5

Contents
I. Constitutional Protection of Accused Persons ......................................................................................................................7

A. Selective Incorporation .............................................................................................................................................................7

B. The Federal Floor.........................................................................................................................................................................7

II. Arrest, Search, and Seizure ...........................................................................................................................................................7

A. Governmental Action ................................................................................................................................................................7

B. Search ..............................................................................................................................................................................................8

C. Seizure .............................................................................................................................................................................................8

D. The Warrant Requirement.......................................................................................................................................................9

E. Execution of a Valid Warrant ............................................................................................................................................... 10

F. Exclusion of Unlawfully Obtained Evidence ................................................................................................................... 10

G. Rebuttable Presumption of Unreasonableness ........................................................................................................... 10

H. Exceptions to the Warrant Requirement ........................................................................................................................ 10

III. Confessions and the Privilege against Self-Incrimination ........................................................................................... 14

A. The Fifth Amendment ............................................................................................................................................................ 14

B. The Miranda Doctrine ............................................................................................................................................................ 14

C. Confessions and Custodial Interrogation ....................................................................................................................... 14

D. Due Process Exclusion of Coerced Confessions .......................................................................................................... 16

E. The Privilege against Compulsory Self-Incrimination ................................................................................................ 17

IV. Lineups and Other Forms of Identification ....................................................................................................................... 18

A. Due Process................................................................................................................................................................................ 18

B. In-Court Identifications .......................................................................................................................................................... 18

V. Right to Counsel ........................................................................................................................................................................... 18

A. Critical Stages of Prosecution ............................................................................................................................................. 19

B. Post-Conviction Proceedings Other Than Sentencing .............................................................................................. 19

C. Infringement on Right to Counsel .................................................................................................................................... 19

D. Exclusionary Remedy ............................................................................................................................................................. 19

E. Offense-Specific Limitation .................................................................................................................................................. 19

F. Waiver of Sixth Amendment Right to Counsel ............................................................................................................. 19

VI. Fair Trial and Guilty Pleas ......................................................................................................................................................... 20

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A. Speedy Trial ................................................................................................................................................................................ 21

B. Confrontation Rights .............................................................................................................................................................. 22

C. Exclusionary Rule ..................................................................................................................................................................... 22

D. Pleas .............................................................................................................................................................................................. 23

VII. Double Jeopardy ........................................................................................................................................................................ 24

A. Attachment of Jeopardy........................................................................................................................................................ 24

B. Same-Offense Requirement ................................................................................................................................................ 24

D. Collateral Estoppel .................................................................................................................................................................. 25

E. Dual-Sovereignty Doctrine ................................................................................................................................................... 25

VIII. Cruel and Unusual Punishment ........................................................................................................................................... 25

A. Proportionality .......................................................................................................................................................................... 25

IX. Burdens of Proof and Persuasion .......................................................................................................................................... 25

A. Burdens ........................................................................................................................................................................................ 26

C. Presumptions ............................................................................................................................................................................. 26

X. Appeal and Error ........................................................................................................................................................................... 26

A. Appeals ........................................................................................................................................................................................ 26

B. Errors and Remedies ............................................................................................................................................................... 27

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I. Constitutional Protection of Accused Persons

The Fourth, Fifth, Sixth, and Eighth Amendments to the United States Constitution guarantee various
protections to persons suspected, accused, or convicted of crimes.

A. Selective Incorporation
The provisions of the Bill of Rights apply to federal governmental actions. Some provisions of the
Bill of Rights have been made applicable to state and local governments via the Due Process
Clause of the Fourteenth Amendment through the process of selective incorporation.
These include the:

• Fourth Amendment’s protection against searches and seizures;

• Fifth Amendment’s privilege against self-incrimination and prohibition against double jeopardy;

• Sixth Amendment’s rights to counsel, a speedy trial, a public trial, trial by jury, to confront
witnesses, and compulsory process; and

• Eighth Amendment’s prohibition of cruel and unusual punishment.

