Criminal ProcedureCollins TABLE

OF

Spring 2007Clark CONTENTS

Table of Contents.................................................................................................................................................................i Part One: Gathering Information......................................................................................................................................1

Chapter One: The Border of Criminal Procedure: Daily Interactions Between Citizens and Police.....................................................1 Police as Community Caretakers.......................................................................................................................................................1 Police Enforcement of Civility...........................................................................................................................................................2 Traditional and Community Policing.................................................................................................................................................2 Chapter Two: Brief Searches and Stops.................................................................................................................................................3 The 3 Kinds of Encounters.................................................................................................................................................................3 Brief Investigative Stops of Suspects.................................................................................................................................................3 B.Brief Administrative Stops.............................................................................................................................................................7 Gathering Information Without Searching.........................................................................................................................................8 Brief Searches of Individuals [Terry].................................................................................................................................................9 Chapter Three: Full Searches of People and Places: Basic Concepts...................................................................................................10 Origins of the Fourth Amendment and Its Analogs.........................................................................................................................10 Is it a Search? Factors to Consider..................................................................................................................................................11 Probable Cause.................................................................................................................................................................................11 Warrants...........................................................................................................................................................................................13 Consensual Searches........................................................................................................................................................................16 Chapter Four: Searches in Recurring Contexts.....................................................................................................................................18 Persons..........................................................................................................................................................................................18 Houses and Other Places.............................................................................................................................................................19 Papers............................................................................................................................................................................................21 Effects...........................................................................................................................................................................................21 Chapter Five: Arrests............................................................................................................................................................................23 Stop or Arrest?.................................................................................................................................................................................23 Arrest Warrants................................................................................................................................................................................24 Police Discretion in the Arrest Decision..........................................................................................................................................24 Paper Arrests: Citations....................................................................................................................................................................25 Use of Force in Making Arrests.......................................................................................................................................................26 Chapter Six: Remedies for Unreasonable Searches and Seizures.........................................................................................................27 Origins of the Exclusionary Rule.....................................................................................................................................................27 Limitations on the Exclusionary Rule..............................................................................................................................................28 Additions and Alternatives to the Exclusionary Rule......................................................................................................................31 Chapter Seven: Technology and Privacy..............................................................................................................................................31 Enhancement of the Senses..............................................................................................................................................................31 Chapter Eight: Interrogations................................................................................................................................................................33 Overview..........................................................................................................................................................................................33 Voluntariness of Confessions...........................................................................................................................................................33 Miranda Warnings............................................................................................................................................................................34 Invocation and Waiver of Miranda Rights.......................................................................................................................................38 Effect of Asserting Miranda Rights.................................................................................................................................................38 Sixth Amendment Right to Counsel During Investigations (Not covered in Class, can delete)......................................................39 Miranda: Cures, Impacts, and Alternatives......................................................................................................................................39 Chapter Nine: Identifications................................................................................................................................................................40 Risks of Mistaken Identification......................................................................................................................................................40 Exclusion of Identification Evidence...............................................................................................................................................41 Other Remedies for Improper Identification Procedures.................................................................................................................43 Chapter Ten: Complex Investigations: The Investigative Grand Jury..................................................................................................43 Grand Jury Generally.......................................................................................................................................................................43 Grand Jury Secrecy..........................................................................................................................................................................44 Immunity for Witnesses...................................................................................................................................................................44 Document Subpoenas.......................................................................................................................................................................44 Hot Topics.............................................................................................................................................................................................44 DNA Dragnets..................................................................................................................................................................................44 CSI Effect.........................................................................................................................................................................................45 Fingerprint Evidence........................................................................................................................................................................45 Duke Lacrosse Team Rape Case......................................................................................................................................................45 -- i --

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Part Two: Evaluating Charges.........................................................................................................................................45

Chapter Eleven: Defense Counsel........................................................................................................................................................45 When Will Counsel Be Provided?...................................................................................................................................................45 Selection and Rejection of Counsel.................................................................................................................................................47 Adequacy of Counsel.......................................................................................................................................................................47 Systems for Providing Counsel........................................................................................................................................................48 The Ethics of Defending Criminals..................................................................................................................................................49 Chapter Twelve: Pretrial Release and Detention..................................................................................................................................49 Overview..........................................................................................................................................................................................49 Pretrial Release.................................................................................................................................................................................50 Pretrial Detention.............................................................................................................................................................................50 Chapter Thirteen: Charging..................................................................................................................................................................51 Prosecutorial Screening ...................................................................................................................................................................51 Chapter Fourteen: Jeopardy and Joinder...............................................................................................................................................54 Double Jeopardy...............................................................................................................................................................................54 Joinder..............................................................................................................................................................................................55

Part Three: Resolving Guilt and Innocence....................................................................................................................56

Chapter Fifteen: Discovery and Speedy Trial.......................................................................................................................................56 Discovery.........................................................................................................................................................................................56 Speedy Trial Preparation..................................................................................................................................................................60 Chapter Sixteen: Pleas and Bargains....................................................................................................................................................61 Bargain About What?.......................................................................................................................................................................61 Categorical Restrictions on Bargaining............................................................................................................................................62 Validity of Individual Plea Bargains................................................................................................................................................63 Chapter Seventeen: Decision-makers at Trial ......................................................................................................................................65 Judge or Jury?...................................................................................................................................................................................65 Selection of Jurors............................................................................................................................................................................66 Jury Deliberations and Verdicts.......................................................................................................................................................67 Chapter Eighteen: Witnesses and Proof................................................................................................................................................69 Burden of Proof................................................................................................................................................................................69 Confrontation of Witnesses..............................................................................................................................................................70 Self-Incrimination Privilege at Trial................................................................................................................................................71 Ethics and Lies at Trial.....................................................................................................................................................................72

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Criminal ProcedureCollins

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PART ONE: GATHERING INFORMATION

CHAPTER ONE: THE BORDER 1.
OF

CRIMINAL PROCEDURE: DAILY INTERACTIONS BETWEEN CITIZENS

AND

POLICE

Police as Community Caretakers

2.

3.

4. 5.

6.

Community Policing in General (Not subject to Regulation) Much of CrimPro is aimed at regulating police officers, but we dont regulate this function of police as much a. No constitutional constraints governing community caretaker function. Not a lot of laws governing it either b. Accounts for about 60-70% of police work. c. Rules are less stringent as they apply to this function v. investigative function ii. A lot of what police officers do does not relate to law enforcement (See OR statute (broad) and IN job desc.) iii. Examples: Looking for lost dogs; warning community about keeping hedges down to deter burglars. Thinking about the Police i. Are they part of the community, or a force separate from the community? ii. Is their only rule to investigate crimes? Or should they play a community caretaking function? iii. If they are caretakers, does that give them too much power in our daily lives? iv. Should they be governed by different rules depending on what role they are engaged in? v. In general, should the police be tightly controlled or do they need lots of discretion? OREGON REVISED STATUTES 133.033 i. Any peace officer of this stateis authorized to perform community caretaking functions ii. Defined as(among others) any lawful acts inherent in duty of the peace officer to serve & protect the public. a. Right to enter or remain upon the premises of another if it reasonably appears to be necessary to: (1) Prevent serious harm to an persons or property (2) Render aid to injured or ill persons; or (3) Locate missing persons b. Right to stop or redirect traffic or aid motorists or other person when such action reas. appear to be nec. to: (1) Prevent serious harm to an persons or property (2) Render aid to injured or ill persons; or (3) Locate missing persons iii. Essentially: gives police a lot of discretion INDIANAPOLIS POLICE DEPARTMENT JOB DESCRIPTION: PATROL OFFICER State v. Michael Dube (Me. 1995) i. Facts: Police accompany a landlord (upon his request) as he enters an apartment to fix a leak. (Self-protection as well as protection from accusations of theft). While there, they discover lots of crap (actual crap) & evidence that small children live there. The Landlord fixes the leak, but then leaves as police stay behind to take pictures and collect evidence. ii. Court says a. Police may accompany the landlord upon his request for protection via their community caretaker role. b. But, once work is done, so is caretaking function and police must leave. Need warrant to collect evidence. iii. Is this good? a. What if it takes 4-8 hours to get a warrant? What if the tenant comes home while trying to get a warrant? Can they block the tenant from entering? Does this give time for the tenant to clean up the premises? b. If they clean it up, they lose the physical evidence, but they can try the guy based on officer testimony. State v. Robert Stowe (La. 1994) i. Facts: Stowe is walking down the highway, drunk, after an argument, with a bloody arm and accompanied by a priest. Stowe refuses the officers help and gets a little rowdy. Traffic starts to back up and thus, the officer tries to arrest Stowe and Stowe resists the arrest, hitting the officer. ii. Court says a. Majority says officer was acting within his community caretaking function. Officer was justified in believing Stowe was disturbing the peace. Assault 5 years hard labor! b. Impassioned Dissent says this guy was minding his own business and disturbing no one. Officer forced his unwanted attention and assistance on Stowe. Stowe merely retaliated to officers continued and persistent breach of his constitutional right to be left alone and free of unwanted interference.
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Criminal ProcedureCollins 7.

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If less strict rules govern community caretaker function, why? Is it b/c we are less likely to find police activity in caretaking context intrusive Is it b/c these functions are less likely to lead to severe consequences for citizens, like jail time? Is it b/c wider range of activities involved, so less amenable to being governed by procedural rules? Is it because we trust the police more in this context? 8. State v. Michael Lovegren (Mont. 2002) i. Facts: Officer on patrol came across a vehicle parked on the side of the road. Lovegren was asleep in the drivers seat. Officer approached the car to check Lovegren. He knocked on the window, Lovegren didnt respond so he opened the door and Lovegren woke up and blurted out Ive been drinking! Officer smelled alcohol, gave him a breathalyzer and took him to the station charged with drunk driving. ii. Court saysConviction stands. Officer was acting within his community caretaking function.
i. ii. iii. iv. Police Enforcement of Civility 9.

State v. Janisczak (Me. 1990) Facts: Janisczak opposed an arrest the officers were making and led a mob shouting obscenities at them. As officers made arrest, Janisczak shouted at the officers from only a few feet away. When an officer confronted him, Janisczak said Fuck You to his face and the officer arrested him for obstruction. ii. Court saysConviction Overturned a. No Obstruction: because No Criminal Act b. No Intent to Obstruct: 1st amendment issue: Court says not fighting words c. When someone yells at police, the police are expected to take it, even if it would incite a non-police officer
i.

Traditional and Community Policing 10. Focus on preventative community measures rather than reactive measures. i. Hypo: Vacant house with lots of drug problems a. Reform style: arrest everyone selling drugs and prosecute them all b. Community style: reach a community solution maybe buy the house then tear it down and build a

playground; maybe turn it into a day care. 11. Traditional view: very impersonal law enforcement i. merely reacting to crimes: responding when people need help or after a crime has occurred ii. separate from the community 12. Community policing: the new trendmore personal law enforcement i. more proactive in fighting crime: instead of waiting for crime to occur, respond to community concerns and try to preempt the crime (e.g., enact anti-graffiti laws, anti-vagrancy laws, etc.) ii. more community involvement: attend community meetingsassign officers to specific areas, walk the beat, and get to know the people in the community iii. returns to the police a lot of discretion that they had taken away during the 70s and 80s 13. Causing the trend toward community policing i. need to improve relations b/n community and police ii. crime rates were increasing in 80s and 90s 14. Good idea?: Does it reduce crime? Does the community like it?

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Criminal ProcedureCollins CHAPTER TWO: BRIEF SEARCHES

Spring 2007Clark
AND

STOPS

The 3 Kinds of Encounters 15. Consensual encounters: require no justification 16. Stops: require reasonable suspicion 17. Arrests: require probable cause Brief Investigative Stops of Suspects 18. General i. DELAWARE CODE tit. 11, 1902 a. (A) A peace officer may stop any person . . . in a public place, who the officer has reasonable ground to

suspect is committing, has committed, or is about to commit a crime, and may demand the persons name, address, business abroad, and destination b. (B) A Person so questioned who reuse to ID or explain the persons actions to the satisfaction of the officer may be detained and further questioned and investigated. c. Purpose: Was DE trying to require reasonable ground to suspect for all police encounters (1) Probably not; probably significant that DE used the word stop ii. ALASKA STATUTES 28.35.182(a) 19. Consensual Encounters and Stops i. Consensual Encounter a. Most common: Hey X, where are you going? b. If X says Im going to sell drugs, no constitutional violation ii. United States v. Sylvia Mendenhall (1980) THE TEST a. Rule: An encounter is a stop requiring the presence of reasonable suspicion when, in view of the totality of the circumstances, a reas. person would have believed he was not free to leave (or to refuse to cooperate) (1) Note: an objective standard: officers subjective intention is irrelevant unless communicated to suspect. (2) What factors do you consider (i.e. in an exam problem)? Things like language (please, or must), tone of voice (normal or shouting) used by officer, # of officers, any display of weapons, any phys. touching. b. The Police do not have to tell people they have the right to refuse to cooperate iii. Wesley Wilson v. State (Wyo. 1994) a. When did the stop occur? (1) Officer pulls over to ask a limping Wilson if he is okay. [NO STOP] (2) Officer asks Wilson for his ID. [NO STOP] (3) Officer calls in warrant check. [Court is ambivalent about this, but] (4) Officer tells Wilson to stay in the area & drives off. [NO STOP] (a) Court saysobviouslyWilson felt free to leave b/c he walked away. (b) Collins sez: this may be a stop b/c even tho Wilson limped away, RP may have felt compelled to stay. (5) Officer returns 8 minutes later and tells Wilson to wait at corner. (a) Finally, court says it is a stop. (b) Note officers subjective intentions about whether he is making a stop do not matter. What matters is Wilsons view of his options. [or RPs view of Wilsons options] b. Dissent : Great language! (1) The American bench needs to understand that its invocation of the premise of protecting Constitutional rights in reversing criminal convictions has contributed to the development of a society in which violence stalks our streets and fear permeates our neighborhoods. (2) Kind of poo-poos the constitution, but maybe its criticizing a too technical reading. iv. Maria Full of Grace (clip): Drug mule in JFK is approached by police a. Initial encounter: officer asks to see passport, declaration card, and ticket. Stop? (1) Probably not under Mendenhall test since RP would probably believe they could refuse to cooperate. (2) But courts tend to ignore the consequences of refusal here, she would likely be detained if she said no. (3) So, its really a fiction that she could have refused to cooperate. b. Next step: taken to the office and patted down given form to consent to X-ray. Stop? (1) Mendenhall Terry frisk is probably what makes it a stop. Everything else, probably consensual (2) Police always said: Please come with me.We would like you to sign this form. She walked to the office. Under Mendenhall, engage in fiction that it was consensual, regardless of consequences of refusal
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Criminal ProcedureCollins Spring 2007Clark v. Florida v. Bostick a. Facts: Agents came onto the bus and blocked the way off the bus. [refuse to cooperate is in the definition

to accommodate this situation, where stoppee cannot leave, but could choose not to cooperate] b. Holding: physical inability to leave did not matter he still could have refused to cooperate. c. even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual; ask to examine the individuals identification; request consent to search his/her luggage. vi. Who is Reasonable Person? a. Presupposes an innocent person. What would a reasonable innocent person do? [WWRIPD] (1) Should we account for factors such as age, native language, gender, etc.? (2) Courts sometimes consider such factors as well as other factual circumstances: Were weapons used, etc. b. The Court tends to draw the line well beyond where most of us would feel comfortable c. This definition of stop favors police: in most cases, a court will find that RIP would feel free to leave, even though in most cases, the person will probably not think they are free to leave d. Remember: the subjective intent of the officer does NOT matterinstead, focus on what the citizen thinks thus the officers intent only matters to the extent it was manifested to the citizen 20. Grounds for Stops: Articulable, Individualized Reasonable Suspicion i. What is Reasonable Suspicion? a. Terry: A minimal level of objective justification (1) Specific and articulable facts which, taken together with rational inferences from these facts reasonably warrant the intrusion. (2) Requires a balancing of particular government need to conduct search against the invasions it entails b. Something more than a hunch, but less than a preponderance of the evidence (50%). So its probably something like 25-30% certainty. Considerably less than probable cause. ii. Alabama v. White (1990) Good base case! a. Facts: Police got hearsay evidence that predicted future behavior of a drug suspect entirely innocuous actions by suspect and not all of it was corroborated. b. Court saysIts a close case, but reasonable suspicion probably bare minimum. iii. State v Theodore Nelson (Me. 1994) a. Facts: Officer sees suspect drinking one beer over a 50 minute period at 1:30 am on Christmas Eve. Sitting in the car in a housing complex parking lot. Recent thefts in area (Note: drinking in a car is NOT a crime in ME). Officer pulls him over as he leaves the parking lot. b. Holding: Court concludes no reasonable suspicion iv. State v. David Dean (Me. 1994) a. Facts: Officer sees the defendant driving slowly through an uninhabited cul-de-sac in a construction area at 11:00 at night. Recent vandalism in area. b. Holding: Court concludes there was reasonable suspicion. v. Some General Lessons about Reasonable Suspicion a. There are no hard and fast rules. Court use a totality of the circumstances test b. Remember, in most cases, the decision to stop is based on activity that is non-criminal c. Some categories of issues do seem to matter to courts (1) The Targets Location and Behavior (a) Location: [1] high-crime area; [2] uninhabited area with no business to be there (b) Behavior: furtive behavior (reaching for waist-band, looking into passengers lap or at floorboard) (2) The Police Officers Behavior (a) Nelson: Over-aggressive behavior may hurt states case Officer watches these guys drink for 90 min (b) Dean: Officer is on a routine patrol (3) The Seriousness of the Suspected Crime (a) The more serious the suspected crime, the more it helps the states case d. Note: In every case on appeal, the police officer guessed right. (He thought someone was driving drunk they were; he thought someone had a gunthey did). (1) So, court is always reviewing as a Monday morning quarterback (2) The Defendant is always waging an uphill battle vi. Illinois v. William a.k.a. Sam Wardlow (2000) a. Facts: Wardlow flees as cops drive byholding an opaque bag (later learn its a gun) in a high-crime area.
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Criminal ProcedureCollins Spring 2007Clark (1) All they have is [1] high-crime area, and [2] flight. No bad time of day, no furtive behavior b. Holding: there was reasonable suspicion (1) The determination of reasonable suspicion must be based on commonsense judgments & inferences about

human behavior. Bad Neighborhood & Flight= reasonable suspicion (a) Brown v. Texas: High crime area, without more, is never enough. (b) Florida v. Royer: Refusal to cooperate (flight), without more, is not enough (2) However, they are both considered factors, and, together, as here, they may be sufficient c. Dissent: there are many reasons why you may run from the cops in a bad area distrust of cops d. Defense arguments (1) How do you know its a high-crime area? Usually rely on policy testimony, but empirical data helps (2) Running in a high-crime area as police approach is a perfectly reasonable reaction (a) Presence of police probably means there is a crime in progress. (b) Bad things seem to happen around police | People sometimes shoot at the police (c) Dont want to be seen talking to the police and perceived as a snitch (d) Stevenss dissent comes up with lots of other legitimate reasons (feel like a jog?) vii. Lessons from Wardlow a. Being in a bad neighborhood is not enough, by itself, to find reasonable suspicion b. Unprovoked headlong flight is not enough, by itself, to find reasonable suspicion. c. However, being in a bad neighborhood, coupled with unprovoked headlong flight, is enough d. The exact meaning of unprovoked headlong flight needs further clarification. Would just walking briskly in the opposite direction be enough? viii. Note the Hodari D. wrinkle: flight alone is not enough for reasonable suspicion, a. Mere pursuit is not a stop. No stop until they submit to officers authority [voluntarily or involuntarily] b. So, you dont need reasonable suspicion to pursue someone, but once you tackle them, its a stop. c. Thus, drugs abandoned during pursuit = admissible b/c no unconstitutional stop until Hodari D. was tackled d. Lesson: better to hold on to incriminating evidence during a chase (like a gun or drugs). 21. Pretextual (Whren) Stops i. What are they? Whren stops refer to traffic stops based on reasonable suspicion of a traffic violation, but are intended to further the investigation of some other crime. ii. Whren v. United States (1996) a. Facts: Officers see young men engaging in furtive behavior but dont think its enough for a stop. So, they follow them until they make some traffic violation. During the traffic stop, police find cocaine in car. b. Holding: All thats required is probable cause for stop. [Even if underlying reason investigate other matter] c. The Whren Rule: (1) Subjective intentions play no role in ordinary, probable cause [or reas. susp.] 4th amendment analysis. (2) In other words, we dont care what the officers true motive was for making the stop, as long as it was objectively based on reasonable suspicion or probable cause (3) The alternative approach: overturn a stop if a reasonable officer would not have made the stop in the absence of the additional motive (see state of Washington). d. Is Whren good or bad? (1) Arguments in favor of Whren (a) Requiring there to be a reasonable suspicion and limiting the scope of the search are enough protection for citizens. You have, after all, done something wrong. (b) How would you prove what the true motive is for a stop is anyway? (c) A different rule would just give greater protections to those suspected of the most wrongdoing (2) Arguments against Whren (a) Police can create reas. susp. to stop anyone. (How many traffic violations do you make every 5 min.?) (b) This opens the door for discrimination, racial profiling, and other forms of arbitrary policing. iii. People v. Frank Robinson (N.Y. 2001) a. Neither primary motivation nor determination of what reas. officer would have done under circs is relevant b. This cop behavior ok as long as officer could have properly stopped vehicle on evidence of a traffic offense iv. Anonymous Tips a. There is a young black male in a plaid shirt at the bus stop carrying a gun. b. Not enough on its ownsome details must be independently corroborated by the police. c. S.C. more protective of Ds when anonymous tips usedneed indep. predictive details to corroborate the tip
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Criminal ProcedureCollins Spring 2007Clark d. RATIONALE: motive of tipster could be less than well intentioned 22. Criminal Profiles and Race i. Samir Quarles v. State (Del. 1997) a. Facts: Quarles & companion are last of bus from NYC. They look nervous, try to evade police, and the

