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Criminal Procedure


Criminal procedure is the body of state and federal constitutional provisions, statutes, court rules, and other laws governing the administration of justice in criminal cases. The term encompasses procedures that the government must follow during the entire course of a criminal case, ranging from the initial investigation of an individual suspected of criminal activity, through arrest, arraignment, plea negotiations, pre-trial hearings, trial, post-trial motions, pre-sentence interviews, sentencing, appeals, and probation and parole proceedings. The rules of criminal procedure may also apply after a defendant has been unconditionally released following an acquittal. For example, the Double Jeopardy Clause of the Fifth Amendment to the U. S. Constitution may be invoked by individuals who are facing prosecution on charges for which they have already been found not guilty.

Criminal procedures are designed to safeguard both the innocent and the guilty from indiscriminate application of substantive criminal laws (i.e., laws prohibiting rape, murder, arson, and theft, etc.) and from arbitrary or abusive treatment at the hands of law enforcement, the courts, or other members of the justice system. At the federal level these safeguards are primarily set forth in three places: the Federal Rules of Criminal Procedure, Title 18 of the United States Code sections 3001 et seq., and Amendments IV, V, VI, and VIII to the U. S. Constitution. The rules and statutes reference each other, and both are designed to enforce and delineate in greater detail the rights established by the federal Constitution.

The Fourth Amendment prohibits the government from conducting unreasonable searches and seizures while investigating criminal activity and building a case against a particular suspect. The Fifth Amendment prohibits the government from compelling individuals to incriminate themselves, from denying individuals due process of law, from subjecting individuals to multiple punishments or prosecutions for a single offense, and from being prosecuted in federal court without first being indicted by a grand jury. The Sixth Amendment guarantees defendants the right to a speedy and public trial by an impartial jury, the right to be informed of all charges against them, the right to confront adverse witnesses, the right to subpoena favorable witnesses, and the right to an attorney. The Eighth Amendment prohibits the government from requiring excessive bail to be posted for pre-trial release, from imposing excessive fines, and from inflicting cruel and unusual punishments.

The freedoms safeguarded by the Fourth, Fifth, Sixth, and Eighth Amendments have two lives, one static and the other organic. Their static life exists in the original language of the amendments as they were ratified by the states in 1791, while their organic life exists in the growing body of state and federal case law interpreting their text, applying it, and defining its scope as different factual situations come before the courts. All of the rights protected by these four amendments, except the right to indictment by a grand jury, have been made applicable to state criminal proceedings via the doctrine of incorporation. Under this doctrine U. S. Supreme Court has said that no state may deny any citizen a fundamental liberty without violating the Fourteenth Amendment's Equal Protection and Due Process Clauses. The fundamental liberties guaranteed to criminal defendants by the Fourth, Fifth, Sixth, and Eighth Amendments are best understood in the context of the criminal proceeding during which they are normally triggered.

The Fourth Amendment and Criminal Procedures Governing Investigation, Arrest, and Search and Seizure

The Text of the 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.

Case law interpreting the Fourth Amendment

Law enforcement officers are entrusted with the power to conduct investigations, make arrests, perform searches and seizures of persons and their belongings, and occasionally use lethal force in the line of duty. But this power must be exercised within the boundaries of the law, and when police officers exceed those boundaries they jeopardize the admissibility of any evidence collected for prosecution. By and large, the Fourth Amendment and the case law interpreting it establish these boundaries.

The safeguards enumerated by the Fourth Amendment only apply against governmental action, namely action taken by a governmental official or at the direction of a governmental official. Thus, actions taken by state or federal law enforcement officials or private persons working with law enforcement officials will be subject to the strictures of the Fourth Amendment. Bugging, wiretapping, and other related surveillance activity performed by purely private citizens, such as private investigators, will not receive Fourth Amendment protection.

Nor will individuals receive Fourth Amendment protection unless they can demonstrate that they have a reasonable expectation of privacy in the place to be searched or the thing to be seized. The U. S. Supreme Court explained that what "a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection…. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected" (see Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 576 [1976]). In general the Court has said that individuals enjoy a reasonable expectation of privacy in their own bodies, personal property, homes, and business offices. Individuals also enjoy a qualified expectation of privacy in their automobiles.

Once it has been established that an individual possesses a reasonable expectation of privacy in a place to be searched or a thing to be seized, the Fourth Amendment's protections take hold, and the question then becomes what are the nature of those protections. Searches and seizures performed without a warrant (a court order approving a search, a seizure, or an arrest) based on probable cause are presumptively invalid. However, in certain situations the Supreme Court has ruled that warrantless searches may be reasonable under the circumstances and thus pass constitutional muster.

Police officers need no justification to stop some-one on a public street and ask questions, and individuals are completely entitled to refuse to answer any such questions and go about their business. However, the Fourth Amendment prohibits police officers from detaining pedestrians and conducting any kind of search of their clothing without first possessing a reasonable and articulable suspicion that the pedestrians are engaged in criminal activity (see Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 21 L. Ed. 889 [1968]). Police may not even request that a pedestrian produce identification without first meeting this standard. Similarly, police may not stop motorists without first having a reasonable and articulable suspicion that the driver has violated a traffic law. If a police officer has satisfied this standard in stopping a motorist, the officer may conduct a search of the vehicle's interior, including the glove compartment, but not the trunk unless the officer has probable cause to believe that it contains contraband or the instrumentalities of criminal activity.

The Fourth Amendment also expresses a preference for arrests to be based on a warrant. But warrantless arrests can be made when the circumstances make it reasonable to do so. For example, no warrant is required for a felony arrest in a public place, even if the arresting officer had ample time to procure a warrant, so long as the officer possessed probable cause that the suspect committed the crime. Felony arrests in places not open to the public generally do require a warrant, unless the officer is in "hot pursuit" of a fleeing felon (see Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 [1967]). The Fourth Amendment also allows warrantless arrests for misdemeanors committed in an officer's presence.

The exceptions to the Fourth Amendment's warrant requirement are based on the court's reluctance to unduly impede the job of law enforcement officials. Courts attempt to strike a balance between the practical realities of daily police work and the privacy and freedom interests of the public. Requiring police officers to take the time to obtain an arrest or search warrant could result in the destruction of evidence, the disappearance of suspects, or both.

When an officer does seek a search or arrest warrant, the officer must present evidence to a neutral judge or magistrate sufficient to establish probable cause that a crime has been committed. The Supreme Court has said that probable cause exists when the facts within an officer's knowledge provide a reasonably trustworthy basis for a man of reasonable caution to believe that an offense has been committed or is about to be committed. Courts will deny requests when the warrant fails to describe in particularized detail the person to be arrested or the place to be searched. The evidence upon which a warrant is based need not be ultimately admissible at trial, but it cannot be based on knowingly or intentionally false statements or statements made in reckless disregard of the truth. Courts will usually invalidate searches, seizures, and arrests made pursuant to a defective warrant. Inaccuracies found in a warrant due to ordinary negligence will not typically jeopardize a warrant's validity.

The Fifth Amendment and Criminal Procedures Governing Post-Arrest and Pre-Arraignment Proceedings

The Text of the Fifth Amendment

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Case Law Interpreting the Fifth Amendment

Once a suspect has been arrested or taken into custody, the rights guaranteed by the Fifth Amendment are triggered. In Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.2d 694 (1966), the Supreme Court held that under the Fifth Amendment's Self-Incrimination Clause, statements made to the police during custodial interrogation will later be deemed inadmissible at trial unless the suspect is first told that he or she has: (1) the right to remain silent; (2) the right to consult an attorney before being questioned by the police; (3) the right to have an attorney present during police questioning; (4) the right to a court appointed attorney if the defendant cannot afford to hire a private attorney; and (5) the right to be informed that any statements they do make can and will be used against them at trial.

If a suspect makes a request to consult with an attorney, the interrogation must immediately cease or any subsequent statements made without the attorney present will be ruled inadmissible. However, a suspect's request for an attorney will not prevent law enforcement from compelling the suspect to participate in a lineup of persons for the victim to review or from having the suspect's picture taken and shown to the victim in a photo array. Nor may a suspect raise the Self-Incrimination Clause as an objection to giving a writing sample, providing a voice exemplar, or taking a blood test. Applying a Fourth Amendment analysis, the Supreme Court has said that the Self-Incrimination Clause does not apply to these situations because individuals have no privacy interest in their physical characteristics.

The purpose of the right against self-incrimination is to deter the government from compelling a confession through force, coercion, or deception. Confessions produced by these methods are not only considered uncivilized by modern standards, but they are also considered unreliable, since they are often involuntary or unwitting or the result of the accused's desire to avoid further browbeating, instead of being the product of candor or a desire to confess.