B. The Federal Floor

The U.S. Constitution sets forth the minimal protection that must be provided to an accused (the
floor) but does not limit a state from providing greater protection (the ceiling).

II. Arrest, Search, and Seizure

The Fourth Amendment to the U.S. Constitution establishes two important safeguards: (1) a
prohibition against unreasonable governmental searches or seizures and (2) the requirements for a
valid warrant.

A. Governmental Action
Constitutional protections do not apply unless there is governmental action. The governmental-
action requirement is usually satisfied if government officials or employees— e.g. law-
enforcement officers or public-school teachers—are acting in their professional capacities.
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B. Search
A search arises whenever the government intrudes upon any area in which a subject has an
actual, subjective expectation of privacy that society is prepared to recognize as objectively
reasonable.

1. Reasonable Expectation of Privacy

There is a reasonable expectation of privacy in:

• one’s person;

• private conversations;

• in a personal residence, curtilage, and other enclosed structures on real property such as
barns or sheds;

• closed containers, such as automobiles, luggage, purses, bags, trunks, or safes;

• the workplace generally, though protection is weaker than in a home

2. No Reasonable Expectation of Privacy

Whatever a person knowingly exposes to the public is not protected by the Fourth
Amendment. For example, there is no reasonable expectation of privacy in:

• odors emanating from property, such as the smell of narcotics in luggage;

• the contents of a garbage bag;

• bank statements; or

• a prison cell.

C. Seizure
There are two types of Fourth Amendment seizures: (1) the seizure of persons and (2) the seizure
of property.

1. Seizure of Persons
A person is seized if a government actor uses physical force or a show of authority to restrain
the person’s liberty. A seizure occurs if:

• a person submits to a government officer’s show of authority;

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• a government official successfully arrests a person, with or without the use of physical force;
or

• a government official physically subdues or restrains a person.

2. Seizure of Property
Generally, a seizure of property occurs if the government assumes possession and control of
the property.

3. Police Use of Force

Under the Fourth Amendment, in effectuating a valid seizure, law enforcement may employ
only force that is reasonable under the circumstances.

D. The Warrant Requirement

A warrant is a writ directing or authorizing an arrest, a search, or a seizure. Without a warrant, a
search or seizure is generally presumed to be unreasonable, which violates the Fourth
Amendment.

1. Valid Warrant
To be valid under the Fourth Amendment, a warrant must:

• be supported by probable cause,

• be issued upon oath or affirmation, and

• particularly describe who or what is to be searched or seized.

A valid warrant must be issued by a qualified, neutral, and detached magistrate.

a. Probable Cause
Probable cause means there is evidence of a sufficient nature and quality to provide
reasonable grounds to believe—not merely suspect—that there is a fair probability that:

• in the case of a search warrant, contraband or evidence of a crime will be found at the
particular place to be searched; or

• in the case of an arrest warrant, the particular person to be arrested has committed or is
committing a crime.

Probable cause must exist at the time the warrant is executed.

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b. Affidavit
A law enforcement officer requesting a warrant may present the magistrate with a sworn
affidavit setting forth the facts and circumstances in support of probable cause. Probable
cause may be based on:

• the officer’s personal knowledge;

• hearsay, with sufficient independent corroboration; or

• information from a confidential informant.

c. Particularity
A warrant must describe the place to be searched with sufficient particularity that a
person relying on it can, with reasonable certainty, ascertain and identify the specific
location where the search is authorized. Law enforcement may seize only the specific
persons or things described in the warrant, from the specific place described in the
warrant.

E. Execution of a Valid Warrant

Proper execution of a warrant requires that:

• the warrant be executed within a reasonable time after it is issued,

• the scope of the search or seizure not exceed the warrant’s specifications, and

• the manner of entry onto the premises be proper.

F. Exclusion of Unlawfully Obtained Evidence

Generally, the remedy for a Fourth Amendment violation is the exclusion of any evidence that the
government obtained as a result of the violation.