NYC Wilmington bus route is a major drug corridor. After tailing Quarles & companion, police approach them, ask questions and request permission to search them. They do and found cocaine in Quarless boot. (1) Was this a stop? YESespecially when officers pulled car onto sidewalk and multiple officers arrived RIP would not feel free to leave (2) Officers Looney and Solge base the stop on a criminal profile and some other factors (a) Profile factors (i) On a bus from NYC (a drug corridor) (ii) At night (10pm) (iii) No luggage (iv) Traveling as a pair (b) Non-profile factors (i) Stopped talking when they saw the police as they left the bus (ii) Tried to avoid officers (seemed deliberate) (iii) Rapid stride b. Holding: Ds suspicions behavior and the drug profile, when taken as a whole from the perspective of one who is trained in narcotics detection, produces a reasonable, articulable suspicion that a crime was afoot. ii. What is a Profile? a. A set of characteristics police have determined are indicative of criminal behavior (particularly drug cases) b. Most courts say a profile alone is not enough, but it may change the balance in favor of reasonable suspicion when non-profile factors are insufficient. c. Pro-profile (1) Profiles are nothing more than collective police experience and observations institutional knowledge (2) Whats the problem with that? Dont we want police to share this info? d. Anti-profile (1) Standards of Proof: Most PDs do not reduce profiles to writing (a) Critics wonder if these are ad hoc or post hoc factors developed to fit the situation. (b) Also, you dont always know all the components. For example, in Quarles, 4 factors were metwere these factors the only profile factors? Or were there 10? We dont know, do we? (2) How do you really know that these factors are really indicative of criminal behavior? (a) There just isnt data on it its actually unbelievable how antiquated PDs computer systems are. (b) Money just isnt there in 2002, D.C.P.D. still used typewriters & not all FBI field were networked (3) Profiles tend to be racially discriminatory (a) Ridiculous to say never take race into accountalways OK to use it to match a suspect description. (b) But can you take it into account more generally? (i) Pre-9/11: Most against it, and generally people (incl. Bush) were against race motivated traffic stops. (ii) Post-9/11: Many more people for it generally people still say racial profiling on the highway is wrong, but not using racial profiling at an airport is ridiculous. (c) Even if profiles arent discriminatory, indiv. biases & prejudices leak in when officer makes a stop (i) i.e. profile may not say race, but when officer applies profile may apply it more often to minorities (ii) Of course, determining racial background much more difficult given extremely mixed backgrounds iii. Proposed Responses a. Per se ban on use of race in creating profile/making decision to stop b. Strengthening requirements for stops (1) Must have reasonable suspicion before asking for consent to search (2) Must get consent in writing (3) Must announce reason for stop c. Keeping statistics and issuing frequent statistical reports d. Using VCRs in cars to record stops e. Establishing a regular review protocol iv. Problem 2-2: Race and Witness Descriptions
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Criminal ProcedureCollins Spring 2007Clark v. Verniero, Interim Report of the State Police Review Team Regarding Allegations of Racial Profiling

THE NEW JERSEY REPORT SOME STATISTICS SOME PROPOSED RESPONSES 4 of 10 stops involved a member of a minority Per se ban on the use of race in creating a profile or group. making a decision to stop. o Only .7% of the stops led to a search Strengthening the requirements for stops. o BUT, > 77% of searched were minorities o Must have reasonable suspicion before asking for consent to search. The Radar Unit, which has the least discretion, o Must get consent in writing. issued 18% of its tickets to African-Americans. o Must announce reason for the stop. The Patrol Unit, which has the most discretion, issued 34% of its tickets to African-Americans. Keeping statistics In terms of believing that all drivers are treated the Using VCRs in cars to record stops same by the police, regardless of race, sex, or age: Issuing frequent statistical reports o White NJ Residents: 60% positive | 20% Establishing a regular review protocol negative o Black NJ Residents: 20% positive | 72% negative
B. Brief Administrative Stops

The Supreme Court on Checkpoints i. Michigan v. Sitz: upheld sobriety checkpoints (brief detentions for simple questioning) a. Purpose = highway safety ii. U.S. v. Maritnez-Fuerte: upheld a fixed Border Patrol checkpoint (but the court has struck down roving Border Patrol stops in the absence of individualized suspicion). a. Purpose = preserving integrity of border iii. Illinous v Lidster: upheld an information-seeking checkpoint to get info on hit-and-run. a. Purpose = seeking information about someone other than the driver that is stopped. iv. Indianapolis v. Edmond: struck down a drug enforcement checkpoint. a. Purpose = detect evidence of ordinary criminal wrongdoing. v. General Rule: if you are in a car, you will lose (check your privacy at the curb when you drive) 2. Factors that have been important to the Court i. The presence of a special need beyond criminal law enforcement: a. Sitz: roadway safety b. Marinez-Fuerte: maintaining the border c. Lidster: information gathering ii. Balancing test: degree of intrusion on drivers v. governments purpose of conducting checkpoint iii. Civil rather than criminal intent iv. Conditions of administration: [1] Prominently announce their purpose; [2] Pre-set, non-discretionary routine about which cars to stop; [3] Supervisor on site; [4] Minimize the duration of the stop; [5] uniform application. 3. City of Indianapolis v. James Edmond (2000) [A Rare Rebuke of Police by the Rehnquist Court!] i. The Checkpoint: Drugs a. Police set up 6 roadblocks Aug.Nov. 1998. Stopped 1161 vehicles; made 104 arrests: 55 drugs; 49 other. b. Ran checkpoints during day at predetermined locations, stopping predetermined # of cars at each location c. Officers asked for license & registration, looked for any signs of impairment, & examined car from outside. A drug sniffing dog would also walk around outside. d. Officers could only search further based on particularized suspicion. ii. Holding: Struck down More arbitrary that previous checkpoints a. BIG DIFFERENCE: here, primary purpose was for ordinary law enforcement, and if that is the goal, then the ordinary criminal procedures and protections should apply. b. We have never upheld a chckpnt program whose prim. purpose was to detect ev. of ord crim. wrongdoing c. In other cases, special need beyond ordinary law enforcement that needed to be addressed (1) With sobriety, trying to keep people off the roads who were a danger to the roads (2) Here, Court found such a connection lackingdrug sniffing dog seemed to make a difference
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Criminal ProcedureCollins Spring 2007Clark iii. Is Edmond hopelessly inconsistent with Whren? a. Whren: dont look into subjective primary purpose behind the traffic stop b. Edmond: officers subjective intent irrelevant to 4th amend. validity of traffic stop justified objectively by

prob. cause. c. Reconciled b/c in Whren, regardless of primary purpose, driver had violated traffic code. Here, drivers have not violated any law traffic code 4. IOWA CODE 321K.1 5. Problem 2-4: Airport Checkpoints After September 11 i. Secure2000 X-ray machine implemented in hallway w/o notice. Do they need notice? What happens if the scanner reveals drugs, not weapons? ii. Is there a reasonable expectation of privacy at the airport? Does it keep degrading?
Gathering Information Without Searching

Overview Terminology here is confusingof course there was a search, but for 4th amend. purposes, not every search for evidence is 4th amend search. Katzs test helps us figure out if there was a search. ii. Katz v. United States (1967) What is a search? a. Facts: Police put a bug in public phone booth to listen to conversations b. Court says (1) The Fourth Amendment protects people, not places (2) What a person knowingly exposes to the public, even in his home or office, is not subject to 4th amendment protection. Whereas, what he seeks to preserve as private, even in an area accessible to the public may be protected. c. Concurrence (Harlan)The old trespass doctrine is dead. The 4th amend only applies in circs where people have a reasonable expectation of privacy. This TEST has two components: (1) Subjective: the individual must have an actual expectation of privacy (2) Objective: the expectation must be one society is prepared to recognize as reasonable d. Otherwise, as long as the police officer is lawfully in his vantage point, and no extraordinary measures, and the item is in plain or open view, no 4th Amendment search has occurred. (1) Examples: No reasonable expectation of privacy for trash on curb (2) No searchno constitutional safeguards (3) Notion of balancing the interests: government interest v. degree of intrusion 7. Plain View i. Conditions a. Officer must observe the object from a lawful vantage point b. Officer must have a right of physical access to the object in question from that vantage point c. Officer must have a right to seize the object (fruit, instrumentality, or evidence) probable cause ii. State v. Mihai Bobic (Wash. 2000) [No search!] a. Facts: Police looking to search a storage unit. Gained access from owner of adjoining unit. Police officer looked through a hole no bigger than a pinky and saw some contraband. b. Holding: No expectation of privacydespite the fact that it was closed and locked, there was a hole in the wall that anyone could look through. Plain View (open view) and No Search! iii. Steven Dewayne Bond v. United States (2000) [Search![ a. Facts: Border Patrol agent whose job was to ensure that passengers citizenship was OK, squeezes luggage in overhead compartment and discovers a brick of methamphetamine b. Holding: Search! (1) Reasonable expectation of privacy that bag wouldnt be squeezed more intrusive than normal touching (2) NOTE: Here, D might have had a problem meeting the subjective prong of test b/c he wrapped the brick in his pantstook that extra measure to hide it, even though it was in the bag. c. Dissent: no expectation of privacy for your bags that are stored in overhead compartment b/c people are going to be touching it and squeezing it during travel. iv. Problem 2-5: Plain View from a Ladder a. General Rule: upheld as long as the officer has a right of physical access to the vantage point. v. Problem 2-6: The Friendly Skies a. No assumption of privacy in navigable public airspace.
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Criminal ProcedureCollins Spring 2007Clark (1) In legal airspace, police may fly over property to get info. If they can see it no search; no 4th protect. b. Helicopter Flyovers are almost universally upheld (1) Even one as low as 400 ft which viewed marijuana through missing panes of a greenhouse (2) General rule: upheld as long as helicopter not so low as to cause physical intrusion into physical property vi. Problem 2-7: Super Bowl Coverage a. Scan faces as they enter Super Bowl to check against criminal backgrounds & terrorists and pick-pocket dBs (1) Questions about notice (2) Maybe OK for terrorists, but not pick-pockets b. NOTE: other methods of scanningairport scanners for weapons (1) Many of these are covertshould they be? c. POINT: if checkpoint is for a special need beyond ordinary law enforcement, checkpoint will be permitted (1) Otherwise, ordinary constitutional protections apply (when its ordinary law enforcement) (2) But, even if it has a special need, administrative provisions may make it invalid if not strictly adhered to Brief Searches of Individuals [Terry]

Frisks for Weapons John Terry v. Ohio (1968) One of the Top 10 classic Crim Pro cases! a. Facts: Officer McFadden joined the Cleveland PD in 1925a 41-year veteran! Sees Terry & Chilton on street, suspects them of an impending robbery. He approaches them and a third man, moves them into a store, frisks exterior of clothes for weapons and finds guns on both Terry and Chilton. (1) Terry says: Need probable cause to search! (2) Ohio says: Officers dont need any justification to search for weapons so minimal, not even 4th amend! b. Holding: Youre both wrong! (1) Seizure: not just an arresta seizure occurs whenever a police officer accosts and individual and restrains his freedom to walk away by force or by show of authority. (a) A seizure occurred when McFadden grabbed Terry and spun him around (b) A search occurred when McFadden patted Terry down (c) However, both are minimal intrusions and the warrant clause/probable cause dont apply (d) Deals with entire rubric of police conduct necessarily predicated on swift action (2) What is the necessary justification for a Terry frisk? (a) Must have reasonable suspicion to stop; AND (b) Must have reasonable suspicion that the person might be armed (i) Critical! A Terry frisk that is unsupported by reasonable suspicion of armed danger is invalid! c. Dissent (Douglas): agrees with Terry and advocates probable causeanything less is too easily manipulated (1) Academics say that if court has gone with probable cause, probable cause wouldve gotten watered down. (a) Police were going to continue to frisk, and the cases that would have gone to trial, the officer would have found a weapon they wanted to admit. (b) So, majority opinion probably saved probable cause (2) If Douglas prevailed, state legislatures would likely have expanded criminal codes to criminalize loitering d. The Terry Rule: (1) Officers may stop/seize a person without probable cause if it is short, brief, and to investigate a crime (2) Officers may conduct a pat-down search for weapons if reas. susp. person is armed & presently dangerous ii. Frisk Statistics from NYC a. In 1997, the NYC Street Crimes Unit frisked 18,023 people and made 4889 arrests (approx. 27%) b. In 1998, same unit (now focused on commy policing) frisked 27,061 and made 4646 arrests (approx. 17%) 9. The Scope of a Terry Search i. Commonwealth v. Arthur Crowder (Ky. 1994) a. Facts: Officer Nunn arrests Crowder for drug possession. 12 days later, Nunn sees him on the same corner and orders Officer Sanford to detain Crowder and pat him down. He finds drugs on him. b. Court says What is the Scope of a Terry Search? (1) Limited to [1] the places where you could find a weapon (including purses and backpacks) AND [2] to the amount of time necessary to conclude there is no weapon (2) But, Dickerson tells us there is a plain feel exception in the federal system: if it is immediately apparent the item the police are feeling is contraband, they can seize it. (a) In Dickerson, not a Terry frisk because it wasnt immediately apparent that lump was cocaine
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Criminal ProcedureCollins Spring 2007Clark (b) Same outcome in Crowder, and search is unconstitutionally invalid (c) Whats the problem with this approach? In some ways it encourages police to lie! (d) Crowder concurrence and some states say that police can confiscate any item of contraband discovered

in the course of a Terry search to permit otherwise requires superhuman conduct by police
ii. The Ground Rules for Terry Frisks of Cars a. Police need reasonable suspicion to stop the car. But if there is reasonable suspicion (1) Police can automatically ask the driver and passengers to get out, with no additional suspicion beyond

that needed to stop the car (Pennsylvania v. Mimms) (2) Police can search the interior of the car for weapons, if, and only if, they have additional reasonable suspicion to believe a weapon is inside (Michigan v. Long) (a) This is the problem with the search of the 4 black mens car in the PrimeTime (DWB) special (b) Pulled over for failing to signal while changing lanesis that reas. susp. to believe a weapon is inside? b. The search must be limited to places where a weapon could be hidden and accessibleNo locked trunk c. QUESTION: If the justification for a weapon search is to protect the officer, and you make everyone get out of the car, does that mean the justification of the search is gone? NO! (1) Maybe you cant keep control of all occupants while detained, so they could return to car & get weapon (2) Or, they could re-obtain the weapon after the stop is over. iii. ARKANSAS CODE 16-81-206: search outer clothing no more detailed than necessary iv. MONTANA CODE 46-5-402: frisk for protection if reas. susp. person is armed & dangerous v. Lary Hiibel v. District Court (Nev. 2002) a. Officer called to domestic dispute on side of road. Officer asks for ID 11 times and Hiibel refuses. Officer arrests him under NV statute that requires someone to identify themselves b. Officer does a great job of maintaining composure in light of Hiibels conduct (www.hiibel.com). c. Why should police be able to request ID? Check for outstanding warrants?
CHAPTER THREE: FULL SEARCHES
OF

PEOPLE

AND

PLACES: BASIC CONCEPTS

Origins of the Fourth Amendment and Its Analogs 10. 4th Amend: The right of the people to be secure in their person houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or tings to be seized. 11. Two points on the 4th Amendment i. Are the reasonableness clause and the warrants clause independent or dependent? a. One view: warrant clause modifies reasonableness clause warrants are preferred reas. course of action b. Another view: clauses are independent. Reasonableness clause addresses warrantless searches, and warrants clause, w/ its requirements of warrants & probable cause, addresses warranted searches. c. Dont have to resolve the debate, just know both views are out there and influence judicial opinions ii. What were the chief concerns of the drafters: What searches were they most concerned about? a. In colonial days, the more commonly litigated searches were warranted searches (1) Framers were most concerned about broad permission to search homes via a general warrant (2) Chief danger against which 4th amendment is set to guard is invasion of the home (3) Historical concerns about government searching and seizing b. What were the possible colonial attitudes toward judges? (1) Could view them either as the heavies who immunized tort defendants from impermissible searches OR as the heroes who sometime refused to authorize general warrants (2) What does this tell us about whether there is a preference for warrants today? (a) If we dont like/trust judges, no reason to favor warrants b/c we they provide no additional protection. (b) If we do like/trust judges, it might mean that warrants are the best course of action. 12. General Search Warrants i. John Entick v. Nathan Carrington (K.B. 1765) a. Facts: Entick was subjected to a search based on a general warrant, and is now suing the searcher under a tort theory of trespass; if the general warrant is valid, its a defense; if not, Entick prevails. b. Holding: court found it invalidhad concerns (1) The possible abuses of warrants (a) Ex parte proceedings. [This has not really been changed]
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Criminal ProcedureCollins Spring 2007Clark (b) Issued by executive officials who were not truly independent. (c) No specific explanation reqd/no probable cause needed [I must search Enticks home & papers. OK!] (d) No accounting required (no inventory or witnesses). [No inventory means you aint getting it back!] (e) No time limits on grant of search power [Colonial days, forever. Today, all warrants expire-10 days] (2) The place of juries & tort remedies (a) Properly warranted searches were not tortiousso no remedy if you thought the search was

unreasonable or you didnt get your stuff back. Thats largely still true today.
(b) Still tort causes of action were available for improper warrants (3) Ruffian customs agents (a) There werent really police in this country in colonial timesnot until late 19th century (b) So, chief concerns of framers focused on these rogue English customs agents Is it a Search? Factors to Consider 13. 14. 15. 16. 17. 18. 19.

Nature of the place observed home v. open fields Steps taken by homeowner to ensure privacy Intrusiveness of the police activity Degree to which the search involved a physical intrusion Nature of activity observed Availability to general public of technology used All going to the larger question did the individual have a reasonable expectation of privacy?

