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Government Action Required
- Protection against state/government action. If the government is not acting, the defendant is not protected unless:
- * Private person acts as a government agent
- * Defense counsel, public and private, are treated as government actors for purposes of the Sixth Amendment with effective assistance of counsel.
Police Activity in a Public Place
Police can approach anyone in a public place, and unless the encounter escalates to police preventing a person from leaving, there is no constraint on what the police can do or discover.
- When an officer, by means of physical force or show of authority, intentionally terminate or restrain a persons freedom of movement.
- Determined by whether a reasonable person would feel free to disregard the officer.
- A police officer can stop an individual when the officer has a reasonable suspicion based on articulable facts to believe that a crime has occurred and this suspect was involved.
- A police office can frisk a suspect for weapons (safety), but cannot search for evidence.
- If the officer can identify obvious contraband, the office can seize the object.
- Findings during a Terry stop can blossom into probable cause which then allows for arrest.
Officers may pat down a suspect, and do not need reasonable suspicion with checkpoints.
- Require probable cause to believe that the arrested individual has committed the crime.
- May be done with or without a warrant.
- If police have probable cause to believe an individual has committed a crime, the police may arrest that individual on the basis of a hunch that another crime was involved.
- A warrant authorizes an officer to arrest another.
- A warrant is issued by a neutral and detached magistrate based upon the finding of probable cause to believe that the named individual has committed a particular crime.
- The warrant must name a person and identify the person.
- MD: warrant must be returned to the court.
- Warrants allow officers to enter a home to arrest the individual.
- Absent a warrant, officers can arrest someone inside a dwelling if there are exigent circumstances (felony hot pursuit, danger to another) or consent to enter.
An arrest can be made without a warrant when the officer has seen the crime being committed (felony or misdemeanor), or when someone has told the officer that a crime has been committed (felony only).
Search Incident to Arrest
- A lawful arrest permits arresting officers to make a contemporaneous search of the person arrest and the immediate area to protect officer/public safety and to prevent destruction of evidence.
- Any evidence discovered during this type of search can be used against the person arrested.
- Arrest on the street suspects wingspan.
- Arrest at home suspect and his immediate area.
- Arrest in car passenger compartment of the vehicle so long as suspect still has access to the vehicle at that time.
- When police arrest a driver and impound his car, it may be searched for inventory purposes.
- If arrest is illegal, this evidence should be excluded.
- A search occurs when government conduct violates a reasonable expectation of privacy.
- Must be government conduct in the search, not private.
- Reasonable expectation of privacy exists in (1) homes, (2) hotel rooms, (3) offices, (4) curtilage, such as the backyard of your home, and (5) in luggage.
- No reasonable expectation of privacy in (1) public streets, (2) open fields, (3) garbage cans left out in the street and (4) abandoned property.
- If there is a reasonable expectation of privacy, the government needs a warrant to conduct a search.
- Requires (1) issuance by neutral and detached magistrate, (2) based upon probable cause to believe that the items sought are fruits/instrumentalities/evidence of the crime, and (3) must describe the place and property to be searched with particularity.
- If the warrant doesnt meet these requirements, the warrant is invalid and items seized pursuant to the warrant will be excluded.
There are seven instances where warrantless search is permitted. E.S.C.A.P.E.S.
Warrantless Searches: Exigent Circumstances
- Officers are entitled to secure premises while they obtain a warrant.
- When officers are in hot pursuit or immediate danger, they may conduct a search without getting a warrant first except where the officers themselves create the exigent circumstances.
- Warrant required for search incident to a DUI request, and exigent circumstances are time from hospital or unavailable judge due to time of night.
Warrantless Searches: Search Incident to Arrest
A search warrant is unnecessary for searches within a suspects reach when incident to a lawful arrest.
Warrantless Searches: Consent
- A suspect can consent to a search.
- An officer is not required to explain the right to refuse to the search.
- A third party with apparent authority can consent to a search.
- An officer cannot search over a present occupants objection and use the evidence against him.
Warrantless Searches: Automobiles
If police have probable cause to believe an automobile contains contraband, they can search those parts of the vehicle and containers inside which could contain that contraband. They cannot search other areas or containers.