The Fifth Amendment guarantees three other rights that relate to criminal procedure. First, every defendant has the right to be indicted by a grand jury before standing trial in federal court. As noted above, the Grand Jury Clause has not been made applicable to the states, and many states allow prosecutions based on information or complaint, which are written instruments prepared by the prosecutor. In federal criminal proceedings and in states that use the grand jury system, grand juries are normally comprised of between 16 and 23 persons from the district in which the crime occurred, and they can return an indictment against the defendant by majority vote.

Second, the Fifth Amendment prohibits the government from subjecting individuals to multiple prosecutions or multiple punishments for a single offense. This prohibition is called the right against double jeopardy. Defendants may bring motions pursuant to the Double Jeopardy Clause either before a trial to prevent a subsequent prosecution or punishment or after trial to overturn a subsequent prosecution or punishment.

Third, the Fifth Amendment guarantees every defendant the right to due process. The Due Process Clause requires that all criminal proceedings be conducted in a fair manner by an impartial judge who will allow accused individuals to fully present their defense, and proceedings that produce arbitrary or capricious results will be overturned as unconstitutional. The right to due process applies to every phase of criminal proceedings from pre-trial questioning to post-trial hearings and appeals, and its application to some of these proceedings will be discussed below.

The Sixth Amendment and Criminal Procedures Governing Post-Arraignment and Pre-Sentencing Proceedings

The Text of the Sixth Amendment

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

Case Law Interpreting the Sixth Amendment

Once a suspect has been arrested, the rights created by the Sixth Amendment take hold. The Sixth Amendment right to a speedy trial arises after a defendant has been arrested, indicted, or otherwise formally accused. Title 18 USCA sections 3161 et seq explain the nature of this right. Prior to the point of formal accusation, the government is under no constitutional or statutory obligation to discover or investigate criminal activity or accuse or prosecute suspected criminals within a particular amount of time. Nor is the Speedy Trial Clause implicated after the government has dropped criminal charges, even if the government refiles those charges at a much later date.

The Supreme Court has declined to draw a bright line separating permissible pre-trial delays from delays that are impermissibly excessive. Instead, the Court has developed a balancing test that weighs the reasons for delay against the prejudice suffered by the defendant in having to endure the delay. A delay of at least one year in bringing a defendant to trial following arrest will create a presumption that the Speedy Trial Clause has been violated. However, defendants whose own actions lengthen the pretrial phase or who fail to assert this right early in a criminal proceeding hurt their chances of prevailing on a speedy trial claim.

The point at which defendants are formally charged also triggers the Sixth Amendment right to be informed of the nature and cause of every accusation against them. Courts have interpreted this provision to have two elements. First, defendants must receive notice of any criminal accusations that the government has formally lodged against them through an indictment, information, or complaint. Second, defendants may not be tried, convicted, or sentenced for a crime that materially varies from the crime set forth in the formal charge. If either element is not satisfied and the defendant is convicted, the court will set aside the verdict and sentence.

Once a defendant has been formally charged by the prosecution in writing, the defendant will be arraigned before a court. At the arraignment the court generally reads the written charges to the defendant and attempts to determine if the defendant understands the charges or needs further explanation. Defendants are also provided with the opportunity to enter a plea of guilty or not guilty at the arraignment.

The arraignment is important for Sixth Amendment purposes because it gives rise to defendants' right to counsel, after which defendants are entitled to have counsel present at every "critical stage" of the proceedings. A critical stage is every stage of a criminal proceeding at which the advice of counsel is necessary to ensure defendants' right to a fair trial or every stage at which the absence of counsel might impair the preparation or presentation of a defense. Critical stages include important pre-trial hearings, such as a hearing upon a motion to suppress evidence, jury selection, trial, and sentencing. Non-critical stages include pre-trial procurement of defendants' fingerprints, blood, DNA, clothing, hair, and handwriting or voice samples. Denial of counsel to a defendant during a critical stage is considered tantamount to an unfair trial warranting the reversal of a conviction.

Defendants are not required to be represented by counsel but may instead choose to represent themselves throughout the course of a criminal prosecution, which is called appearing pro se. However, the waiver of the right to counsel must be done in a knowing and intelligent fashion by a defendant who is aware of the advantages to being represented by counsel. Before accepting a defendant's waiver of counsel, courts will normally explain many of these advantages to the defendant. For example, attorneys can advise their clients whether it is in their self-interest to make any statements to the police. Attorneys can also determine the propriety of bringing any pre-trial motions, including motions to dismiss the case, compel the production of exculpatory evidence, limit testimony of adverse witnesses, and suppress evidence seized in violation of the Constitution. Under case law interpreting the Fourth Amendment, not only is unconstitutionally obtained evidence rendered inadmissible at trial under the exclusionary rule, but any evidence derived from the constitutional violation is also subject to suppression via the "fruit of the poisonous tree" doctrine. Pro se defendants are not likely to understand these nuances of criminal procedure.

Attorneys can also influence the amount of bail that is set by a court following arrest. The Eighth Amendment prohibits courts from setting bail in an excessive amount. Criminal defense attorneys are accustomed to making arguments in favor of setting bail at a level proportionate to the severity of the crime so that gainfully employed defendants accused of less serious offenses can continue earning a living while awaiting trial. In certain instances when defendants have strong ties to a community, attorneys can convince courts to waive bail and release the defendants on their own recognizance, which means that defendants will not be incarcerated prior to trial but are obligated to appear for scheduled court appointments in a timely fashion or risk losing this privilege.

Once the trial begins, the Sixth Amendment guarantees that the defendant be tried in a court open to the public before an impartial jury. The right to a jury trial only applies to charges for which the defendant will be incarcerated upon conviction. If a defendant is tried by the court without a jury, the Sixth Amendment precludes imprisonment as a punishment. The right to a public trial is personal to the defendant and may not be asserted by either the media or the public in general. However, both the media and members of the public have a qualified First Amendment right to attend criminal proceedings.

The right to an impartial jury entitles the defendant to a jury pool that represents a fair cross section of the community. From the pool a panel of jurors is chosen to hear the case through a process called voir dire. During voir dire the presiding judge, the prosecution, and attorneys for the defense are allowed to ask members of the jury pool a variety of questions intended to reveal biases, prejudices, or other influences that might affect their impartiality.

Jurors may be excluded from service for a specific reason, called a challenge for cause, or for strategic purposes, called a peremptory strike. Attorneys for both sides may exercise an infinite number of challenges for cause, while all jurisdictions limit the number of peremptory strikes. For example, in New York state courts both the prosecution and defense receive three peremptory strikes plus one extra for each alternate juror (see NY CPLR ¤4109). The Equal Protection Clause of the Fourteenth Amendment also limits attorneys' use of peremptory strikes, making it unlawful to exclude jurors on account of their race (see Batson v. Kentucky, 476 U.S. 79, 90 L.Ed.2d 69, 106 S.Ct. 1712 [1986]). The jurors who are ultimately impaneled for trial need not represent a cross section of the community as long as they maintain their impartiality throughout the proceedings. The presence of even one biased juror impaneled to hear the case is not permitted under the Sixth Amendment.

The constitutional parameters governing the size of a jury in criminal cases are not established by the Sixth Amendment but by the Due Process Clauses of the Fifth and Fourteenth Amendments. The Supreme Court has ruled that in capital cases (i.e., cases in which the death penalty may be imposed) a defendant's right to a fair trial requires that the jury be comprised of twelve members who must unanimously agree on the issue of guilt before the defendant may be convicted and sentenced to death. For non-capital cases, the Supreme Court has ruled that the Constitution permits a verdict to be rendered by a majority vote of as few as nine jurors when the panel consists of twelve. The Court has also said that the Constitution permits trial by as few as six jurors in non-capital cases but that if a six-person jury is impaneled to decide a criminal case, all six must agree on the defendant's guilt before a conviction can be returned.

After the jury has been selected, the prosecution presents its case in chief. The Sixth Amendment guarantees defendants the right to confront witnesses who testify against them. In all but exceptional circumstances, the type of confrontation contemplated by the Sixth Amendment is face-to-face confrontation, allowing defendants to hear evidence against them, consult with their attorneys, and participate in cross-examination to test the credibility and reliability of the victim or other prosecution witnesses.

Once the prosecution finishes presenting its case in chief, the defendant must be allowed the opportunity to put on a defense. The Sixth Amendment gives defendants the right to subpoena witnesses and compel the production of evidence favorable to their case. The Sixth Amendment guarantees this right even if an indigent defendant cannot afford to pay the expenses that accompany the use of judicial resources to subpoena evidence. Defendants are under no obligation to testify themselves, as the Fifth Amendment right to remain silent applies during trial just as fully as it does during pre-trial questioning by the police. In fact, the defense need not call any witnesses or offer any evidence at all. The prosecutor has the burden of proving the defendant's guilt beyond a reasonable doubt, and the defendant may decide that the prosecution's case is sufficiently weak that the jury will vote to acquit without hearing from the defense.