Probable Cause 20. Defining Probable Cause: Like reasonable suspicion, a murky test i. Dresslers Rules of Thumb a. An arrest without probable cause is an unreasonable seizure b. A search or seizure of property without probable cause is an unreasonable search or seizure. ii. Four Elements: a. Reasonable to whom: usually reasonably prudent or cautious person b. Strength of Inference: various stds for strength of link btw facts offered & concl. criminal activity occurred c. Comparison to other Standards: suggest its limits by comparison to other standards. (i.e., less than amt

required for guilt, but more than reasonable suspicion) Quality of Information: sometimes required that the assessment be based on evidence that is reliable, trustworthy, or credible (reasonably trustworthy) iii. Problem 3-1: Applying Different Probable Cause Standards iv. Virgil Brinegar v. United States (1949) a. Facts: Brinegar is arrested for running liquor across state lines. (1) Police had previously arrested him for illegally transporting liquor, had seen him loading liquor into a car in Joplin, MO at least twice in the last 6 months; and knew him to have a reputation for hauling liquor. (2) Police recognized Brinegar as he passed, the car appeared to be heavily loaded, and he increased his speed as he passed the car. The officers pursued him and crowded him off the road when he didnt stop. b. The Brinegar Courts Discussion of Probable Cause (slide) (1) We deal with probabilities, which are not technical. (Police officers are not lawyers) (2) We look to the factual & practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. (police officers are not lawyers) (3) Look for facts & circumstances within the officers knowledge and of which they had reasonably trustworthy information which are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed. c. Or, in English . . . (slide) (1) Like reasonable suspicion, this is a very fact-specific inquiry. (2) Probable Cause = more than bare suspicion but less than evidence you would need to support a conviction (3) So how much certainty do you need? One study found that 1/3 of judges surveyed believe you need 50% certainty, and many others believe you need even less than that (like 33%). (4) Remember, this is an objective, rather than subjective, standard. v. ***Dresslers Attempt at a Definition (slide)***
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Criminal ProcedureCollins Spring 2007Clark a. Probable cause exists when the facts and circumstances within an officers personal knowledge, and of

which he has reasonable trustworthy information, are sufficing in themselves to warrant a person or reasonable caution in the belief that: (1) In the case of an arrest, an offense has been committed and the person to be arrested committed it, and (2) In case of a search, a specifically described item subject to seizure will be found in place to be searched vi. Drug Dealing Hypo: Is there probable cause when . . . a. You see a man on a corner you know to be a drug dealing location. The man interacts with a woman who gives him a $20 bill. In return, he gives her a small package that she can palm. b. Courts saySome courts would say yes, others would say no (1) What if the woman is a known drug user? Many courts would say yes (2) What if the man is a known drug dealer? Many courts would say yes c. The more observations, the better (1) Is the man engaging in furtive behavior? (2) A high crime area is not enough on its on, but are there other suspicious circumstances? (3) Police can establish probable cause with stuff that would be inadmissible at trial. 21. Sources of Information to Support Probable Cause i. Potential Sources of Information Supporting Probable Cause a. Police Officer Observations: [Maybe some bias; subject to recall problems when testifying years later] b. Victim Observations: [Potentially subject to distortion in recollection] c. Witness Observations: [Problem of witness bias; subject to distortion in recollection] d. Confidential Informants: [Biased? (may know the D) What are they getting in return for testifying?] e. Anonymous Tips: [Biased? Who are they?] ii. Confidential Informants a. State v. Timothy Barton (Conn. 1991) (1) Facts: CI told them where the marijuana was and how much; CI also knew that D was unloading plastic bags; CI also brought police a sample of the marijuana (of course we dont know it came from Ds apt.) (2) 2 Standards/tests: Court changes its rules relating to probable cause coming from CIs (a) Aguilar-Spinelli: 2 pronged test look at: (i) Informants basis of knowledge (first-hand is best), AND (ii) Veracity of informant (either credibility of the informant or reliability of her information) Prior successful info (track record of reliability) Independent corroboration (iii) NOTE: This is the old rule, now a minority rule (iv) CRITICISM: Adherence has been too rigidtreated as two separate prongs. (v) CRITICISM: Has led to de novo reviewcourt thought more deference should be given to the person reviewing application in the first instance (b) Gates: Look at totality of the circumstances * Fed Rule * (i) The weakness of one prong will make up for the weakness of the other. (ii) Here, the basis of knowledge was unknown, but it was very specific and independently corroborated, thus, as a whole, the information was sufficiently reliable (c) What led to the change? No evidence that they were losing more cases, but nothing has changed regarding the criticismsso not clear why the rule is suddenly changing other than b/c of change in composition in court members (d) Gates is viewed as a pro-prosecution test, while Aguilar-Spinelli is viewed as a pro-defendant test. Remember, its a warrant, not the trial, so maybe we want the balance in favor of the prosecution (3) Holding: After assessing the CIs tip, court finds probable cause: (a) Basis of Knowledge: clearly knows Barton, may be a friend, but does know Bartons travel schedule (b) Reliability/Veracity: He at least came forward rather than remaining anonymous, and took a chance by walking into the police station with some marijuana. b. State v. Randall Utterback (Neb. 1992) (1) Facts: CI gave physical description and stated they had purchased drugs from Utterback and seen others do so. He has been in the house in the last 5 days and seen drugs in the house and handled two guns. (2) Nebraska Court says (a) Applies Gates test, but creates a tough standard to establish veracity
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Criminal ProcedureCollins Spring 2007Clark (i) A past track record of reliable informing [None here] (ii) A citizen informant [Not here] (iii) A statement against penal interest. [Not here, purchasing MJ not a crime in NE-Did CI know that?] (iv) Corroboration of criminal allegations. [Police could only corroborate innocent details of info] (b) Perhaps the message the Nebraska court is sending is that we want you to do a controlled buy. (i) Not always that easyEspecially when, as here, the dealer is dealing from his house. iii. Anonymous Sources a. Generally, the courts are more skeptical of anonymous tips than of confidential informants b. Danny Bradley v. State (Ind. 1993) (1) Facts: Anonymous tip instead of Confidential Informant informs police he heard of robbery giving

good details of victims, location, and stolen goods, including info he didnt know. Officer follows tip and arrests suspect (whose wife is wearing some of the stolen jewelry). (2) Court: Follows CI standard from Gates. No Probable Cause (a) Denies warrant because the Affidavit does not: (i) Establish the credibility of the source. (ii) Establish a factual basis for tip from which a court could test the informants conclusion. (iii) Establish that the totality of the circumstance corroborates the hearsay. (b) Corroboration by officer simply establishes that the informant knew of the crime and knew of appellant, it does not establish a connection between the crime and the appellant or between the stolen property and the place searched. (3) What else could the police have done? (a) Trailed the D to see if he pawns the jewelry (b) Try to get a suspect ID (4) Generally: Anonymous tips are rarely enough standing along (a) Dont lie to the court (b) Here, if they had not gotten the warrant and just gone to house and seen the jewelry on his wife probable cause to get a warrant. So jumping through the procedural hoop actually hurt the police here. 22. Can a Statute or Rule Clarify the Assessment of Probable Cause? i. ARKANSAS RULE OF CRIMINAL PROCEDURE 13.1 ii. IOWA CODE 808.3 iii. IOWA RULE OF CRIMINAL PROCEDURE 2.36 Form 2 iv. IOWA RULE OF CRIMINAL PROCEDURE 2.36 Form 3
Warrants 23. The Warrant Requirement i. Generally: Reading the 4th Amendment, you would think that warrants are the gold standard but they arent.

The majority of searches and seizures take place without a warrant. (See Warrant handout) Katz says searches w/o warrants are presumptively unreasonable, unless it fits one of a few exceptions. (1) Exigent Circumstances (Pg. #13 ) (2) Search Incident to Lawful Arrest (Pg. #18) (3) Search of Cars (Pg. #21) (4) Search of Container (Pg. #22 ) (5) Inventory Search (Pg. #21) (6) Plain View (Pg. #8) (7) Consensual Search (Pg. #16) 24. Exigent Circumstances i. Police may conduct a search without a warrant if an immediate search or seizure is needed. a. The classic exigent circumstances (1) Destruction of evidence (2) Danger to the public (3) Risk of flight / Hot pursuit. b. However, police may only use this exception if they do not themselves create the exigent circumstances ii. Marvin Hawkins v. State (Ind. 1993) a. Facts: Police find cocaine after a controlled buy. They go to the door and break it down after they may or may not have seen someone withdraw from the doorway and heard footsteps moving away from the door.
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Criminal ProcedureCollins Spring 2007Clark b. Why would we want a warrant in this case? (1) Provides w/ neutral evaluation of evidence, done before the fact so evaluation is not colored by hindsight. (2) Forces the police to engage in self-assessment [usually a middle step as well, like a prosecutor] (3) Longstanding assumption that warrants are preferred in home invasions Your home is your castle. c. Was there probable cause here for a warrant? Most likely, but you should always analyze it first (1) Whether or not they had probable cause, officers went non-warrant route b/c of exigent circumstances (2) Was knocking on the door a good idea or a bad idea? (a) Bad idea: Once they knocked, they had to go in. Otherwise, the people in the house could have said

No! I know my rights. Goodbye! Did you here the toilet flush?
(b) Alternatives? Well, theyre really worried about marked moneycan police detain anyone leaving

the house? Would have to arrest them in order to search them to see if they had the marked money Court says (1) No exigent circumstances exception allows the warrantless searchPolice cannot search based on exigent circumstances they created. Only after they kicked the door down did people run. (2) Didnt address whether they could have detained people leaving b/c it didnt happen 25. Requirements for Obtaining Warrants i. Elements a. Must be issued by a neutral and detached magistrate (1) Magistrate cant be paid for every warrant he issues (2) Generally look to judicial ethics rules for guidancei.e. married to applicant b. Must be supported by oath or affirmation (1) Four corners rule: A subset of this requirement is that you can only defend a warrant based on the information actually contained in the warrant. (2) Means that everything magistrate questions applicant about is usually handwritten in margins & initialed c. Must describe with particularity the places to be searched or the persons to be seized ii. Neutral and Detached Magistrate a. State ex rel. Eustace Brown v. Jerry Dietrick (W. Va. 1994) (1) Facts: Magistrate Boober was married to Chief Boober of a small police force (7 officers). D complains that Magistrate Boober is not neutral and detached. (2) Court says . . . (a) No. Chief Boober wasnt directly involved and were not prepared to say she can never issue a warrant. Although, Chief Boober shouldnt be the affiant. (b) But we wont use the Rule of Necessity to say that it is always okay. (c) Side note: since she was the magistrate on duty she was probably at home, w/ Chief Boober in the next or even the same room. iii. Particularity in Warrants (concerns havent changed much in 200 years) a. Bell v. Clapp (N.Y. 1813) (1) Facts: Warrant was OKauthorized the arrest of this guy, or anyone else who had the flour (not so particular, but court doesnt care) and could only search the cellar. (2) Court: Could not have been more particular! b. Grumman v. Raymond (Conn. 1814) (1) Facts: Warrant provided that any house and outhouse in Wilton, Ct. could be searched (2) Court: Too broada general warrant c. Requirements Today (slide) (1) The standard in terms of place comes from the Supreme Courts 1925 decision in Steele: description must be particular enough to allow search officer w/ reasonable effort to ascertain and identify place intended. (2) In terms of items for which you can search, can look for fruits, instrumentalities, and evidence of crime. (a) Huge incentive to list very small items (b) If youre looking for an elephant you can only look in places where an elephant might be, but if youre looking for a field mouse, you can look in all the tiny places a field mouse might be (c) So officers often enumerate receipts (especially) and other small items. d. Problem 3-2: Errors in a Facially Valid Warrant (1) Informant says its the second door on the left with a rug in front of the door, but its the only door on the left, with a rug. Officer searches anyway (2) The court upholds the search
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Criminal ProcedureCollins Spring 2007Clark 26. Execution of Warrants i. The Knock and Announce Rule: Police executing a warrant must knock and announce their identity before

attempting a forcible entry. Origin of rule was in common law, but 1995 Sup. Ct. case found 4th Amend incorporated this requirement. There are exceptions: where danger of physical violence, fear the destruction of evidence, or hot pursuit is present. Only need reasonable suspicion that one of these elements exists. ii. Steiney Richards v. Wisconsin (1997) a. Facts: Police ask magistrate for no-knock warrant and he denies it. So officer goes to door as maintenance man, and knocks on the door, Richards answers it, sees a uniform, closes it, and tries to flee. Police knock down the door and arrest him. b. Court says (1) Police only need reasonable suspicion that an exigent circumstance exists. (2) The officers actions in this case are OK (3) But wont allow WI recommendation for blanket exception to knock-&-announce rule in felony drug case c. Lets focus on the ruse: Im the maintenance man! Im the pizza man! (1) Why should police get to lie to you when they get so upset when you lie to them (a) Is it effective? Who opens the door to someone they dont know? (b) Dont you have a right to know who is at the door? (2) Do normal people change their behavior when someone is at the door? Sure, you put down your knife! iii. United States v. LaShawn Lowell Banks (2003) a. Facts: Police knock on door, wait 15-20 seconds, then knock it down. Banks was in the shower b. Court says (1) Lots of factors go into thissize of the residence, and time of day. (2) 15-20 seconds was reasonable (a) Prompt entry was justified not because the time it normally takes to get to the door had expired, but that exigent circumstances started to developcould be flushing the drugs! (b) Once exigent circumstances mature, officers are not bound to wait any longer iv. Given Richards and Banks, is there any point to the knock-and-announce rule? a. They can use a ruse to enter and they can break the door down in 20 seconds if no one comes to the door. b. Does it still give protection? v. Darin Muehler v. Iris Mena (2005) a. Facts: Civil case against officer. Mena was handcuffed for 3 hours while police searched her house for weapons and gang paraphernalia. She was not a subject of the warrant. b. Michigan v. Summers authorizes the detention of any individual who is present when a valid search warrant is being executed if the individuals pose a threat c. Court says It was reasonable because the governmental interests outweigh the marginal intrusion (1) Government interests in detaining w/ handcuffs is maximized where a warrant authorizes a search for weapons and a wanted gang member. vi. Problem 3-2A: Warrants and Grenades a. Facts: Police execute a search warrant on an apartment using a concussion grenade which makes a huge sound and flash to stun people. By mistake, police raid apartment of Mrs. Spruill, 57, an upstanding member of the community with a heart condition. She has a heart attack and dies. b. Stats: NYC police executed 1100 search warrants, went to wrong location 4 times, used grenades 85 times. 27. So You Like Warrants? i. Anticipatory Warrants a. What are they? (1) Warrants where the execution is conditioned on the occurrence of future events. (2) Scalia in Grubbs: an anticipatory warrant is a warrant based upon and affidavit showing probable cause that at some future time (but not presently) certain evidence of crime will be located at a specified place (3) He adds that most anticipatory warrants subject their execution to some condition precedent other than the mere passage of time a so-called triggering condition. (4) To get an anticipatory warrant, need probable cause to believe [1] that evidence will be found if the triggering condition occurs AND [2] probable cause to believe that the triggering condition will occur. (5) Prior to Grubbs, about half the states had approved the use of anticipatory warrants, while about 10 states had rejected them. Presumably after Grubbs, we will see even more states approving them.
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Criminal ProcedureCollins Spring 2007Clark b. State v. Craig Parent (Nev. 1994) (1) Facts: Police get info from CI that Parent would arrive on a specific airline on a specific date, with two

women and cocaine concealed inside a baby powder bottle in his baggage. Also, phys. desc., SSN, DOB
(a) Police obtained a search warrant based on arrival of the flight on that date. (b) Parent says warrant is invalid because it cannot be issued before the crime occurred (2) Court saysWarrant is OKMagistrate properly protected against premature execution. c.

U.S. v. Jeffrey Grubbs (2006)

(1) Facts: Grubbs orders child porn on-line. Magistrate conditions execution of warrant on signing for and

receiving the packing into his home.

(2) Court says Fine! (a) But, see Parent case in book. What happens if condition occurs differently in reality from the warrant? ii. Administrative Warrants a. How do administrative warrants differ from criminal warrants? (1) Can be issued en masse and based on administrative probable cause (a) Could be based on info that would not amount to criminal probable cause a tip about buildings of a

certain age or function, or even on a neutral inspection plan not tied at all to a particular building. (2) Does this sound like a general warrant? b. Roland Camara v. Municipal Court of San Francisco (1967) (1) Facts: Apartment inspector is doing routine inspection for violations. Inspector heard Camara was using first floor business as a residence in violation. Asked to be let in, Camara said no! (2) Holding: (a) Court concluded an administrative warrant is required for this purportedly non-criminal search. (b) But administrative probable cause is enough to obtain the warrant, which, is something less than criminal probable cause. (c) Court talked about the need for balancing. There can be no ready test for determining reasonableness other than by balancing the need for search against the invasion of privacy.
Consensual Searches 28. Search Terminology i. First party: actual target of search ii. Second party: searching agent iii. Third party: person who is not a target, put provides officers w/ consent to search. Is that consent legitimate? iv. Voluntary: The Issue is not reasonableness, but whether the consent was voluntary v. Effect: Consent removes the warrant and probable cause requirements 29. Components of a Voluntary Choice i. Merle Schneckloth v. Robert Bustamonte (1973) a. Facts: car pulled over because headlight and license plate lights were out. A passenger, Acala consented to

search of vehicle. Officers find stolen checks under seat. No evidence Acala knew he could refuse consent Court says (1) We dont care if Acala knew he could refuse, knowledge is only a factor to be considered (2) The prosecution does have to prove consent was freely and voluntarily given. (3) Totality of Circumstances Test to determine if consent was voluntary or the product of duress/coercion (4) The police do not have to tell target he has right to refuse consent (but it is a relevant factor in analysis). (a) Frankly, the majority is worried that people are informed they can refuse, they will. (b) Consensual searches are a major tool for police. c. Dissent (Marshall) says that the subject of a search must be made aware he has a right to refuse. (1) In many cases, you cant waive your right until you establish you are aware of your right (a) i.e. refusing right to a jury (b) i.e. refusing right to an attorney d. What about ruses? (1) Cant hold a gun to their head to elicit consent (2) But what if officer said: If you dont consent, Ill go get a warrant. (a) Usually OK as long as police really could get a warrant just advising citizen of options. (b) Probably not OK if couldnt actually go get one. [Nonconsent isnt enough, on its own, to get warrant.]
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Criminal ProcedureCollins Spring 2007Clark (3) Same idea if the officer said: If you dont consent, Ill come back with lights blazing and arrest you in ii. iii. iv. v.

front of your neighbors. Usually OK as long as police really could do so. Pittsfield, Maine, Police Department Consent-to-Search Form Philadelphia Police Department Directive 7, Appendix A Problem 3-3: Consent After a Traffic Stop Are people more vulnerable in their cars? Problem 3-4: Scope of Consent

30. Third-Party Consent i. When can someone other than the first party give consent? a. A third party can consent to a search of property when there is mutual use of the property by persons

generally having joint access or control for must purposes But Randolph says this isnt true if co-occupant is present on the scene and actually objecting to the search ii. Problem 3-5: Lessor Consenting for Lessee a. Facts: Hotel clerk consents to search of suspects hotel room. b. Stoner v. California: generally no. They can maybe use a ruse to get the police in as in one of the first cases we read, but for the most part, clerk only has limited access iii. Problem 3-6: Co-tenant Consenting for Co-tenant iv. Problem 3-7: Parent Consenting for Child a. Facts: Mother consented to search of sons roomson (23) paid rent occasionally, but mother had regular access to collect laundry, kept her sewing machine there, and had key. When police searched, door locked b. Court says Search upheld (1) Maybe it seemed like a more formal rental agreement, they wouldnt have (2) But here, she kept her sewing machine there and did his laundry! Plus, only paid rent occassionally v. Problem 3-8: Child Consenting for Parent vi. ARKANSAS RULE OF CRIMINAL PROCEDURE 11.2 vii. Georgia v. Scott Fitz Randolph (2006) a. Facts: Police come to house for domestic dispute and wife says her husband does drugs. Police ask for consent to search and wife gives it, although husband does not b. Court says . . . (1) Co-occupants have a legitimate expectation of privacy (2) Assumes that when two roommates live together and one objects to a visitor the visitor will leave (3) A warrantless search by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident (4) Essentially, 2 competing and equal rights, in this case, tie goes to dissenting co-occupants privacy right. (5) Different result if co-occupant is around, but not involved in the conversation c. Dissent (Roberts) (1) Maj. assumes too much. Who would leave if one roommate says go away, but other welcomes you in? (2) If you live with someone, you assume the risk that they will share access to your belongings. (3) Why should it matter if the husband was sleeping on the couch and not able to dissent? viii. State v. Reynaldo Maristany (N.J. 1993) a. Facts: Pretextual stop pulled over for driving in the left lane for mile. Get consent from driver to search trunk and bags inside. They find 3 kilos of coke in one of the bags and the driver says thats the other guys bag! b. Court says (1) Apparent Authority (a) The majority rule is based on a 1990 Supreme Court case, Illinois v. Rodriguez (b) Even when a third party does not actually have authority to consent, the search is valid as long as the officer had a reasonable belief that the third party had authority to consent (c) You only have to make a reasonable effort to determine the facts (2) Possible Alternatives (a) Keep the apparent authority rule [which encourages police ignorance] (b) Adopt a strict liability approachno apparent authority searches (c) Impose stricter requirements on the police (i) Make them get a written waiver from everyone present (ii) Require further inquiry when ownership is in doubt
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Criminal ProcedureCollins Spring 2007Clark ix. Problem 3-9: Consent Through Lease Provisions a. Courts limit extent to which a landlord may waive a tenants privacy rights and consent to police searches b. However, government may condition AFDC welfare on agreements to allow home access by aid workers on

the grounds that home visits were not searches.