Warrantless Searches: Plain View
If police are legally on the premises, they can seize any item in plain view or plain smell, even if the item was not named in the warrant.
Warrantless Searches: Evidence Obtained From Administrative Searches
- Police do not require warrants to conduct administrative searches.
- Administrative Warrants: no probable cause requirement. Evidence, instrumentality or fruit of crime can be seized if seen during an admin search.
- Warrantless administrative searches: searches conducted for non-investigative purposes. If evidence of a crime, it can be used for arrest and subsequent prosecution. Airplane boarding areas, international borders, highly regulated industries, students in public schools, special needs searches or roadblocks are such examples.
Warrantless Searches: Stop and Frisk
Search of a suspect for police officers safety when there is a reasonable articulable suspicion that criminal activity is afoot and the suspect is involved.
MD: Warrantless Searches - Community Care Functions
When police are acting as caretakers of the community, safeguarding property and persons.
MD: Warrantless Searches - wiretapping
- Wiretapping in MD requires two-party consent.
- A special type of warrant must be obtained from a neutral and detached magistrate.
MD: Warrantless Arrest and Misdemeanors
- If a crime was a misdemeanor and the crime was not committed in the officers presence, a warrantless arrest is valid for certain types of crimes and under certain conditions.
- Type of crime: (1) Vehicular manslaughter, (2) malicious burning, (3) malicious mischief, (4) theft under $1,000, (5) indecent exposure, (6) possession of drugs, (7) possession of handguns and other concealed weapons, or (8) prostitution.
- Certain conditions: (1) suspect will not otherwise be apprehended, (2) without arrest, suspect will cause physical injury or damage to others, and (3) suspect will destroy evidence of the crime.
No person shall be compelled in any criminal case to be a witness against himself. 5th Amendment.
Scope of 5th Amendment Privilege against Incrimination
- Natural persons only, not corporations or unions.
- Testimonial evidence only, not physical evidence.
- Applicable to testimony that would be incriminating links in the chain, evidence that is likely to lead to prosecution and conviction.
- Can be invoked in any proceeding as long as there is reason to believe testimony might lead to future criminal prosecution.
- If immunity is given, this right cannot be invoked.
Statements Made By an Individual (5th Am)
- Statements must be made to the police.
- Statements made to third parties like family or cell mates do not get the same right.
- Statements made as a result of custodial interrogation are inadmissible unless they are accompanied by procedural safeguards.
- Custodial: suspect arrested or not otherwise free to leave. No warning required if suspect is not in custody. Statement/failure to respond to questions can be used against suspect.
- Interrogation: Official asking questions or engaging in conversation/conduct that police know/should know will elicit a response. Not volunteered statements or routine booking questions.
- Right to remain silent, statements may be used against her in court, right to consult an attorney and have attorney present during questioning, and right to an attorney appointed if she cant be afforded.
- No magic words.
- Police must cease questioning if the suspect affirmatively invokes the right to remain silent. After a substantial period of time, police can go back to the suspects, Mirandize again and talk to suspect.
- Police must cease questioning if the suspect affirmatively invokes the right to counsel. Questioning can re-start when (1) counsel is present, or (2) defendant re-initiates contact with the police.
- Public Safety Exceptions: when public safety is at risk, the police do not have to Mirandize suspect before questioning.
Miranda Interrogation Tactics
- Any confession must be voluntary.
- Statements obtained by threats, even after warnings, are inadmissible.
- Confessions can be a product of deceit but remain voluntary and admissible.
Consequences of 5th Amendment Violations: Involuntarily Obtained Statements
- Never admissible, and subsequent evidence is excluded as the fruit of the poisonous tree.
- To overturn conviction, the court applies the harmless error standard.
Consequences of 5th Amendment Violations: Miranda Violations
- A statement obtained in violation of Miranda is inadmissible in the prosecutions case in chief, but can be admitted for impeachment purposes to challenge the credibility of the defendant.
- Evidence obtained as a result of a voluntary statement in violation of Miranda is admissible.
Defendants Right to Counsel
- The 6th Amendment explicitly provides a criminal defendant with the assistance of counsel for his defense.
