Criminal Procedure Outline for Bar Exam

This is my criminal procedure outline for passing the bar exam.

Constitutional Rights through Due Process Clause

Rights applicable to federal and state actors pursuant to the Fourth, Fifth, and Sixth Amendments and other Constitutional rights applicable to the federal government have been “incorporated” through the Due Process Clause of the Fourteenth Amendment to apply equally to the states.

Apply only to government action.

While most Bill of Rights protections apply to the states, we are addressing the federal constitutional baseline.

States are always permitted to provide additional procedural protections to defendants, but may never go below constitutional baseline.

Fourth Amendment

The Fourth Amendment protects people from unreasonable searches and seizures.

When police have a warrant, the burden is on the defendant.

When police act pursuant to a warrant based on probable cause, their conduct is presumptively reasonable. This presumption of reasonableness is rebutted only if the defendant can show a defect in the warrant or warrant process.

A bad warrant is not enough for exclusion. Pursuant to the good-faith exception to the exclusionary rule, the defendant must also show that police acted in bad faith when they obtained or relied on the defective warrant.

When police do not have a warrant, the burden is on the prosecution.

When police conduct a search or seizure without a warrant based on probable cause, their conduct is presumptively unreasonable and violates the Fourth Amendment unless the fact pattern indicates an established exception to the warrant and/or probable cause requirement is triggered by the situation.

Seizure

A seizure is government action that results in a meaningful interference with a possessory interest.

When police take control of property, it has been seized.

When police put something on property that the individual is unaware of (like a beeper or GPS device), the property is not seized (although touching the property may qualify as a search).

When police interaction with a person would indicate to a reasonable person in that situation that they would not feel free to leave or terminate the police encounter, the individual has been seized.

This is normally indicated by either police applying physical force to the individual or a police show of authority followed by submission.

Search

A search is a legal term of art that requires analysis of where and how the government sought to gather evidence.

Looking for evidence is not always searching for evidence: the key is where the officer discovered the evidence;

A search may occur by just touching something.

A search occurs when police seek to find evidence and either (1) physically trespass on an individual’s “person, papers, home, or effects (chattel property),” even if that property is exposed to the public; or (2) intrude upon the individual’s reasonable expectation of privacy (even if it does not involve a physical trespass to the “person, home, papers, or effects”).

Parking enforcement officer putting chalk on tire of car is a search.

A trespass on an “open field” (private property beyond the curtilage of the home) does not qualify as an investigatory trespass-type search because the open field is not considered part of the home.

Reasonable Expectation of Privacy

For there to be a reasonable expectation of privacy, (1) the defendant must manifest a subjective expectation of privacy by making an effort to the shield thing or activity the police are looking for from the public; and (2) the expectation is objectively reasonable because it is an expectation society is willing to recognize as legitimate.

Unlike the trespass search, the reasonable expectation of privacy approach is not limited to the places/things enumerated in the text of the Fourth Amendment.

If leave door to toilet stall open, no reasonable expectation of privacy.

When the thing the police are looking for is exposed to the public by the individual, there is no reasonable expectation of privacy.

Courts have held that an individual does not have a reasonable expectation of privacy in the following items (because they are exposed to a third party or the public):

• handwriting exemplars based on writing shared with a third party;
• voice exemplars;
• bank records;
• pen registers (phone company records of phone numbers dialed);
• header info on an email sent through an ISP (email content is within REP);
• conversations with a “false friend” (snitch) believed to be private but actually recorded by police with consent of the other party to the conversation;
• trespasses onto open fields (unoccupied areas of private property beyond the curtilage of the home);
• naked-eye observations of private property by air (though these must comply with applicable flight limits);
• aerial photography of large, fenced-in areas around an industrial complex using high-powered cameras; and
• discarded and abandoned property (i.e., garbage discarded for collection and abandoned rental premises).

The Supreme Court held in Carpenter that even though cell site location information is shared with the cell phone service provider, it nonetheless falls within a reasonable expectation of privacy because there is no genuine voluntary choice to share such information. This means police access to cell site location information is a search.

Police Use of Devices or Animals

Normally, police use of devices or animals that enhance human senses does not transform something that is not a search into a search.

When police use a dog to detect the odor of narcotics, this is not a search because a dog sniff is considered capable of exposing only the presence of contraband, and therefore does not intrude on a legitimate expectation of privacy.

However, if police bring the dog onto the curtilage of the home and allow it to explore for a scent, this physical trespass of the home qualifies as a search.

Use of commonly available equipment to enhance the natural senses of sight, hearing, or smell will not qualify as a search unless (1) police enter upon the curtilage of the home to utilize the device; or (3) police use a device (like a thermal imager) that enables them to see through the walls of a home.

Using binoculars while sitting in a police car on the street to enhance the view of a suspect’s property or activities on his curtilage is not a search. However, using a thermal or x-ray imaging device that reveals the location of property or activities the suspect sought to conceal inside their home is a search.

Search and Seizure Pursuant to a Warrant

A valid search or seizure (arrest) warrant creates a presumption of Fourth Amendment compliance.

Police must act within the scope of the warrant.

A search warrant allows police to search the specified place for the specified contraband.

An arrest warrant allows police to arrest the suspect and carries with it implicit authority to search the suspect’s home to execute the arrest if (1) police have reason to believe the suspect is home, and (2) the suspect refuses to respond to police requests to open the door.

When police act within the scope of a valid warrant, they may seize any item they observe so long as what they see, smell, or feel provides probable cause that the item is contraband, even if it is not listed in the warrant.

To invalidate a warrant, the defendant must prove that (1) the warrant was not based on probable cause; (2) the magistrate was not neutral and detached; (3) the warrant failed to describe with particularity the thing to be seized or place to be searched; or (4) the affidavit supporting the warrant was so lacking in probable cause that no rookie officer would have trusted it.

For example, the affidavit offers no objective support for its assertion; or the information in the affidavit is obviously stale.

A warrant based on an affidavit from another police officer that includes nothing more than the officer’s assurance that evidence will be found at a particular location.

An invalid warrant is only the first step in a defendant winning a motion to exclude the evidence it led to finding.

A court will exclude evidence obtained pursuant to a warrant only if (1) the defendant proves that the warrant was invalid; and (2) the good-faith exception to the exclusionary rule is not applicable, meaning that the flaw in the warrant is not the fault of the police who relied on it.

Execution of Warrant

Even when police act pursuant to a valid warrant, how they execute it may render their action unreasonable.

Warrant execution that “shocks the conscience” is unreasonable.

EXAMPLE: It is unreasonable to require the removal of a bullet from an individual suspected of robbery when the bullet is deeply embedded in the body and surgery to remove the bullet would endanger the life of the suspect.

Knock-and-Announce Rule

Police must “knock and announce” their identity before entering the home to execute the warrant.

Knock and announce is NOT required if the police have a reasonable suspicion that doing so will endanger the officers, lead to destruction of evidence, or cause the flight of the suspect.

Violation of the knock-and-announce requirement will not result in exclusion of evidence.

Probable Cause

The Fourth Amendment requires that the police show probable cause to support issuance of a search or arrest warrant.

Probable cause exists when there are facts and circumstances that lead a reasonable officer to conclude that a person committed a crime (for an arrest) or that evidence of a crime can be found at a particular location (for a search).