If the court hears from the defense, each side is then allowed to present rebuttal testimony after which both sides will normally rest. The Sixth Amendment right to an impartial jury prohibits jury members from deliberating before all of the evidence has been submitted, the attorneys have made their closing arguments, and the judge has read the instructions. Once deliberations begin, jurors may ask the court for clarification of the instructions and for portions of the testimony transcribed for their review. If the jurors cannot reach a verdict after discussing the evidence amongst themselves, the judge will try to determine if they are hopelessly deadlocked. However, the judge cannot force a jury to reach a verdict, but the judge may encourage the jurors to make every reasonable effort to resolve their differences. If the jurors remain deadlocked for a reasonable period of time after meeting with the judge, the court will declare a mistrial and dismiss the panel from further service.

If the jurors return a verdict of not guilty, the court will enter a judgment of acquittal, and the defendant is free to leave the courthouse without limitation or condition. If the jurors return a verdict of guilty, the case will proceed to sentencing. For lesser offenses, such as simple or petty misdemeanors, sentencing may immediately follow the verdict. For all other offenses, sentencing is usually conducted by the court in a separate hearing held several days or weeks after the verdict. Both the prosecution and defense are permitted to make arguments as to the appropriate sentence, and courts are generally given wide latitude in crafting individualized punishments within the statutory guidelines. Sometimes this discretion is curtailed by guidelines that require mandatory minimum sentences. Punishments may include any combination of community service, forfeiture of property, fines, probation, or incarceration. In 38 states and in federal court, defendants may be sentenced to death for first-degree murder, felony murder, and other similarly serious crimes.

The Eighth Amendment Limitations on Sentencing

The Text of the Eighth Amendment

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.

Case Law Interpreting the Eighth Amendment

A court's discretion in sentencing a defendant is also limited by the Eighth Amendment, which prohibits the imposition of excessive fines and the infliction of cruel and unusual punishment. The Excessive Fines Clause has proven to have little effect over the course of the last two centuries. Trial judges are afforded extremely wide discretion in assessing fines on criminal defendants, and they are rarely overturned on appeal. For a fine to be overturned there must be proof that it was arbitrary, capricious, or so grossly excessive as to amount to a deprivation of property without due process of law. As a practical matter, the cost of appealing a fine often exceeds the amount of the fine itself, thereby reducing the incentive to appeal.

On the other hand, the Cruel and Unusual Punishment Clause has been the subject of much litigation. This clause requires every punishment imposed by the government to be commensurate with the offense committed by the defendant. Punishments that are disproportionately harsh will be overturned on appeal. Examples of punishments that have been overturned on Eighth Amendment grounds include two Georgia statutes that prescribed the death penalty for rape and kidnapping (see Coker v. Georgia, 433 U. S. 584, 97 S. Ct. 2861, 53 L. Ed.2d 982 (1977); Eberheart v. Georgia, 433 U.S. 917, 97 L. Ed.2d 2994, 53 L. Ed. 2d 1104 [1977]). The Supreme Court has also ruled that criminal sentences that are inhumane, outrageous, barbarous, or shock the social consciousness also violate the Eighth Amendment.

In 1972 the U. S. Supreme Court placed a moratorium on capital punishment throughout the United States, declaring that the statutes authorizing the death penalty were too broad and allowed for arbitrary and discriminatory application by judges and juries (see Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 [1972]). But four years later the Supreme Court upheld three new state statutes that were enacted to cure those flaws (see Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 [1976]). Thirty-five states and the federal government soon followed suit by revising their death penalty statutes to comply with the Eighth Amendment, and the nation's high court has since shown reluctance to closely scrutinize these statutes.

However, in 2001 the Georgia Supreme Court surprised many legal observers when it banned use of the electric chair in executing death row inmates (see Dawson v. State, ― S.E.2d ―, 2001 WL 1180615 [GA.2001]). The court said that death by electrocution violated the state constitution's prohibition against cruel and unusual punishment because it inflicted purposeless violence and needless mutilation on the prisoner, and as such made no measurable contribution to the accepted goals of punishment (see GA Const. Art. 1, ¤ 1, par. 17). At the same time, the court stressed that it was not calling into question Georgia's entire system of capital punishment. On the contrary, the court said that death by lethal injection raised no constitutional questions because it was minimally intrusive and involved no mutilation.

Appeal and other Post-Conviction Proceedings

The federal Constitution does not guarantee the right to appeal a criminal conviction. However, every state affords defendants the right to have at least one appellate court review the record for trial court errors. Many of these states restrict the subject matter of what may be appealed, curtail the time in which an appeal may be taken, or permit appellate courts to issue decisions upon the record and briefs submitted by the parties without holding a hearing or entertaining oral arguments. Federal statutes grant criminal defendants in federal court the right to appeal. Only one review is granted as a matter of right, and this is to the U. S. Court of Appeals. Review of state and federal convictions by the U. S. Supreme Court is discretionary.

After incarcerated defendants have exhausted all appeals without success, they may file a writ of habeas corpus. This is a civil suit against the warden of the prison, challenging the constitutionality of the incarceration. A habeas corpus petition is not anoth- er appeal. The only basis for granting relief to a habeas corpus petitioner is the deprivation of a constitutional right. For example, an inmate might claim that he or she was denied the assistance of counsel guaranteed by the Sixth Amendment on grounds that their attorney was incompetent. Violations of the Fourth Amendment's prohibition against unreasonable searches and seizures are not grounds for granting a writ of habeas corpus.

If a defendant loses on appeal and is denied a writ of habeas corpus, most jurisdictions offer a few last-ditch remedies. If the sentence includes parole, an inmate may petition the parole board to move up the date for parole. Inmates of state prisons may ask the governor of the state in which they are imprisoned for clemency. If granted, clemency normally includes the restoration of a released inmate's civil rights, such as the right to vote and own a gun. A commutation of sentence is a lesser form of clemency, since it does not restore the legal rights of the inmate but only releases him or her from incarceration. Federal inmates may ask the president of the United States for a pardon, which, like clemency, releases the inmate from custody and restores his or her legal rights and privileges.


Criminal Procedure Outline





Judicially created remedy designed to safeguard 4th amend rights through its deterrent effect.

Exclusionary Rule: Evidence seized in violation of the 4th amendment cannot be used in trial.

4th Amend: Prohibits unreasonable searches and seizures.

14th Amend: No state shall drive... without due process.

Mapp v Ohio

All evidence obtained by searches and seizures in violation of the constitution are inadmissible in a state court.

EFFECT: Extended 4th amend exclusionary rule to states through 14th amend incorporation. (Weeks made exclusionary rule to apply to fed courts)

BASIS: Deterrence and maintenance of judicial integrity.


Discipline the officer;

but, negative effect on police aggression and self discipline seems corrupt.

Allow victim to sue officer/city

but, police have little money and suing city would decrease deference if officer not held accountable. Also police can limit damages through unreasonable search methods - so nothing to recover.

Criminal sanctions against police

but, negative effect on police due to over -deference.

Limit use of evidence rather than excluding it.


Habeas Corpus Proceedings: A prisoner afforded fair and full opportunity to litigate 4th claim, may not obtain fed habeas relief on grounds that the unlawfully obtained evidence had been introduced at trial. Stone


Grand Jury Indictment: Inadmissible evidence can be used to get an indictment. Calandra

BASIS: Since preliminary step, pros. will not go to GJ with just gun, because he knows it will be excluded during trial.

EFFECT: Forced plea bargaining.

Impeachment During Trial: Inadmissible evidence can be used to impeach def during trial. Walder

BASIS: Allowing excluded evidence doesn't affect deference of police - police don't know if person stupid enough to lie.

EFFECT: Defs don't testify.

Sentencing: Can use inadmiss evid at sentencing.

Federal Civil Proceedings: Can use inadmissible evidence. Janis

Good Faith Exception: If police rely in "good faith" on a defective warrant, evidence gathered pursuant to the defective warrant can be admitted even if the warrant was invalid. Leon

"good faith" = [Objective Inquiry] Whether a reasonable well trained officer would not have known that the search was illegal/warrant defective despite the magistrates authorization. Consider all relating circ. when analyzing.

[NOTE]: Limited to defective warrant based searches only.


1. Officer Adams submits affidavit saying reliable informant told
info. In fact there was no informant. Magistrate grants warrant
based on officer's lie. Can suppress findings?

* Yes. Good faith exception does not apply to something
known to be false or if there is a reckless disregard for
the truth.

2. Adams makes affidavit saying "I have reasonable belief
evidence is at 35th and Main". Magistrate grants warrant.
Suppress findings?