- Automatically attaches upon indictment, but is dependent upon the offense (a suspect might not have right to counsel for unrelated charges, and can be questioned expressly or through undercover means).
- Applies regardless of custody.
Defendants Right to Counsel: When Applicable
- To all critical stages of the prosecution.
- Hearings, post-indictment lineups, post-indictment interrogations, all parts of the trial.
- Non-critical stages are investigative lineups, photo arrays, discretionary appeals and post-convictions proceedings like habeas corpus.
- Where the police will try to have a witness identify the suspect. Cannot be impermissibly suggestive.
- Photo arrays: neither the defendant nor his lawyer has the right to be present for viewings of photo arrays, but the arrays must be given to the defendant.
- Lineups: defendant has no right to counsel in pre-indictment lineups, but she does have the right to counsel in post-indictment lineups. If violated, the evidence must be excluded.
- Admissibility: cannot be overly suggestive if lineup evidence is used at trial otherwise, excluded. However, in-court identification can be permitted if prosecution can establish by clear and convincing evidence that the witness would have identified the defendant even without the suggestive lineup, in spite of excluded lineup identification.
- Illegally obtained evidence is inadmissible at the criminal trial of the person whose rights were violated.
- Exclusionary rule applies to trial, not pretrial proceedings.
- Standing to Invoke: the violation must have been the defendants rights, not someone elses, except for defendants who were passengers in a car.
The Exclusionary Rule
- Evidence obtained in violation of the 4th, 5th or 6th Amendments cannot be introduced at trial to prove a defendants guilt.
- The Fruit of the Poisonous Tree doctrine applies the exclusionary rule to evidence obtained as a result of the initial violation.
Exclusionary Rule Exceptions
There are 5 ½ exceptions.
Exclusionary Rule Exceptions - Knock and announce
A violation of the knock and announce requirement for a warrant will not make the evidence obtained inadmissible.
Exclusionary Rule Exceptions - Inevitable discovery
If evidence would have been discovered anyways through lawful means, the exclusionary rule will not be applied.
Exclusionary Rule Exceptions - Independent Source
Relevant evidence discovered on the basis of an independent source will be admissible.
Exclusionary Rule Exceptions - Attenuation in the Causal Chain
Intervening events and the passage of time can remove the taint.
Exclusionary Rule Exceptions - Good Faith
- A police officer who relies on either (1) an existing law that was later declared unconstitutional or (2) a warrant that, while facially valid, is later found to be defective, the evidence she discovers will not be inadmissible.
- Officers can rely on a warrant as long as warrant was (1) not obtained by fraud, (2) not defective on its face, and (3) magistrate did not wholly abandon his judicial role.
Exclusionary Rule Exceptions - Isolated negligence
- By law enforcement personnel does not necessarily trigger the exclusionary rule.
- What is not isolated? Deliberate, reckless, intentional, recurring or systemic.
MD: Timing for motion to suppress
- Within 30 days of the initial appearance, a pretrial motion to suppress should be filed.
- Within 30 days of entry of appearance, a pretrial motion to suppress should be filed. Within 5 days after receiving discovery.
Initiation of Charges
- Under the 5th Amendment Presentment Clause, all federal felony charges must be initiated by grand jury indictment unless the defendant waives the indictment.
- Indictment claims that there is probable cause to believe the defendant committed the crimes charged.
- Not incorporated to the states, so states have the option of proceeding by information. If the states proceed by information, the defendant is entitled to a preliminary hearing before a neutral magistrate to determine probable cause.
- MD: There is a right to an attorney at bail hearings this is a critical stage where the attorney is necessary because an individual can be detained.
Proceedings before a Grand Jury
- Grand juries can consider hearsay/excludable evidence in deciding to indict.
- Prosecutors have no duty to present exculpatory evidence to the grand jury.
- Defendants do not have the right to appear before the grand jury or present witnesses.
- Witnesses do not have the right to counsel within grand jury room, although they can leave the grand jury room to consult with their lawyers.
- Grand jury proceedings are secret, and the grand jury need not be unanimous.
- Someone goes to court commissioner who charges the defendant.