CHAPTER FOUR: SEARCHES Persons

IN

RECURRING CONTEXTS

31. Searches Incident to Arrest i. Chimel v. California (1969) a. Rule: Chimel (Chime-el) tells us that, incident to an arrest, the police may search the arrestees person and

the area within his immediate control

(1) You do not need any justification beyond the probable cause needed to support the arrest. (2) The search must be contemporaneous with the arrest. But how contemporaneous? (3) Based on the idea that suspects being arrested have a huge incentive to resist the officers, flee, or destroy

evidence Safety of Officers is probably paramount.

ii. ARKANSAS RULE OF CRIMINAL PROCEDURE 12.2 iii. ANNOTATED LAWS OF MASSACHUSETTS ch. 276, 1 iv. State v. Marc Hufnagel (Colo. 1987) a. Facts: Police come to Hufnagels to arrest him, they find him in the basement on a couch. He gets up, is put

in handcuffs, and makes a fatal glance toward a coffee table. Based on this, police search a box in drawer in the end table and find cocaine. b. Court says (1) End table door was within lunging distance of the defendant [size of area is a case-by-case analysis] (2) The evidence indicates that, prior to being handcuffed, the defendant could have reached the end table and grabbed a weapon or destructible evidence form inside it. (a) The end table was within the defendants immediate control. (b) Concerned about forming a workable rule a hard and fast rule about whether the handcuffs are on would be unworkable because arrests are often fast moving situations, but they are a factor. (c) Many courts would give the handcuffs more weight than this court c. How does this search differ from a Terry frisk? (1) Terry frisk is limited to the person (2) This search is: (a) Not limited to weapons (b) Not limited to places where you could hide a weapon (c) Can search a broader areaimmediate control v. Maryland v. Buie a. Facts: Buie was hiding in basement, but arrested on 1st floor. Officers feared others were hiding in the basement and searched it. While there, they found drugs. b. Automatic right to make a limited protective sweep pursuant to an arrest in a home. This has two parts: (1) No reasonable suspicion needed to check closets and other places large enough to hide a person, immediately adjoining arrest location. (cursory, visual inspection) (2) For a broader sweep, need reasonable suspicion to believe that the area to be swept harbors an individual posing a danger to the officer or others on the arrest scene. (i.e. footsteps on the floor above) c. One criticisms is that it doesnt go far enough (1) An armed confederate will very likely not be hiding near the arrested individual (2) Whats wrong with police checking rooms to make sure no one else is there? vi. Problem 4-1: Search Incident to (But After) Arrest a. Facts: Officers observed a man leaving a field of marijuana plants in a remote canyon. They arrested him on a dirt road and drove him 45 minutes to a town. 3 hours later, they searched the backpack without a warrant under the theory it was incident to the arrest b. Court says Upheld
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Criminal ProcedureCollins Spring 2007Clark c. Similar to State v. Edwards (U.S. 1974), 10 hours after arrest police searched Ds clothes for paint chips.

This was upheld, but 10 hours is probably the outer limit.

32. Intrusive Body Searches i. What do they cover? cheek swabs, BAC tests, blood tests, removing bullets, strip-search, body-cavity search ii. States often pass statutes related to this, to wit a. ARKANSAS RULE OF CRIMINAL PROCEDURE 12.3 b. TENNESSEE CODE 40-7-121 c. REVISED CODE OF WASHINGTON 10.79.080, .130, .140 iii. People v. Eric More (N.Y. 2002) a. Facts: Police came to Mores house, and More consented to a strip search but began struggling with police b.

and, during the struggle, police see a bag protruding from his rectum, they pull it out and it contained drugs. Court says Body cavity search here was unreasonable and invalid. (1) 4th Amendment: forbids any such intrusions on the mere chance that desired evidence might be obtained. Rather, there must exist a clear indication that desired evidence will be found. (2) Body Search Principles (slide) (a) Key Supreme Court case is Schmerber v. California (i) Probable cause to arrest & search incident to arrest not enough for intrusion beyond bodys surface. (ii) Must be a clear indication that desired evidence will be found. (b) Search warrant will ordinarily be required, absent emergency such as possible destruction of evidence. (i) So, BAC test, cheek swab, probably ok, but not removing a bullet from a chest. (ii) The procedure you use must be reasonable and conducted in a reasonable manner.

Houses and Other Places 33. Overview: Government Intrusion into property outside your curtilage is not a search no matter what steps you

take to signal your privacy expectation. However, a minority of states (10), led by Oregon, hold that if you have taken steps to signal your expectation of privacy, the government must get a warrant. This minority approach seems to be more consistent with United States v. Katz (4th Amendment protects an expectation of privacy). 34. The Outer Boundaries of Houses i. Curtilage: a. The 4th Amendment does protect the curtilage of your house b. The curtilage is the area that provides a setting for the intimate activities associated with the sanctity of a persons home and the privacies of life ii. Open Fields Doctrine: a. Oliver v. United States (1984) (1) Facts: Police searched Olivers farm to investigate reports that he was raising marijuana there protected by a locked gate and No Trespassing sign. (Trespassed and no search warrant) (2) Rule: people do not have a legitimate expectation of privacy in activities that take place in open fields (3) Rationale: (a) Open fields dont provide setting for intimate activities associate w/ sanctity of home + privacies of life (b) Not a 4th amendment search b/c no reasonable expectation of privacy for open fields (i) Everyone knows trespassing signs are ignored (ii) Open fields are observable from the air, so they are knowingly exposed b. United States v. Dunn (1987) (1) Facts: police searched a barn enclosed by a fence on a ranch enclosed by a fence. (2) Court evaluates four factors: When considering whether land falls within the curtilage, evaluate: (a) The proximity of the land to the house. [Dunn: 60 yds from the ranch house] (b) Whether the land is enclosed (fence/gate). [Dunn: 50 yds outside of home fence] (c) What the land is used for. [Dunn: not used for intimate home activities] (d) The steps taken by the resident to hide the land. [Dunn: insuff. to protect observation from open fields] (3) Court saysNo search here! iii. State v. Theresa Dixson (Ore. 1988) a. Facts: Police trespass on Ds property w/o a warrant but probably didnt realize they were on her property. They had a tip relating to marijuana on logging company land but no probable cause to search Dixsons land b. Court says (1) Feds use Oliver b/c they think another rule is too hard to administer. But, in Oregon we have a better rule
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Criminal ProcedureCollins Spring 2007Clark (a) If land is unmarked and unsecured, then there is no search (b) But if you have taken steps to mark and secure your land, then there may be a search (2) But, a wire and no hunting sign on undeveloped land is no enough to mark and secure land. (a) In the west, 70% of the land is owned by the government, so a No Hunting sign doesnt mean its

private land it probably means its a state or federal land.

(b) Plus, many people in the west dont care if people trespass on their land (c) Probably should have said No Trespassing, though dont know if that would have been enough here c. But OR = exception. General rule: even if steps taken to protect open field privacy, still subject to search iv. Problem 4-2: Apartment Curtilage v. Problem 4-3: Houses Without Walls? a. Should police be able to look at boots sitting on the front porch? (1) Compare it to a garbage-at-the-curb search although we would all probably question our neighbors if

they went through our garbage, youd still probably say whatever, just clean it up.
(2) But if they were on your porch rifling through your mail, thats a different matter. b. Differing cultural norms in different regions! 35. Workplaces i. State v. Edwin Bonnell (Haw. 1993) ii. Office: the protection for personal offices has deep roots in the history of 4th amendment protection iii. Workplace Searches a. The 4th Amendment does not apply to searches conducted by a private employer (1) Even though any evidence seized by your employer could be used against you at a criminal trial (2) There may be some civil remedy, but the evidence will not be excluded b. Rules are probably different if the government is your employer, but then you are likely subject to the

exception that you have no reasonable expectation of privacy.

36. Schools and Prisons i. Much more leeway and far lower standard than normal searches reasonable suspicion (or less) is the norm.

In New Jersey v. T.L.O., the Supreme Court OKd an evidentiary suspicion standard for a minimal search leading to reasonable suspicion for a full search. Why? (1) You have a reduced expectation of privacy in schools & prisons you know your space is not your own. (2) Administrators in these settings also have special needs: [1] Safety & [2] Discipline b. Video: Police search SC school in early morning hours with guns drawn unreasonable? (1) Statistics say on any given day 100,000 people bring guns to school. ii. In the Matter of Gregory M. (N.Y. 1993) a. Facts: Kid comes to school without his ID, must get a new one before going to class. He throws his bag on a shelf and a security guard hears a metallic thud. He searches and finds a gun. b. Court says No probable cause or reasonable suspicion, however the metallic thud was enough to justify and investigative touching of the outside of the bag. When the touching revealed a gun-shaped object, there was reasonable suspicion to justify the search. iii. New Jersey v. TLO (1985) a. Facts: search of students purse for cigarettes, but principal found marijuana instead. b. Court says: (1) The 4th Amendment does apply to the conduct of public school officials (2) Students do have a legitimate expectation of privacy in personal items they bring to school BUT (3) Neither warrant nor probable cause requirements apply to public school searches. Instead, a public school official can search a student if: (a) Reasonable suspicion the search will turn up evidence of a crime or violation of a school policy (b) Search is not excessively intrusive in light of the age & sex of the student and the nature of the crime c. New York has a hybrid analysis an evidence suspicion which allows you to feel a bag and if you feel something then you have reasonable suspicion iv. Problem 4-4: Gun Lockers v. Board of Education of Independent School District No. 92 of Pottowatomie County v. Lindsay Earls (2002) a. Facts: All extracurricular activities in Pottawatomie County schools were subject to random drug testing. Earls wanted to participate in show choir, marching band, Academic Team, and National Honor Society.
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Criminal ProcedureCollins Spring 2007Clark b. Veronica School Dist. 47J v. Acton (1995): Individualized suspicion may not be necessary when a school

conducts drug testing but requires a fact-specific balancing of the intrusion on the childrens 4th Amendment rights against the promotion of legitimate governmental interests. c. Court saysBalance Privacy interests against state interests (1) Privacy Interests (a) Athletes have communal undress, but so do other things, like band, that go on field trips. (b) But a limited privacy expectation and intrusion on privacy is not that great (2) Government Interests (a) Important (b) Preventing drug use by children 37. What about Alcohol testing? i. Too far? Taking blood or urine to test for drugs/alcohol? ii. Earls stretches the school drug test standard. This would stretch it even further. iii. Whether at school or not, its always a balance of privacy interests against state interests a. In two cases involving workers (one RR, one government workers w/ weapons) upheld b. No warrant, no probable case, no reasonable suspicion iv. Factors a. Testing more likely in a pervasively regulated job b. Some significant relationship between job description and reasons for testing c. Procedures remove discretion in ordering tests d. Employer should provide empirical evidence of need e. Scrupulous care to ensure dignity of persons being tested are respected. 38. Problem 4-5: Jail Cell Search
Papers 39. Personal items: diaries, papers, and business records. 40. Edward Boyd v. United States (1886) i. The odious practice of general warrants was fresh in the minds of the framers. ii. The great end for which men entered into society was to secure their property. iii. The 4th amendment does not protect mere breaking or rummaging, but invasion of his indefeasible right of

personal security, personal liberty, and private property.

iv. The property theory of 4th amendment protection no invasion into constitutionally protected areas Effects 41. Inventory Searches i. State v. Jackie Hundley (Ill. 1993) a. Facts: Trooper finds a car in a single-car accident and does a pre-impoundment inventory search of the

vehicle he searches a cigarette case for a drivers license and finds drugs. Court saysAcceptable inventory search ii. Standard (slide) a. Colorado v. Bertine: (1) Original impoundment must be lawful (2) Searchs purpose must be to protect property and to prevent claims of misuse of property (3) Search must be conducted in good faith and pursuant to reasonable standardized procedures. Cannot be a pretext for a search for criminal evidence b. Florida v. Wells: police procedures must limit officers discretion, but he can be given latitude to decide whether or not to open a container in light of the nature of the search and the characteristics of the container. iii. Why do we allow inventory searches? (slide) (1) Protect the property. (2) Protect the police from later tort claims for mismanagement of property. (3) Protect the police from potentially dangerous items in the property. (4) The reduced expectation of privacy in a vehicle. (see below) (5) Dressler: Provided its a routine admin proc & not a crim proc, 4th am. doesnt even apply b/c no search! iv. Applies to people that are arrested as well v. Problem 4-6: Creating Inventory Searches
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Criminal ProcedureCollins Spring 2007Clark a. If you were going to draft a standard for a community, you would say search everything! 42. Cars i. Note: 51% of all police interactions occur in the car context, but case-law is confusing in this area ii. What are the available options to justify a car search without a warrant? (1) Inventory Search Occurs when taking something into custody a vehicle or a person. (2) A Terry Frisk of the car for weapons (a) Supreme Court authorized this in Michigan v. Long (b) May search passenger compartment for weapons if reasonable suspicion to believe a weapon is inside. (c) But, the search must be limited to places where a weapon could be hidden and accessible. (3) A warrantless search of the cars interior, based on the automobile exception (a) If you have probable cause to believe the cars interior contains evidence of a crime, you can search

the car without a warrant (whereas with a house, you would need a warrant)
(b) 1999 Supreme Court case, Maryland v. Dyson, made plain police do not need exigent circumstances;

just probable cause.

(c) This applies to cars on the highway, at a gas station, or parked in another public place. Why? (i) Carrol v. U.S. (1925): mobility creates exigency, exigency creates justification for immediate search (ii) Coolidge: suggests this does not apply to cars parked in a private driveway. (iii) Chambers: also based on the lesser expectation of privacy one has in their car. (4) A search of the vehicle incident to the arrest of an occupant (a) New York v. Belton: basically extends the principle of Chimel to cars police may search the

passenger compartment of the car and all containers found therein contemporaneous to arrest.
(b) Police do not need any justification beyond the arrest itself, and the only scope limitation is the

passenger compartment of the vehicle

(i) Generally includes the hatchback even in an SUV w/ a curtain (ii) But generally excludes a locked trunk (5) Extensions (a) Search any containers in passenger compartment on theory these could be w/in reach of arrestee as well (b) Thornton (2004): Belton applies even if the police dont stop the driver until after he has exited his car (c) Search property belonging to non-arrested passengers (see Wyoming v. Houghton) (If you could reach

into your own backpack for a gun, you could just as easily reach into a passengers bag)
iii. Why do these exceptions not require a warrant? a. Cars are mobile it can be two states away by the time you get a warrant b. People have a lesser expectation of privacy in their cars rather than their houses (1) Already subject to extensive regulation (2) Much of what you do in your car is in plain view iv. General rule if youre in a car, the government will probably win, especially in federal court. v. State v. Eileen Pierce (N.J, 1994) a. Facts: Driver stopped and arrested for driving with a suspended license. Pierce is a passenger. Police

search the car incident to the arrest and find a gun in the back and cocaine in Pierces jacket.
(1) Inventory rationale: Not impounding car (2) Terry rationale: Could search car subject to Terry and get gun, but drugs would not be so obvious from a

Terry search as to fall in plain feel exception since its just powdered cocaine in a small cellophane bag
(3) Automobile Exception: No reas. susp. or prob. cause for a search when pulled over for a traffic violation (4) Belton rationale: Federal rule in Belton would allow search here, but N.J. declines to follow Belton rule. vi. Problem 4-7: Mobile . . . Homes a. Facts: Probable cause to search a mobile home parked in public lot, but no warrant. Person comes out and

says they just exchanged sex for money. Should it be treated as a house (need a warrant) or a car (Belton)? California v. Carney (1985): Supreme Court upheld the warrantless search because Carney could have gotten behind the wheel and driven away. (1) As a matter of law, a vehicle may be searched without a warrant whenever it is used on the highway or is capable of such use and found stationary in a place not regularly used or residential purposes (2) Seems to uphold Coolidges protection of cars parked in private driveways. 43. Containers i. United States v. Chadwick (1977) Warrantless search of footlocker over an hour after arrest of owner.
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Criminal ProcedureCollins Spring 2007Clark a. Facts: Big heavy foot locker in trunk of parked car. Govt didnt argue automobile exception. b. Court says (1) The container itself is NOT inherently mobile, and retains it s full 4th amendment protection (2) May seize it without a search warrant, but need a search warrant to search inside. ii. California v. Charles Acevedo (1991) a. Facts: Acevedo left a suspected drug dealers (known to possess drugs) house with a bag of an appropriate-

size that it might contain marijuana, and put it in his trunk. Without getting a warrant, they search the trunk and the paper bag. b. Rule: Once the container is in the car, then the individuals rights in the container drop to the expectation of privacy the individual has in the car. c. Rules about containers (1) The rules are the same whether your container is a paper bag or a briefcase (2) Containers, even those belonging to a non-arrested passenger, may be searched without a warrant during an otherwise lawful search of the car pursuant to the automobile exception to the warrant requirement. (3) If the container could have been searched at the scene, it can be seized and searched later at the police station pursuant to the automobile exception (as long as 3 days later) (4) Remember: probable cause in Acevedo only extended to trunk (no reason to believe contraband elsewhere in the car). However, under this broad exception, police can search anywhere for which they have probable cause d. Other Alternatives (1) Police could also search containers pursuant to Belton (2) Police could also have arrested Acevedo and searched the whole car incident to the arrest (3) Had Acevedo been stopped before he got in car, Chadwick applies seize bag, then warrant to search it. iii. Hypo: storing plastic explosives in your locker and a police officer sees you take them from your locker to your backpack and walk outside to the porch. Can he search you? a. 1) Terry frisk? Reasonable suspicion of armed danger b. 2) Probably have probable cause for a more invasive search c. 3) What if you put the backpack in the trunk? Acevedo says yes since you have probable cause. iv. Hypo: what if you get a tip from another law student? This guy put plastic explosives in his backpack and is driving down the road in a White Chevy Suburban. Can you pull him over and search the bag? a. 1) Belton automobile exception: classic example probable cause if youre confident about the tip b. 2) Terry frisk of the car plastic explosives and guns go together, plus, he could have a detonator.
CHAPTER FIVE: ARRESTS Stop or Arrest? 44. NEVADA REVISED STATUTES 171.123 i. A person must not be detained for longer than is reasonably necessary to effect the purposes of this section,

and in no event for longer than 60 minutes. ii. Must remain where the person is first detained or in the immediate vicinity. 45. ARKANSAS RULE OF CRIMINAL PROCEDURE 3.1 i. Cant hold someone for more than 15 minutes or for such time as is reasonable under the circumstances. ii. Must remain where the person is first detained or in the immediate vicinity. 46. In re M.E.B. (D.C. 1993) i. Facts: Handcuffed MEB, place in back of squad car, and drive to witness location for identification (show-up). While in the car, A fingered MEB for shooting and MEB confessed. If he was under arrest, no probable cause, it was illegal and the confession is inadmissible. But, if he was just detained, then its admissible. ii. Court saysStop iii. Slide: Detained for about 20 min. in handcuffs in the back of a police cruiser and physically moved to two other locationsBUTPolice told MEB he was not under arrest, and was not taken to the police station. 47. Purposes served by investigative stops over arrests i. Arrests lead to fingerprinting, DNA, permanent record. ii. So, most citizens would probably want there to be some intermediate step where you can avoid arrest and all of the trappings thereof. 48. Note: Robert Kaupp v. Texas
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Criminal ProcedureCollins Spring 2007Clark i. Court said police crossed the line in rousting a 16-yr-old from bed in his underwear and saying you must

come with us, and took him to the crime scene and then to police station.
ii. Clearly an Arrest, not a stop. The court will step in at some point, but facts have to be egregious. 49. Point: seems that as long as police state its just a stop, steer clear of police station, and can show they are

reasonably moving along an investigation, courts will not find an arrest requiring a higher std of justification.