A police officer’s subjective motive, even if improper, will not invalidate probable cause.

Probable cause may be established in many ways, including eyewitness observations, forensic evidence, or a suspect’s own admissions.

When police rely on an informant’s tip to establish probable cause, a totality of circumstances test is used to determine whether the tip is sufficiently reliable.

The tip may serve as a basis for a valid probable cause arrest if reliability is established by (1) the informant’s tip containing specific details; and (2) the reliability of both the details and the informant being confirmed prior to the moment of arrest.

EXAM TIP: Corroborating a prediction that any neighbor with an “axe to grind” could make to the police (like the car someone drives, the route they take to work, or the time they normally leave every day) does not indicate that the informant really knows anything about the suspect’s criminal activities, and therefore normally will not establish probable cause.

EXAM TIP: Remember that any search or seizure without a warrant is presumptively unreasonable, meaning the government bears the burden of proving that it falls within an established exception. Therefore, if the fact pattern indicates a search or seizure without a warrant, you must determine whether an established exception is indicated by the facts.

Exceptions to the Warrant Requirement

There are exceptions to the warrant requirement.

Arrests

No warrant is required to arrest a suspect in public for a felony.

A misdemeanor arrest requires the offense occur in the officer’s presence or with a warrant.

Probable cause is always required for a valid arrest.

Terry Stops

A Terry stop is a brief investigatory seizure.

For a police officer to perform a terry stop, the officer must have a reasonable suspicion that criminal activity was afoot. Reasonable suspicion must be ** more than a hunch or instinct.**

Unlike an arrest, the scope of a Terry stop is limited to the time needed (1) in the exercise of due diligence; or (2) to confirm or negate the suspicion.

EXAM TIP: Reasonable suspicion is a quantum of individualized suspicion that is not as strong as probable cause , but which is more than a hunch or instinct. reasonable suspicion requires that the officer be able to articulate an objective fact that supports their experience-based instinct or suspicion. Because this is a standard of cause lower than probable cause, it justifies only a much more limited police action: a brief investigatory seizure (Terry stop) or cursory protective search (Terry frisk).

EXAM TIP: Reasonable suspicion is best remembered as the addition of an objective fact to the police officer’s subjective instinct-based suspicion that corroborates that suspicion. Doing so permits a reviewing court to assess whether the police officer has a “particularized and objective basis” for suspecting legal wrongdoing.

Reasonable suspicion that crime is “afoot” may be established by (1) police observations or other eyewitness reports to the officer; (2) a person’s flight from police in high-crime areas; or (3) an informant tip plus police investigation that corroborates the tip’s predictions.

Unlike a tip that establishes probable cause, to establish reasonable suspicion, the tip does not have to indicate that the informant has “insider” access to the suspect.

However, an anonymous tip that simply indicates existing facts will not establish reasonable suspicion even if the police corroborate those facts. If the tip is predictive it is more reliable.

EXAM TIP: Remember, if the reasonable suspicion that led to the Terry stop grows into probable cause during the stop, the suspect may then be arrested.

Routine Police Encounter

If a police encounter in no way restrains the freedom of the individual (i.e., there is no use of force or show of authority followed by submission), it does not trigger the Fourth Amendment and requires no cause.

This chart aligns the different levels of encounters with the requisite levels of cause.

Plain View Exception to the Warrant Requirement

A warrant based on probable cause is presumptively required to authorize a seizure of property.

It is common for police to seize property based on the plain view exception to the warrant requirement.

The plain view exception allows police to seize property they observe in public or while acting within the scope of an otherwise lawful search.

The plain view exception allows the warrantless seizure of property when (1) the police observe the property while they are in a lawful vantage point (e.g., it is in public or they are otherwise lawfully in the place from whence they observe the item); (2) what police observe immediately establishes probable cause to justify the seizure; and (3) the officer has lawful access to the point of seizure (if the officer has to “get to” the item to seize it, they must have lawful authority to do so).

The discovery of the item need not be inadvertent. Even if the police suspect that they might find an item while executing a search warrant that did not list the item, if it comes into plain view, the seizure is reasonable.

EXAMPLE: Police obtain a warrant to search a suspect’s home. The officer expects they might find contraband that is not listed in the warrant. While executing the search for what is listed in the warrant (so acting within lawful scope), the officer observes another item they have probable cause to seize. The plain view exception allows the officer to seize the item even though it was not listed in the warrant.

EXAM TIP: Remember, plain view never authorizes a search. If the officer must search to find the item, the search must be lawful based on a warrant or some other exception (like exigency or consent).

Exigency to the Warrant Requirement for Searches

If police have probable cause, they may search without a warrant when they reasonably believe that waiting to obtain a warrant would result in (1) imminent flight; (2) imminent destruction of evidence; or (3) imminent danger to police or others in the area.

Hot Pursuit

When police are in “hot pursuit” of a suspect with probable cause to arrest them, exigency allows them to enter any home the suspect retreats into without a warrant, even the home of a third party.

EXAM TIP: Remember that if the police are lawfully in a location, they may seize any evidence they observe if they have probable cause that it is contraband pursuant to the plain view doctrine.

EXAMPLE: While on a routine patrol, Officer Jones observes an individual who matches the description of a suspect who just robbed a cab driver at gunpoint. As Jones approaches the suspect, the suspect bolts, ignoring Jones’s verbal demands to stop running. The suspect runs into a house and slams the door behind him. Because Officer Jones has probable cause to arrest the suspect and is in hot pursuit, he may enter the home to arrest the suspect without obtaining a warrant, even if it is not the suspect’s home. Once inside, any contraband that comes into plain view may be seized, whether or not it is related to the arrest.

Exigency is not invalidated if police conduct (such as banging on a door) triggers the exigency unless the triggering police conduct violates the Fourth Amendment.

Exigency will not justify a warrantless home entry solely to preserve evidence of a minor offense (like a minor misdemeanor).

However, imminent risk to occupants, even if resulting from a misdemeanor (like battery), does trigger the exigency exception.

EXAMPLE: Police are dispatched to a residence in response to a 911 call by a victim of domestic battery. When the police knock on the door, a man opens it and refuses to allow the police to enter. The police may enter the home over the man’s objection without first obtaining a warrant because they have probable cause that there is a victim in the home, and the danger to the victim creates an exigency.

Exigency may justify a warrantless blood draw to preserve evidence of blood alcohol, but ONLY if the police reasonably believe that the blood-alcohol evidence will be lost if they wait to obtain a warrant.

EXAM TIP: This means a law or policy that allows police to automatically conduct a warrantless blood draw to preserve blood-alcohol evidence is overbroad and violates the Fourth Amendment; exigency requires a case-by-case assessment.

Search Incident to Arrest

Police may automatically conduct a full-blown search of an arrestee and the area within their immediate control/lunging distance (including containers) as an incident of an arrest.

The rationale for a search incident to arrest is the protection of the arresting officer and the preservation of evidence, but there is no requirement to justify each search incident to arrest.

The search incident to arrest must be contemporaneous to the arrest.

There is no authority to conduct a search incident to a mere citation.

If the suspect is arrested in their home, the scope of the search incident to arrest is limited to the area within lunging distance and does NOT authorize a search of the entire home.