G. Rebuttable Presumption of Unreasonableness

A warrantless search or seizure is presumed to be unreasonable. The presumption of
unreasonableness may be rebutted by showing that the challenged action satisfies an exception
to the warrant requirement.

H. Exceptions to the Warrant Requirement

The most important exceptions to the warrant requirement are:
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• the good faith exception,

• the plain-view doctrine,

• arrests and searches incident to lawful arrests,

• Terry stop and frisks,

• exigent circumstances,

• the automobile exception,

• consent,

• administrative searches,

• community caretaking

• inventory searches, and

• special-needs searches.

1. Warrantless Arrests
Unless an exception to the warrant requirement applies, law enforcement must have an arrest
warrant to arrest a suspect. Incident to a lawful arrest, officers may generally conduct a search
of the arrestee’s person and the immediate vicinity of the arrestee without a warrant or other
justification.

2. Investigatory Stops and Frisks (Terry Stops)

Investigatory stops, often called Terry stops, are lawful if officers have a reasonable suspicion
that an individual is engaged in criminal activity. Once law enforcement has effectuated a
Terry stop, officers may conduct a brief and cursory pat down of the individual’s outer
clothing in search of a deadly weapon if the totality of the circumstances would justify a
reasonable person to suspect that the individual poses a danger to the officers or others.

3. Exigent Circumstances
Exigent-circumstance exceptions include cases involving:

• hot pursuit,

• a dangerous criminal who poses an imminent risk of harm,

• imminent destruction of evidence, and

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• the emergency-aid exception.

4. The Automobile Exception

Motor vehicles may be searched or seized in connection with a lawful arrest or a Terry stop
and frisk.

5. Consent
Government officials may conduct a search without a warrant or probable cause based on the
subject’s consent, provided that the consent was voluntary and given by someone authorized
to consent.
 Criminal Procedure | 13

6. Inventory Searches
Law enforcement may conduct a warrantless search of property lawfully in its custody if the
owner’s diminished expectation of privacy is outweighed by a need to protect (1) law
enforcement from potential danger or from a claim of lost or stolen property or (2) the
owner’s property from loss or damage while it is in government custody.

7. Special Needs Searches

Special needs searches must satisfy two criteria: (1) the search must further a special need
beyond the normal law enforcement need that would be compromised by a warrant or
probable cause requirement, and (2) the governmental interest served by the search must
outweigh the nature of the intrusion on the implicated privacy interest. Permissible special
needs searches include:

• warrantless searches of parolees;

• warrantless strip searches of arrestees or prisoners,

• programmatic, suspicionless drug testing of employees or public-school students; and

• sobriety checkpoints on public roadways.

8. Border Searches
The Fourth Amendment does not require warrants for routine stops and searches at borders.

9. School-Related Searches
Because public-school officials and employees are government actors, their search or seizure
of public-school students must satisfy the Fourth Amendment. School officials may search
students and their belongings, provided the search is reasonable under the circumstances.

10. Community Caretaking Exception

Community caretaking activities are those “totally divorced from the detection, investigation,
or acquisition of evidence relating to the violation of a criminal statute.” “the community
caretaking doctrine (CCD), and several circuit courts of appeal have extended the CCD to
include the search of private residences.” “In such cases, law enforcement officers perform
‘dual community caretaking functions of aiding persons in need of assistance and protecting
property.’” “While exigent circumstances apply in the crime-fighting context, the CCD applies
when ‘police are not engaged in crime-solving activities.’” This exception for a special
category of police activity “is governed by a reasonableness standard: ‘Given the known facts,
 Criminal Procedure | 14

would a prudent and reasonable officer have perceived a need to act in the proper discharge
of his or her community caretaking functions?’”

III. Confessions and the Privilege against Self-Incrimination

The Fifth Amendment provides two crucial safeguards for the accused: (1) the privilege against
compulsory self-incrimination and (2) the protection against double jeopardy. The Fifth Amendment
also provides for the right to indictment by grand jury in certain federal cases.