- Generally done for misdemeanors, but can be done for felony charges.
- Requires a probable cause determination that the crime actually occurred.
MD: Criminal Information
- A prosecutor makes his own determination that a crime has occurred.
- Filed district/circuit court.
- If in circuit court, preliminary hearing.
- If in district court, no review.
MD: Grand Jury Indictment
- 24 people make a determination whether there is probable cause that the defendant committed a crime.
- No review of this determination.
Defendants Competence to Stand Trial
- Whether the defendant comprehends the nature of the proceedings against him and can assist his lawyer in defending the case.
- If defendant is competent to stand trial, he is also competent to waive the right to trial and plead guilty.
MD: Defendants Competence to Stand Trial
- A defendant must affirmatively request a preliminary hearing within 10 days after the first appearance or it is waived.
- Hearing must occur with 30 days of the request.
- If successful, the defendant is institutionalized until they become competent.
MD: Defendants & Insanity
- Every defendant is presumed sane.
- If the defendant is competent to stand trial, the defendant can allege insanity.
- A defendant must affirmatively request a preliminary hearing within 10 days after the first appearance or it is waived.
- Defendant must file written plea of not criminally liable (NCR).
- Hearing must occur with 30 days of the request.
- If successful, the defendant who is found guilty but NCR is committed until it is proven by a preponderance of the evidence that she is no longer a danger to herself or others.
- Bail is generally available unless the defendant poses a flight risk or a danger to the community.
- Presumption in favor of release pending trial and release after conviction pending appeal.
- 8th Amendment forbids setting of excessive bail, but does not require bail to be offered pending trial.
- MD: no explicit constitutional right to bail, but the issuance/denial of bail must comport with due process. The purpose of bail is to ensure the defendant comes to court. Judge/court commissioner makes determination of bail, choosing to set bail, set no bail or release an individual on his own recognizance considers flight risk and public safety. Process to modify/change bail is achieved through a habeas corpus motion. Bail may be forfeited if conditions are not met, such as committing a crime, not showing up for court, or contacting the victim after being ordered not to do so.
- A guilty plea waives various trial rights, including the right to appeal.
- To be valid, the defendant must knowingly and intelligently waive these rights.
- Plea allocution: judge (1) informs defendant of his rights and ensures that the defendant understand those rights, (2) informs the defendant of the possible sentences, (3) makes sure that there is a factual basis for the plea, (4) determines that the plea did not result from improper force, threats or promises, and (5) defendant understands immigration consequences of pleading guilty.
- Failure to provide appropriate plea allocution allows the defendant can challenge his plea as an involuntary waiver of rights. If successful, the conviction is struck and the prosecution can reinstate charges that the defendant pled guilty to or charges which had been dropped.
- Guilty plea is a critical stage, and the Defendant is entitled to have effective assistance of counsel.
Right to Jury Trial
- Sixth Amendment provides a right to jury trial for all serious offenses, provided that the defendant asks for it.
- Serious offenses are those for which the authorized punishment is more than six months.
- A jury in a federal criminal case must have 12 members and must decide the case unanimously.
- States can use juries of 6 or more in criminal cases.
- If the state uses a jury of 12 members, the jury does not need to be unanimous.
- MD: 12 jurors
- Venire/Jury Pool: a representation of a fair cross-section of the community from which no distinctive group is excluded. The jury is selected from this cross-section.
- Voir Dire: the jury is narrowed down in the voir dire process. Potential jurors may be removed for cause or by peremptory challenge.
- For-Cause Challenges: used to ensure an impartial jury. Jurors can be removed for cause when they reveal something that will prevent them from deliberating fairly or intelligently. Jurors knowledge of victim, friendship with a witness, worked for the defendants company anything that speaks to knowledge or bias.
- Peremptory Challenges can be used for generally anything, including hunches. Each side is statutorily limited to three peremptory challenges, but the lawyers cannot challenge jurors on the basis of race or gender (Batson doctrine).
- MD: if sentence < 20 years, 4 peremptory challenges for each side. If sentence > 20 years, 10 peremptory challenges for defendant, 5 for state.