However, if the police reasonably believe that there are others in the home who pose a threat to their safety, they may conduct a cursory protective sweep to rule out that danger. This is not a full-blown search, and police may look ONLY where people could be hiding.

EXAM TIP: Any contraband discovered while searching within the permissible scope of the search incident to arrest (or protective sweep) may be seized and used as evidence, even if it is completely unrelated to the arrest.

An arrest is lawful for purposes of search incident to arrest so long as the objective facts establish probable cause that an offense occurred.

If probable cause supported an arrest, the search incident to arrest is valid even if the officer had an ulterior motive and sought to take advantage of the arrest to search for unrelated evidence based on a hunch.

Remember, the ability to conduct a search incident to arrest is automatic.

Police need no justification for the search other than the fact that the suspect was placed under arrest.

EXAMPLE: An officer arrests an individual for jaywalking and, during the search incident to arrest, discovers illegal narcotics in the arrestee’s pocket. The police almost never arrest individuals for jaywalking, and the defendant moves to suppress the evidence, claiming that the arrest was just an excuse to search him. The court will deny the motion and admit the evidence so long as the officer had probable cause that the defendant was in fact jaywalking.

EXAM TIP: Remember, an officer may have probable cause, but may also make a reasonable mistake. If an officer conducts an arrest based on probable cause and discovers evidence during the search incident to arrest, and it later turns out they arrested the wrong suspect, the search is still reasonable so long as the mistake was “objectively reasonable.” However, if a reviewing court concludes there was no probable cause to support the arrest, any contraband seized during the search incident to arrest will be excluded.

Automobile Search Incident to Arrest

If the suspect is arrested in a car or immediately after exiting the car, the scope of the search incident to arrest is modified.

Like any other search incident to arrest, police may automatically search the arrestee.

If, after being arrested, the arrestee still has genuine access to the interior of the car, the search incident to arrest extends to the interior and all containers within the interior.

If the arrestee is secured and has no access to the interior of the car, the search incident to arrest includes the interior ONLY if the police have reason to believe that evidence related to crime of arrest is in the car.

EXAMPLE: Police arrest a person for driving on a suspended license. The arrestee is placed in handcuffs and police then search his person, finding a vial of heroin in his pocket. After he is placed in the back of a police cruiser, the police search the interior of his car and find an unregistered pistol in the glove box. The heroin will be admissible because the search of the suspect’s person was within the proper scope of the search incident to arrest. However, the pistol will be inadmissible, because the suspect did not have access to the car and there is no reasonable basis to believe that evidence related to the crime of driving on a suspended license would be found in the car.

Automobile Exception to the Warrant Requirement

Police may conduct a warrantless probable cause search of a car or any self-propelled conveyance without a warrant.

The inherent mobility of vehicles and pervasive government regulation justifies dispensing with the warrant requirement.

Think of the automobile as a substitute for a warrant. If the police have probable cause to search the automobile, they may do so without first obtaining a warrant.

However, the scope of the search is identical to what it would have been had they obtained a warrant.

An “automobile” for purposes of the exception is a vehicle able to move at the “turn of a key” and located in an area on or proximate to the roads.

An “automobile” includes motor homes parked temporarily in a location proximate to public roads.

The automobile exception does NOT apply to immobile vehicles (like a vehicle in a junkyard, or one without an engine).

Any automobile stop may lead to probable cause that there is contraband in the vehicle. If probable cause arises after the initial stop, a warrantless search is justified.

EXAMPLE: Officer Jones pulls a suspect over for speeding. As he is writing the citation, he asks the suspect, “Do you have anything in the car I should know about?” The suspect responds, “Just a little weed in the glove compartment.” Officer Jones may now search the glove compartment for marijuana, and any contraband he observes while doing so is subject to a plain view seizure.

EXAM TIP: Do not confuse this “automobile” exception with the search incident to arrest of an automobile. Both the trigger and the scope for each is very different.

The automobile exception extends to any container within the vehicle that also falls within the scope of the probable cause.

EXAMPLE: Police have probable cause to believe that a suspect is transporting a stolen 50” flat-panel television in the trunk of his car. Police may stop the car and search for the television without a warrant. However, they may only search in parts of the car where the suspect could store the television (i.e., they could not search the glove compartment).

Inventory Exception

An inventory is an administrative inspection of an impounded vehicle and/or an arrestee’s property once it is taken into police custody, with no requirement for a warrant or probable cause.

An inventory search is normally reasonable so long as the police comply with their inventory regulation(s).

The justification is to protect the arrestee’s property from theft or destruction, protect the government from false claims, and prevent contraband from entering the prison or impound lot.

Police may inventory the arrestee’s possessions.

Police may inventory the contents of an impounded automobile if authorized by regulation.

Consent

Voluntary consent allows police to search within the scope of the consent even without a warrant or probable cause.

Any contraband that comes into plain view while searching within the scope of the consent may be seized.

EXAM TIP: Remember, the reason police often ask for consent is so that they can get plain view!

Consent must be voluntary based on the totality of circumstances.

There is no requirement to inform a suspect that they have the right to decline to give consent.

Consent is valid if it is obtained by an undercover officer pretending to be involved in criminal activity (like an officer pretending to be a drug buyer).

Consent is not voluntary if police coerce the suspect into providing consent through threats of unlawful action or by indicating that they will search anyway.

The scope of consent is normally implied based on the request and/or the item(s) the officer is looking for.

EXAMPLE: A police officer issues a speeding ticket to the driver. When she does so, she asks if she can check the car to make sure there are no drugs. The driver consents. The officer looks through the interior of the car, then opens the trunk and finds drugs hidden under the spare tire. The drugs are admissible because the consent allowed the officer to search anywhere drugs may be hidden in the car.

Individuals have the right to refuse to grant consent, withdraw consent, or limit the scope of consent. However, the person must clearly express any limitations on the scope of consent prior to the officer finding any evidence.

EXAMPLE: If, in the prior example, the driver said, “You can search the car, but I don’t want you to open the trunk,” the officer would not have been authorized to look in the trunk.

EXAM TIP: Denying an officer consent may make the officer suspicious, but it does NOT provide probable cause or even reasonable suspicion to seize or search the individual.

Third-Party Consent

An officer may reasonably rely on third-party consent so long as the third party had actual or reasonably apparent authority over the area.

(1) This applies to common areas, but not to where police know or reasonably should know that another person has exclusive control. Accordingly (1) it is unreasonable to rely on a landlord’s consent to search a tenant’s apartment; (2) it is unreasonable to rely on a motel owner’s consent to search a guest’s room; and (3) it is unreasonable to rely on an employer’s consent to search an employee’s private storage area.

Police cannot rely on third-party consent when the other party is present and objecting.

EXAM TIP: A present and objecting co-tenant prevails over another co-tenant who gives police consent to search. However, that objection has no “lingering” effect; if the objecting co-tenant leaves or is removed by police for a lawful reason (like being arrested), the subsequent consent to search by the other co-tenant is valid.

Special Needs Doctrine

This exception permits narrowly tailored seizures and/or searches without any individualized suspicion when objective facts indicate that the primary purpose of police action is the protection of the public from a serious immediate danger.

Common justifications of the special needs doctrine include (1) sobriety checkpoints; (2) the search for escaped inmates; (3) counter-terrorism checkpoints; and (4) drug testing of airline pilots and railroad engineers.