A. The Fifth Amendment

The Fifth Amendment provides that no one shall be compelled, in any criminal case, to be a
witness against himself.

B. The Miranda Doctrine

The landmark case Miranda v. Arizona, 384 U.S. 436 (1966), articulated significant protections
during the pretrial-investigative process. These are designed to safeguard a suspect against
police overreaching during the inherently coercive process of custodial interrogation.

C. Confessions and Custodial Interrogation

The Miranda doctrine states that, prior to any custodial interrogation, law enforcement must (1)
inform the suspect of his rights and (2) make reasonably certain that the suspect has knowingly,
intelligently, and voluntarily waived those rights.

1. Custodial Interrogation
All custodial suspects must be warned of, and waive, their Fifth Amendment rights before
custodial interrogation may begin. Any pretrial, custodial statements elicited from a suspect
without proper warning and waiver are inadmissible against the suspect at trial.

2. The Miranda Warnings

The Miranda warnings, which must precede any custodial interrogation, require that the
suspect is advised that

• the suspect has the right to remain silent,

• anything the suspect says may be used against the suspect, and

• the suspect has the right to an attorney.

 Criminal Procedure | 15

3. Knowing, Intelligent, and Voluntary Waiver

For a waiver of Miranda rights to be valid a suspect must knowingly, intelligently, and
voluntarily waive those rights after being informed of them.

a. Knowing and Intelligent Waiver

To demonstrate that a waiver is knowing and intelligent, the government must show that:

• the Miranda warnings were clearly communicated to the suspect,

• the suspect was given a sufficient opportunity to contemplate them,

• there is no affirmative evidence indicating that the suspect did not understand them,
and

• the suspect proceeded to make self-incriminating statements in response to

interrogation.

b. Voluntariness
A suspect’s statements will be deemed involuntary if law enforcement coerced the
evidence by overcoming the suspect’s will.

Miranda safeguards came into play "whenever a person in custody is subjected to either
express questioning or its functional equivalent," noting that the term "interrogation"
under Miranda included "any words or actions on the part of the police (other than those
normally attendant to arrest and custody) that the police should know are reasonably
likely to elicit an incriminating response from the subject."

c. Scope of Interrogation after Valid Miranda Waiver

Once officers obtain a valid Miranda waiver, they may interrogate the suspect about
virtually any crime. Unlike the Sixth Amendment right to counsel, the Miranda doctrine is
not offense-specific.

d. Withdrawal of Waiver
A suspect may withdraw a prior Miranda waiver and end the interrogation at any time by
validly invoking Miranda rights.

4. Invocation of Miranda Rights

A valid Miranda invocation must be a clear, express, and unequivocal statement that (1) the
suspect wishes to remain silent or (2) is requesting representation by an attorney.
 Criminal Procedure | 16

a. Effect of Valid Miranda Invocation

Once a suspect validly invokes his Miranda rights, the custodial interrogation must cease.
If law enforcement continues the interrogation, any incriminating statements obtained
after the suspect’s valid invocation of his Miranda rights will be inadmissible to prove the
suspect’s guilt.

b. Resumption of Interrogation after Invocation of Miranda Rights

Any waiver made after a valid invocation of the Miranda right to counsel, without the
assistance and presence of an attorney, is per se invalid. If a suspect invokes only the right
to remain silent, and law enforcement scrupulously honors this right for an adequate
period of time, law enforcement may later initiate an attempt to resume interrogation
upon administration of new Miranda warnings and a valid waiver.

5. Public-Safety Exception
The public-safety exception is the single exception to Miranda’s requirement that a suspect in
custody must be warned of the consequences of making incriminating statements to law
enforcement. A statement taken in violation of Miranda is fully admissible if the custodial
questioning that resulted in the incriminating admission was reasonably caused by a concern
for public safety.

6. Impeachment
Statements obtained in violation of Miranda are inadmissible to prove a defendant’s guilt but
may be used to impeach a defendant’s testimony.