* Yes - no good faith exception. Warrant based on affidavit
wholly lacking in probable cause.

3. Adams goes to 2nd magistrate after 1st rejects his affidavit
(no Prob Cause). Suppress findings?

* Maybe. It may be evidence of bad faith, but does not
automatically = suppression.



Does person searched have a subjective expectation of privacy? [Subjective Test]

[NOTE]: Easy to destroy by telling you are subject to a search. (eg school saying we will search lockers, so therefore students do not have an expectation of privacy).

Is expectation objectively reasonable to society? [Objective Test]

[NOTE]: Most important prong since first is easily destroyed.

Examples of Test Applied:

Katz v. US: Telephone monitoring constitutes a search and seizure. Police violated 4th by failing to obtain a warrant.

BASIS: 4th protects people not places - but where "search/seizure" takes places affects analysis.

Greenwood: Warrantless trash seizures do not violate the 4th amend.

BASIS: No subjective expectation of privacy:

Bags readily accessible to public;

Bags placed out for conveyance to 3rd party.

Open Fields and Interest:

Curtilage is Protect Interest: Area immediately around the home and associated with the home. Oliver

[NOTE]: Not necessarily a geographical area, its focus is on activity associated with sanctity of home and privity of life.

4 Factors when Analyzing: Dunn

Proximity to home;

enclosure which includes house;

use of area searched;

steps taken by owner to keep area searched private (shielded).

Surveillance From the Air: Is not a 4th violation unless helicopter was violating law, interfered with defs use of his area or def passes 2 part test. Riley

Sensory Enhancement Devices: As long as actor uses sensory enhancements to see what he could otherwise see their use is OK.

Examples: Flashlights, binoculars used in order to keep surveillance from being detected rather than to actually see.

Other Areas:

Businesses and Commercial Premises: Are protected by 4th - warrant required.

Detention Facilities: Not protected by 4th - no warrant needed.

Smelling: Officers smell does not = search and dogs sniffing does not require warrant/violate the 4th.

Beeper Instillation: Installation with consent of original owner does not require warrant/violate 4th.

Beeper Monitoring: Monitoring of beeper placed object without warrant violates 4th if it reveals info not obtainable visually.


Remember if not a search, then no need to comply with 4th.

Facts: 8 foot high stockade around house. Marijuana growing on
side of house.

1) Officer climbs fence and sees plants. Is this a search?

* Yes. Officer entered into the curtilage (note factors from

2) Instead, officer stands on 10 foot ladder and the ladder is on
public property. Search?

* No. Public has a right to be where officer was (seeing
stuff is OK). Mere observance does not implicate the 4th.

3) Officer looking down from ladder sees plants, jumps fence and
seizes plants. Search?

* Yes. Must get warrant. Note difference between seeing and
actually going over the fence and getting plants. 4th is
implicated by jumping over the fence without a warrant.

4) Instead, officer goes to neighbors house and with their
permission, looks into the yard. Search?

* No. No reasonable expectation that neighbor will not look
down. Remember Greenwood knowingly expose to public does
not = search.

5) Instead, officer uses telescope from 1/2 mile away. Search?

* Yes. Police could not have seen without the telescope.

6) B and C crime see. Police get C to wear microphone. B tells C info that has always been kept secret. Reasonable expectation that C will not reveal/privacy?

* No. Information that you voluntarily disclose, even if
you desire to keep secret, you bear the risk.



Before any warrant issued, need to make a showing of probable cause.

Probable Cause= Degree of certainty that something is true.

[NOTE]: Some courts have said that less than 50% certainty is OK.

Various ways to Establish Prob Cause:

Presumption of Reliability: Police observation, victim or witness.

No Presumption of Reliability: Informants

Gates (Know by name)

Facts: Anonymous letter sent to police alone does not provide basis for probable cause.

Case establishes "Gates Test":

Two Prongs:

Basis for Evidence:

Officer needs to be able to articulate facts and circumstances that give rise to belief of prob cause. (Can take into account officer's experience).

Examples: personal observation by officer, heresy


Sufficient reason for concluding that the source is reliable.

Looks at person's reliability (reason to lie?) or credible past on supplying info.

[NOTE]: Under Gates deficiencies in one prong can make up for weakness in the other prong.

[NOTE]: Probable cause looks at the totality of circumstances. Gates.


Remember that use of precedent is not very good

1) Officer says that based on his instincts and experience, he believes there are drugs in an apartment. Sufficient showing for probable cause?

* NO. Needs to be some basis. Officer needs to articulate
fact and circumstances that give rise to probable cause.

2) Officer says he has reliable info from person who knows drugs are in apt. Prob Cause?

* NO. Its a conclusory statement. Need to know basis for
person's belief that drugs are in apt and why the source
is reliable.

3) Officer says, I staked out and saw several adults leaving apt
with uninflated balloons - a common way of transporting drugs
he says. Sufficient Showing to = Prob Cause?

* Probably. You can take into account officer's experience.

4) Officer says he was told by reliable source who in the past
has given accurate info that he sold vial of crack to suspect
at his apt one week ago. Prob Cause?

* Probably Not: 1st Prong: Problem because week old info;

2nd Prong: Probably satisfied. A source
willing to admit involvement in a
crime is much more likely info is



Warrant: Written authority by court to conduct some act.

If there was a search, the question of whether there was probable cause is next question. Also ask is warrant was necessary for valid search.

Justifications for warrant:

Protect innocent from searches not based on prob cause;

Neutral magistrate acts as defender of def's interest. (in civil cases, a lawyer can defend)


Police submit affidavit supporting warrant;

Magistrate determines if sufficient;

Mag can question officer;

Mag can call witness in;

Search in conducted with warrant;


Based on probable cause given by officer;

Under oath;

Before a neutral and capable magistrate;

Shadwick: Can be a clerk, doesn't have to be a lawyer.

Particularly describes the place to be searched and the things to be seized.

Exception: Mere technical errors will not render a warrant invalid.

Example: listing 23 Brown St. instead of 15 Brown St.


Garrison Warrant allows search of trailer in lot 3. Police waited a few days before executing search warrant and person moves out of lot 3. Police had no reason to know. Different owner moves into lot 3. While searching trailer in lot 3 police find drugs in plain view (no grounds for suppression).

Rule: As long as police acted in objectively reasonable reliance on warrant, evidence will not suppressed based on the execution of warrant mistake. Police acted in good faith and had no reason to know there was a problem with the warrant.

Going to search lawyers office. Warrant allows search and seizure for forms related to clues for insurance proceeds that are not lawfully due. Is warrant OK?

NO. Fails particularity requirement. Need name of person illegally submitting claims and dates (there are probably thousands of files on various legal matters). Police need reason to seize particular documents beyond just being "all insurance forms are seizable".

[FACTOR]: Attorney client privilege is implicated so, degree of particularity needs to be higher than normal.


1) Officer investigating judicial corruption so he gets attorney
general to sign off Ok'ing his search warrant. Valid warrant?

* NO. Has to be neutral judicial authority. Cannot be in
executive branch.

2) Clerk of court signs for magistrate. Valid warrant?

* YES. Shadwick does not have to be a lawyer.

3) Part time magistrate who gets paid per warrant application.
Valid warrant?

* YES. Ok to get paid by the application, what is not ok is
to be paid by the number of warrants approved.

4) Warrant states that place to be searched is last house on the
left on June street. Particular enough?

* Probably Not. Especially is urban location.



3 Types of questions:

When should warrant be executed;

How should warrant be executed;

What can police seize other than what is listed on the warrant.


Magistrate must specify max time to execute within

Fed system, up to 10 days;

Illinois is up to 4 days.

Most courts say violating max time by using a stale warrant is not a mere technical violation.

Need good cause to execute at night, normally need to do it during the day (Fed). Illinois= doesn't matter if day or night.


Police must knock and announce before going in. If no response then can use reasonable and necessary force to get in.


If type of evidence is easily destroyed; or

If they hear something.

Duration of search must be reasonable.


Can search any place that evidence is likely to be found (e.g. cannot tear up rug to find stolen stereo)

Once found what they are looking for, they must stop.

Horton Can seize any incriminating evidence that is in plain view.


Can arrest without warrant if police have probable cause.

Absent probable cause, police can at a minimum pat down if they believe person is carrying a weapon.

[NOTE]: can only pat down for weapons, but once find a weapon, doesn't matter.

Yaberick: Cannot search or arrest customers or friends without probable cause. Just by being in the place of the search does not allow police to search all present.

Summers: Only need to have articulatable suspicion to detain owner while search is conducted. (Its something less than a seizure, so police don't need probable cause)

[NOTE]: All arrests are seizures, but not all seizures are arrests.


