Criminal Procedure

Exclusionary Rule

Items seized via an illegal search, or a coerced confession, are excluded from admission as evidence.

To apply, there must be a violation of the Const. or federal statute.

Limitations

This rule does not apply to the conduct of a grand jury. A witness may have to testify based on illegally seized evidence.
This rule does not apply in civil proceedings.
This rule is not available in parole revocation proceedings.
Can't exclude due to violations of the "knock and announce" rule in the execution of warrants.

The Good Faith Exception (Defense) -- if cops rely in good faith on a
* judicial opinion that is later changed by another judicial opinion
* a statute or ordinance that is later declared unconstitutional
* a search warrant that is later found defective
to search and seize evidence, that evidence is not excluded.

However, the good faith defense against the exclusionary rule will not prevail in the case of a defective search warrant if:
* the affidavit underlying the warrant is so lacking in probable cause that no reasonable officer would have relied on it; or,
* the warrant is invalid on its face (doesn't state with particularity the place to be searched or items seized); or,
* the affiant officer lied to or misled the magistrate; or,
* the magistrate has "wholly abandoned his judicial role" (isn't neutral/detached anymore).

Excluded evidence may be used to impeach D's trial testimony. (Excluded due to Miranda failure or illegal search.)

Fruit of the Poisonous Tree Doctrine

The doctrine: exclude evidence obtained/derived from the police illegality (whatever it is).

How to break the chain:
* independent source for that evidence
* demonstrate it would have been inevitably discovered anyhow
* intervening acts of free will on the part of the D

Where there is a Miranda violation leading to evidence, the fruit doctrine does not apply.

Fourth Amendment

Arrests

Arrest warrants generally not required to arrest X in a public place.
Warrant is needed for the non-emergency arrest in X's own home.
Station house detentions:
Need probable cause to arrest you to compel you to come to station house for fingerprinting or interrogation.

Search and Seizure -- use flowchart on page 5 of CMR. This is a favorite topic on the MBE and essay.

Is there government conduct?
* publicly paid police (on duty or not)
* private person under direction of public police
* private police deputized w/power to arrest (campus police for private school)

Yes -> Is there a reasonable expectation of privacy?
yes:
* owner of place being searched
* place being searched is your home (whether you own it or not)
* overnight guest on premises being searched
sometimes:
* someone legitimately present when the search takes place
* owner of item being seized
no:
* public items:
voice, handwriting, paint on car exterior, records of account at bank, location of car on public street or driveway, things seen across open fields, things seen flying over in public airspace, odors emanating from luggage, garbage put out for collection.

Yes -> then a 4th Am. right exists.

Was there a warrant?
Yes -> test the validity of the warrant.
Warrants may be obtained via hearsay, i.e., informers. Probable cause is fact specific. Affidavit must set forth enough to enable magistrate to make a determination independent of officers' conclusions.

Affidavit may be sufficient even though reliability, credibility, basis for knowledge are not established. Identity need not be revealed.

Mass.: warrants based in part on informers' tips, the affidavit underlying the warrant must
1. set forth sufficient underlying facts and circumstances to allow the magistrate to know how the informer got their info; and,
2. must credit the reliability and credibility of the informer (how many times used in past, leading to how many convictions).

Warrant must be precise on its face
state with particularity the place to search and things to seize

Warrant must be issued by neutral/detached magistrate, otherwise, they've "wholly abandoned their judicial role".

No -> is it a valid warrantless search?

If there is no warrant or a bad warrant, may still be good search:
1. incident to lawful arrest
a. arrest lawful
b. search contemporaneous in time and place
c. search person and their wingspan (area can reach for weapons or to destroy evidence)
N.B.: when validly arrested in a car, wingspan includes interior of car but not trunk.
2. automobile exception
a. If have probable cause (same as would be needed for warrant) that the car contains fruits, instrumentalities, evidence, may search whole thing, including trunk, and open anything that might reasonably contain the fruits, evidence, etc.
b. Can stop for another reason, but probable cause must exist before the search begins.
3. plain view
a. officer legitimately present
b. 'views' the item (plain touch, conducting a valid search for X and find Y)
4. consent
a. voluntary (saying "we have a warrant" negates consent)
b. intelligent
NB: where two people have equal right to use property, any of them may give consent.
5. stop & frisk
a. articulable & reasonable suspicion to stop
b. pat down if think may be armed/dangerous
c. 'plain touch' seems like weapon or contraband
6. hot pursuit/evanescent evidence (will disappear if wait to get warrant)
a. hot pursuit of a fleeing felon
b. evanescent -- get scraping of fingernails before X can go wash their hands

Wiretapping and Eavesdropping

Must have warrant
However, X assumes the risk that Y is an "unreliable ear" -- wired or otherwise monitored by govt.