D. Due Process Exclusion of Coerced Confessions

For a self-incriminating statement by a suspect to be admissible at trial against the suspect, it
must have been made voluntarily. A statement obtained through coercion must be suppressed.

1. Government Coercion
A statement generally will be deemed involuntary if law enforcement overcame an
individual’s will, and the individual’s self-incriminating statements were not voluntarily given.

The lies told by the police to a suspect under questioning do not render the confession
involuntary per se. Mere trickery alone does not invalidate a confession. The court must look
to see whether the deception is reasonably likely to produce a false confession.
 Criminal Procedure | 17

E. The Privilege against Compulsory Self-Incrimination

The Fifth Amendment provides that no one shall be compelled, in any criminal case, to be a
witness against himself.

1. Application
The Fifth Amendment privilege against compulsory self-incrimination applies in criminal trials
and in any other proceeding, civil or criminal, formal or informal, in which an individual’s
statements might be incriminating in future criminal proceedings.

2. Privilege Asserted by a Criminal Defendant at Trial

The privilege gives the defendant absolute discretion to decide whether to testify or not. If a
criminal defendant chooses to testify, the defendant waives the privilege against compulsory
self-incrimination and must testify fully, truthfully, and accurately.

3. Privilege Asserted by a Witness

A witness who is not a criminal defendant generally may not refuse to testify on Fifth
Amendment grounds. The witness must (1) take the stand and (2) affirmatively assert the
privilege in response to each specific question asked. A witness waives the privilege with
respect to each fact or belief about which the witness testifies.

4. Application to Evidence
For the privilege to apply, the evidence must be

• compelled,

• incriminating, and

• testimonial.

5. Immunity
If the government offers a witness constitutionally sufficient immunity, the government may
compel a witness to testify regardless of the otherwise incriminating nature of the statement.

a. Direct-Use Immunity
Direct-use immunity means that the testimony itself cannot be admitted into evidence at
a criminal trial against the witness as part of the government’s case-inchief. However, the
 Criminal Procedure | 18

government may use the testimony to obtain other evidence, which in turn could be used
to prosecute the witness.

b. Use and Derivative-Use Immunity

Use and derivative-use immunity prevent the government from using the witness's
statements (use) or any evidence derived from those statements (derivative use) against
the witness in a criminal prosecution. Use and derivative-use immunity bar not only the
use of the testimony itself, but also of any evidence derived directly or indirectly from the
testimony in a later criminal proceeding against the witness.

c. Transactional Immunity
Transactional immunity affords a witness categorical immunity from prosecution for any
offense to which the compelled testimony might relate.

IV. Lineups and Other Forms of Identification

The Sixth Amendment right to counsel attaches to critical stages of pretrial proceedings. A suspect
has a right to counsel during any identification procedure once adversarial proceedings have begun,
even pre-indictment.

A. Due Process
The Due Process Clause of the Fifth Amendment prohibits the admission of identification
testimony obtained from unnecessarily suggestive procedures that could lead to an irreparably
mistaken identification.

B. In-Court Identifications
Generally, a witness will not be permitted to identify the defendant at trial if the witness made a
pretrial identification of the defendant that is inadmissible on constitutional grounds.

V. Right to Counsel
The Sixth Amendment guarantees that, upon the initiation of formal criminal proceedings against a
suspect, the suspect has the right, at every critical stage of the prosecution, to the effective assistance
of counsel. The Sixth Amendment may also guarantee that an indigent defendant has the right to
counsel appointed for the defendant at government expense.
 Criminal Procedure | 19

A. Critical Stages of Prosecution

Critical stages of prosecution include all deliberate efforts by the government to elicit
incriminating information from the defendant.

B. Post-Conviction Proceedings Other Than Sentencing

The Sixth Amendment right to counsel does not apply beyond the sentencing phase of the trial.