This exception does not apply to generalized crime control or discovery of evidence.

EXAM TIP: If the facts indicate that the police are just hoping to find evidence, they may not use a special needs program to do so, as the goal is indistinguishable from general crime control. If the facts indicate that they seek to rule out danger to the public, then they may.

EXAMPLE: Police set up a checkpoint to search vehicles for evidence of illegal drugs. The checkpoint violates the Fourth Amendment because its primary purpose is objectively indistinguishable from the general interest in crime control, and therefore does not qualify as a “special need.”

A special needs search or seizure must be (1) based on a fixed formula that deprives individual officers of any discretion to select subjects; (2) narrowly tailored in scope to address the specific threat; and (3) conducted in a location and manner that minimizes citizen anxiety.

If the special need is valid, then police may seize any contraband that comes into plain view, even if it is totally unrelated to the special need.

EXAMPLE: Police set up a checkpoint to check bags and backpacks of subway passengers based on a credible threat of a terrorist subway bombing. The police may search any bag capable of concealing a bomb. If, while doing so, the police observe unrelated contraband, like drugs, they may seize that evidence.

EXAM TIP: Because a special needs stop is a seizure, if it is unreasonable (that is, not based on a valid special needs justification), any evidence it leads to will be tainted by the stop. However, if it is reasonable, any subsequent search or seizure will be unaffected by the stop, even if the evidence is unrelated to the special need.

Border Exception

As an incident of national sovereignty, government officials may (1) stop people and vehicles at permanent checkpoints located at or near (up to 100 miles inland) a border with no individualized suspicion (randomly); and (2) conduct routine searches of people and property with no individualized suspicion (randomly).

Reasonable suspicion is required for (1) “non-routine” border searches (i.e., unusually physically intrusive searches, like a body cavity search) or a search that results in permanent destruction of property; and (2) roving border stops on U.S. roads.

The border exception applies to all international ports of entry, including international airports prior to clearing customs and immigration.

Administrative Searches

This exception is best understood as agency-compliance inspections to determine compliance with health, safety, and administrative codes and regulations.

Because the primary purpose of these searches/inspections is not to discover evidence of a crime, they are reasonable so long as they are based on reasonable suspicion.

Normally, agency inspectors will also be required to obtain an administrative warrant/authorization to search private homes or businesses, with some exceptions.

Airport Screenings: In order to protect airline passengers from weapons and explosives, screenings are permitted based on individualized suspicion.

There is no constitutional right to travel by commercial air. As a result, travelers implicitly consent to these screenings.

Terry Frisk or Search

A Terry frisk is a cursory protective search for weapons or some other instrumentality that creates imminent danger to officer or others in close proximity.

Because the motivation for the Terry frisk is protection of the officer from imminent danger, and not to search for evidence, it is permitted without a warrant and based on reasonable suspicion, a standard of cause lower than probable cause.

A Terry frisk is justified only when the officer has reasonable suspicion that the suspect is armed and dangerous.

The scope of the Terry frisk is limited to ruling out the risk of a weapon. This means that it is limited to patting down the suspect’s outer clothing.

The officer may seize anything his sense of touch immediately indicates is contraband while patting down the suspect pursuant to the plain touch variant of the plain view exception.

However, if the officer feels something he knows is not a weapon and only has a hunch that it is contraband, he may NOT seize it.

As noted before, the protective rational of the Terry doctrine allows a cursory protective sweep of the home when police enter to execute a warrant and have a reasonable suspicion that others in the home may threaten them.

The protective rational also permits police to do a brief cursory look in a car where they have a reasonable suspicion that the person stopped may be dangerous due to immediate access to a weapon after getting back in the car.

Summary of Arrest and Search Warrants

Search warrants allow police to search a specified place for specified contraband.

Arrest warrants allow police to arrest a suspect and carry implicit authority to search the suspect’s home if the police have reason to believe the suspect is home and the suspect refuses to respond to police requests to open the door.

Police must knock and announce themselves unless there is reasonable suspicion that doing so will endanger the officers, lead to destruction of evidence, or cause the flight of the suspect. Violation of knock and announce rule will not result in exclusion of evidence.

Fourth Amendment Remedies

There are Fourth Amendment remedies.

Standing and the Exclusionary Rule

Violation of the Fourth Amendment does not result in the automatic exclusion of evidence.

Exclusion is a remedy which requires that (1) there was an unreasonable search or seizure; (2) the defendant claiming the remedy (seeking exclusion) has standing (i.e., the violation was against the defendant’s constitutional rights, and not against not someone else’s); and (3) the facts do not support applying an exception to the exclusionary rule.

Standing

The defendant must show that the unreasonable search or seizure violated the defendant’s personal constitutional rights.

The defendant may not vicariously assert someone else’s rights. A court will only exclude illegally obtained evidence if the illegality violated the defendant’s rights.

EXAM TIP: Only where the facts indicate that the government illegality intruded upon the defendant’s Fourth Amendment protection (i.e., it was a trespass of their home, papers, or effects; a search violating their reasonable expectation of privacy; or a seizure of their property) will the court allow the defendant to invoke the exclusionary rule. So, be careful not to make the mistake of choosing an answer that applies the exclusionary rule to evidence that the police obtained in violation of a third party’s Fourth Amendment rights.

EXAMPLE: A criminal defendant does not have standing to dispute the unreasonable search of a backpack held by a friend that leads to the seizure of evidence which incriminates him, even if he gave it to his friend to carry. This is because the unreasonable search was not directed against the defendant’s Fourth Amendment protection, but rather, against the friends rights. Note, however, that if the friend was also prosecuted, the friend would have standing to seek the exclusion of that evidence.

A defendant has standing to invoke the exclusionary rule when (1) the defendant has an ownership or possessory interest in the place searched or item seized; (2) the defendant is unreasonably seized by police; or (3) the defendant is a social guest in someone else’s residence whose presence is more than brief, especially if an overnight guest.

EXAMPLE: An overnight guest shares standing to challenge a search of the host’s home.

Defendant includes the owner or possessor of a car when police search the car in violation of the Fourth Amendment.

A passenger has no standing to object to the search of the owner’s car (unlike a passenger who shares a possessory interest, like a spouse).

The seizure of a car equals a seizure of all of the vehicle’s occupants, including passengers.

Commercial or short-term social visitors do not share standing in the host’s home.

EXAM TIP: Remember that if the facts indicate an individual was seized in violation of the Fourth Amendment, any evidence that seizure leads to is presumptively inadmissible as fruit of a poisonous tree.

Exclusionary Rule

A defendant with standing to invoke the exclusionary rule does so to prohibit the government from introducing evidence obtained as a direct or derivative result of an unreasonable search or seizure.

Fruit of the Poisonous Tree

Any evidence discovered through the initial illegality (including oral statements and physical objects) falls within the scope of the exclusionary rule. The constitutional violation “taints” the “fruit” derived from that violation. Hence, it is “fruit of that poisonous tree.”

If there is a “but for” connection to the illegal conduct, the evidence “grew” out of that poison tree.

Evidence linked to a poisonous tree is inadmissible unless the prosecution can prove that it falls within one of the exceptions below.