Arrest Warrants 50. Rules: i. Watson: Warrantless arrests in a public place are constitutional if police have probable cause ii. Payton: an arrest warrant is necessary to arrest someone inside his home, barring consent or exigent

circumstances (like hot pursuit or harm to police or others)

a. This is because the entry of the home is the chief evil the 4th amendment is designed to protect b. Need reason to believe suspect is inside (not supposed to execute when police know suspect is not home) iii. Steagald: you need a search warrant to enter a third partys house to make an arrest, barring consent or exigent

circumstances. This serves to protect the third party, not the subject of the arrest warrant.
51. State v. Jason Kiper (Wis. 1995) i. Facts: Police have an arrest warrant for Wanie (for avoiding a $55 fine). a. What could they do? (1) They could arrest Wanie in a public place without an arrest warrant (Watson) (2) They could arrest Wanie in his own house with an arrest warrant, but without a search warrant (Payton) (3) They could not arrest Wanie in Kipers house without an arrest and a search warrant (Steagald) b. Officer Thomas cant get search warrant for Kipers house b/c no probable cause that Wanie lives there c. But, he could have gone to Kipers house to ask if Wanie was there. (1) Police can always try to talk to citizens You know Wanie, does he live here? (2) But Wanie is there! Officer Thomas sees him and now Wanie is clearly going to flee ii. Court says a. No probable cause, no search warrant, no exigent circumstances, so not admissible b. Welsh v. Wisconsin (U.S. 1984) (1) Nature of crime factor takes seriousness of crime into consideration when determining exigency. (2) But hereonly a $55 fine, but it would be a different calculus if Wanie was wanted for murder iii. Santana: One step outside your door is a public place. a. Facts: Santana stood in the threshold, when she saw police she stepped back inside and slammed door b. Court saysThe arrest is ok because she was in a public place when police saw her. When she ran back

inside, police had exigent circumstance (hot pursuit) to follow her inside.
Police Discretion in the Arrest Decision 52. Blackstone, Commentaries on the Laws of England i. Warrantless arrests at common law a. For felonies: probable cause from any source is enough b. For misdemeanors: need [1] probable cause & [2] offense committed in presence of police officer (1) In some states police can arrest on a misdemeanor even if offense committed outside officers presence. (2) Other states will allow police to do so only if there are exigent circumstances. 53. OKLAHOMA STATUTES tit. 22, 40.3 54. CONNECTICUT GENERAL STATUTES 46b-28b 55. IOWA CODE 236.12 56. Sherman & Berk, The Minneapolis Domestic Violence Experiment i. Discretion is a big problem in domestic abuse cases. Why wouldnt you arrest? a. You dont care about domestic violence cases b. You think victim wont prosecute ii. Possible Responses to a Domestic Violence Call a. Do nothing -- 24 --

Criminal ProcedureCollins Spring 2007Clark b. Provide advice and try to mediate c. Send the suspect out of the house to cool off d. Arrest iii. Empirical study followed up with victims to try to figure out which was the most effective a. Arrests had the largest impact on repeat occasions, so Minneapolis PD changed policy to encourage arrests. b. But, another factor was also significantwhether police showed interest in victims side of the story. c. The results of repeat studies were less striking. iv. Do mandatory arrest policies help? Is police discretion good? 57. Problem 5-1: Arrests & Curfews 58. Problem 5-2: Racial Patterns in Arrests Paper Arrests: Citations 59. What is a citation? i. Instead of arresting a person, a citation is an appearance ticket requiring you to appear before a judge. If you

fail to appear, the judge will issue a bench warrant for your arrest.
ii. What are the advantages of citations? a. 1) Saves officer time and paperwork b. 2) Avoids defendant expanse and embarrassment c. 3) Saves jail and police station space iii. North Carolina Citation Statute a. A citation is a directive, issued by a law enforcement officer or other person authorized by statute, that a

person appear in court and answer a misdemeanor or infraction charge. An officer may issue a citation to any person who he has probable cause to believe has committed a misdemeanor or infraction 60. NEW YORK CRIMINAL PROCEDURE LAW 150.10, .20, .60 i. Example of giving officers discretion in a greater range of crimes to choose between arrest & citation. 61. REVISED STATUTES OF NEBRASKA 29-435, -427. i. Example of creating small group of crimes where officers barred by statute from using arrests over citation 62. Patrick Knowles v. Iowa (1998) i. Facts: Driver pulled over for speeding and issued a citation. Denies consent to search, but officer does anyway and finds marijuana. Is this a search incident to arrest (Belton)? ii. Court says a. Rule: No search incident to citation (1) Not the same concerns about officer safety (2) Not likely to turn up relevant evidence (e.g. not going to find evidence of speeding in the car) b. This decision may encourage officers to arrest v. issue a citation. c. Nothing in opinion suggests officer couldnt get them out of car, search car, and then decide to issue citation 63. Gail Atwater v. City of Lago Vista (2001) i. Facts: Atwater pulled over for driving without a seatbelt and arrested based on probable cause. She is held for an hour, taken before a magistrate, and fined $310. She filed a 1983 claim stating that, in some cases, it violates 4th amend to arrest for minor offenses because it is unreasonable. ii. Court says(Souter) You can arrest subject to misdemeanor w/o a warrant a. Historical argument that cant arrest w/o warrant based on probable cause except for breach of the peace misdemeanors doesnt pan out b/c commentators are split b. How do we define what a minor offense is? (1) Fine onlybut other categories (2) But can officers really figure this out? (3) Do they carry a fine scale? Do they know on the scene how many offenses a person has? iii. OConnor a. Strike a balancereasonableness is a fact-based analysis b. When there is probable cause to believe that a fine-only offense has been committed, the cop should issue a citation unless he is able to point to specific and articulable facts, which, taken together with rational inferences from those facts, reasonably warrant the additional intrusion of a full custodial arrest 64. Think of Atwater in combination with Whren i. Courts will not inquire into underlying purpose of stop
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Criminal ProcedureCollins Spring 2007Clark ii. Officers can arrest for a misdemeanor stop without a warrant, based only on probable cause

Use of Force in Making Arrests 65. Blackstone, Commentaries on the Laws of England 66. Tennessee v. Edward Garner (1985) i. Facts: Officer called to scene of burglary and witnesses a male fleeing out back of the house. Officer shouts

to halt, but he starts to climb a fence. Officer shots and kills him. Turned out to be a small, unarmed 15-yrold. Officer said he shot for no other reason that it was the only method available to stop him from escaping. ii. Court saysImpermissible use of force a. Rule: Deadly force OK only if [1] necessary to prevent escape and [2] the officer has probable cause to believe the suspect poses a significant threat of death or serious injury to the officer or others. b. Balance nature & quality of intrusion of individual against govt interest alleged to justify deadly force. (1) Clearly a seizure, but officer may arrest a person if he has probable cause to believe he committed a crime (2) But, the intrusion of a seizure by means of deadly force is unmatched. c. What about historical argument that under common law you could kill fleeing felons? It doesnt fly today. (1) Historically, almost all felonies were punishable by death which is not the case (2) Weapons were also rudimentary and most deadly attacks occurred in hand-to-hand combat where felon is clearly aggressively & physically resisting the arrest. Today, guns, a recent invention, can result in long-distance deadly force without the fleeing felon engaging in aggressive & physical resistance. iii. Dissent says (OConnor) a. Night-time residential burglaries are inherently serious & dangerousruns risk homeowner is inside b. Violence is common in these kinds of crimes. iv. Note: Constitutionally, police can probably shoot someone running away with a gun, although media is a big check on police officers. Police could also, under Garner, use deadly force against someone he saw stab someone else and then run away. v. The Garner Rule: An officer can use deadly force when: (slide) a. 1) he has probable cause to believe the suspect poses a threat of serious bodily harm to the officer or others (1) This can be met (a) if the individual is threatening the officer or others; OR (b) if there is probable cause to believe he has committed a violent felony. b. He reasonably believes force is necessary to make the arrest or prevent an escape c. A warning must be given if feasible. 67. Frisby, Floridas Police Continuum of Force 68. Problem 5-3: Ruby Ridge i. Facts: FBI agents & Marshals go to Ruby Ridge Idaho to arrest Randy Weaver for failing to appear in court on federal weapons charges. In the ensuing gun battle, Weavers 14 year-old son was killed when he encountered agents while carrying a rifle, and his wife was killed while standing behind the front door holding a baby. ii. FBI Rules of Engagement at Ruby Ridge: a. Any adult in the compound with a weapon can be subject to deadly force after an announcement to surrender is made. b. Prior to the surrender announcement, can use deadly force against any adult male with a weapon if the force does not endanger a child. iii. Federal Use of Force Policy After Ruby Ridge: a. 1) Deadly force is okay when there is probable cause to believe that the person has committed a felony resulting in or threatening death or serious physical injury; AND b. 2) Escape of suspect would pose imminent danger of death or serious bodily injury. c. 3) Non-deadly force must be inadequate.
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Criminal ProcedureCollins Spring 2007Clark d. 4) Must give verbal warnings unless they create danger of serious bodily injury or death. e. 5) Must consult government attorney from the scene whenever practical. 69. Statistics of Use of Force i. Less than 1% of police-citizen contacts involved the use of or threat of force. ii. In the universe of arrests, about 1 in 4 involved some kind of physical force. iii. For arrests, 80% of uses of force are lower-spectrum, weaponless tactics like punching, grabbing, or shoving. iv. 1.2% involved pepper spray; 0.2% involved handgun use. v. The most common injury to an arrestee is bruise or abrasion (48%). vi. Force is most likely to be used when arrestee is mentally ill or on drugs or alcohol. vii. Small proportion of officers disproportionately involved. CHAPTER SIX: REMEDIES
FOR

UNREASONABLE SEARCHES

AND

SEIZURES

Origins of the Exclusionary Rule 70. Rule: Evidence that is obtained in violation of the 4th Amendment is inadmissible in a criminal trial i. The common law remedy was a civil action for trespass against the violator 71. Fremont Weeks v. United States (1914): Exclusionary rule first adopted in the federal system i. Applies exclusionary rule applies for 4th Am. violations in federal jurisdictions ii. Did not apply the rule to state jurisdictions in fact, many states did not adopt a comparable rule 72. United States v. Wolf (1949): 4th Amendment incorporated into 14th Amendment 73. People v. Charles Cahan (Cal. 1955): CA struggles with whether to adopt exclusionary rule, but they do. 74. Dollree Mapp v. Ohio (1961): Exclusionary rule applied to the states i. Facts: events stem from a previous bombing at Don Kings House. Dollree Mapp is a well-known boxer

girlfriend. Police think a suspect in the bombing is at Dolly Mapps house and go there to try to get in. Mapp, who is incredibly savvy, denies them access to the house and calls her attorney. Police break a screen and open the door, she demands to see a warrant a policeman waves a piece of paper which she grabs and places in her bosom. A fight ensues and police recover the paper which is not a warrant. a. The police search the house from top to bottom for the suspect they searched EVERYTHING and eventually found the suspect as well as some pornography. b. At trial, the evidence was admitted and her attorney spent the entire time arguing against Ohio obscenity law only the ACLU raised the exclusionary rule issue c. At oral argument, the Supreme Court granted time to the ACLU for the first time, ever. ii. ACLU: The framers did not create a remedy for unreasonable searches and seizures! The historical remedy was a civil action for trespass against the violator a. But, they are expensive and there is no guarantee of success b. Are they a real deterrent or does it merely allow the police to buy violations of constitutional rights (1) The money to pay the civil remedy will come from the public anyway (2) Plus, the exclusionary rules dont apply to civil actions iii. Government: The guilty man goes free because the constable bumbled a. The only people that benefit from the rule are the guilty, who are now going free. b. The better solution is to make civil cases an effective remedy for innocent people (1) So, get rid of immunity doctrinemake police officers both criminally and civilly liable. c. All the exclusionary rule does is make the public distrust the system and lead to outrage when murderers go free on a technically it promotes cynicism and dishonesty. d. Also, consider that the courts have created many search doctrines to avoid the exclusionary rule (1) Have these (Hot pursuit warrantless arrest standing) narrowed the 4th amendments protection? iv. Summary of the Core Arguments about the Exclusionary Rule (slide) a. Argument in favor: (1) Deterrence for officer (2) Judicial Integrity: cannot sanction the admission of dirty evidence (3) Uniformity between state and federal standards and among the states b. Arguments against: (1) Other equally effective alternatives are available: Civil suits, prosecuting officers (2) Best way to preserve judicial integrity is to seek the truth
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Criminal ProcedureCollins Spring 2007Clark (3) Too costly: The rule means the guilty go free; it promotes cynicism and dishonesty; it has actually

narrowed the substantive protections of the 4th Amendment (a) Rule only applies to guiltyif innocent person has rights violated, no recourse w/exclusionary rule (b) Doesnt punish person who violated rightsit only inures to the benefit of guilty and penalizes society (c) Knowing exclusion is the remedy will encourage the officers to lie at the trial (d) Arguments that it has weakened protections of 4th Amb/c if its going to exclude E in horrific cases, then we will come up with exceptions or end-runs to the general rule (4) Federalism: This should be an area where states should be allowed to experiment v. Why do we have the Exclusionary Rule? a. Deterrence: Exclusion is a method to deter police misconduct and prevent constitutional violations b. Judicial integrity: courts should not be involved in wrongdoing. If police violated constitution and seek to introduce that evidence at trial, judges become an accessory to that violation [now defunct] vi. In recent cases, the Supreme Court has rumbled that it is a judicially-created remedy, not constitutional a. That means they can overrule it, or the legislature can pass laws around it b. As the court gets more conservative, it may do so on its own. vii. The Costs and Benefits (slide) a. Costs (1) Probably about .6 to 2.35 % of felony charges are lost, but this is very tough to estimate (a) % is higher for drug & gun cases 3-5% (b) Studies miss the unknown number of cases where prosecutors decide not to file charges (c) Almost every day, prosecutors decide not to file charges because they know there has been a clear violation of constitutional rights b. Benefits (1) In some places, after Mapp, the number of warrants went up. In other states, there was no change. (2) Some surveys have shown that police say the exclusionary rule affects their behavior on the job. 75. Fruit of the Poisonous Tree i. General Rule: Exclusionary rule applies not just to direct evidence obtained in violation of the 4th amendment, but to all the secondary evidence that is the fruit of the direct evidence illegally obtained ii. Exceptions: Independent Source Doctrine; Inevitable Discovery Doctrine; [Attenuated Connection Doctrine]
Limitations on the Exclusionary Rule 76. When does the Exclusionary Rule apply? i. Sweeping over-generalization: Exclusionary Rule does not apply outside states case-in-chief in criminal trial. ii. Other limitations on the exclusionary rule: (1) Does not apply to grand jury proceedings (a) Grand jury hear evidence on hundreds of cases (about 10 minutes per case) to hand down indictments (2) Does not apply to sentencing hearings (a) A little questionable, but probably ok (3) Does not apply to immigration hearings (a) Increasingly used as law enforcement proceeding if cant convict suspected terrorists deport em! (b) Why? Immigrants are not citizens and do not get the same protection as citizens (4) Does not apply to impeachment evidence (a) i.e. If you illegally got a gun from the Ds house, and he takes the stand and says he has never owned or

possessed a gun, then Prosecution can enter gun found under his pillow to impeach him. It can also be used to impeach other witnesses. (b) Why? To avoid blatant perjury. Plus, the possibility of using it for this purpose is so remote that it can not possibly enter into the consideration of police when obtained. (5) Good Faith (6) Inevitable Discovery (7) Independent Source 77. Evidence Obtained in Good Faith i. Rule: Evidence obtained from the D pursuant to a search warrant issued by a neutral and detached magistrate, but which warrant is subsequently determined by an appellate court to be invalid, that evidence may be introduced at the Ds criminal trial in the prosecutors case-in-chief, despite the invalidity of the warrant,
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Criminal ProcedureCollins

Spring 2007Clark

despite the fact that there has been a 4th amendment violation, if a reasonably well-trained officer would have believed that the warrant was valid. (Leon) ii. United States v. Leon (1984): The evidence does not need to be suppressed when it is obtained by a police officer acting in reasonable reliance on a search warrant that is subsequently determined to be invalid. a. Rule: (1) The officers reliance on the warrant must be objectively reasonable. (2) The exception also does not apply if the police lie to the magistrate to get the warrant b. Rationale: (1) The exclusionary rule is intended to deter the police. Exclusion here would just deter magistrates (2) When the police act in good faith, there is no misconduct to deter (3) Exclusion is costly, and when the police act in good faith, the balance tips in favor of it being too costly. iii. Federal Rule: Overwhelming majority of states have followed federal rule (35). About 15 have followed PA
iv. Exceptions: Leon does not apply and evidence excluded if a. The magistrate who issued the warrant relied on information in the affidavit supplied by the police officer

who knew the statements in the affidavit were false or who recklessly disregarded the truth b. The magistrate wholly abandoned the judicial role so that you cant really describe the magistrate as neutral and detached. (Functioning as an agent of police) c. The affidavit is so completely devoid of probable cause as to render any official belief in the existence of probable cause unreasonable. d. The warrant is facially deficient. (i.e. completely fails to particularize the place to be searched or things to be seized, or otherwise resembles the old general warrant) v. Commonwealth v. Louis Edmunds (Penn. 1991) a. Facts: Warrant lacks probable cause. Plus, officer dictated warrant to magistrate who typed it out verbatim. b. Court sayswe reject Leon! Why? (1) Concerns about judicial integrity Magistrates need deterrence too & avoids magistrate shopping. (2) Need to deter police sloppiness as well as police bad faith. (3) Lost convictions are a cost of the 4th amendment and the PA constitution, not the exclusionary rule. (4) Empirical evidence suggests not that many convictions are lost. c. PA constitution predates federal by 10 years! PA standard is higher than federal and exclusionary rule is a PA constitutional standard! [Nevermind PA didnt adopt exclusionary rule until Mapp]. vi. Problem 6-1: Objective Good Faith vii. TEXAS CODE OF CRIMINAL PROCEDURE art. 38.23 viii. COLORADO REVISED STATUTES 16-3-308 ix. Problem 6-2: Unwarranted Good Faith a. Facts: Undercover officers mistakenly given the wrong hotel room. When they enter, they find luggage in the room and drugs in the TV cabinet. b. What happens? (1) Apparent Authority from clerk to enter the room. Had cocaine been on the floor, under the plain view exception the drugs are admissible. But, once the police saw the luggage, the apparent authority from the clerk evaporates b/c the room is clearly occupied. Subsequent search of TV cabinet is unconstitutional. (2) AND, good faith exception ONLY applies when there is a warrant in the case! 78. Causation Limits: Inevitable Discovery and Independent Source i. Inevitable Discovery Doctrine: This is an attempt to limit the reach of the fruit of the poisonous tree doctrine, which says that any evidence you develop as the result of an illegal search must also be suppressed a. Under the inevitable discovery doctrine, can get the evidence in if you can show that the government would have inevitably discovered it without the constitutional violation b. The federal rule is that you only need to prove inevitability by a preponderance of the evidence ii. Crispus Nix v. Robert Anthony Williams (1984) a. Facts: Williams kills a 10-yr-old girl on Christmas Eve. While trying to find body along I-80, Officer gives Williams the Christian burial speech in the back of the car. He leads them to it, but his statement are excluded as unconstitutional (no representation). But, there was a search party out that stopped once Williams started cooperating. They stopped 2 miles short of body. b. Court saysBody is admissible under inevitable discovery doctrine. iii. Independent Source Doctrine: This is another attempt to limit the reach of the fruit of the poisonous tree
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Criminal ProcedureCollins Spring 2007Clark a. Lets say you find a suspects best friend is Jean from her illegally obtained diary thats inadmissible. b. But, if you also found out about Jean from her mother, then its admissible. 79. Violations of the Knock & Announce Rule i. Hudson v. Michigan (2006) a. Facts: Police have a warrant, but only wait 5 seconds after knocking before entering b. Court says (1) Exclusionary Rule does not apply in violations of the knock-and-announce rule (2) First, Scalia hints that had they not given up the appeal on knock-and-announce, they may have won, but

