Crim Pro

• Exclusionary rule (ER)


  Evidence obtained in violation of Δ's constitutional rights is inadmissible against Δ in trial
• State action


  • 4th, 5th, 6th, 8th Amendments protect against governmental conduct, e.g., by police, gov't agents
• Fruit of the poisonous tree

  All derivative evidence obtained via inadmissible evidence is also excluded
• While evidence can be suppressed, violation does not entitle Δ to have indictment or prosecution dismissed
• Exceptions to ER


  • Grand jury may hear and use any piece of evidence regardless of its admissibility
  • GF reliance on warrant: reasonably well-trained PO would have believed W was valid (e.g., clerical error)
  • Knock and announce violations do not automatically trigger ER; exclusion is not a remedy
  • Independent source of derivative evidence, source being separate from original illegality. May "rediscover" initially illegal evidence under valid W if police would have applied for and received W anyway
  • Inevitable discovery: PO would have discovered the evidence regardless of illegality or unconstitutional police conduct (e.g., via systematic search)
  • Intervening act of free will by Δ (attenuation, e.g., subsequent confession after release after illegal arrest)
  • Impeachment of Δ's testimony only: (1) Confession taken in violation of Miranda and (2) real or physical evidence seized from illegal search are still admissible to impeach Δ's trial testimony
  • Attenuation: Evidence with a "but for" link to a poison tree may be so distant from the initial illegality that the taint of poison is purged and the evidence is admissible
  • Miranda violation is not a poisonous tree: Can admit evidence seized via statements obtained from failure to give Miranda warnings, although a confession itself is not admissible if obtained in violation of Miranda
• 4th Amendment


  Protects against unreasonable searches and seizures by the gov't or its agents
• Standing (threshold issue)


  • To have standing, Δ must have had a reasonable expectation of privacy (REP) in the place searched—subjectively + objectively (society is prepared to accept the expectation of privacy as reasonable)
  • Standing (to object to search) is proper if Δ had possessory right of the place searched or item seized
  • REP also exists if Δ lived in (e.g., home) or stayed overnight at the premises searched
  • Mere ownership, as opposed to privacy or possessory interest in place or item, is insufficient
  • No REP where held out to public, e.g., knowingly exposed to public, open fields beyond home/curtilage, smell of luggage, misplaced trust in false friend, sense-enhancing tech available for public use, car in public
• Warrants


  • A search/seizure must be made with a valid W, which must be (1) issued by neutral, detached magistrate, (2) based on probable cause, and (3) described with particularity the place to be searched or item/person to be seized
  • Probable cause (PC): A fair probability that would warrant a reasonable person to conclude that evidence of a crime can be found at a particular place or that a particular Δ committed a crime
  • PC can be based on an informant's tip, which must meet the totality of the circumstances (TOTC) test: practical, common-sense considerations showing probability of criminal activity based on informant's veracity, basis of informant's knowledge, and corroboration from police investigation predictive information showing insider knowledge. May be based on an anonymous tip
  • PO must show recent facts, not hunches or "known for." To attack inaccuracies in a facially valid warrant, Δ must show material false statements made intentionally or recklessly (negligently OK)
  • Scope: Reasonably necessary to discover items. Must be executed w/o unreasonable delay while PC exists
  • Knock and announce rule: Police must give notice and wait a reasonable time before entering to execute W, except when there is RS that announcing will lead to destruction of evidence, endanger officers, or be futile
  • Good faith EXCEPTION to invalid W: Evidence or person seized via a facially valid (particular) but defective W is admissible if a reasonably well-trained PO acted in good faith thinking that the W was valid
• Exceptions to warrants generally (CHAMPED)


  • Community caretaking
  • Hot pursuit of fleeing felon suspects
  • Automobile
  • Minor intrusion into body in reasonable manner
  • Plain view
  • Exigency or Destruction of evidence
• Seizures


  A seizure/arrest constitutes restraint of liberty by physical force, or where that is absent, submission to the assertion of authority. Objective standard: A reasonable person would not feel free to leave or end the encounter
• Exceptions to seizure warrants (ASS)