However, remember that a defendant must have standing to object. As a result, it is not enough that the evidence grew out of just any poisonous tree; the evidence must grow out of that defendant’s poisonous tree, and not someone else’s.

EXAM TIP: Ask whether the “poisonous tree” (constitutional violation) was planted in the defendant’s constitutional turf (so that they have standing to object). In other words, think of this as fruit of HIS or HER poisonous tree.

EXAMPLE: Police stop a car for speeding. Without probable cause and without consent, the police search the trunk of the car. They find and seize an illegal pistol. Forensic testing links the pistol to a bullet recovered from a murder victim. Both the pistol and the bullet will be subject to the exclusionary rule; the pistol is the direct result of the unlawful search of the car in violation of the Fourth Amendment, and the bullet is evidence derived from the primary violation. Both are fruit of this defendant’s poisonous tree.

Exceptions To Fruit of the Poisonous Tree

Evidence discovered when police violate a defendant’s constitutional rights presumptively falls within the scope of the fruit of the poisonous tree exclusion. However, that evidence will be admissible if the prosecution proves one of three exceptions.

Independent Source

An exception applies when there is no causal connection between the violation of the defendant’s constitutional rights and the discovery of the evidence.

Inevitable Discovery

There is an exception when evidence has been obtained through the defendant’s poisonous tree, but the prosecution can prove that the police would have discovered that evidence anyway through a different, independent source.

This arises where the police have already set in motion the “gears” of inevitable discovery.

EXAM TIP: Think of this exception as an “almost” independent source. The police would have inevitably found the evidence independently, but did so through the poisonous tree.

EXAMPLE: The defendant is arrested for driving under the influence. He voluntarily gets out of his car and, after failing the field sobriety test, is handcuffed and placed in the police car. The police then initiate the process of towing and impounding the car. However, before the car is towed, an officer searches the trunk without authority and finds contraband. The impound regulation requires police to inventory the trunk once the vehicle arrives at the impound lot. Because it was “inevitable” that the trunk would have been searched pursuant to the impound, that search was already set in motion, and so the evidence discovered unlawfully will still be admissible.

Attenuation

This exception applies to evidence so distant from the initial illegality that the taint of the poisonous tree no longer infects the evidence.

The attenuation exception turns on a combination of the flagrancy of the violation (the potency of the poison) and the distance between the violation and the evidence obtained (the evidence of attenuation). The more flagrant the constitutional violation, the harder it is to prove attenuation.

Factors supporting attenuation include:

• different locations;
• the passage of time;
• different officers; and
• a valid Miranda waiver.

EXAMPLE: If the police discover an outstanding arrest warrant during the course of an unlawful seizure, the warrant attenuates the taint of the illegality and the subsequent arrest, and any evidence discovered during the search incident to arrest will be admissible.

EXAMPLE: Attenuation will often be asserted when police obtain a voluntary confession following an unlawful arrest. If the confession follows immediately after the arrest, the exception will rarely apply.

EXAM TIP: It is easier to attenuate the taint of an arrest that is unlawful because the police failed to obtain a required warrant even though they had probable cause (like an in-home arrest without a warrant) than it is to attenuate the taint from an arrest where the police did not even have probable cause. This is because the “poison” from the first violation is less potent than the “poison” from the second violation.

Other Limitations to the Exclusionary Rule

There are other limitations to the exclusionary rule.

Impeachment

The exclusionary rule does not apply to the use of tainted evidence to impeach the defendant’s testimony. This means that the prosecution cannot use this evidence in their case-in-chief, but if a defendant gets on the stand and testifies, then the evidence can be used to impeach the defendant.

Good-Faith Exception

When police rely in good faith on a facially valid warrant that is later determined by a reviewing court to be invalid, the evidence they seize will still be admissible.

Because the only purpose of the exclusionary rule is to deter police misconduct, it does not apply when the Fourth Amendment violation is the result of an error by the magistrate or other judicial official issuing the warrant.

The good-faith exception will not apply if a reasonable officer should have known not to rely on the warrant.

Additionally, no exclusion applies even when there is police error, so long as the error is isolated negligence attenuated from the point of arrest.

EXAMPLE: The Supreme Court has applied the good-faith exception to an arrest in reliance on a warrant that should have been purged from the system by the police, even though it was the police agency that made the clerical error.

The good-faith exception will not apply where (1) police lie or mislead the magistrate (a lie by one officer is imputed to all officers in the chain of events); (2) the warrant is so facially defective that no reasonable officer would rely on it; (3) a reasonable officer would know that the magistrate is not neutral and detached; or (4) the supporting affidavit is completely lacking in probable cause.

EXAM TIP: Warrants are usually issued by magistrates based on their conclusion of whether the evidence presented is sufficient to establish probable cause. Motions to exclude that evidence are presented to the trial court, which then reviews the warrant application in order to determine whether the magistrate made a proper determination of probable cause. Sometimes, the trial court determines that the magistrate made a mistake in issuing the warrant because of a lack of probable cause. However, so long as a reasonable officer would have still relied on the warrant, then evidence will be admissible.

Statements and Confessions

There are four constitutional bases to challenge the admissibility of confessions:

1. the confession is coerced in violation of due process;
2. the confession violates the privilege against compelled self-incrimination and the Miranda rule;
3. the confession violates the Sixth Amendment right to counsel; or
4. the confession is fruit of a poisonous tree (usually an unlawful arrest).

The Due Process Voluntariness Standard

When police use actual coercion to obtain a statement, that statement is involuntary and inadmissible for any purpose (including impeachment).

Coercion

Coercion is government conduct that overbears the free will of a suspect. It is assessed based on the totality of the circumstances. Factors to consider include (1) the defendant’s age, health, education, intelligence, gender, and cultural background; (2) the location, duration, and physical conditions of interrogation; (3) the number and demeanor of police officers, and the suspect’s experience with the criminal justice system; and (4) any deception or trickery by the police.

EXAM TIP: Look for police conduct during an interrogation that abuses or wears down the suspect, like threats of injury, use of physical force, or relentless psychological pressure.

Because coercion is based on the totality of the circumstances, police deception and trickery during interrogation is just one factor to consider, and rarely, in and of itself, renders a statement involuntary.

There is no impeachment exception for an actually coerced statement, and no requirement that the suspect be in custody when the statement is made.

Fifth Amendment Privilege against Self-Incrimination

No person shall be compelled in a criminal case to be a witness against themselves.

The Fifth Amendment provides individuals with an absolute privilege to refuse to testify when (1) the individual is subjected to government questioning in any context (e.g., at a trial, grand jury, legislative hearing, police questioning, etc.); (2) the defendant has a real and substantial fear that testimony will result in self-incrimination or contribute to the defendant’s criminal conviction; and (3) the defendant asserts the privilege by refusing to testify.

The Fifth Amendment privilege against self-incrimination applies only to “testimonial” evidence and does not permit a witness to refuse to provide other evidence even if it is clearly incriminating (e.g., blood, hair, DNA, fingerprints, participation in a lineup, handwriting samples, etc.).

Immunity to Eliminate Risk of Self-Incrimination

Use and Derivative Use Immunity prohibits the use of a witness’s testimony or any evidence derived from that testimony against the witness. The government can still prosecute the witness so long as the evidence has no connection to the testimony.