Gerstein Hearing (aka first appearance):

Within 48 of arrest must make showing of probable cause to neutral magistrate.

The probable cause is at the time of appearance, not when person was arrested.

Also person is usually given lawyer and bail is set at hearing.


Officers can make a public felony arrest based on probable cause without a warrant. Watson

[NOTE]: Unless police saw it happen, police need a warrant for the arrest of a misdemeanor. Many states however allow misdemeanor arrests based on prob cause.

[NOTE]: Watson applies even if no risk of flight, destruction of evid or harm exists.

[NOTE]: There can never be a public arrest based on something less than probable cause - irrelevant of if you have warrant or not.


Homes: Must have warrant to arrest someone in their home. Payton

[NOTE]: If suspect is in anothers house. The arrest warrant doesn't help, it only gets you into suspects house to make arrest.

Exception (Exigent Circumstances):

4th does not require police to delay if to do so would endanger their lives or lives of others. Warden

Dorman Factors in determining is exergent circumstances exist:

Grave offence involved

reasonably believed to be armed

reasonable and trustworthy info that suspect is involved in crime

strong reason to believe suspect is on premises

likelihood suspect will escape if not swiftly apprehended

that entry can be made though not consented, peaceably.

[NOTE]: Ex Circ not limited to only running and chasing. Also must look at all factors.

Example of Exeg.: Police reliable informed man who just robbed with gun entered house five minutes ago can go in without warrant. Warden

Example of NO Exeg: Mere fact grave crime involved not enough. Olson

Example of NO Exeg: Police enter home of person to arrest after witness just saw driving erratically. Walsh

Exception (Standing In doorway):

Not considered part of house, so no warrant needed Santana.

BASIS: difference between public area and private area is due to the nature of the privacy interests involved.

Offices: Most courts do not require a warrant to arrest someone at their place of work (as long as prob cause).

[NOTE]: Courts are divided, some require warrant.



If suspect consents to search, no warrant needed.

Incident to Arrest:

Once an lawful arrest is made, you don't need any level of suspicion to search either the person of the area immediately around person. Chimel

What can be searched on the suspect incident to arrest? (3 parts):

The Suspect:

Clothes, pockets, pursues, backpack or any other container large enough to hold weapon or evidence.

Immediate Area:

[NOTE]: Even is suspect is handcuffed, can search immediate area controlled by him.

Immediate area around= any place the suspect can reach.

Limitation: Objects found within area around person can only be seized if probable cause that the object is criminal fruits.

Example: Arrest for drugs and find in drawer during search incident extremely expensive jewelry. Cannot seize unless prob cause it is criminal fruit. Perry

[NOTE]: Can always seize drugs since they are illegal.

Mobility Rule: Area that police can search around person moves when person moves.

Example: Police arrest student carrying liquor. Together they went to his dorm room to get ID. Sitting in open is drugs. Although = warrantless search of room its OK. Christman

Security Check: Officers may conduct a quick and limited pass through private premises to check for 3rd persons incident to arrest (includes looking in closets). Bowie

[NOTE]: If suspicion that someone else is in house, can make sweep of entire structure.

[NOTE]: Some court require a high showing that police had reason to believe 3rd party people are in the house.

Plain View Doctrine:

Incriminating evidence can be seized if the evidence is in plain view from the place in which the officer has a right to be. (eg has warrant, arrested person, invited in, exeg circ...).

[NOTE]: Applies to all types of searches (eg with or without warrant).

Limitation: Cannot use plain view to justify entry to seize.

Example: Sees marijuana plant in window. Officer cannot go in house and seize without a warrant.

Limitation: Incriminating evidence must be immediately apparent.

Example of NOT immed app: Officers entered house from which gun was fired. Noticed expensive stereos and moved stereo to look at numbers on back to see if stolen. Hicks

Automobile Exception:

[NOTE]: Analysis of an auto pullover begins with seizure that must be based on prob cause.

If officer has probable cause to search vehicle, then doesn't need warrant to search. Carrol

Basically there are 2 requirements:

must be mobile (includes boats planes and mobile homes)

must have probable cause

BASIS: Mobility and reduced expectation of privacy.

[NOTE]: Don't have to have prob cause to search when car is stopped. If officer during stop formulates probable cause, then can still search without warrant.

Where can officer search if based on prob cause (as opposed to arrest)?

Plain view doctrine applies.

Can include search of any container or area in car when supported by probable cause. Acevedo

Limitation: Cannot search areas that are too small to hold object that gave rise to prob cause.

Example: cannot search glove compartment for illegal aliens.

Limitation: If only have prob cause to search a particular container or a particular object or area in which object was believed to placed (eg trunk), then CANNOT search entire car once the object is found or container opened (unless you arrest, then can do search incident to arrest). Acevedo

Example: Police watched suspect pick up bag of drugs and place in trunk. Police stopped and opened trunk finding bag. Unless put under arrest, cannot search anywhere else in car and can only search inside the bag. Acevedo

Curtalidge Exception: Cars located on suspects curtilage are not available to be searched without warrant.

Search of Car Incident to Arrest:

If person arrested while driving, can search car without warrant and without probable cause.

On search incident, can search passenger compartment, contents of any container (whether open or closed), closed glove compartment (basically anywhere in car and in any container). Belton

Limitation: Cannot search trunk incident to arrest.

Inventory Searches:

Police do not need a warrant to conduct an inventory search, however police must follow standardized, written and objective procedures. Bertine

[NOTE]: Police do not have to do least intrusive method in inventory search - need only follow dept. guidelines.

[NOTE]: Applies to more than just autos.

Impounding Autos: Arrested persons desire to leave car not relevant if guidelines allow.

[NOTE]: Evidence found in an otherwise lawful inventory must be suppressed if the prior impoundment of the vehicle was not justified.

Illustration: Bertine

Facts: Police arrest driver for DUI and tow car to station where they find in a closed backpack in car contains drugs. Court said its OK.

Could police have done search incident?

Yes, but only if person was still at scene.

Prior to arrest, could police justify search of car based on prob cause?

Probably No: No probability evidence in car.

Argue Yes: They're looking for bottles of liquor.

Terry Stop:

Requires reasonable suspicion (less than prob cause) that person is armed or about to engage in crime. [Objective test] Terry

Totality of circ evaluation. Cortez

[NOTE]: Can be stopped for any crime.

Even is suspicion wanted for or committed past crime. Hensley

[NOTE]: Terry stops are a search and seizure, but are under exception to warrant requirement.

[NOTE]: Officer can gain suspicion either before he approaches or during discussion.

Limitation: If crime suspicion and that crime is not violent in nature then cannot pat down.

Extent of Frisk/Pat Down:

Confined to scope of intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer. Terry

Methods employed need not be least intrusive as possible to verify/dispel suspicion in a short period of time. Shape

Can search passenger compartment if reasonable suspicion to believe there might be a weapon in the car. (extends Terry to where a person can reach) Long

Duration of Terry stop:

No specific number of max minutes. A stop can last no loner than is reasonably necessary to carry out the reason for the stop.

Example: On the fact of case, 90 min too long Place

Two Parts to Terry stop (need suspicion for both):

Detain; and


What = Seizure?

Test: If a reasonable person believes they can decline to answer or otherwise terminate (are not restrained and can decline officer's requests), then not a seizure.

[NOTE]: If seizure police need prob cause unless Terry stop.

[NOTE]: No seizure occurs when police ask questions, ask to examine ID or request consent to search (and no level of suspicion needed) so long as police do not convey a message that compliance is required. Bostick

Requirement to be seizure: (Hodari D)

Some physical force applied to def; or

an assertion of authority by police to which individual submits.

[NOTE]: Analysis of auto pullover begins with seizure that must be based on prob cause.

Example (Bostick): Bus rider no seizure.

Example (Hodari D): Upon seeing police car, def ran and tossed drugs. Police recovered drugs. Police yelling stop does not = seizure, def did not submit to authority.

Example: (Royer) Officers stop Royer on suspicion of drug transporting. Asked him to accompany to separate room while retaining his plane ticket and drivers license = seizure.

Example: (Chesternut) Without more police accelerating to drive along side does not = seizure.

Grounds for Seizure:

Innocent Activity:

Innocent activity is enough if cumulative to show suspicion. White

Example: Guy sitting in car outside hospital employee exit. Many attacks on hospital women in area. Police approach and car starts. Reasonable suspicion?

NO. It is informative, not decisive.


Simply because a seizure is based on a profile does not mean automatically bad. Reasonable suspicion. Sarano

Profile alone is not enough. Sanano

[NOTE]: Courts split on drug courier profiles. Majority allow its use as an element when finding suspicion.

Anonymous Tips: Not enough on their own, but degree of corroboration is lower than what is needed for prob cause.



Special needs beyond those of normal law enforcement may justify exceptions to 4th.