  • Arrest
  • Stop and frisk (Terry stop and Terry frisk)
  • Seizure by deadly force
• Exceptions to search & seizure warrants (SCAT)

  • Search incident to lawful arrest
  • Consent search
  • Administrative or special-needs search
  • Terry stop
• 5th Amendment


  Privilege against self-incrimination protects against government-coerced confessions
• Privilege against self-incrimination


  • Δ may refuse to answer a question whenever his response might result in self-incrimination or reasonable possibility of contributing to his criminal conviction. Δ must assert right to silence or right to counsel for questioning to stop
  • Only governs compelled testimonial evidence (not physical). Body, voice sample, lineup, handwriting not protected
  • Voluntary statement after Miranda warning may still be admissible as a fruit
• Ways to eliminate privilege against self-incrimination and compel answers


  • Use and derivative immunity
  • Transactional immunity
  • Extinguish by waiver
  • No possibility of incrimination, e.g., statute of limitations runs out
• Voluntariness


  For a self-incriminating statement (such as Δ's admission) to be admissible under 14th Amendment DPC, it must be free and voluntary as determined by TOTC (not motivated by police coercion or official pressure)
• Miranda warning


  Must be given before any custodial interrogation. For Δ's statement to be admissible under 5A privilege against self-incrimination (in Π's case or to establish PC), Δ must have been reasonably informed of his right to remain silent (anything said can be used against him in court) and right to an attorney's presence (and if he cannot afford an attorney, one will be provided, if he wants). No exceptions even for minor crimes
• Derived evidence


  Evidence from independent source may still be used against immunized Δ
• Transactional immunity


  Complete protection from prosecution for self-incriminating testimony
• Extinguish by waiver


  Δ waives privilege against self-incrimination and takes the stand
• No possibility of incrimination

  Statute of limitations runs out
• Voluntariness


  Self-incriminating statement must be free and voluntary as determined by TOTC (not motivated by police coercion or official pressure)
• Miranda warning


  1. Must be given before any custodial interrogation

  2. For Δ's statement to be admissible, Δ must have been reasonably informed of right to remain silent and right to an attorney's presence
• Custody


  Reasonable person in PO's presence feels he is not free to leave or end the encounter
• Interrogation


  Reasonable PO knows/should know he is reasonably likely to elicit incriminating response
• Routine questioning (e.g., booking, probation interview) is not considered interrogation
• Miranda forbids coercion, not strategic deception: Warning not required when suspect is unaware he is speaking to a police informant (or non-PO who relays statement) and gives voluntary stmt
• Miranda violation


  Inadmissibility in Π's case in chief, but OK to use to impeach credibility of Δ's testimony, x-exam, etc.
• Right to silence


  Π's negative comments on Δ's silence or failure to testify subjects any conviction to "harmless error test"
• Waiver


  Π must show knowing, voluntary, intelligent conduct showing Δ's explicit/implicit willingness to make statement based on TOTC
• Invocation


  Δ may terminate interrogation any time by unambiguously invoking right to silence or counsel
• Impeachment


  Statements obtained in violation of Miranda (but not post-Miranda silence) are admissible to impeach Δ
• Public safety exception


  Warnings need not be given if necessary for public safety
• Double jeopardy


  Prevents Δ from being criminally tried twice for the same offense arising from the same set of facts after a determination on the merits
• Same offense


  Two crimes are the same offense, unless each crime requires proof of a unique element
• Exceptions to double jeopardy

  • Legislative intent: 2x punishments OK if statute provides
  • New evidence for greater offense becomes available since prosecution of lesser offense
  • Breach of plea bargain by Δ/Π
  • Retrial after Δ's successful appeal
  • Trial is aborted for manifest necessity
  • Terminated by Δ not on merits
  • Ends in hung jury
• Jeopardy attaches


  When 1st witness sworn in (non-jury trial) or jury is impaneled (jury trial)
• Jeopardy does not attach in civil proceedings
• Δ can be prosecuted for the same offense in different jurisdictions - federal/state/criminal/civil levels
• 6th Amendment right to counsel


  Attaches at critical stages of prosecution, e.g., post-indictment interrogation and lineup, guilty plea