Mass.: Not in own home.

Confessions

Miranda
* must be in custody (not free to leave -- probation interviews and routine traffic stops are not custodial)
* volunteered/blurted info don't need a Miranda warning in order to bring in as evidence
* interrogation -- any conduct where cops know or should know they might get a damaging response

right to remain silent
anything said may be used against in court
right to have atty present during questioning
right to have atty appointed if can't afford one

Miranda waiver

* voluntary
* intelligent

Right to terminate interrogation -- once asserted, starting again w/o atty violates 5th Am right to counsel, which arises when Miranda is invoked. -- request for help during interrogation process. Not offense, but custody specific. 6th Am right to counsel is offense specific.

Pre-Trial Identifications

Attack via denial of right to counsel, and denial of due process.
During a post-charge lineup or showup, right to counsel. None when cops just showing photo.
Denial of due process occurs when id process is so suggestive as to be likely to produce a misidentification.

Remedy? Exclude identification in court. State can defeat remedy by showing an independent source for that i.d. (ample opportunity to look at the guy at the time of the crime).

Pre-Trial Procedures

1. Bail issues are immediately appealable
2. Preventive detention is constitutional.

Grand juries
* states don't have to use
* exclusion rule doesn't apply
* proceedings are secret
* no D right to appear
* no right to send witnesses

Trial

Right to unbiased judge.
Bias:
actual malice
financial interest in outcome of case

Right to jury trial
any time D tried for offense where max sentence > 6 mo.
NB: If the sum of the sentences for contempt > 6 mo, the alleged contemnor is entitled to go back and have a jury trial.

Size of jury
Minimum 6 - unanimous.
If 12, no unanimous. USSC has OK'd 10-2 and 9-3 splits.

Mass.: UNANIMOUS JURY DECISION REQUIRED

Right to representative jury

Jury pool must reflect fair cross-section of community. Not jury itself, just pool.
Unconstitutional for P or D to use preemptory challenges to exclude prospective jurors based on race or gender.

Right to effect assistance of counsel

Deny relief on this argument, unless the ineffective assistance had a material impact on the case's outcome.
1. deficient performance by counsel
2. but-for, result of case would be different

Guilty Pleas & Plea Bargaining
(waivers of right to jury trial)

Two USSC Trends:
1. will not disturb guilty plea after sentencing
2. use contract theory of plea bargaining

Judge must tell D, on the record:
* nature of the charge
* maximum sentence, and any mandatory minimums
* that D has the right to plead not guilty, and to have a jury trial, and that by pleading guilty they waive a jury trial.

If flawed plea,
* withdraw plea
* plead again

Withdrawal of Plea
* Involuntary plea
* Lack of Jurisdiction
* Ineffective Assistance of Counsel
* Breach of Bargain by P

Death Penalty
Any question you get on this, just barf back the following:

Any death penalty statute that does not give D a chance to present mitigating facts and circumstances is unConstitutional.
There can be no automatic category for imposition of the death penalty.
The state may not, by statute, limit the mitigating factors; all relevant mitigating evidence must be admissable or the statute is unConstitutional.
Only a jury, not a judge, may determine the aggravating factors justifying imposition of the death penalty.

Double Jeopardy -- can't be tried for same offense twice

Attaches when jury sworn in (for jury trial) or 1st witness sworn in (bench trial).
Doesn't attach to civil proceedings.

Exceptions permitting retrial:
1. jury can't agree on verdict;
2. mistrials for manifest necessity (D becomes ill, hospitalized, makes sense to start over after out of hospital rather than keep this jury until then)
3. retrial after successful appeal
4. breach of agreed upon plea bargain by D (plea and sentence can be withdrawn and original charges reinstated).

Two crimes do not constitute the same offense if each have elements the other does not.
Attachment of jeopardy for a greater offense bars retrial for lesser included offenses, and vice versa, with one exception: if victim of battery dies after jeopardy attaches (battery trial jury sworn in), may retry for murder.

Separate sovereigns may both prosecute. State/fed, two different states, but not state X and city Y within state X.

Fifth Am Privilege Against Compelled Testimony

anyone may assert
any kind of case
assert 1st time an incriminating answer needed, or waive privilege

not protection against having government use body to incriminate -- blood/urine/hair samples -- b/c not testimony.

It is unconstitutional to comment on D's failure to testify or silence after a Miranda warning.

Eliminating this 5th Am. privilege:
1. Grant of immunity
'use and derivative use' -- won't use against you, but could still prosecute you on earlier evidence

Mass.: transactional immunity: no prosecution for transactions about which you testify in immunized testimony.

2. No possibility of incrimination (statute of lim. already run)
3. Waiver
D waives by taking stand, as to all legitimate subjects of cross-examination.