Right to Speedy Trial: SOL
- 6th Amendment provides right to speedy trial.
- Due Process/Statute of limitations gives defendants some protection. SOL starts to run when the crime is committed, but for continuing offenses, SOL does not start to run until the end of the crime/conspiracy.
Right to Speedy Trial: Timing
- Speedy trial protects defendants against delay that occurs between time of arrest/indictment (whichever first) and the time of trial.
- In analyzing, the court will look at (1) length of delay, (2) reason for delay, (3) whether the defendant asserted his right to a speedy trial, and (4) prejudice to the defendant.
MD: Right of Prompt Presentment
- For all people who are arrested.
- Defendants must be brought before a judicial officer of the district court within 24 hours of arrest.
MD: Hicks Rule
Trial date must be scheduled within 180 days unless good cause is shown.
Right to Public Trial
- 6th Amendment + 1st Amendment protect the rights of the defendant and the public to attend public trials.
- Courts have some discretion to close particular proceedings if substantial likelihood of prejudice.
- 6th Amendment guarantees defendants the right to confront the witnesses against them, as well as the right to compulsory process to produce their own witnesses.
- Defendants right to present witnesses: defendant has a right to testify on his own behalf. He also has the right to compulsory process to obtain witnesses in his defense.
If a hearsay statement is testimonial, then the 6th Amendment bars admission of a statement if (1) declarant is unavailable, and (2) defendant had no prior opportunity to cross-examine the witness.
- A defendant's own statements are always admissible against him, even if the defendant does not testify at trial.
- If co-defendants, a non-testifying co-defendants statements are not admissible against the co-defendant.
Burden of Proof
- The prosecution must prove every element of the crime beyond a reasonable doubt.
- The defendant has the burden of proof of affirmative defenses.
- Due Process requires judges to possess neither actual nor apparent bias.
- Actual bias consists of interests that would impair the judges impartiality.
Prosecutors: Four Duties
- Brady Doctrine
- False Testimony
- Contact With Defendant
- Comments on Defendant's Failure to Testify
- Prosecutorial misconduct may result in a mistrial or a reversal of a conviction.
- Prosecutor must turn over all material exculpatory evidence to the defense, including evidence that tends to show that the defendant is not guilty of the crimes charged, and evidence that would enable the defense to impeach the credibility of prosecution witnesses.
- Evidence is material if disclosure could change the outcome of the proceeding.
- Brady material includes inconclusive lab reports, witness descriptions that do not match the defendant, cooperation with witnesses, and other things within the control of the government.
Prosecutors and False Testimony
A prosecutor may not knowingly present false testimony.
Prosecutors and Contact with Defendants
- A prosecutor may not contact (or direct others to contact) a defendant outside the presence of his counsel.
- 6th Am.
Prosecutors and Defendant's Failure to Testify
- A prosecutor cannot comment on the defendants failure to testify at trial or make unfair remarks about the defendant to the jury.
- 5th Am.
MD: Brady Duties
- In district court, the State and defense have an affirmative duty to provide discovery upon request. This includes statements of defendants or co-defendants, witness statements, police reports, expert opinions and the criminal record of defendants and codefendants.
- In circuit court, the state must provide discovery within 30 days of the initial appearance or entry of counsel. The defendant is required to provide discovery within 30 days of the first trial date.
- * State must provide statements of defendant or co-defendant, witness statements, police reports, expert opinions and criminal record of defendant or co-defendants.
- * State must also provide information about any states witnesses, such as any impeachment information, such as wrongful conduct, untruthfulness, prior criminal record, pending charges or probationary status, relationship with the state, cooperation or favorable pleas, inconsistent statements or mental condition.
- * The defendant must provide, without request, all witnesses who are going to show up in court.
6th Amendment right to counsel also guarantees defendants effective assistance of counsel.
Conflicts of Interest and Effective Counsel
- Joint representation can pose problems for defendants because of the possibility of divided loyalty.
- If actual conflict, the judge must warn the defendants of the risk. The judge can also decide not to allow the joint representation.
- When a COI actually affects counsels behavior, there is a presumption of prejudice, and the defendant can obtain a new trial.