2 Categories:

Where the relationship between the person and the state is different.

Municipal or Regulatory actions (eg inspections)

Safety Inspections of Dwellings:

Need probable cause for warrant. Camara

Inspection of Business Premises:

May need warrant - can have warrantless, suspicionless search in heavily regulated area. Burger

Fire Investigations:

Can remain a reasonable time to investigate cause immediately after fir, but that later entries without consent require warrant. Clifford

International Mail:

Need only reasonable cause to suspect illegal contents. Ramsey

Border Crossing Searches:

No suspicion or warrant needed to search.

Sobriety Check Points:

Must be executed according to standardized practice.

Does not require preannouncement, but the more notice the better.

Look at intrusiveness and length of delay.

just because more effective way to get drunk drivers, does not make check point unconst unless 0 evidence.



Exception to warrant, prob cause and reasonable susp requirements. Scneckloth

2 Major issues:


scope if consent is given


Consent not valid is coerced.

Knowledge of right to refuse is not determinative if consent was voul. - it is only a factor.

What = Coercion:

Direct threats to arrest is no consent to search.

def was intimidated

threats against property (eg threaten to kick down door unless you consent to search)

based on show of authority by police


police threat to seek warrant unless consent DOES NOT = coercion.

police threat to get warrant = coercion

Scope of a consent search:

Def may limit consent to particular area.

Example: Consent to search car. Police find brief case. If locked probably cannot pry open. If unlocked probably can search inside.

Def may limit consent during search.

3rd Party Consent to Search:

If 3rd party has authority, can consent to search of a common area. Matlock

Test: If 3rd party has common control over premises.

Exception: If police have reasonable belief that 3rd party has authority to consent and person does, then consent is valid even though person did not have authority. Rodriquez

Specific People:

Parents can give consent to search premises of minor children.

Children normally cannot consent to search parents area.

Hotel Employees cannot consent to search a guests room.

Land Lords cannot consent to search tenants apt.

Employer can consent to search employees work area. But depends on how common the area is (if personal office with locked cabinets then probably cannot consent)

Business Managers/high level employees can give consent to search areas of business over which they have authority.





Even clear evidence of guilt, person will not be convicted if Gov initiated the crime.

Don't need to have prob cause or a predisposition by def to set up sting. Kelly

Since entrapment defence is not constitutionally based, states can follow either subjective or objective test.

Congress has power to abolish entrap defence at any time for any crime.

[NOTE]: Russell and jacobson apply only to fed crimes.


almost every juris, entrap if affirmative defence. Def must bring up and has burden. In fed courts upon a showing by def of burden of production, prosecutor then has burden of proof to show def's predisposition.

Some states must admit you did act in order to claim entrapment defence but,

In Fed cts can plead in the alternative.

To show entrap must show entrap by gov agents and conduct.

Gov Agent = those working for the police or at the request of the police.

Subjective Test (All Fed Cts):

Look at defs intent and predisposition Russell

[NOTE]: Police conduct is a factor in disposition.

2 Parts: Jacobson

Did the goverment's behavior induce def;

If it did, was def predisposed prior to police contact.

Measured at time the gov agent first suggested crime, not when gov agent first became involved. Jacobson

[NOTE]: Lots of evidence otherwise inadmissible can come in to show predisposition. (eg heresy)

Objective Test (some states):

MPC 203:

Knowing false representations; or

methods of persuasion to commit crime that would led an otherwise innocent person to do.

Due Process Claim:

Some courts say gov conduct can be so outrageous that it violates 4th and 15th amed whether entrapment or not. But due process claims based on police conduct are extremely rare.

Def can make two arguments:

Entrapment claim; and

due process violation claim.

[NOTE]: Gov providing opportunity does not violate due process. Kelly




At Trial:

In all fed cases where def is unable to get council, 6th Amend gives right to appointed council. Johnson

Right to appointed council in state criminal cases (doesn't say all criminal cases). Gideon

No person may be imprisoned for any offence (misdemeanor or felony) unless he was represented by council. Argersinger

[NOTE]: Court will have to decide before if person may be sentenced to jail.

If jail time is authorized, but not imposed, no right to appointed council. Scott

Exception: Despite Scott, always get appointed council for felonies.

Retained Council:

Have right to have retained in court, cannot deny def of the assistance of his own lawyer on any issue in any case. Ferguson


Indigent test will vary from state to state, fill out form indicating assets/debts.

At Appeal:

Where Def Can Appeal:


Convicted person at trial has right to council at appeal of right. Douglass

If appeal is discretionary then no right to council. Ross

On post conviction habeas corpus proceeding, not entitled to lawyer as a right (at court's discretion - they will appoint if feel legit issue exists).


6th does not apply to appeals, only trials.

No fed constitutional right to an appeal in state cases.


Is state provides appeals process, then 14th puts limits on types of procedures state can or cannot adopt.


States have to provide a transcript to indigent at no cost.

Right to transcript even in cases where person does not have right to council (eg time only sentence, no imprisonment) Mayer

Filing Fees:

Poor defs cannot be required to pay filing fees. Burns

When Right to Council Attaches:

A person is entitled to a lawyer at the time judicial proceedings have begun against them - presumably as early as the first appearance. Brewer

No right to council beyond appeal of first right (eg discretionary appeals and habeas corpus).


6th includes right to waive right to representation. Courts require waiver to be unambiguous (doesn't matter if court thinks its a bad idea). Feretta

Limitation: If def waives, and is disruptive, court can appoint council and force def to accept council.

Cannot later selectively waive as to parts of trial.

If waived and later changes mind, it is at the courts discretion to give council.

Subsequent Trial & Sentencing:

Uncounciled misdemeanor theft conviction can not be used to elevate subsequent conviction for a similar offense to felony. Baldasar


1) Crime committed

2) Arrest

3) Booked at police station/interrogated

4) within 48 hours - 1st Appearance/Gerstein hearing (bail set and
lawyer appointed)

5) preliminary hearing

6) information filed (charging document)


5) grand jury hearing

6) grand jury indictment

7) arraignment

8) pre-trial hearing (eg motions to suppress)

9) trial

10) appeal of right

11) discretionary appeal

12) post conviction challenges (habeas corpus)



Dues Process requires an effective council.

Have a constitutional right to effective council on right of 1st appeal. Evitts

Lawyer appointed on day of trial violates effective assistance as required by due process. Powell

You can have ineff council even if lawyer is one you paid for.

Unless entitled to council, you are not entitled to effective council.

Example: Finley def appointed council for habeas corpus appeal by court discretion and def was not allowed to argue he was ineff.

Government can cause:

Government violates the right to effective council when it interferes in certain ways with the ability of council to make independent decisions about how to conduct a defence. Geders

Examples: bar on consultation with def, bar on summation at bench trial, requirement that def be first witness, bar on direct examination of def.


Loyalty to client (no conflicts of interest)

To investigate or reasonable decision not to investigate;

to be skilled.

Must consult with client on really big things (eg how to plead) other things don't need permission.

Standard/Test to Determine if Ineff:

Standard: Reasonably effective assistance in the totality of the circumstances. Strickland

Strong presumption that lawyer acted reasonably. Scrutiny must be highly differential.

Strickland 2 Part Test (def must show both):

Deficient performance; and

[NOTE]: Strategic decisions by council will rarely, if ever be called deficient performance.

Example:: Saying that your client is a liar is not ineffective council (its a strategic decision)

Errors need to be so serious that = not acting as lawyer within 6th.

Two Types:

decisions that are clearly oversights:

Examples: failure to file in timely manner, didn't raise statutory defence that would automatically = acquittal.

decisions which are plainly inconsistent with other things put on at trial:

Examples: Not argue entrap even though testified entrap, def pleads not guilty then in closing says they are guilty.

Deficiency caused prejudice.

Must prove that but for councils deficiency, reasonable probability that proceedings would have resulted differently.

Must be sufficient enough of a showing that it undermines confidence in outcome.

Applying Test (Must allege Specifically):

Cronic: Def argued three factors: complexity, severity of charges and age/exiper of lawyer. S CT said cannot decide. Factors relevant, but def must make SPECIFIC showing cannot just rely on generalizations/factors. (on remand lower court found ineff council)

Examples of no ineff:

Lack of time cannot be major consideration.

plea agreement not being honored or argued by defs council.

allegations of drunkenness not enough to show ineff.




Sources for regulating police conduct:

5th Amend right against compelled self incrim;

6th Amend right to council;

14th Amend right to due process.


Early cases focused on 14th due process violations:

Brown: torture/physical coercion violates due process.

Chambers: recognized psychological coercion can violate due process.

Facts: Threatened to arrest wife/kids is no confession and prolonged interrogation (5 days).