still, costs outweigh benefits

80. Standing to Challenge Illegal Searches and Seizures i. Issue: Does individual seeking exclusion have standing to contest the police conduct? ii. Rule: Not everyone can file a 4th Amendment claim. Only those who had a legitimate expectation of

privacy in the area searched have standing to file a claim. (Rakas v. Illinois) Hypo: Youre sitting in Dolly Mapps house in 1957. (1) Visiting for first time and have misfortune of being there w/ drugs on your lap when police enter house. (2) No standingMinnesota v. Carter See problem 6-3: No standing to challenge illegal search b/c they were in the searched apartment for only a few hours for a business transaction (which seems to matter) (3) Reading Kennedy concurrence with dissents suggests basic view that even a person that is not an overnight guest in a home (not a car) may have standing to contest entry into that home if they have a substantial connection to the home certainly satisfied in Minn v. Olsen (overnight guest) but may be satisfied by less, i.e. a social guest in the home for a couple of hours. b. Rakas v. Illiois (1978) (1) Facts: Police search a car and find a gun under the front seat and attribute it to the passenger. Definitely not plain view. Rakas was one of the passengers and wanted to contest the search. (2) Court says (a) No legitimate expectation of privacy under the front seat. Might be different if it was in the purse. (b) Why not? (i) Rakas was only a passenger, not the owner. (ii) The owner/driver had a reasonable expectation of privacy, but not Rakas (iii) Court seems to make privacy revolve around property interests. (3) Federal Rule: whether you had a legitimate expectation of privacy in the areas or item searched. c. There are other possible approaches (1) Vermont: Where you legitimately on the premises when they were searched? (a) Need only assert possessory, proprietary, or participatory interest in item seized or area searched (2) Louisiana: Where you adversely affected by a search or seizure? (a) In essence, gives everybody standing iii. Standing comes up ALL the time. Its a threshold question, and many times the dispositive question a. Even if police are chasing a person for worst reason ever (chase the latino man!) if they throw the gun or drugs away, its abandoned property and no standing to challenge illegal seizure under Rakas or Vermont. b. If murder hides weapon at girlfriends house (or her moms) they have no standing to challenge an illegal search under Rakas. The probably dont have a possessory, proprietary, or participatory interest either under the Vermont rule. iv. State v. Gary Wood (Vt. 1987) a. Facts: Woods wife got permission to stay in a trailer on a campground. Owner saw Wood there and didnt say anything. Police searched the campground and found some stolen motorcycles (stolen from Blue Angels police motorcycle gang). Wood complained. (On exam, also examine whether this was curtilage) b. Did Wood have an expectation of privacy? (1) Camp owners brother is the caretaker who allows Wood to stay in the trailer (2) Probably would have: Minnesota v. Olsen overnight guest w/o key and who never had been in the house w/o owner still has privacy interest (social function unlike Carter) (3) Vermont court said he had a possessory interest, so standing to sue
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Criminal ProcedureCollins v. Problem 6-3: Place of Business Additions and Alternatives to the Exclusionary Rule

Spring 2007Clark

81. Administrative Remedies i. Chemerinsky with Hoffman, Levenson, Paz, Rice, & Sobel, An Independent Analysis of the Los Angeles

Police Departments Board of Inquiry Report on the Rampart Scandal Trivia: Officers running rampant: beating + shooting innocent people. TV show The Shield based on this Some of Chemerinskys findings (1) Board failed to ID extent of problem. Focused on problem of rogue officers rather than rogue culture (2) LAPD culture encourages silence and tolerates wrongdoing. (3) Nobody with independent judgment is watching the LAPD (4) Citizens dont trust the complaint process (5) Officers dont trust the discipline process and hate IAD. c. What are his proposed solutions? (1) Appoint an independent commission to investigate the xtnt of police wrongdoing (2) Enter a consent decrees with DOJ (3) Appoint a full-time, independent police commission to manage the LAPD (4) Strengthen the Inspector General (5) Maintain a permanent special prosecutor (6) Make it easier for citizens to file complaints (by email, phone, etc.) (7) Complaints should result in an investigation if there is probable cause (8) Have IAD officers keep their jobs longer. ii. ST. PAUL, MINNESOTA, ORDINANCES 102.01, -.04 iii. Citizen Review Board a. What cases should an external review board review? (1) All cases of excessive force? (Who gets to make the initial call that force was excessive?) (2) All cases involving use of firearms by an officer? (3) All cases involving an allegation of discrimination? (4) All cases with poor public relations? (5) All cases referred by the mayor and chief of police? (6) Any complaint made by a citizen? b. What powers would a board need? (1) Should it have a subpoena power? (2) Should attorneys have a role? (3) How much should the proceedings look like trials? (4) Should its decisions have any binding power? (a) Should the prosecutor have to bring charges? (b) Should the police department have to fire? iv. What about a system that can track conduct and complaints for individual officers a. 10% of officers cause 90% of the problems b. But, theres a fine line between being an aggressive police officer and crossing the line (1) Study after study shows that officers with the most complaints get promoted. 82. Tort Actions and Criminal Prosecutions i. Office of the Attorney General of Tennessee, Opinion 81-212 ii. Consent Decree, United States v. City of Los Angeles (2001) iii. Problem 6-4: Clear as a Post a. Prisoner handcuffed to a post for 2 hours and another time for 7 hours. Given water only once or twice and was given no bathroom breaks. Guards taunted him about his thirst b. It was legal in Alabama to do this in response to refusal to work or disrupted other work squads. c. File a 1983 action for the constitutional violation. iv. Problem 6-5: Legislative Remedies
a. b. CHAPTER SEVEN: TECHNOLOGY
AND

PRIVACY

Enhancement of the Senses 83. Charles Katz v. United States (1967) -- 31 --

Criminal ProcedureCollins Spring 2007Clark i. Facts: Police bug a public telephone booth. ii. Court says a. 4th Amendment guards people, not areas b. Whenever a person has a subjective expectation of privacy that society recognizes as reasonable iii. Black saysA literal reading of 4th Amendment only extends to tangible things, not telephone conversations. 84. HYPO: Govt puts a microphone into law school hallways to record cell phone conversations. 4th amend. issue? i. Under Katz, do you have a subjectively and objectively reasonable expectation of privacy? ii. Presence of an officer is different b/c physical human presence removes expectation of privacy if in earshot. iii. How does technology change the analysis? 85. Danny Lee Kyllo v. United States (2001) i. Facts: Police use thermal imaging to search a house and MJ heat lamp in outlying shed ii. Court says(Scalia) a. Surprised a lot of people (1) Scaila, Souter, Breyer, Thomas, and Ginsberg protect the rights of the criminals. (2) Stevens, Kennedy, Rehnquist, OConnor band together b. Scalia says that the definition of a search used to be tied to notions of common law trespass, but now the

Court has decoupled the concepts of search and trespass.

(1) So, you can legally search somebody, even if you dont trespass onto their property. (2) But, Scalia is bothered by the implications of the Katz test, in this context, which would say that a plain

view observation in your home (in sense that police detect info inside the home while you are physically outside the home) is no secret c. So, he concludes that obtaining information through sense-enhancing technology that could not otherwise have been obtained w/o a physical intrusion into a constitutionally protected area constitutes a search, at least when the technology is not in general public use. (1) Does that insert notions of trespass back into the 4th Amendment? (2) And what happens when technology becomes widely available iii. Dissent (Stevens) There are no intimate details a. Scalia reaches for knowledge of when the lady of the house takes her bath b. Stevens says Oh come on! All youre telling is whether one part of the house is hotter than another. This is the same as putting a thermometer to the shed while lawfully on the neighbors house. (apparently ok) 86. Commonwealth v. William Martin (Pa. 1993) Drug sniffing dogs i. Federal Rule: Not a search! ii. Minority Rule (PA): Drug-sniff by dog is a search. iii. Possible factors in evaluating sense-enhancing technology a. Duration of the search? b. The kind of information thats obtained c. Absence of physical touching? d. Commonplace nature of the technology? e. Amount of effort that the officer has to make? iv. Hypos: a. Police officer uses a flashlight to see into your car while youre parked on the side of the road rolling your marijuana blunt. Probably not a search youre in plain view, officer is doing nothing more than uses technology to enhance what he could see with his naked eye (plus your screwed in your car) b. Police officer uses a flashlight to see into your home while youre rolling your marijuana blunt. Probably a search (Scalia in Kyllo Draw a bright line at the threshold of the home) c. Police officer uses high-powered binoculars to see you engage in a drug transaction on the street corner. Probably not a search d. Seems like courts will generally allow or disallow technology based on persons expectation of privacy regardless of the technology used. So, if no reasonable expectation of privacy, generally it doesnt become a search just because the officer used some technology to gather the information. v. The Caballes Opinion a. The Court said the policed do not even need reasonable suspicion before having a dog walk around a car during a routine traffic stop, because the dog only reveals the presence of contraband and does not intrude on a reasonable expectation of privacy, as long as the legitimate traffic stop wasnt unreasonably prolonged.
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Criminal ProcedureCollins Spring 2007Clark b. The Court said that a dog sniff conducted during a concededly lawful traffic stop that reveals no

information other than the location of a substance that no individual has any right to possess does not violate the 4th Amendment. 87. Problem 7-1: Beepers i. Police installed a monitoring beeper in a can to track evidence of drug smuggling and received a warrant based in part on the information derived through the use of the beeper. ii. Is the beeper an unauthorized seizure? Is continued monitoring of the beeper an unauthorized search? 88. Problem 7-2: Eye in the Sky i. Camera network set up in Washington D.C. How does this affect expectation of privacy. ii. The problem with the Katz test is that it allows the govt to overcome the subjective privacy interest by just making technology pervasive.

CHAPTER EIGHT: INTERROGATIONS Overview 89. Moving from 4th to 5th Amendment 90. Confessions are very important to police officers and the casebook says they are persuasive to juries. 91. However, Collins says juries tend to be skeptical of confessions 92. 3 Lines of Cases (***Dressler***) i. 5th Amendment Privilege Against Self-incrimination/Due Process (Voluntariness) Cases ii. Miranda v. Arizona Cases iii. 6th Amendment Right to Counsel Cases Voluntariness of Confessions 93. The Core Question: Is the confession the product of an essentially free and unconstrained choice by its maker?

Or was his will overborne by improper government tactics? [Essentially drawing a line for police] Must look at totality of the circumstances a. Was it obtained by threat or actual use of violence [if yes, almost always rendered coerced] b. Was it obtained using psychological pressures Physical conditions deprivation of food and water, age c. Promises of leniency d. Deception by police active deception in some circumstances ii. Whether Miranda warnings were given will be relevant to the inquiry, but not dispositive iii. Government must prove voluntariness by a preponderance of the evidence iv. Coerced confessions are inadmissible. a. No exception b. Fruit of poisonous tree doctrine applies (with all of its exceptions) 94. Physical Abuse and Deprivations i. Wickersham Commission (1931) a. Commission found that physical violence was widespread when eliciting a confession (1) Giving someone the 3rd degreemeant you beat them to give the truth b. A commission in the 1960s found that physical torture had almost totally disappeared (1) More a product of increased professionalism among police officers than anything else. ii. Ed Brown v. Mississippi (1936) iii. Torture a. Professors at University of Pittsburgh say its OK if theres an imminent threat of terrorist attack on a US city b. What about Stress & Duress? Sleep deprivation, prolonged standing, sensory deprivation (light & sound) c. Whats the concern? (1) Is it the element of truth? Likelihood that torture produces false confessions? OR (2) Is it the element of humanity? 95. Promises and Threats i. State v. Charles Strain (Utah 1989)
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Criminal ProcedureCollins Spring 2007Clark a. Facts: Ds confession was obtained after officer threatened 1st degree murder and the death penalty if he

didnt confess, and promised 2nd degree murder if he did b. Court says (1) If it caused the confession, the confession is no good (2) Remands to trial court to determine when confession occurred (3) How do you know? Temporally, when did confession occur in relation to promise/threat c. But, there is a line between a threat/promise and promising to talk to the prosecutor about it. (1) They will talk to the prosecutor, but they are leaving out the fact that it may not do you any good. (2) Regardless, its generally ok to make this kind of promise. d. General Rule: Police can make reasonable promises that are within their power to deliver upon (1) Its a consideration whether the promise is over the topI cant promise anything, but I really think this wimpy DA will let you walk on the murder of the 8-year-old. e. Important considerations (1) Bathroom breaks, cigarette breaks (2) Provide with food and water ii. Problem 8-1: Parental Promises 96. Police Lies i. State v. John Kelekolio (Haw. 1993) a. Facts: Kelekolio drives a van for the disabled and is suspected of raping one of his passengers b. Interrogator uses 2 lies, claims that there is: (1) Evidence that force was used (2) Evidence that there was physical evidence c. Court saysThese lies were intrinsic and looking at the totality of the circumstances, they are not of a type that would reasonably induce a false confession. (1) If lies are intrinsic to facts of alleged offence, courts look at the totality of the circumstances surrounding the confession or statement to be considered. (2) If lies are extrinsic to facts of the alleged offense, and are of a type reasonably likely to procure an untrue statement or to influence an accused to make a concession regardless of guilt, it will be coercive per se. ii. Different kinds of lies a. Intrinsic lies: relate to the facts of the offense itself. Examples would be saying that you have a witness that puts the defendant at the scene, that you recovered physical evidence form the defendants car, that the murder victim is really still alive and the police are talking to her now b. Extrinsic lies: involve some kind of collateral inducement which would tend to stimulate a confession irrespective of guilt. Examples would be a promise of divine salvation after a confession or saying that a confession cannot be used against you at trial. c. Should we ban all lies by police? (1) Police say they are very effective. (2) But they often result in false confessions (3) You cant lie to the police, why should the be able to lie to you? iii. Why do people falsely confess? a. Morbid desire for publicity or notoriety (Jon Benet guy) b. Relieve guilt about some real or imagined past transgression (confess to one murder to make up for getting away with one earlier) c. Gain a short-term advantage (end the questioning) or long-term advantage (better sentence in light of evidence that seems overwhelming) d. Protect someone else e. Come to believe that you actually did it, out of exaggerated deference to authority figures iv. Mossad Agent excerpts a. There were only a few people he couldnt breakthey were very primitive people b. He would learn everything he could about the person to make them feel he was omniscient. (1) Learn everything about his life, neighborhood, job (2) Learn the Koran, become fluent in Arabic
Miranda Warnings 97. The Miranda Revolution -- 34 --

Criminal ProcedureCollins Spring 2007Clark i. Supreme Court distrusts and dislikes confessions Escobedo and Miranda are Courts attempts to deal with it ii. Dressler says that some argue Miranda was an attempt to craft a workable test for coerced confessions rather

than the old totality of circumstances test, but hasnt been interpreted as that.
iii. Some Quotes from Escobedo a. A defendant needs the guiding hand of counsel to advices him in this delicate situation. b. Any system of administration which permits the prosecutor to trust habitually to compulsory self-

disclosure as a source of proof must itself suffer morally thereby.

iv. Miranda Controversy: 5-4 decision. Congress immediately passed a statute overturning it (not litigated until

2000 in Dickerson). Some people thought it lead to the election of Nixon to get rid of liberal Warren Court. Ernesto Miranda v. Arizona (1966) a. Facts: Miranda charged with rape and kidnapping. He was eventually convicted without the confession and went to jail for 11 years. Stabbed to death shortly after release b. Court says (1) State may not use stmts (either exculpatory or inculpatory) stemming from custodial interrogation of D unless it demonstrated the use of procedural safeguards effective to secure the priv. against self-incrim. (2) Not mandatory, you could say something else with same effect, but states dont really experiment here c. The Required Warnings (1) You have the right to remain silent. (2) Anything you say can be used as evidence against you. (3) You have the right to an attorney (a) Attorney present during interrogation helps police act appropriately, and helps keep the report by police accurate. (4) If you cannot afford an attorney, one will be appointed for you. (a) [Because otherwise people might think an attorney depends on financial status] d. The Lost 5th Warning (not part of holding, but on most Miranda cards) (1) If you choose to start answering questions, you can stop at any time. e. Miranda only applies if police want to interrogate. So police must only Mirandize before they interrogate someone in police custody, not when they arrest . Sometimes occurs before arrest, sometimes after. f. Collins sez: Never, never, never talk to police w/o attorney present. Always invoke your Miranda rights. vi. Objections to Miranda a. No support in 5th: No personshall be compelled in any criminal case to be a witness against himself. (1) Was this really meant to extend past trial to interrogation? Court extends criminal case to interrogation. (2) One argument is that the type of compulsion at issue is under oath and under penalty of perjury. (3) Another argument is that there is nothing here about right to counsel. b. It hampers police work: (1) Studies show it results in lost confessions (1 in 6) and overturns 3.8% of convictions on appeal. (2) Should the playing field be level? tilted toward the police? tilted toward the defendant? (3) Does Miranda tilt the playing field? Or does it simply explain the rules of the game? vii. Waiver of Rights a. Waiver occurs in about 90% of all cases! Does this mean its a not a meaningful protection? b. Most police dont think of it as much of a burden, which might explain why states dont c. Use totality of circumstances test to determine whether waiver was voluntary (1) Waiver cant be coercive (2) Lawyer does not need to be present for there to be waiver viii. Overturning Miranda? a. Congress passed law in 1968 that said, in federal cases, all voluntary statements made by Ds are admissible b. Prosecutors never brought a case under this until 1990s. 4th Circuit said Miranda was overturned c. Minnesota v. Dickerson (2000): Reaffirms Miranda as part of our constitutional jurisprudence. d. What is coming in the future? (1) Require videotaping all confessions (2) Allowing confessions only by judges or magistrates (done in Europe) (3) Require counsel in all interrogations ix. LOUISIANA CONSTITUTION art. 1, 13 x. MASSACHUSETTS GENERAL LAW, ch. 276, 33A 98. Triggering Miranda Warnings
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Criminal ProcedureCollins Spring 2007Clark i. Custody a. Miranda: Any person taken into custody or otherwise deprived of freedom of action in any significant way b. Test: A person is in custody for purposes of Miranda if there is a formal arrest or restraint on his freedom of

movement of the degree associated with an arrest (1) Applies to: Formal arrest or its equivalent (restraint tantamount to arrest). Does not extend to Terry frisk (2) Inquiry: whether a reasonable person in the suspects position would believe he was under arrest or functionally under arrest. (a) Does not take into account unconveyed subjective intent of officer You wont leave until I get the truth! Doesnt matter if not conveyed to D. Doesnt take into account the irrational beliefs of D. (3) Once again, we look to the totality of the circumstances objective test c. State v. Burt Smith (Iowa 1996) (1) Facts: Juveniles were interrogated about a murder investigation. Miranda rights were given (2) Court says (a) FOUR FACTORS (i) 1) How the suspects came to the interrogation ([1] language used to summon) Voluntarily came with mother at request of authorities Told they would be questioned about murder Voluntary presence does not mean it isnt custody, but involuntary presence is much more likely to result in finding of custody. (ii) 2) Purpose of the interrogation ([2] purpose, place & manner) Sort of a throw-away factor: Isnt the answer always to get them to admit something? (iii) 3) Place of interrogation It was freshly remodeled, w/ a fish tank! New carpet & refurnished! Family-centered & warm! Was it a juvenile hall? Or a community center? We dont know (iv) 4) Manner of interrogation (# of officers, dress, duration, tone) ([2] purpose, place, or manner) Was style confrontational & aggressive? Coercive? Not coercive here, only as long as needed Officers dressed casually Detailed reminder of Miranda rights Mom: neither officer used an accusatory tone toward either of her sons (v) 5) Extent confronted with evidence of guilt ([3]) Only confronted with inconsistencies of stories No particular evidence was discussed or disclosed (vi) 6) Free to leave ([4]) Degree to which RP would feel free to leave (vii) 7) Suspects characteristics Mental capacity, age, education (b) Here, (i) No physical restraint (ii) Allowed smoking, soda, food, and restroom breaks (iii) Ds say bathroom breaks were supervised, but was warranted here in order to prevent Ds from collaborating and developing matching stories. (iv) Not allowed to talk to each other (v) Not held incommunicado or placed in a holding cell (c) Some characteristics of the suspect: Age; Intelligence d. Problem 8-2: (Non)Custody: Police Assistance e. Problem 8-3: (Non)Custody: Phoning Home ii. Interrogation a. Statement has to be the product of express questioning or conduct on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect b. Rhode Island v. Thomas Innis (1980) (1) Facts: Innis murders cab drivers. After arrested he waives his Miranda rights, but in back of car, Innis folds under famous handicapped little girl speech (up there with Christian Burial speech) and tells officers where the gun is in less than a mile. (2) Court says
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Criminal ProcedureCollins Spring 2007Clark (a) Rule: The Miranda safeguards come into play whenever a suspect is subjected to express questioning