C. Infringement on Right to Counsel

The right to counsel is infringed if (1) it has attached, and (2) it has been denied at any critical
stage.

D. Exclusionary Remedy
If the government obtains incriminating information about a defendant by violating the
defendant’s Sixth Amendment right to counsel, that information generally must be suppressed.
Physical evidence obtained as a result of Sixth Amendment violations, i.e. the fruit of the
poisonous tree, may also be excluded.

E. Offense-Specific Limitation
Once criminal prosecution has begun against a defendant for a particular crime or crimes, the
Sixth Amendment right to counsel applies only with reference to that particular crime or crimes.

F. Waiver of Sixth Amendment Right to Counsel

If the government deliberately seeks to elicit incriminating information from a defendant whose
Sixth Amendment right to counsel has attached, any resultant evidence will be inadmissible in the
government’s case-in-chief unless the defendant: (1) has the assistance of counsel in connection
with the government interaction, or (2) validly waives the right to counsel.

G. Indigent Defendants’ Right to Appointed Counsel

The right to appointed counsel is available only to indigent defendants.

1. Proceedings to Which Right to Appointed Counsel Applies

The right to appointed counsel applies only to:

• the stages of criminal proceedings in which the Sixth Amendment right to counsel applies,
and
 Criminal Procedure | 20

• the defendant’s first appeal as of right.

2. Limitations on the Right to Appointed Counsel

An indigent defendant has the right to appointed counsel in all felony cases. In misdemeanor
prosecutions, an indigent defendant does not have the right to appointed counsel unless a
sentence of imprisonment is actually imposed. If imprisonment cannot be imposed as a
penalty, there is no right to appointed counsel.

H. Constitutional Right to the Effective Assistance of Counsel

A defendant has the right to the effective assistance of counsel.

1. Ineffective Assistance of Counsel

If counsel provides constitutionally ineffective assistance, and the deficiency materially
influences the outcome of the proceeding, the defendant is entitled to have the outcome
voided or vacated.

2. Constitutional Standard for Evaluating Effective Assistance

To establish a claim of constitutionally ineffective assistance of counsel, a defendant must
prove that:

• counsel’s performance fell below an objective standard of reasonableness; and

• the deficient representation materially prejudiced the defendant, resulting in a

fundamentally unfair or unreliable result of the proceeding.

VI. Fair Trial and Guilty Pleas

The Sixth Amendment guarantees the right to a speedy and public trial. Criminal defendants are
entitled to:

• a trial without undue post-accusation delay,

• a jury trial for all serious crimes,

• be informed of the charges against them,

• directly confront adverse witnesses and cross examine them, and

• representation by counsel in all state and federal prosecutions in which the defendant is accused of
a felony or of a misdemeanor if a sentence of imprisonment is imposed.
 Criminal Procedure | 21

A. Speedy Trial
The Due Process Clause of the U.S. Constitution and federal statutes protect criminal defendants
from prejudicial and intentional pre-charging delay. The Sixth Amendment’s speedy trial
guarantee, the Speedy Trial Act, the Federal Rules of Criminal Procedure (FRCP), and other federal
statutes protect criminal defendants from undue post-charging delay.

1. Waiver
A criminal defendant may waive the right to a jury trial by:

• obtaining the court’s approval;

• obtaining the government’s consent;

• waiving the right knowingly, intelligently, and voluntarily; and

• memorializing the waiver in writing.

2. Jury Composition and Unanimity

The trial, or petit, jury typically consists of twelve persons but may have as few as six. Rule
23(b) of the FRCP requires a twelve-member jury, although the parties may waive that
requirement with the court’s permission any time before the verdict.

3. Constitutional Challenges to Jury Pool

The Sixth Amendment prohibits racial discrimination in jury selection and requires that the
jury pool (venire) from which the jury is selected represents a fair cross-section of the
community.