Use and derivative use immunity, granted together, meet the minimum threshold for overcoming an individual’s Fifth Amendment privilege against self-incrimination. As a result, they are usually granted together.

Transactional Immunity prohibits ANY future prosecution of the witness for the transaction that is the subject of the testimony.

Don’t confuse the Fifth Amendment privilege against self-incrimination with the Miranda rule. The Fifth Amendment privilege against self-incrimination is the privilege that allows individuals to refuse to answer questions. Waiver of the privilege is normally established merely by answering the question. The Miranda rule was established because the Supreme Court concluded that merely answering questions was insufficient evidence that a suspect waived the privilege when subjected to custodial interrogation. In that situation (a Miranda warning and waiver), the Court imposed an increased burden on the government to prove waiver of the Fifth Amendment privilege against self-incrimination.

Fifth Amendment Miranda Rule

Statements obtained during custodial interrogation are inadmissible in the prosecution’s case-in-chief (opening statement through the prosecution resting) in the absence of Miranda warnings and proof of a valid waiver.

Valid Waiver

Police must advise the suspect of their Miranda rights. A suspect must be advised that (1) they have the right to remain silent; (2) anything they say can be used against them in court; (3) they are entitled to an attorney; and (4) if they cannot afford an attorney, one will be provided.

Police must obtain a voluntary and intelligent waiver of these rights. This is proof that the suspect understood the rights and voluntarily gave them up by submitting to questioning as a precondition to the use any answers to express or implied questioning in the case-in-chief.

Miranda warning is triggered by custody plus interrogation.

Custody is a formal arrest or a situation where a reasonable person in the suspect’s position would believe that their freedom has been deprived to a degree analogous to formal arrest.

EXAM TIP: Look for facts that suggest that a reasonable suspect would have concluded that they were going to jail to be booked.

The test is objective from the suspect’s perspective; an officer’s intent to arrest does not equal custody until the officer does something to indicate that intent to the suspect.

A Terry stop is not custody, because it is a brief investigatory seizure. The police may question individuals subject to a Terry stop without triggering Miranda rule.

Not every seizure is a custody, but any custody is a seizure. However, remember that an encounter can escalate from a non-custody seizure into a seizure that is custody (which happens whenever the suspect is arrested). At this point, the Miranda rule comes into effect. In other words, the key question for purposes of Miranda is whether the suspect was in custody. If they were merely seized temporarily, it will implicate the Fourth Amendment, but not the Miranda rule.

Interrogation is direct questioning (anything with a question mark) or other words or actions that a reasonable officer would anticipate were likely to result in eliciting an incriminating response.

EXAM TIP: If the police are aware of a suspect’s vulnerability and exploit that vulnerability, that fact is imputed to the “reasonable officer” used to assess whether the statements or conduct used by the actual police qualify as questioning.

Spontaneous or volunteered statements do not implicate the Miranda rule (even if made while in custody) because they are not a product of questions.

Routine booking questions are not considered interrogation and do not trigger Miranda.

Invocation of Miranda Rights

In order to cut off questioning, a suspect must make an unambiguous and unequivocal statement invoking either the right to silence (“I don’t want to talk”) or the right to counsel (“I want a lawyer”).

Remaining silent after the Miranda warning is not an invocation of the Miranda right, and police may continue to talk to the suspect.

However, to use any statements in response to questioning, police must prove that the suspect made a valid waiver.

If a person invokes their Miranda rights, the police may not resume questioning until counsel is present unless the suspect re-initiates contact with the police and executes a new waiver, or at least two weeks have passed after the suspect was returned to their normal environment before police resume questioning.

Waiver of Miranda Rights

If the suspect did not make a knowing and voluntary waiver, Miranda prohibits the use of the statement.

Waiver requires the prosecution to prove that (1) the suspect understood his rights (orally or written); and (2) the suspect made a voluntary decision to answer questions.

The suspect need not be warned of possible charges. Waiver cannot be presumed from silence.

However, (1) a suspect’s prolonged silence after being advised of their Miranda rights can be used to establish that the suspect understood the rights; and (2) if the suspect then answers questions, that can be proof of a voluntary relinquishment of the right to remain silent.

A valid waiver is strong evidence that the subsequent confession is actually voluntary in compliance with the due process rule.

However, it is possible to comply with Miranda and still violate due process voluntariness test (for example, threatening violence to procure a confession after a Miranda waiver).

Limitations and Exceptions to the Miranda Rule

A Miranda violation does not result in the exclusion of other evidence derived from the inadmissible statement because it does not trigger the fruit of the poisonous tree doctrine.

The only evidentiary consequence of a Miranda violation is that the statement is inadmissible in the prosecution’s case-in-chief. It can be used for impeachment, for rebuttal, for a grand jury, and the evidence it leads to will also be admissible.

Public Safety Exception to Miranda Rule

When the purpose of police questioning is to protect the police or the public from imminent danger of serious harm, the police may question a suspect in custody without a Miranda warning or waiver.

Effect of Miranda Violation on the Admissibility of Subsequent Confessions

A statement made in violation of Miranda normally does not “taint” a subsequent statement made after a valid Miranda waiver, even if it repeats the same confession.

However, if the facts indicate that the police deliberately violated Miranda to get a confession and then gave the suspect a “mid-stream” warning, any waiver will be considered invalid and both the pre- and post-waiver statements will be inadmissible.

Police Reinitiation of Questioning after a Miranda Invocation

The validity of a waiver obtained by police who re-initiate questioning after a suspect previously cut off questioning with an unambiguous Miranda invocation depends on what Miranda right the suspect invoked.

Invoked Right to Remain Silent: Police may not “badger” the suspect to change their mind. To resume questioning, the police must allow for a significant amount of time to elapse, and then obtain a new Miranda waiver. The passage of time, questioning by a different officer, and questioning on different subject matter are factors that indicate whether the police honored the invocation and that the subsequent waiver is valid.

Invoked Right to Counsel: Police may not resume questioning until counsel is present unless the suspect re-initiates contact with police and executes a new waiver, or at least two weeks have passed after the suspect was returned to their normal environment before police obtain a new waiver.

The invocation of either right is not offense-specific. That means that the “re-initiation” rules apply to any offense that the police seek to question the suspect about, even if it is a different officer from a different jurisdiction.

This is an important difference between the Miranda right to counsel and the Sixth Amendment right to counsel. Because it is not offense-specific, the Miranda right is more protective.

Sixth Amendment Right to Counsel

The initiation of the formal adversarial process (formal charges, indictment, arraignment, or a preliminary hearing) triggers the Sixth Amendment right to the assistance of counsel during all critical stages of the adversarial process.

Critical Stage includes the deliberate elicitation of statements, a physical identification proceeding, the preliminary hearing, and trial.

This means that it violates the Sixth Amendment for the government to do any of these “critical stage” events without the presence of the defendant’s counsel absent a voluntary and intelligent waiver.

This protection only applies once the “suspect” becomes a “defendant” as the result of the formal adversarial process starting, and only in relation to the crime that he or she is charged with.

This is an important difference from the Miranda right to counsel.

EXAM TIP: It is useful to distinguish a “suspect” from a “defendant.” A suspect is an individual suspected by the police of having committed a crime. A suspect becomes a defendant at the initiation of the formal adversarial process—when they are formally charged and the prosecutor is now involved in the case. A “suspect” has no Sixth Amendment protection; a “defendant” does, but only for the crime for which they are a defendant. In other words, the Sixth Amendment is “offense specific.”