Messiah represented shift to looking at 6th right to council:

Cannot trick into confessing without lawyer present.

Escobar applied Messiah broadly:(OVERRULED BY Miranda)

told lawyer suspect did not want to see him and kept him from suspect.

once police investigation has "focused" on suspect cannot interrogate without lawyer.

Little attention paid to 5th & interrogation prior to Miranda.

Miranda Rule:

Prosector may not use statements that are derived from custodial interrogation without giving Miranda warnings. Miranda

[BASIS]: 5th amend privilege against self-incrim

Miranda Only covers oral or written statements.

Exception to Using/Impeachment at Trial:

Prosecutor may use statements obtained in violation of Miranda rules at trial in order to impeach. Harris


5th amend incorparted through 14th amend due process of law against the states. Malloy

Warnings not required by 5th - they are a judicial construction and can be altered or replaced at any time.

If def chooses not to speak (invokes Miranda or stands mute), prosecution cannot use silence as a tool against him at trial.

If never given warnings, def can still be convicted - just cannot use statements if obtained in violation of Miranda rules.

Miranda warnings apply to all offenses regardless of their severity. Berkemer

Remember: purpose of Miranda is to protect suspects rights in a cohersive atmosphere.


Only required if suspect is in "custody" and police are conducting "interrogation".

1)You have a right to remain silent, 2) that any statement you make may be used as evidence against you in a court of law, 3) you have a right to have an attorney present during questioning, and 4) if you cannot afford an attorney one will be appointed for you."

Effect: If def invokes right to either attorney or silence, interrogation must stop.

Def can invoke right to silence and/or attny at any time, even if previous waiver.

Adequacy of Warnings:

There are no magic words to satisy Miranda rules. Warning must be adequate to protect rights. Prysock

Suspect told you'll get lawyer when and if he goes to court (court said its not deceptive due to state practice) Duckworth

No requirement to tell suspect they can invoke later after initially waiving.

No requirement to tell suspect that their silence or exercise of rights cannot be used against them.

Warnings do not have to inform suspect the subject matter of the questions they are about to ask. Spring

What = Custody?

Warnings not required if suspect is not in custody.

Custody= at least arrest, but also:

Miranda: restriction of movement deprived in any meaningful way.

Berkemer: focus is on if a reasonable man would perceive the situation as custody [objective test].

Berkemer: when a suspects freedom is curtailed to a degree associated with formal arrest

Mesa: At minimum, police must have immediate control over suspect.

[IMPORTANT NOTE]: "if feel free to leave" not helpful, be careful not to put in those terms (applies more to seizure).

Traffic Stops:

Traffic stops do not = custody. Berkemer

BASIS: temporary and not coercive

[NOTE]: Officers intent to arrest when pulling over not relevant since it doesn't impact suspects impressions of coercion.

Interview in Suspects Home:

Not custody since lacked coercive setting. Beckwith

Walking into Police Station:

Being in station voluntarily does not = custody. Mathiason

Even if accompanied by police may not be custody (police told was not under arrest and sus volunteered to go to station) Behler

On the Street:

Absent special circ (arrest using guns, forcibly subduing) police questioning on the street in a public place is not custodial.


S sees police and starts running. Police chase into ally. Police ask why are you running? S says "I only deliver drugs" (no warning given). Custody?

Maybe. Note that just because not free to leave does not = custody (don't apply seizure rules!)

What = Interrogation?

Words or action that the police should know are reasonably likely to elicit incriminating response from the suspect. Innis

[NOTE]: 2 prong requirements:

intended to illicit; and

know are reasonably likely

Test is objective, but it does look at police intent and suspects susceptibility.

Any police knowledge about suspects susceptibility goes into determining test ("likelihood to elicit")

Don't look at suspects feelings/attitudes

Example: Innis shotgun case - not interrogation.

Example: Mauro officer sits with suspect in custody and tapes conversation while he talks with wife - not interrogation.

Why? police never asked questions and she wasent there at the request of police.

Exceptions to Giving Miranda warnings (even if custody + Interrogation):

Suspect Doesn't Know Police are Questioning:

Unless a person realizes he is dealing with the police, their efforts to elicit incriminating statements from him do not constitute police interrogation. Perkins

Court also noted lack of cohersive setting of a jail cell. Perkins

Facts: Undercover officer put in jail with susp who invoked right to councils presence during questioning. Officer asked questions pretending to be prisoner. Not interrogation.

[NOTE]: Can be due process violation.

Booking Questions:

Booking questions don't require Miranda warnings. Muniz

BASIS: Not cohersive even though cust + inter and intended to elicit response.

Example: Def stopped for weaving. Slurred speech. Officer asks age. Def invokes right to council without being told miranda rights. Police later ask date of birth while booking. It is admissible.

Public Safety:

Where police ask questions reasonably concerned by public safety, Miranda does not apply. Quarles


Miranda Right to Council:

When exercised:

Once requested, interrogation must stop. May not interrogate again without council present (whether or not def previously met with council) Edwards

Must be request for lawyer, request for probation officer not good enough. Burbine

Exception: Some juris allow minors right to have interested adult present during questioning.

Applies to All crimes:

Once def has requested right to council being present during questioning, police cannot question on that crime or any other crime. Roberson

Does not apply to non-testimonial evidence:

Non-testimonial evidence directly obtained from Miranda violation is admissible (even though the actual statement would not be). Quarrels (OConner)

Direct non-testimonial derivative of Miranda violation is admissible (even though the actual statement would not be) Elsted

Police Conduct After Invocation:

Relevant if subsequent officer questioning didn't know def had invoked council right. Roberson

How Police Can Get Around: (Edwards and Bradshaw)

If def after invoking right to councils presence, initiates conversation and

Initiates Covers = a willingness to engage in a general discussion of the investigation. [Objective test that officer could have interpretated as relating to the investigation]

Routine custodial questions are not initiating conversation

Def makes valid waiver.

Def statement was made voluntarily. Miller

Miranda Right to Silence:

How Police Can Get Around: (Mosley)

When def invokes right to silence, the police may come back and ask questions at a later time.


must immed cease interrog

significant amount of time passed between invocation of silence right and time to reinitiate questioning

2 hours was enough in Mosley

must give rights again

Majority rules that can ask about same crime again.

Waiver Test and Burden:

Heavy burden on Gov to show waiver was both:




Written or recorded waiver very hard to overcome.

What = Waiver?

Need an articulated waiver. Westover

Waiver need not be express. Silence does not mean waiver, but silence + course of conduct indicating waiver is enough. Butler

Look at totality of circ. Michael C

Factors: def's age, experience, knowledge, education, etc...

Waivers can be partial waiver. Barrett

Facts: Def said he would talk, but not sign confession. Even though appeared confused, court said it was waiver.

Examples: I'll talk but, turn off tape recorder, or, Ill talk but stop note taking.

[NOTE] Most courts say if def says "I understand my rights" then person understands.

Wisdom of waiver does not affect its validity. Barret

Understood he had rights (important) vs understanding rights (unimportant) McKnight



All confessions and statements must be voluntary within the meaning of the 14th amend.


Look at totality of circ. when determining voulentaryness. Miller

Coercive police activity is a necessary predicate to the finding that a confession is not voluntary within the meaning of the 14th due process. Connelly

Police Tactics:

Lying to Suspect:

Lying to suspect is relevant to voulentaryness of confession, but lying alone is not determinative.


Factual lies: not determinative

legal lies: courts much less willing to allow.

False Friend Technique:

Permissible technique unless highly excessive.

Example: Spano cop was actual friend of suspect)

Promise to Suspect:

Will find confession involuntary if police make explicit promise not to prosecute, drop charges or reduce jail time.

Characteristics of Suspect:

Looks at suspects education, age, and prior jail time.

Drunkenness does not prevent statement from being voluntary.

Threats and Pressures on Def:

Violence or threats of violence are often enough to make involuntary (includes threats to arrest relatives)

Even if made by other people, rule applies. Fullminate

distinguish from Perkins: in Fullminate look to if cohesion occurred in fact, regardless of if knew was officer/agent of police then due P violation.

3rd party (non-police) who uses cohesion to elicit confession will be admissible.

Although defs mental condition is relevant to inquiry, a statement absence cohesion will not be found involuntary due to mental illness. Connelly

Conditions of Confinement:

Consider factors like length of internment, deprivation of sleep/food.



Don't confuse with Miranda

When Attaches:

When formal proceedings are brought (indictment, arraignment, charge by way of info).

[NOTE]: Right to council attaches earlier than trial stage. Messiah

[NOTE]: Merely being placed under arrest does not give right to council.

Just because you have lawyer on retainer, does not mean that right attaches earlier.