4. Jury Selection
Jury selection and service must comply with applicable federal and state laws as well as the
U.S. Constitution. The Jury Selection and Service Act (JSSA) of 1968 sets guidelines for the
selection of grand and petit juries in federal jurisdictions.

a. Voir Dire
Voir dire is the process of examining prospective jurors to reveal potential bias. The trial
court has broad discretion over the voir dire process.
 Criminal Procedure | 22

b. Juror Challenges
During jury selection, the parties are typically permitted to strike jurors either for cause or
by a peremptory challenge. A challenge for cause requires a showing that the juror is
biased and could not render an impartial verdict. A peremptory challenge does not
require a justification.

B. Confrontation Rights
The Confrontation Clause of the Sixth Amendment provides that a criminal defendant is entitled
to:

• confront adverse witnesses directly,

• cross-examine adverse witnesses, and

• be present at any stage of the trial that would permit the defendant to cross-examine adverse
witnesses.

C. Exclusionary Rule
The exclusionary rule provides that evidence obtained in violation of a criminal defendant’s
Fourth, Fifth, or Sixth Amendment rights is excluded from introduction at trial as evidence of a
defendant’s guilt. *

Objective Good Faith – “Evidence obtained in reasonable, good-faith reliance on a facially valid
search warrant is not subject to the Fourth Amendment's exclusionary rule, even if the warrant is
later deemed defective.” US v Leon

1. Sufficiently Attenuated
A court may admit evidence that would not have been discovered but for a violation of a
defendant’s constitutional rights if the causal connection between the violation and the
discovery of the derivative evidence is sufficiently attenuated.

2. Independent-Source Exception
Evidence discovered through a source independent from the misconduct is admissible.

3. Inevitable-Discovery Exception
Unconstitutionally obtained evidence may be admitted if it would have inevitably been
discovered through independent, constitutional means.
 Criminal Procedure | 23

4. Collateral Use of Unconstitutionally Obtained Evidence

The government may use unconstitutionally obtained evidence in proceedings and hearings
other than its case-in-chief, including:

• federal habeas proceedings,

• grand jury proceedings,

• parole revocation proceedings, and

• sentencing hearings.

5. Standing
Generally, only the victim of an unconstitutional action has standing to challenge it.

D. Pleas
A criminal defendant may plead not guilty, guilty, or, with the court’s consent, nolo contendere. If
the defendant refuses to enter a plea, the court must enter a not-guilty plea on the defendant’s
behalf.

1. Plea Must be Voluntary, Knowing, and Intelligent

The U.S. Constitution requires that a defendant’s plea be voluntary, knowing, and intelligent.
To enter a guilty plea, the defendant must also be competent. Before a court accepts a
defendant’s guilty plea or plea of nolo contendere, the court must find that there is a factual
basis for the plea.

2. Confessions Distinguished
A confession to law enforcement officers or to others is not a guilty plea because a
confession does not eliminate the need for a trial.

3. Plea Bargaining
Lawyers representing the government and the defendant (or the defendant if proceeding pro
se) may discuss and reach a plea agreement. The court may not participate in these
discussions. The parties must disclose the plea agreement in open court when the plea is
offered.
 Criminal Procedure | 24

4. Court’s Action on a Plea Agreement

A court may accept, reject, or defer deciding whether to accept or reject a plea agreement.

5. Withdrawal
Before the court accepts a guilty plea or plea of nolo contendere, the defendant may withdraw
it any time and for any reason. After the court accepts a plea, the defendant may withdraw the
plea only if (1) the court rejects the plea, or (2) the defendant provides a fair and just reason
for withdrawing the plea. After sentencing, a defendant may not withdraw a guilty plea or
plea of nolo contendere.

6. Breach of Plea Agreement

The government may not unilaterally determine that a defendant breached a plea agreement;
a court must find the breach. The party alleging the breach must prove the breach by a
preponderance of the evidence.

VII. Double Jeopardy

The Double Jeopardy Clause of the Fifth Amendment protects against two types of government
action:

• prosecution of a defendant for the same offense that defendant has previously been acquitted or
convicted by the same sovereign (the bar against re-prosecution), and

• multiple punishments by the same sovereign for the same offense (the bar against multiple
punishments).