EXAMPLE: Police were allowed to question a defendant without counsel about the murders of a homeowner and his daughter, even after the defendant had been indicted on burglary charges (and represented by counsel on these charges) relating to the victims’ home [Texas v. Cobb, 532 U.S. 162 (2001)].

Police Questioning of a Defendant

The deliberate elicitation of a pre-trial statement from a defendant is a “critical stage” triggering the Sixth Amendment right to assistance of counsel.

Deliberate elicitation includes express or implied questioning.

The defendant does not have to know that he is being questioned by a government agent. Therefore, this rule applies to the use of informants and undercover agents to elicit statements from a defendant.

This is an important difference from the Miranda right to counsel.

Government agents may initiate contact with a defendant to elicit a voluntary and intelligent waiver of the Sixth Amendment assistance of counsel during questioning, even if they know he is represented by counsel.

This is an important difference from the Miranda right to counsel.

EXAM TIP: Remember, just because questioning does not implicate the Sixth Amendment right, it may still implicate Miranda or the due process voluntariness rule. Analyze each of these protections independently.

Fruit of the Poisonous Tree and Confessions

If a statement is a “but for” consequence of a prior constitutional violation (normally, an arrest in violation of the Fourth Amendment), the statement may be inadmissible fruit of a poisonous tree unless the government can prove an exception, even if it complies with due process, Miranda, and the Sixth Amendment.

Attenuation is the most common exception asserted to use a statement resulting from a “but for” link to a constitutional violation (poisonous tree). Effective attenuation will depend on how “potent” the poison was: the more flagrant the constitutional violation, the harder it is to attenuate.

If an arrest is unreasonable because the police failed to obtain a required warrant, but nonetheless had probable cause, that will normally be dissipated by a valid Miranda waiver, so long as the statement is not elicited immediately after the arrest.

If an arrest is unreasonable because police did not even have probable cause, the taint is much more difficult to dissipate, and will normally require more than just a Miranda waiver for the government to prevail on an attenuation argument.

Identification Evidence

There are two constitutional bases to challenge the admissibility of identification evidence. These are (1) the procedures violated due process; or (2) the procedures violated the Sixth Amendment right to counsel.

Due Process Standard

If the defendant can prove that an identification procedure used by the government was so unnecessarily suggestive that it created an irreparable risk of mistaken identification, the procedure violates due process and the ID is inadmissible.

The focal point of this due process test is reliability, which requires the defendant to prove that procedures used were (1) unnecessary; (2) arranged by the government; (3) suggestive; and (4) that the suggestiveness results in an “irreparable risk” of an unreliable identification.

The due process standard applies to all types of identifications (physical or photo) at all stages of the investigatory and prosecutorial process (before or after formal charges).

EXAMPLE: A witness gives a description of a mugger. The police show her a single photo. This procedure is unnecessarily suggestive because the police could have easily shown her a photo array. This alone is insufficient to violate due process. The defendant must show that this unnecessarily suggestive method produced an unreliable identification, which will turn on a totality analysis of a number of factors.

The use of inherently suggestive procedures which are necessary under the circumstances (for example, because police believe the witness is about to die) does not violate due process.

Reliability is the ultimate question. Even if the police use highly suggesting procedures, so long as the court concludes that the identification is not inherently unreliable, it will be admissible.

Factors considered to assess whether an unnecessarily suggestive procedure resulted in an unreliable identification include (1) whether there was an opportunity to view the criminal at the scene; (2) the witness’s degree of attention; (3) the accuracy of the witness’s description; (4) the degree of certainty of the witness; and (5) the time interval between the crime and the identification (the longer the interval, the less reliable).

Because an out-of-court identification violates due process only if the suggestive procedures rendered it inherently unreliable, the witness will also normally be prohibited from making a subsequent in-court identification.

Sixth Amendment Right to Counsel at Line Up

Because an out-of-court corporeal identification procedure is a critical stage in the adversarial process, it violates the Sixth Amendment to conduct such a procedure unless the defendant’s counsel is present or the defendant executes a knowing and voluntary waiver.

This applies only to corporeal (in-person) identification, and only after the initiation of the formal adversarial process for that offense (when the suspect becomes the defendant).

It does not matter why the defense lawyer is not present at the out-of-court identification. Even if the police act in total good faith, and the lawyer is absent because of his own negligence, conducting the lineup without the lawyer’s presence violates the Sixth Amendment.

If the police conduct a corporeal lineup in violation of the Sixth Amendment, (1) the results are per se (no exception) inadmissible at trial; and (2) the witness is prohibited from making a subsequent in-court identification of the defendant unless the prosecution can prove by clear and convincing evidence that the in-court identification is independent from the inadmissible out-of-court identification.

Pretrial Rights and Procedures

There are pretrial rights and procedures.

Grand Jury

The grand jury is used to assess evidence presented by a prosecutor with no adversarial process and decide whether to issue a “True Bill of Indictment.”

The grand jury requirement does NOT apply to the states.

For federal cases, the Fifth Amendment requires indictment by grand jury in order to bring to trial any charge with an authorized penalty of more than six months’ confinement.

A grand jury is not an adversarial hearing; it is an investigatory tool.

The “target” has no right to be present and no right to assistance of counsel.

The prosecution presents evidence to the grand jury without a confrontation process.

The prosecution has no obligation to present clearly exculpatory evidence to the grand jury.

No Miranda warning is required for witnesses called to testify before a grand jury.

Bail Hearing

A bail hearing initiates the formal adversarial process, but it is NOT a critical stage of that process, and therefore, the defendant has no right to the presence of counsel for the hearing.

The defendant is entitled to an individualized hearing to determine whether bail should be granted or denied.

The purpose is to secure the presence of the accused at trial.

There is no constitutional right to bail, but if appropriate, it may not be excessive.

Plea Bargaining

The defendant may be convicted based upon a conviction beyond a reasonable doubt or by his plea of guilty. A plea must be knowing, voluntary, and intelligent, which means that the accused must be informed of the general nature of the offense he is pleading guilty to and the direct consequences of pleading guilty, including any immigration consequences.

The court must determine that the waiver of fundamental constitutional trial rights resulting from pleading guilty is intelligent and voluntary.

A plea of guilty waives evidentiary objections based on the Fourth, Fifth, and Sixth Amendments.

The defendant may plead guilty without admitting guilt. This “Alford” plea requires other evidence (like police reports) introduced to support the court’s finding of guilt.

Charging Discretion and Discriminatory Effect

A charge that produces a discriminatory effect based on a discriminatory motive violates equal protection.

The defendant must show that similarly situated defendants were charged disparately.

When a prosecutor increases the severity of a charge after a defendant successfully appeals and is subject to retrial, it will violate due process unless the record includes new evidence that supports the increase in charge severity.

Sixth Amendment Right to a Speedy Trial

The right to a speedy trial is guaranteed by the Sixth Amendment.

Violation of the right is assessed based on the totality of the circumstances.

Length of Delay: Generally, more than one year triggers an inquiry, but defense-requested delays, including motions, are deducted from the duration calculation (the clock begins running once the defendant is accused by formal charge or is arrested and held to answer for a crime). Pre-arrest/pre-charge delays are not considered in a speedy trial analysis.