or its functional equivalent, which in essence means any words or accusations on the part of the police that they should know are reasonably likely to elicit an incriminating response from the suspect. (b) Similar to negligence standard (c) But, this statement doesnt meet that! Should they have known D would be moved to speak? No! (3) Dissent (a) Stevens proposed test: any statement that would normally be understood by the average listener as calling for a response. [Really the same test as Majority.] (b) Marshall: I agree with the test, but this application is ludicrous! (4) Overall: fine test, but ridiculous outcome here. c. Problem 8-4: Blurting (1) While being fingerprinted, suspect said this is going to fuck me up Officer said why? he said he handled the gun the previous day. (2) Court said no interrogation-routine questions, informal d. Problem 8-5: Public Safety Motivation (1) Woman says a man with a jacket with Big Ben on it raped her and ran into a grocery store. (2) Police run in, see him w/ gun, chase him down, but find empty holster. Officer asks: Wheres the gun? (3) Its a Miranda violation (custodial interrogation w/o warnings), but public safety is an exception we allow (4) The Quarles Public Safety Exception (a) Court upheld the admission of the statement here because there was an objectively reasonable need to protect the public, there was exigency beyond the normal need to solve a crime, and the question as reasonably prompted by a concern for public safety. (b) Court also strongly referred to Miranda as prophylactic, so questionable if it would survive Dickenson which called Miranda constitutional. But Quarles has been specifically referenced as still applying. e. United States v. Perkins: Dont need warnings to conduct covert custodial interrogation (1) Miranda rationale is that the pressure that comes from custody in conjunction with knowledge that interrogator is police officer. That conjunction is missing when CI is in prison cell with you f. Dont need Miranda warnings for routine questions g. What about traffic stops? Do these rise to the level of custody? (1) A stop occurs when a reasonable person would not feel free to leave (2) In Berkemer v. McCarty (1984), traffic stop does not amount to custody under Miranda (a) Public stop and Brief (b) But, you cant leave! Court seems to disregard this. (3) Does this mean interrogations will move out of the station house? (4) Interrogation does not have to occur in a police station to be custodial. By the same token, an interrogation does not become custodial whenever it occurs within a police station 99. Form of Warnings i. Mora v. Burbine a. Facts: Suspect arrested, taken to station and family calls his lawyer. The lawyer called the station and asked if they were going to interrogate that night. They said no, and lawyer didnt come. But only 1 hour later, they started interrogating him. They gave him repeated Miranda warnings, which he repeatedly waived. b. Supreme Court says (1) Reasonable police conductNot reqd to tell suspect a particular lawyer is there and wants to talk to him. (2) The Supreme Court held that you do not need to inform a defendant who is being interrogated that an attorney is actually available and wants to see him. (3) We have never read the Constitution to require that the police supply a suspect with a flow of information to help him calibrate his self-interest in deciding whether to speak or stand by his rights? (4) Much more supportive of confessions than Escobedo and Miranda. (5) Note: Many states have rejected this holding ii. State v. John Reed (N.J. 1993) state court, so does not have to follow supreme court a. Facts: A lawyer is waiting to speak to Reed, and, instead, the police take him down 4 flights of stairs to the basement and to another station. b. Court says (1) NJ says under its CL right against self-incrimination, this is not allowed. (2) Must tell D that counsel is waiting
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Criminal ProcedureCollins Spring 2007Clark c. Issues (1) Dissent says weve created a world where wealthy and experienced suspects are at an advantage.

Therefore, poor and lonely clients are disadvantaged

(2) Majority also says if any person in the station knows, they must notify those interrogating (a) But, they dont really say how iii. As an attorney, what do you need to do to get into the room with your client? a. In a Moran jdxn, it probably wont help even if you sleep in the station b. Theres probably nothing you can do if your client doesnt ask c. Police may be more willing to do it out of professional courtesy, but thats about all you have going for you. d. Tell you clients, ASK FOR A LAWYER! Invocation and Waiver of Miranda Rights 100. VERMONT STATUTES tit. 13, 5234, 37 101. State v. Jason Williams (Minn. 1995) i. Facts: Brutal murder of mother, child & severe assault on 4-yr-old. During interrogation, a detective called

him a liar. He said Im tired of this bullshit! & left! Officers came into cell to ask some clarifying questions
ii. Court says a. Ambiguous invocation. Officers were ok in asking clarifying questions b. Ambiguous invocations of rights: There are three possible responses: (1) Plow ahead with questions about the crime (2) Stop questioning about crime and ask clarifying question about whether defendant is invoking his rights (3) Stop all questioning c. In Davis (1994) Supreme Court said that there is no requirement that police ask clarifying questions when

faced with an ambiguous assertion. They can keep asking questions on the merits. Majority of states agree
102. Problem 8-6: Ambiguous Assertion 103. Problem 8-7: Ambiguous Waiver i. Facts: D talks to police, they say he doesnt have to, but they would like him to sign a form, he doesnt. He

says Ill talk to you, but Im not signing.

ii. Court saysMiranda doesnt require a waiver in writing iii. What about silence? a. Officer read suspect his Miranda warnings, suspect said nothing, but answered substantive questions. b. Courts usually uphold silence and acceptance as waiver by conduct iv. What about when a suspect says I understand my rights! then answer questions a. Waiver by conduct v. Why not require a written waiver? a. Creates danger of per se waiver! 104. Problem 8-8: Capacity to Waive i. Cleary was read his Miranda rights, and signed a statement purporting to waive those rights. He then

confessed, admitting that he entered the victims house and accosted her, and that he intended to rape her. Cleary, a 26-yr-old, has an IQ of 65, but mental age of a 7- or 8-yr-old could not understand long-term consequences of waiving his rights and confessing. (1) But, he has some high school education, and ran a logging business for 7 years. He purchased and maintained equipment for the business and negotiated bank loans, timber contracts, and truck transportation for his timber. He had a drivers license, maintained a vehicle, was knowledgeable about how it worked and purchased parts for it (2) Also, if youve made it to a suppression hearing, youve been found competent for trial. b. What about being drunk or otherwise under the influence? Suspects under the influence of alcohol or drugs vary rarely convince a court that they did not have the capacity to waive their Miranda rights.
a. Effect of Asserting Miranda Rights 105. Defendant himself can reinitiate the conversation i. It is clear that the police can talk to a suspect if the suspect reinitiates the conversation. This is true whether

the suspect initially invoked his right to silence or his right to counsel ii. Oregon v. Bradshaw: conversation is initiated by a defendant if he makes a comment of inquiry that can fairly be said to represent a desire to open up a generalized discussion relating t the investigation
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Criminal ProcedureCollins Spring 2007Clark a. Asking to use a phone would not be good enough b. Asking to take a polygraph would be good enough. So would asking What is going to happen to me now? iii. The court will then ask if the defendant ultimately waived his rights knowingly and intelligently, despite the

earlier invocation of this rights 106. Can the police re-initiate after defendant invokes right to remain silent? i. Michigan v. Mosley: may be able to try again after suspect invokes right to silence. Need to see if the police have scrupulously honored the defendants right to cut off questioning. a. D invoked his right to remain silent on a robbery charge. 2 hours later another detective sought to question him about a murder charge. D waived his rights b. Court said 2 hours was enough to scrupulously honor the defendants rights c. In a similar case court said 2 minutes is not enough. ii. State v. Kevin Stanley (Conn. 1992): it doesnt matter if the suspect is approached later about the same or a different crime. Mosleys distinction was not based on it being a different crime, but the time. a. Similar facts as Mosley, except after waiting 5 hours, police asked again about the same crime 107. Can the police re-initiate after defendant invokes right to counsel i. Edwards v. Arizona: cannot try again if suspect invokes right to counsel. Defendant must be one to re-initiate. ii. Robert Minnick v. Mississippi (1990): cannot try again after invocation of right to counsel, even after suspect has consulted with a lawyer. a. Minnick escaped from prison, committed robbery and killed two people. He invoked his right to counsel, and talked to counsel several times. Then, sheriff says you have no choice, you must talk to me without counsel present. He confessed. b. Scalia, in dissent says Minnick invoked right to counsel, and talked to counsel (1) Rejoice an honest confession rather than pity the poor fool who made it. (2) Extension of prophylaxis built on prophylaxis.
Sixth Amendment Right to Counsel During Investigations (Not covered in Class, can delete) 108. 6th Amendment: In all criminal prosecutionsthe accused has a right to counsel ***all Dressler i. Only begins with formal adversarial proceedings begin ii. Preliminary hearing, indictment, arraignment. iii. Miranda right to counsel begins at time of custodial interrogation, but requires custody, 6th does not. iv. So, later than Miranda, but broader. 109. United State v. Massiah (1964) i. Facts: false friend taped a confession by Massiah while driving in car. ii. Court saysViolates 6th Amendment a. Own incriminating words deliberately elicited from him after his indictment in the absence of counsel 110. Problem 8-9: Christian Burial Speech i. Brewer v. Williams: Williams had been arraigned and was being transported in a police car, and officer gave

him something to think about. Childs body not found, and wouldnt it be great if parents could have a Christian Burial for the child. He broke. Deliberate elicitation and violation of 6th amendment. ii. Miranda: look for negligence on part of police officer notice it will likely result in incriminating response. iii. Massiah: Officer must intentionally illicit the incriminating response
Miranda: Cures, Impacts, and Alternatives 111. Cures and Remedies for Miranda Violations i. What if the confession violates Miranda? a. Can still use a statement that was obtained in violation of Miranda for impeachment purposes. (1) Collins sez: generally this isnt true if the confession is involuntary (like through coercion) b. Michigan v. Tucker: held that only the tainted confession is excluded and not the evidentiary fruits (1) In its 2004 decision in Payne, the Supreme Court made clear that physical evidence obtained because of c.

an unwarned but voluntary statement is admissible. Oregon v. Elstad: a second statement by a suspect may be admissible even if his first statement was obtained in violation of Miranda. (1) Fruit of poisonous tree doctrine does not apply to Miranda fruit gets in. (2) This holding was limited in 2004 in the Siebert case. A plurality said Elstad only applied if the first statements were obtained in good faith, and not after a deliberate manipulation of the defendant.
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Criminal ProcedureCollins Spring 2007Clark (3) Souter in Siebert: Giving the warning and getting the waiver had resulted in a virtual ticket of

admissibility. (theres more, get it from the case in the supplement).

ii. Problem 8-10: Inevitable Discovery 112. System-wide Impacts i. Cassell & Hayman, Police Interrogation in the 1990s: An Empirical Study of the Effects of Miranda a. Salt Lake City (1) 42.2% of suspects who were actually questioned made a useful confession (from govts point of view) (a) Useful = Confession (oral or written); Incriminating statement; Locking into false alibi (2) 18.6% of suspects invoked their Miranda rights b. Pittsburgh (1) 48.5% of suspects confessed before Miranda, 32.3% confessed after Miranda (2) No change in the conviction rate c. Seaside City (an unnamed California city) (1) 68.9% of suspects confessed before Miranda 66.9% confessed after Miranda (2) 9% decline in the conviction rate 113. Alternatives to Miranda i. TEXAS CODE OF CRIMINAL PROCEDURE art. 38.22 ii. Donald Stephan v. State (Alaska 1985) a. The Supreme Court invited states to experiment in Miranda b. Alaska says due process under AK Constitution demands confessions be recorded whenever feasible. c. Prosecutors love it, and police officers have come to embrace it, but defense attorneys hate it. (1) Makes it harder for defendant to allege they were coerced and the police are more likely to behave well (2) Even if confession is coerced it can come in for impeachment purposes d. Do you have to tell the suspect that they are being videotaped? (1) Generally, no (2) Some suspects may not want to confess on video e. Never in best interests from punishment standpoint to confess, but can be an immense psychological burden 114. Fifth Amendment Review i. Were Miranda warnings given? a. Always look at the content of the warnings. Were they comprehensive and accurate? b. Did the defendant try to invoke/waive his Miranda rights c. If the defendant waived, was the waiver knowing, voluntary, and intelligent? (1) Look at the preponderance of the evidence d. Was the confession voluntary? (1) Or was there conduct that might render it involuntary? Coercion? Abuse? e. If defendant invoked, was it clear and unequivocal? (1) If invoked, can the police try again? (a) Depends on the circumstances (see above cases) ii. If Miranda warnings were not given a. Was the defendant in custody at time of questioning? (1) If not, then no need to give Miranda b. Was the defendant interrogated? (1) If not, then no need to give Miranda c. Do Exceptions apply? (1) Is there a public safety exception that allows to get around the Miranda warnings? iii. If Miranda warnings were required and police failed to give them, was the confession nevertheless voluntary? a. If yes, then can still use for impeachment iv. If there was a Miranda violation, are there fruits of the confession you can still use? CHAPTER NINE: IDENTIFICATIONS Risks of Mistaken Identification 115. Haber & Haber, Experiencing, Remembering and Reporting Events i. Observation issues: Point of view, lighting, daytime v. nighttime ii. Weapon focus, Stress, previous training, cross-racial ID, Tainted information added post-incident -- 40 --

Criminal ProcedureCollins Spring 2007Clark 116. Eyewitness IDs generally i. Some Due Process constraints, but dont really help ii. Even suggestive ID procedures can be admitted if otherwise reliable iii. What can courts do? Allow expert testimony on suggestiveness, Extend heightened constitutional protections,

Give jury instructions (cross-racial ids)

Exclusion of Identification Evidence 117. Identification Procedures i. Show-up: Bring suspect to witnesses, or bring witnesses to suspect. Very time-sensitive: Can only use a

show-up within the first minutes or hours after the incident. Very suggestive.
ii. Single Photo ID: Only really used to confirm when witness knows who suspect is or is closely related. Not

used in stranger identification because it is very suggestive.

iii. Photo Array: By far, the most common form of ID. Most PDs have their mugshots on a computer. Usually,

they are shown wither in an array of 10 (or so) or flipped through like a deck of cards.
iv. Line-Up: Quite uncommon. Line-ups are very hard to put together its hard to find 4 or 5 people that are of

similar height and facially resemble the suspect. Most often occur when there are many suspects, or when the witness targets in on a specific vocalization v. In-court ID: The event prosecutors dream of. That person killed my sister, Im 100% positive! vi. If one of the first 4 are thrown out, you can save the in-court ID if it is based on some independent basis. 118. Exclusion on Right to Counsel Grounds i. United States v. Billy Joe Wade (1967) a. Facts: Three cases where D is IDd in a post-indictment line-up. All sorts of suggestivity issues, in fact, Wade was seen by the identifying witness standing in the hall with the FBI agent prior to the line-up b. Issue: Wade complains that his attorney was not present during his line-up c. Sixth Amendment: In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense [Construed to extend to all critical phases of criminal proceeding] d. Court says (1) Line-up = critical phase of criminal proceedings b/c witness IDs are particularly compelling evidence (2) What is counsel going to do at a line-up? (a) Object? Let it proceed knowing it will be excluded? Line-up will still happen no matter what you do. (b) Perhaps presence of counsel may keep cops in line. (c) At least the presence of counsel lends some credence to Ds allegations of improper occurrences, plus, counsel knows whats wrong and knows what to look for. (d) Also, make sure witness is videotaped reveals persuasion by officer or hesitation in ID. ii. United States v. Kirby (1972): Limits Wade to post-indictment line-ups. iii. New York City Police Department, Legal Bureau, Eyewitness Identification Procedures: Lineups iv. Overview of Line-ups a. Wade: you have the right to counsel at a post-indictment line-up (or corporeal ID procedure) b. Kirby/Hickman: you have no right to counsel at a pre-indictment lineup c. Whats the distinction? 6th Amend protections do not apply until the invocation of adversarial proceedings (1) 6th Amend only helps you at line-ups post-indictment (2) At all other ID procedures, there is no 6th amendment right to counsel d. Why not allow the right to counsel at all IDs? (1) Pretty unworkable: eliminates show-ups (2) What about videotaping all procedures e. What happens? (1) ID is excluded (2) Govt also barred from asking witness at trial from identifying in court room, unless, there is some evidence this in-court ID is not tainted by the unconstitutional out-of-court ID v. What about the ID process in the Duke rape case? a. Witness only shown pictures of players on Duke lacrosse team. b. Should there be room for error by the witness perhaps some people not on the team? c. What if witness says I know the mugger was in my Crim Pro class! Do you put in some fillers or just limit the photo line-up to the 38 people in class? Consensus in class = use fillers to allow for witness error
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Criminal ProcedureCollins Spring 2007Clark d. Does questionable ID taint the in-court ID? Not only is it tainted, but Ds are almost national celebrities

who couldnt ID them?

119. Exclusion on Due Process Grounds i. Stovall v. Denno (1967) a. Facts: Victim had just undergone major surgery, and police brought a black suspect into her hospital room,

handcuffed to 1 of 5 uniformed white officers and asked is this the man that stabbed you? She said Yes Court says (1) Federal Rule: An ID procedure so unnecessarily suggestive and conducive to irreparable misidentification could violate due process of law. Based on totality of circumstances. (2) But, upheld the identification, finding that it was suggestive, but necessarily so. (She may have died) (3) If the show-up here is admitted, what else could be worse than this? Great case for prosecutors! (4) Indicates that reliability is the key ii. Neil v. Biggers (1972) a. Rule: There is no per se rule that ID evidence will be excluded if the ID procedure was unduly suggestive. You need to consider whether the ID is sufficiently reliable. (1) Was the ID procedure unduly suggestive? (2) If so, was the ID nevertheless reliable? b. Neil sets out the following factors to determine reliability (1) Opportunity of the witness to observe (2) Decree of attention paid by the witness (3) Detail and Accuracy of prior witness description (4) Level of certainty demonstrated by witness (5) Length of time between crime and ID procedure iii. State v. Livio Alphonso Ramirez (Utah 1991) a. Facts: Show-up where suspect is handcuffed to a fence and lit by headlights and searchlights from police cars. One of 3 witnesses makes an ID from the back of a police car. b. Ramirez Factors: leave out level of certainty demonstrated by witness from Neil factors (1) Opportunity of witness to observe (a) Lighting, distance, duration, whacked by pipe, scarf covering face (b) Defense: poor lighting, 30 ft, seconds, (2) Degree of attention paid by witness (a) What else was going on? (b) Being whacked by pipe, but also seconds where he had nothing to do but stare at gunman (3) Capacity of witness to observe, including mental and physical acuity (a) Stress/fright; bias/prejudice; defects in vision; under influence. (b) Just finished getting beaten, and face was covered by scarf. Also, a cross racial ID (4) Accuracy of description, including whether ID spontaneous or prompted by suggestive procedure (a) Spontaneous & consistent ID or product of suggestion? (b) Wilson is equivocal: Hat or no hat? Mexican or Amerindian? Tattoos or no tattoos? (c) Suggestivity? (i) All witnesses viewed them at the same time and could talk to each other (ii) Also, Police said Weve arrested someone that matches your description. Should have said We have a suspect wed like you to look at! (5) Nature of the event and likelihood it would be observed and remembered. c. ButCourt says (1) Extremely close case, blatantly suggestive. (2) But, we must give deference to the trial court who admitted the evidence and observed the witness (a) Seems strange because Ramirez court explicitly rejected certainty of witness as a factor. (b) Apparently convicted solely on this basis iv. Neil v. Biggers means that Ds are usually unsuccessful at suppressing ID. [But, should always try] v. Problem 9-1: Prompting in a Lineup vi. Problem 9-2: Wigs and Mustaches vii. New York City Police Department, Legal Bureau, Eyewitness Identification Procedures: Showups viii. Farmer, Atty Gen. Guidelines for Preparing and Conducting Photo & Live Lineup Identification Procedures ix. Problem 9-3: Photo Lineups
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Criminal ProcedureCollins x. Problem 9-4: Videotaped Lineups Other Remedies for Improper Identification Procedures

Spring 2007Clark

120. Alternatives to Exclusion i. MA procedure: any unduly suggestive ID should be excluded. a. This might go too far, because it excludes IDs even when you are IDing a family member b. Maybe an exception would be appropriate here for IDs of close friends and family members ii. Jury Instructions: iii. Expert Witness: a. Much less likely to get these. Plus, experts are very expensive (1) Certainty-Accuracy correlation (2) Cross-racial IDs b. But, are you comfortable with saying: I know witness A said she is 100% positive, but studies show that

she isnt! What if this witness is different? Can also be taken care of on cross-examination iv. Cross-examination: a. Only as effective as the attorney is its an art-form v. Trust the Prosecutors to weed out poor IDs 121. State v. McKinley Cromedy (N.J. 1999) i. Facts: College student raped in well-lit apartment. She fails to ID her attacker from a book of pictures. 8 months later she IDs him walking on the street and he is convicted solely based on this ID. ii. Court says a. Limiting instruction on danger of cross-racial identification b. Cromedys proposed instruction: You may consider, if you think it appropriate to do so, whether the crossracial nature of the identification has affected the accuracy of the witness original perception and/or the accuracy of the subsequent ID
c.