A. Attachment of Jeopardy
In a criminal proceeding, jeopardy attaches when a defendant faces a potential determination of
guilt. Jeopardy attaches in a jury trial when the jury is empaneled and sworn, and in a bench trial
when the judge begins to hear evidence. If the defendant pleads guilty, jeopardy generally
attaches when the court accepts the plea unconditionally.

B. Same-Offense Requirement
The Double Jeopardy Clause is implicated only if a sovereign seeks to impose multiple
prosecutions or multiple punishments on the same party for the same offense. The offense must be
the same in both fact and law.
 Criminal Procedure | 25

C. Termination of Jeopardy
Conviction by a judge or jury, a guilty plea, and acquittal generally terminate jeopardy.

D. Collateral Estoppel
If a specific issue relevant to the defendant’s guilt or innocence is raised, contested, and found
adversely to the government in a prior criminal proceeding, the government is bound by that
finding in any subsequent criminal proceeding against that defendant.

E. Dual-Sovereignty Doctrine
The federal government is a different sovereign from each of the state governments, and the
state governments are different sovereigns from each other. A state and its municipalities are the
same sovereigns.

VIII. Cruel and Unusual Punishment

The Cruel and Unusual Punishment Clause of the Eighth Amendment:

• limits what criminal behavior may be punished,

• prohibits certain types of punishment, and

• prohibits punishment that is grossly disproportionate to the severity of the offense.

A. Proportionality
Courts use three criteria to analyze a sentence’s proportionality:

• the gravity of the offense compared to the harshness of the penalty,

• the sentence imposed on a particular defendant compared to those imposed for various
offenses within the same jurisdiction, and

• the sentence imposed on a particular defendant compared to those imposed for the same or
similar offenses in other jurisdictions.

IX. Burdens of Proof and Persuasion

The burden of proof, or burden of persuasion, is a party’s obligation to introduce evidence that
persuades the factfinder that a particular proposition of fact is true.
 Criminal Procedure | 26

A. Burdens
The Due Process Clause of the Fifth Amendment requires that the government prove every
element of a criminal offense beyond a reasonable doubt.

B. Affirmative Defenses
The government may shift to the defendant the burden of proving an affirmative defense.

C. Presumptions
A mandatory presumption requires a factfinder to infer the elemental fact—the element of the
crime—if the government proves certain basic facts beyond a reasonable doubt. A permissive
presumption permits the factfinder to presume the elemental fact—the element of the crime— if
the government proves certain basic facts beyond a reasonable doubt.

X. Appeal and Error

An appeal is a party’s request for a higher court to review an alleged error in a lower court’s action or
judgment.

A. Appeals
Federal appellate courts generally only review district courts’ final decisions. In criminal matters, a
district court’s final decision is the imposition of sentence.

1. Appeal by Defendant
A defendant has a statutory, but not constitutional, right to appeal a criminal conviction.

2. Appeal by Government
The Double Jeopardy Clause bars the government from appealing a factfinder’s verdict of
acquittal or a trial court’s dismissal of a charge based on insufficient evidence or judgment of
acquittal. The government may appeal:

• the pre-trial dismissal of charges,

• a trial court ruling setting aside a jury conviction or dismissing charges on grounds not
related to guilt or innocence, and

• sentencing errors.
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B. Errors and Remedies

If a party alleges an error occurred at trial, the reviewing court must determine whether the error
occurred and its appropriate remedy.

1. Plain Error
Plain error is error that is clear or obvious and affects a defendant’s substantial rights. Courts
are more likely to find plain error if a defendant’s constitutional rights were violated.

2. Harmless Error
A harmless error, or trial error, is an error that was unlikely to have affected the trial’s outcome.

3. Structural Error
A structural error is an error that fundamentally undermines the reliability and fairness of the
trial. Structural errors require reversal of the trial judgment.