How to Invoke:

Must do something to invoke (must indicate you want lawyer). Jackson and Patterson

Nature of Protection:

If 6th has attached, prohibits police from deliberately eliciting info from suspect without council present or absent a waiver. Messiah Brewer

What is Interrogation under 6th?

Delibertly eliciting response. Innis

Focus on police intent [subjective test].

Distinguish form Innis Miranda test [more objective]

Purpose not required, delibertly creating a situation may be enough. Moulton

Example: Police plant in cell asks questions. Henry

Purely passive conduct on the part of gov does not give rise to 6th violation. Connelly

Example: Police plant in cell who doesn't ask questions. Kuhlman

Example: Purely passive listening devices that collect, but does not induce, incriminating comments is ok under messiah doctrine. Henry

How police can get around:

Police cannot question unless def reinitiates contact. Jackson

Applies only to specific charged crime:

6th right is crime specific. Police can ask about other crimes without a lawyer present (unless 5th violation because Robinson protects all crimes). McNeil




Distinguish Types of IDs:

Line Ups: When witness asks to look at several suspects and asked to pick.

Pretrial line up IDs cannot be used unless defs council was present at ID. Wade

[NOTE]: One Indiana case has decided that video taped line up IDs do not require defs council presence.

Show Ups: When witness is presented with either a single person or single photo and asked if this is the person.

Treated same as line up (requires council).

Photo Ids: witness looks at a group of photos and picks.

Council not required as a matter of right. Ash

Not a critical stage/lacks confrontational aspect.

When Right to Councils Presence Attaches:

Right to councils presence based on 6th amend.

Right to council does not apply to pretrial IDs by witness of suspects where the suspect has not been arraigned. Kirby

[NOTE]: Arrest does not = right to council at ID.

[NOTE]: 5th and 14th not involved in line ups.

Ways IDs are used:

In Court ID: Witness asked if person who did crime is in the room;

Pre Trial ID Used at Trial: victim shown lineup and identifies. Asked at trial did you prior to trial pick out suspect?

Used because: a time between trial and crime and helps credibility (anyone can pick out suspect in court room).

If PreTrial ID is Invalid:

Prosecution can use in court ID if they prove through clear and convincing evidence that in court ID is based on something other than tainted pretrial ID. Wade


Length of time since crime;

Opportunity of witness to observe crime.

Due Process Challenges:

Besides protection afforded by Wade, a party can challenge a line up, show up, or photo ID based on 5th or 14th due process rights.

When ID procedure is so unnecessarily suggestive and conducive to a mistaken ID, it may violate due process clause. Stovell

Stovell Test:

Look at Totality of Circ.

Heavy burden on def: Substantial likelihood that police got wrong person in light of ID methods. (hard to win)

2 Part Test:

Unnecessarily Suggestive:


Read charges in hearing room Moore

Cannot tell witness who they think is bad guy.

Def can not look very odd/out of place.

Could have gotten other people to stand with def.

Conducive to a Mistake:

look at reliability of ID itself. Often as suggestiveness (part 1 of test) increases, reliability decreases.


how certain was witness in making ID

how close was witness to suspects actual ID prior to ID

length of time between viewing and ID

ability of witness to observe at time of crime.





To have standing means to have your personal rights violated

Standing alone does not prevent evidence from coming in, need to show violation of rights has occurred

Discuss both:

expectation of privacy;

violation of personal rights.

How to Determine:

Must be party to proceeding.

Ask does def have reasonable expectation of privacy in the area searched and one in which society is prepared to accept. Rakas

Factor: Is def legally on premises.

Rawlings look at other factors:

right to exclude others from area searches;

had right to exclude others from property;

did def own property;

explicit agreement between area owner and def.

Overnight Guests:

Overnight guests have standing. Olson

Ownership of place searched:

Generally ownership in the place being searched gives standing to owner even if owner was not present. Alderman

Example: a loaned car.



Evidence that is derived by the police from illegally obtained info is not admissible to prove guilt.

Doctrine is an extension of the exclusionary rule.

Traditionally applies to 4th, 5th and 6th amend violations.

[IMPORTANT] FPT application to 5th violations limited to coercion. Miranda violations do not give rise to FPT analysis. Elstad

Evidence derived from Miranda violation cannot be excluded on FPT basis (but youll still exclude direct evidence obtained in violation of warning (eg the statement))

In absence of any cohesion, mere fact that def makes statement does not automatically = cohesion. Elstad

How to Analyze FPT problems:

Look for illegality

Distinguish between evidence that is direct result of illegality and evidence that is derived.

Direct Illegal Evidence: FPT does not apply, look at exclusionary rule.

Derivative Illegal Evidence: Evidence obtained through illegality (FPT applies).

Three Exceptions to FPT:

Attenuation Doctrine: At what point does the evidence become entenuated from illegal act.

Independent Discovery: Evidence not discovered due to illegal act.

Inevitable Discovery: Police would have found anyway.

Attenuation Doctrine Exception:

Mostly applied to confessions.


Whether def received Miranda warnings before giving statement:

Miranda warnings do not automatically mean attenuation exception applies. It is only a factor. Brown

Length of time between illegal act and confession:

The longer the time the more likely exception kicks in.

Presence of intervening circumstances:


consulted with lawyer;

released for a period of time;

talked with girlfriend. Taylor

How flagrant was the abuse/illegality.

Independent Source Exception:

Situation illustrated:

When illegally see evidence and then go and get valid warrant without mentioning they saw evidence. Murray

Burden is on police to later show by preponderance of the evidence that basis for the valid warrant was not discovered through illegal act.

Murray is example of applying FPT to illegal searches and seizures.

Inevitable Discovery Exception:

If evidence would have been discovered anyway. Williams II

Prosecution must show by a preponderance of the evidence. Strictly objective standard. Bad faith or good faith of police is not relevant.

Williams II is example of applying FPT to 6th amend violations.




5th amend: no person shall be subject for offense to be twice put into jeopardy.

[NOTE]: Applies to all crimes and incorperated through 14th to apply to states. Benton

Limitations: 5th does not apply to civil proceedings even where gov is actor (eg forfeiture proceedings)

Exception: Dual Sovereignty Doctrine: both fe and state courts can try for the exact same crime.

When Double J Attaches:

When jury empaneled or

if in bench trial - when 1st witness is sworn.

[NOTE]: Pre trial suppression decisions are appealable before trial.

What Double J Protects:

A 2nd prosecution for same offence after conviction.

prevents 2nd prosecution for same offence after acquittal.

prevents multiple punishments for same offence.

means you cannot later be punished for same thing you already were punished for.

Reprosecution after Judge Declares Mistrial:

Mistrial: Where trial is aborted and there is no resolution of the case. Decision that case cannot be fairly decided.

Example: Deadlocked jury.

If Def Objected:

Apply Perez standard:

No dbl J bar where there is manifest necessity to declaring mistrial.

If yes manifest, then can have 2nd trial. If no manifest, then dbl J bars and no 2nd trial.

What = manifest necc?

Absence of witness is not, so dbl J bars. Downum

Manifest Factors:

Risk that prosecutor manipulated (if likely then probably wont allow 2nd trial)

No available less drastic alternative:

If only avail alt is mistral then = manifest and 2nd trial OK.

Fact that lower court doesn't say why they granted mistrial, does not automatically = no manifest. Washington

If Def Agrees, moves for or is silent:

Manifest necessity does not apply.

No dbl J bars retrial. Dinitz

Exception: If prosecutor intended to provoke def into asking for mistrial. Kennedy

[NOTE]: Mere negligence by prosector doesn't fall into exception, so can retry.

[NOTE]: Def burden to show and not all states follow - some make it easier on def to show.

Reprosecution after Judge Dismissal:

Only def can move for dismissal.

2 possible grounds:

Insufficient Evidence:

No 2nd trial allowed.

Gov can appeal if it doesn't require 2nd trial if dismissal overturned.

Other Grounds:

If def asks for (as opposed to judge just granting), no dbl J bar to retrial.

[NOTE]: Kennedy doesn't apply.

Reprosection following Acquittal (by either jury or judge):

Acquittal: Decision by judge or jury on the merits.

No appeal by gov allowed and no 2nd trial unless different sovereign.

Possible to find implied acquittal.

Example: When jury has to decide 2 charges and only convict on 1 charge, acquittal is implied on they other charge. So, if gov cannot later retry just because jury didn't say anything about other charge. Green

Reprosecution following Conviction (by either jury or judge):

If def is convicted at trial and takes appeal and conviction is overturned, then no dbl J bar to retrial. Ball

Exception: When basis for reversal is insufficiency of evidence, then dbl J bars the def from being retried. Burks

When court is trying to decide if there was insuff evidence as a reason for reversal, must look at all evidence admitted (whether done properly or not). Lockhart

Go to the Kentucky Association of Criminal Defense Lawyers