendant cannot be used unless the maker of the confession submits to be cross-examined.
Confrontation and Hearsay
Hearsay is an out of court assertion offered to prove the truth of the matter asserted. Hearsay violates the right to confront one’s accusers.
Different jurisdictions recognize different exceptions to the general rule against admitting hearsay.
Right to Trial by Jury
Defendants are entitled to a trial by jury for serious offenses only
Serious offenses are those which carry a potential sentence of more than six months excluding juvenile proceedings
Right to an Impartial Jury
A defendant is entitled to a change of venue or a new trial, if it can be shown that the jury had been tainted by pretrial publicity
Civil Contempt and Jury Trials
When a witness is sentenced to jail until he testifies, he may spend more than six months in jail without a jury trial
Post Trial Criminal Contempt and the Right to a Jury
When one is sentenced, post trial, to more than six months in jail for purposes of punishment, a jury is required.
During Trial Contempt and the Right to a Jury
During trial, a judge may sentence an individual to more than six months in jail for contempt, as a punishment, without a jury
Number of Jurors
There must be at least six jurors on a jury.
Right to a Jury of One's Peers
A jury of one’s peers means that the actual jurors have been chosen from a group that is representative of the area
Jurors and Political Views
A juror may not be excluded because of his political views, unless they prevent him from following the court’s instructions
Jurors and Race
It is inappropriate at jury selection to raise the issue of race, unless it is a major part of the offense or the crime is an interracial capital offense
A defendant has a right to confront witnesses
Trials are open to the public unless fairness dictates otherwise
An individual may not be subject to trial more than once for the same offense.
Double Jeopardy and Exceptions
Exceptions to the rule against double jeopardy include appeals, hung juries, or when retrial is ordered
A proceeding whereby a prisoner contests the constitutionality of her confinement.
Requirements Prior to Habeas Corpus
Prior to obtaining habeas corpus relief, an individual must demonstrate:
- 1. either that he raised the objection at trial or had good reason for not raising it and
- 2. the error was outcome determinative
Lower Court Findings and Habeas Corpus
Lower court findings of fact are generally deferred to unless there appears to be an abuse of discretion
While the Constitution does not guarantee a right to an appeal, some states guarantee an automatic right to appeal in certain situations
Appeals and Indigency
Indigent defendants must not be denied the ability to appeal because of lack of funds.
Post Appeal Retrials
After a successful appeal, one may not be retried for a more serious offense.
Probation and Parole Revocation and Right to Counsel
There is no right to counsel at a probation or parole revocation hearing unless:
- An already imposed sentence is made more severe,
- the defendant makes a good faith argument that he did not violate his parole, or
- the issues involved are too complex for a non-lawyer to advance.
Cruel and Unusual Punishment
Courts may not impose a sentence that is significantly disproportionate to the crime.
Prison officials may make any rule reasonably related to the safe and smooth operation of the prison.
Prisoners and the Right to Privacy
Prisoners have no reasonable expectation of privacy
Due Process and Prison Discipline
There is no right to a hearing unless a prisoner loses “good time” or is placed in solitary confinement.
Rights of Prisoners
Generally prisoners may not be deprived of rights unless they affect safety or the smooth operation of the prison
Post Completion of Sentence Punishment
States may deprive felons of the right to vote and hold office even after their sentences have been fully served