Reason for Delay: A “good” reason is one that the prosecution has no control over, as opposed to one that the prosecution could have avoided by due diligence.

Demand for Speedy Trial is not essential, but if the defendant failed to make such a demand, it normally indicates that the defendant did not consider the delay prejudicial.

If the defendant establishes an unreasonably long delay for no good reason, the ultimate question will be whether the delay resulted in prejudice that undermined the values protected by the right. There are three types of prejudice. These are (1) anxiety; (2) oppressive pre-trial incarceration; and (3) degradation of evidence compromising the accuracy of the trial.

The only remedy for a constitutional right violation is dismissal with prejudice (meaning the prosecution can never re-try the case).

Discovery Failure to Disclose

If the defendant can show after conviction that the prosecution failed to disclose evidence that was both favorable and material, due process requires a new trial (or new sentencing, if the evidence affected the sentence only).

Favorable evidence: The prosecution is obligated to disclose certain evidence that is favorable for the defendant.

If the defense makes a discovery request, any evidence that would tend to help the defense is considered favorable and must be disclosed.

If the defense does not make a discovery request, only evidence that is obviously exculpatory is considered favorable and must be disclosed.

Material evidence: Even if the defense proves that the prosecution withheld favorable evidence, the conviction will be upheld unless the evidence was also material.

Material evidence is evidence that would have created a reasonable probability of a different outcome. In other words, had the evidence been disclosed, it would have created reasonable doubt.

EXAM TIP: If the facts indicate a defendant requested discovery but found out after conviction that the prosecution failed to disclose evidence, look to see if the question indicates whether the evidence that was presented was so strong that the defendant would have been convicted even if he had received the discovery. If so, the non-disclosed evidence was not material and the conviction will be upheld.

The destruction of evidence held by the government violates due process only where the defendant can show bad faith.

To show bad faith, the defendant will have to show that the destroyed evidence could have only helped him.

Guarantees of Fair Trial

There are guarantees of a fair trial.

Right to Counsel at Trial

Absent waiver, an indigent defendant is entitled to a court-appointed lawyer for any trial that results in any sentence of confinement.

The actual result of the trial is the trigger for requiring the appointment of counsel to an indigent defendant. While this seems backwards, it is an easy rule to remember: if an indigent defendant asks for a lawyer and the request is denied, he may not be sentenced to confinement (even if suspended), and if he is, the conviction must be reversed on appeal.

The right to counsel means the right to effective representation. Courts presume that legal counsel is effective (it is very difficult to prevail on an ineffective assistance of counsel claim).

To prove a violation of the right to effective assistance of counsel, the defendant must prove that (1) counsel was ineffective (i.e., performed below minimum standard of lawyer conduct—look for a violation of a basic ethical duty); and (2) had the lawyer been effective, it would have created a reasonable probability that the outcome would have been different—effective representation would have created reasonable doubt.

EXAM TIP: No matter how deficient the lawyer’s performance was (i.e., sleeping during trial, offering no evidence or argument, or failing to make a discovery request), the conviction will be reversed only if the defendant can show that an effective lawyer would have created reasonable doubt.

Ineffective Assistance and Plea Bargaining

If a lawyer’s incompetent advice leads a defendant to waive trial and accept a plea, the defendant can challenge the conviction by showing that there was a reasonable probability that the defendant would have pled not guilty had they received competent advice.

If a defendant loses the benefit of a plea offer because the lawyer’s incompetence resulted in the offer expiring, the defendant can challenge the conviction by proving a reasonable probability that the defendant would have accepted the plea had they been informed and that the prosecution and the court would have accepted the plea.

Right to Trial by Jury

Federal and state defendants have a right to trial by jury if they are charged with any single count or offense with an authorized penalty of more than six months’ confinement.

All jury verdicts must be unanimous.

EXAM TIP: Note that unlike the right to appointed counsel, the right to a jury is “triggered” by the RISK, and not the RESULT.

Makeup of the Jury

Jury Pool: The defendant has a right to jury selection from a fair cross-section of the community in the jurisdiction where the defendant is tried (ethnic and gender demographic).

Violation of this “fair cross-section” rule requires that the defendant prove that a distinct group was “systematically excluded” from the jury pool.

Petit Jury (Actual Jury): There is no requirement that the actual trial jury be a fair cross-section. However, use of peremptory challenges to exclude prospective jurors based on race, gender, or ethnicity violates the Equal Protection Clause.

If a peremptory challenge of a prospective juror is objected to on this basis, the party making the challenge must offer a race-, ethnicity-, or gender-neutral basis for the challenge.

This neutral basis need not rise to the level of a causal challenge, but must be more than an assertion of good faith or speculation about the juror.

Sixth Amendment Confrontation Clause

The Sixth Amendment provides a defendant with a right to confront witnesses and evidence presented against them.

The right to confrontation is triggered only by the introduction of testimonial evidence - statements made in a situation where a witness would expect it to be used as evidence in a criminal trial.

If a witness statement is not “testimonial” in nature, it does not trigger the requirements of the Confrontation Clause and may be admitted without confrontation.

Telling a 911 operator what is currently happening during an ongoing emergency is not testimonial, but telling them what already happened for an investigation would be.

When police question a witness to respond to an ongoing emergency, the answers are NOT considered testimonial.

Complying with the Sixth Amendment Confrontation Clause::

If the witness appears at trial and is under oath subject to cross-examination by the defendant, the right is satisfied.

If the prosecution offers prior testimonial statements from an individual who does not appear as a witness at trial, the statement violates the Confrontation Clause UNLESS the defendant had a prior opportunity to subject the witness to adversarial testing, meaning a prior opportunity to cross-examine the witness under oath.

Double Jeopardy

Double jeopardy prohibits placing a defendant in jeopardy for (1) the same offense; (2) by the same sovereign (the federal government and each state are separate sovereigns); (3) more than once.

When Jeopardy Attaches: When a defendant moves to dismiss a charge based on a violation of double jeopardy, the defendant must establish that they had been in jeopardy for the same offense by the same sovereign.

Being previously charged is insufficient; the defendant must prove jeopardy had attached. Jeopardy attaches (1) in a non-jury trial, when the first witness is sworn in and the court begins to hear evidence; and (2) in a jury trial, when the jury is impaneled and sworn in.

**When a grand jury does not indict or a charge is dismissed prior to the jeopardy attachment point, jeopardy has never attached and that target may again be the subject of a grand jury investigation for the same offense or the charge may be brought again.

Same Offense

Two crimes occurring out of the same transaction are considered the same offense, unless (1) each charge stems from a separate criminal impulse (i.e., multiple victims in one transaction); or (2) each charge has a separate factual element.

Separate Sovereignties Doctrine

The Double Jeopardy Clause does not prevent dual prosecution by separate sovereigns; a defendant may be prosecuted for the same criminal conduct by separate sovereigns.

Each state is a separate sovereign, and the federal government is separate from the states.

Sentencing

If an increase in the severity of the sentence is based on an aggravating fact, the jury must make a finding of that fact beyond a reasonable doubt.

Juveniles may not be sentenced to life without the possibility of parole.

A juvenile offender may not be sentenced to capital punishment.