Effective Assistance: Strickland test
- Assesses whether a defendant was denied effective assistance
- Performance: did defense counsels performance fall below the wide range of objectively reasonable conduct that lawyers might engage in?
- Prejudice: deficient performance prejudiced the defendant because there is a reasonable probability that, had counsel performed effectively, the result would have been different.
- * Cases which go to trial: reasonable probability that defendant would not have been convicted if lawyer had done a proper job
- * Guilty pleas: defendant must show that he would not have pleaded guilty if his lawyer had done a decent job not that an effective lawyer would have gotten a better plea deal.
Defendant's Choice of Counsel
The defendant who can afford retained counsel are entitled to the counsel of her choice as long as lawyer is (1) properly admitted in the jurisdiction, including pro hac vice, (2) available for trial and (3) no COI or other reason to disqualify the lawyer.
Proceeding Pro Se
- Defendants are entitled to waive the right to counsel and represent themselves.
- A pro se defendant does not have a constitutional right to a back-up lawyer.
Cruel and Unusual Punishment
- Length of Prison Sentences: Supreme Court has given the government free rein to authorize virtually any length sentence for virtually any crime except juveniles cannot be sentenced to life without parole for non-homicide crimes.
- Capital Punishment: In cases which involve an actual individual victim, capital punishment can be imposed only in cases in which the victim dies. Death penalty cannot be imposed on (1) defendants under 18 when crime was committed, (2) mentally retarded defendants or (3) defendants who are insane at the time of execution even if sane at time of commission.
- 8th Amendment also prohibits imposition of cruel, excessive, or unusual/degrading punishments. Must have been convicted of a crime. 8th Amendment protection applies to degrading things done to prison inmates, such as denial of medical treatment and use of hitching posts.
Double Jeopardy clause
- Provides three separate doctrines
- (1) against prosecution for the same offense after acquittal
- (2) against prosecution for the same offense after conviction
- (3) multiple prosecutions/punishments for the same offense.
- If a crime requires proof of an element that the other does not, jeopardy attaches.
- Offenses with different victims are separate offenses, and jeopardy will not attach.
Separate Sovereigns Rule
- If two different sovereigns have jurisdiction over the crime committed, they can each try the defendant separate.
- Jeopardy does not attach across jurisdictions.
When Jeopardy Attaches
- Jeopardy attaches when a jury is sworn in, or in bench trials, when the judge is sworn in.
- Prior to this, the prosecution can add, drop or change charges against the defendant without DJ issues.
Acquittal and DJ
If the jury acquits the defendant, it is the end of the case and the defendant cannot be retried by the same jurisdiction for the same offense.
Conviction and DJ
If the jury convicts the defendant, and he appeals and gets the convictions reversed, the defendant can be retried unless the reversal was based upon insufficiency of evidence.
Mistrial and DJ
- If a mistrial is declared because of manifest necessity (deadlocked jury, defense counsel misconduct, judge sickness), defendant may be retried.
- If mistrial declared without manifest necessity, defendant may not be retried by that jurisdiction.
- A defendant is entitled to have the jury decide by proof, beyond a reasonable doubt, all of the elements to impose a particular criminal punishment.
- Facts necessary to authorize a particular sentence must be found by the jury, and all facts to authorize a particular sentence must be found beyond a reasonable doubt.
- Exception sentence enhancement based on prior criminal convictions need not be charged in the case that results in the high sentence.
Motion for modification of sentence
within 90 days
Motion for new trial
10 days of conviction or 1 year of newly discovered evidence
Motion for Three Judge Panel Review of Sentence:
Only available if sentence is more than 2 years, and the panel excludes the sentencing judge. Judges can choose to keep the sentence, increase it or decrease it. Must be made 30 days of sentence.
Leave to file appeal
- 30 days.
- Post-conviction, a defendant is entitled to file one petition for post-conviction relief based on limited grounds, such as ineffective counsel. Must be filed within 10 years of conviction.
Writ of Actual Innocence:
Under certain circumstances notwithstanding the on year limitation applicable to a motion for a new trial, a defendant may file for a writ of actual innocence based on newly discovered evidence and require the court to conduct a hearing.
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