CHAPTER TEN: COMPLEX INVESTIGATIONS: THE INVESTIGATIVE GRAND JURY Grand Jury Generally 122. Grand Jury Federal focus here i. 16-23 citizens (who cant find an excuse) who must decide whether theres enough evidence to proceed to trial a. Judges are pretty lenient with excuses, so, who do you get? b. Often the elderly, or federal employees who are required to get their pay anyway. ii. Onerous burden a. In the Federal system, grand jury sits one day a week for 18 months. b. In D.C., they often meet every day for 6-8 weeks 123. In most systems, including the federal system, the grand jury must give an indictment i. Often, only hear evidence for 10-15 minutes before handing an indictment ii. Only the government side is involved, the defense is not there iii. No F.R.E., soHearsay & Character evidence is rampant, and exculpatory evidence is excluded iv. A Grand Jury will indict a ham sandwich generally, a professional embarrassment to be no-billed v. However, it may also be used for political purposes a high profile case, with no evidence, or one you dont

want to prosecute, can be disposed of by submitting it to a G.J for a no-bill

124. Effective in complex investigations i. Prosecutors often have no power to compel witnesses to talk to them, but G.J. can subpoena a witness, and if

they dont show, the court will issue a bench warrant and the U.S. Marshals will go search for them.
ii. Grand Jury can also issue a subpoena duces tecum to compel documents -- 43 --

Criminal ProcedureCollins Spring 2007Clark iii. Generally, more likely to get truth out of a witness in a secret G.J. proceeding. This preserves their testimony,

which you can then use to impeach at trial. Under F.R.E., in certain situations, may come in as substantive
125. At bare minimum, it serves this function i. Professionally, you dont want to get no billed by the G.J. ii. So, it forces prosecutors to engage in some pre-screening Grand Jury Secrecy 126. FED. R. OF CRIM. P. 6 i. The prosecutor, the grand jurors, and the court reporter may not disclose matters occurring before G.J. (does

not include witnesses)

ii. Only the prosecutor, grand jurors, court reporter, and witness can be in the grand jury room during testimony

(does not include attorney for the witness, or attorney for the subject of the investigation)
iii. Why do we care about secrecy? a. Keep the investigation a secret from defendants so they cant tamper with it b. Keep the investigation a secret from media and thus the public so potential defendants who are never

indicted are not embarrassed.

127. COLORADO REVISED STATUTES 16-5-204(d) Immunity for Witnesses 128. Generally i. The 5th Amendment protects against self-incrimination. But, the target of the investigation is very rarely called

before the grand jury, unless they want to be

ii. Generally, advise every witness of their Miranda rights when you talk to them, get them to waive them, and

the, do it on the record in the Grand Jury room. a. Collins sez: advise everyonetell them you advise everyone, toosay: Its everyones constitutional rights, so I tell everyone, 80-yr-old grandmothers, police officers, 6-yr-olds 129. Types of Immunity i. Use Immunity: You cannot use testimony from the grand jury against the witness ii. Derivative Use Immunity: You cannot use any leads generated from the grand jury testimony a. No prosecution based on testimony, but prosecution may be based on any independent evidence iii. Transactional Immunity: You cannot prosecute the witness for any crimes he reveals during his testimony. a. Essentially, a free ticket if you testify, you will never be prosecuted, ever 130. Kastigar v. United States: Supreme Court said Use and Derivative Use immunity are enough in order to compel a witness to testify. You do not need to grant transactional immunity. 131. States are split as to what type of immunity to give. 132. Commonwealth v. Patricia Swineheart forget it.
Document Subpoenas 133. FED. R. CRIM. P. 17(c): A court can quash a subpoena if compliance would be unreasonable or oppressive i. If complaint is irrelevance, motion to quash granted only if no reasonable possibility that the category of

materials the Govt seeks will produce information relevant to the general subject matter of the investigation.
134. May consider using a subpoena over a search warrant 135. United States v. R. Enterprises, Inc i. Stevens talks about what might be considered oppressivetrade secrets, etc 136. OHIO REVISED CODE 2939.12 137. ARKANSAS STATUTES 16-43-212 138. Why Duke Rape Case is a mess, reason # 45 i. NC limited use of G.J. testimony 2 police officers testified for 20 minutes ii. If there had been more in-depth GJ testimony, you would have had GJ give credibility assessment to the other

dancer, all the other players, and possibly even the victim.
HOT TOPICS DNA Dragnets 139. Should we broadly collect DNA samples? i. From Prisoners? -- 44 --

Criminal ProcedureCollins Spring 2007Clark ii. From all foreign nationals entering the country? 140. What about Truro, MA dragnet. i. Consensual DNA collection from town. But, if you didnt consent, the whole town knew. ii. It worked! Of course, it took 18 months. Its a practical limitation that labs are not able to handle the large

sample of DNA.
CSI Effect 141. The technology available on CSI often doesnt actually exist. 142. But, juries expect that there will be DNA evidence in every case. i. That means that you have to explain, in every case, why you dont have fingerprints and DNA. ii. Generally, it has been a total boon for defense counsels, because juries expect so much more. 143. Furthermore, there are a lot of quacks out there that just make up evidence out of wholecloth. Fingerprint Evidence 144. We dont even really know for sure if fingerprints are unique to each person 145. Philadelphia DA is calling its credibility into question Duke Lacrosse Team Rape Case 146. Nifong: As long as the victim continues to want to go forward against these people, I have an obligation to do so 147. Really? What about prosecutorial discretion? Are you proceeding in bad faith if you prosecute a case you think

you cant win?

PART TWO: EVALUATING CHARGES

CHAPTER ELEVEN: DEFENSE COUNSEL When Will Counsel Be Provided?

The 6th Amendment: In all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense. 2. Types of Charges i. The Road to Gideon a. Powell v. Alabama (1932) (1) Facts: 9 black men convicted of raping 2 white women. Within days, all tried and sentenced to death (2) Court says (a) Under the facts of this case, denial of right to counsel is a violation of due process (b) The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman [and some lawyers] has small and sometimes no skill in the science of law. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge necessary adequately to prepare his defense, even though he may have a perfect one. He
1. -- 45 --

Criminal ProcedureCollins

Spring 2007Clark

requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. b. Betts v. Brady (1942): Despite broad, sweeping language of Powell, Betts says there is only a right to counsel under certain special circumstances ii. Clarence Earl Gideon v. Louie Wainwright (1963) IMPORTANT a. Overturns Betts, using similar language to Powell. Applies 6th Amendment right to counsel to states. Right to counsel is a fundamental right. b. The Federal Rule on Who gets a State Appointed Lawyer? (1) Right to counsel in any felony case, and any misdemeanor case where imprisonment is actually imposed; but not in cases where you only face a fine. (2) The state must also provide counsel to an indigent on her statutory appeal of right (see Douglas v. California). State does not have to provide counsel for discretionary appeals or cert. petitions (3) In Alabama v. Shelton (2002) Court ruled a suspended sentence that may end up in the actual deprivation of a persons liberty maynt be imposed unless D accorded guiding hand of counsel during prosecution (4) However, the Court has also held that an uncounseled misdemeanor conviction may be factored into sentencing for a later crime iii. Argusinger v. Hamlin: If you get even 1 day in jail for a misdemeanor, you get a lawyer. Not based on potential sentence, but actual sentence. Real world implication is that a judge cant constitutionally impose jail time when D is not represented by counsel (* Dressler *) iv. In re Advisory Opinion to the Governor (Appointed Counsel) (R.I. 1995) a. Good summary of federal law b. R.I. ultimately decides to hedge their additional protection and go with federal standard v. Alabama v. LeReed Shelton (U.S. 2002) a. A suspended sentence that may end up in the actual deprivation of a persons liberty may not be imposed unless the defendant was accorded the guiding hand of counsel during the prosecution. vi. FLORIDA RULE OF CRIMINAL PROCEDURE 3.111 vii. VERMONT STATUTES tit. 13, 5231, 01 viii. NORTH CAROLINA a. Any case in which imprisonment or a fine of $500 or more is likely to be adjudged b. Habeas petition hearing c. Post-conviction motion for appropriate relief d. Revocation of probation or parole e. Extradition hearing f. Juvenile hearing, if juvenile might be committed to an institution or transferred to adult court. ix. Problem 11-1: Lawyers and Experts: Should the state have to pay for expert witnesses as in DNA experts?
3.

Point in the Proceedings When does the Right to Counsel Attach? a. Once an adversary proceeding or a criminal prosecution has begun. b. In more concrete terms, at Ds initial hearing (if it can create a record to be used against the defendant) or at the time D is arraigned on an indictment. (may be a substantial time-gap from the time of arrest) c. Even if criminal prosecution has begun, your lawyer need only be present if proceeding is a critical stage d. Thus, you need both: criminal prosecution and critical stage ii. Other Legal Grounds Supporting a Right to Counsel a. Due Process: right to counsel for right to first appeal b. Fifth Amendment: (Miranda rights) applies earlier than 6th Amendmentany custodial interrogation c. Equal Protection: Indigent persons deserve the same protection as wealthy persons d. Statutes and Rules: i.e. Fed. R. Crim. P. 44 says that an indigent shall be assigned counsel iii. Would you grant a Right to Counsel from the very first time a D stands up in court? a. Bail hearings? As seen on Law & Order, these are short, cursory proceedings, counsel may not be effective b. Urban centers are more likely to allow it than states. iv. ALABAMA RULE OF CRIMINAL PROCEDURE 6.1(A) v. MISSOURI SUPREME COURT RULES 31.01, 31.02 vi. Joy Friedman v. Commissioner of Public Safety (Minn. 1991)
i. -- 46 --

Criminal ProcedureCollins Spring 2007Clark a. Facts: Friedman was pulled over for DWI. She was given a breathalyzer, failed, and then at the police

station, they want to administer a chemical test. She is told she cant have counsel, but is confused as to why she has to take a second test. Police take this as a refusal and revoke her license for a year. b. What is a Critical Stage? (1) Gerstein v. Pugh tells us it is those pretrial proceedings which would impair defense on the merits if the accused is required to proceed without counsel. (2) But, thats not really true for example, it doesnt cover searches, which certainly impair your defense. c. Court says (1) This is a critical stage! This test is the whole enchiladayou fail the test, you lose. (2) Plus, good counsel will be interested in their clients health and will be able to persuade a problem drinker to seek treatment. This will counter the prosecutions desire to gain statistics and convictions. (3) However, due to the evanescent nature of the evidence in DWI cases, the right is satisfied by providing the D with a phone prior to testing and a reasonable time to contact and talk with counsel. vii. Problem 11-2: Psychiatric Examinations
Selection and Rejection of Counsel

The Right to Self-Representation i. Faretta v. California: Self-representation is part of your rights under 6th Amendment [a positive right] a. D must have sufficient mental capability to understand shes giving up the benefits of a lawyer b. If shes that competent she can give up her lawyer if she wants to. ii. McKaskle: A judge can appoint stand-by counsel to assist D, if the judge explains stand-by counsel to D. 5. State v. Joseph Spencer (Iowa 1994) i. Facts: Spencer wanted to fire his attorney and proceed pro se. Judge says ok, but Im appointing stand-by counsel, who ends up trying the case for Spencer. ii. Question? What else could Spencer have done to explain his desire to self-represent? iii. Court says a. The Court properly appointed an attorney over Ds objection. If defendant had wished to treat this appointed attorney as standby counsel, he could have done so. 6. Do Indigent Clients have a say in who represents them? i. General Rule: Beggars cant be Choosers ii. Should indigent criminal Ds have an ability to choose their defense counsel?
4. Adequacy of Counsel 7.

Effective assistance of counsel

i. Puts prosecution in strange circumstances of defending conduct of defense counsel to preserve conviction ii. Occasionally, defense counsel will argue he was ineffective in order to avoid the conviction. iii. If you represent yourself, you cant raise an ineffective assistance of counsel defense.

8.

Charles Strickland v. David Washington (1984) [One of those name cases you have to know] Facts: Counsel tries to help Stickland, but is consumed by a sense of hopelessness after, against his advice, client confesses to two other murders, waives jury trial right, and pleads guilty. Client then waives jury trial for sentencing hearing. Generally, all bad ideas. a. What doesnt the lawyer do? He doesnt do a lot of psychiatric work, doesnt get a lot of family history, instead, he goes hard on judges reputation for weighing strongly defendants acceptance of responsibility. b. Miscalculates, and Strickland is sentenced to death ii. The Strickland Standard: The Defendant must show both deficient performance and prejudice. a. Performance: D must show counsel fell below an objective standard of reasonableness (1) Review is highly deferential, and you start with a presumption of competence. (2) OConnor gives very little guidance: look to prevailing norms and consider circumstances of trial (a) Why doesnt she give a better guide? (i) Trials are amorphous and dissimilar (ii) Checklists may not capture the realities of trials (b) What should you use as a baseline? (i) Presumption of competence. Strategic choices are given high deference (ii) So, as long as attorney can give a post hoc strategic plan, probably OK.
i. -- 47 --

Criminal ProcedureCollins Spring 2007Clark (3) To show how deferential this is . . . McFarland v. Texas: 72-yr-old lawyer fell asleep during trial. Court

said it may have been a strategic move to engender sympathy. Plus, co-counsel was still awake.
(4) Marshall, in dissent, rather accurately says that this is too malleable a standard

Prejudice: D must show counsels errors so serious as to deprive D of fair trial whose result is reliable. (1) Need a reasonable probability that the outcome would be different (2) What does this mean? She says its less than more likely than not (3) Why not go with Justice Marshall? If you show deficient counsel, thats all you need. We dont care if the person is innocent or guilty, everyone deserves a fair trial 9. Michael Bruno v. State (Fla. 2001) 10. Wiggins v. Smith (2003) i. Facts: First, court names the defense counsel rather prominently, which is generally a bad sign. a. Tried to bifurcate sentencing into responsibility and mitigating circumstances, but denied b. In opening, counsel said jury would hear about how hard Ds life was, but they never did so. c. Wiggins had a pretty horrible background. Trial judge even mentions, I cant believe you didnt do a social history. This is pretty much standard fare in capital cases. d. They say, their strategy was to focus on accomplices responsibility for the crime ii. Court saysIneffective. After knowledge about social history, there was a duty to investigate further iii. Scalia says Counsel knew about social history, and made a choice to not include it. This was a bad choice, and a wrong choice, but nevertheless, a valid strategic choice 11. Problem 11-3: Cronic Errors i. Facts: At guilt phase, Counsel said the following a. No question victim died a horrible, horrible death. In fact, that horrible tragedy will be proved to your satisfaction beyond any reasonable doubt. In this case, there wont be any question, none whatsoever, that my client, caused victims death. This case is about the death of my client, and whether it should occur within the next few years by electrocution or maybe its natural expiration after a lifetime of confinement. b. I know you will find my client guilty ii. Court says a. The court explained in Cronic, decided the same day as Strickland, that some conduct is so egregiously prejudicial, that ineffective assistance of counsel will be presumed. b. However, here, the Supreme Court said this was not per se ineffective as a Cronic error 12. AMERICAN BAR ASSOCIATION, DEFENSE FUNCTION STANDARDS (1993) i. STANDARD 4-3.6: PROMPT ACTION TO PROTECT THE ACCUSED ii. STANDARD 4-4.1: DUTY TO INVESTIGATE iii. STANDARD 4-6.1: DUTY TO EXPLORE DISPOSITION WITHOUT TRIAL 13. RULE 33 COURT OF COMMON PLEAS, CUYAHOGA COUNTY, OHIO i. Lays out minimum exp. reqs for counsel in (A) murder cases, (B) major felony cases, (C) other felony cases. 14. Which is better? Professional standards or experience standards? 15. Problem 11-4: More Objective Competence Standards
b. Systems for Providing Counsel 16. Smith & DeFrances, Indigent Defense i. 75-80% of felony defendants are indigent. ii. States rely on 3 kinds of systems: a. Public Defender System (28%) b. Assigned Counsel (23%) (1) Court maintains list of private attorneys (2) Lawyers on list are assigned indigent cases c. Contract System (8%) (1) Hire individuals for a specific period of time iii. 41% of jurisdictions use some sort of mixed system between the three 17. State v. Leonard Peart (La. 1993) i. Facts: Ineffective assistance of counsel case in Louisiana state court system a. Pubic Defender Rick Tessiers Caseload (1) 70 active felony cases (2) Clients incarcerated 30 to 60 days before he meets with them -- 48 --

Criminal ProcedureCollins Spring 2007Clark (3) From Jan. 1, 1991 through Aug. 1, 1991, Tessier represented 418 defendants (4) At least one case set for trial on every available trial date. b. Extreme example, but not that extreme. How do we lessen the caseload on the criminal system? (1) Force every lawyer to take on indigent defense cases? (2) Pay defenders more? But how do we pay for it? 18. State v. Delbert Lynch (Okla. 1990) 19. AMERICAN BAR ASSOCIATION, MODEL RULE OF PROFESSIONAL CONDUCT 1.5(d) 20. Problem 11-5: Flat Fees for Service 21. Problem 11-6: The Neighborhood Defender The Ethics of Defending Criminals 22. Speeches of Lord Erskine: You must, as all the bar must 23. Dos Passos, The American Lawyer: You should, out of obligation to the forms of the law 24. Am. Bar Assoc. & Assoc. Am. Law Schools, Professional Responsibility: Report of the Joint Conference:

You should, b/c youre indispensable larger multi-part decisional process, designed to produce impartial results
25. Kaplan, Defending Guilty People: Dont criticize someone inexplicably willing to do this, like a proctologist. 26. Cutler, Is a Lawyer Bound to Support an Unjust Case? A Problem of Ethics: You should not, unless you

believe them to be innocent

27. Letter from William Townsend 28. Cliff Clifton How do you get past defending persons who you know are guilty i. Believe in the system everyone deserves a fair trial, even guilty people. ii. 98% of people who walk through the door are guilty of something, 95% are guilty of what they are charged. iii. But not all defense clients are bad peopleyou help a lot of good people CHAPTER TWELVE: PRETRIAL RELEASE Overview 29. Critical question for several reasons i. Liberty interests of defendants ii. Huge expense to government to detain iii. Can have big impact on outcome. More likely to be convicted and more likely to be sentenced more severely DETENTION

AND

if detained pre-trial
30. Bail Reform i. Not generally constitutionally-driven a. Federal Constitution doesnt create bail entitlement. Only states that if bail set, it shall not be unreasonable. b. Some State Constitutions do create an entitlement to bail ii. Bail hearings occur at a time when judges and prosecutors know very little about the defendant

31. Some Hyposwhat would you do? i. Defendant 1: 45-yr-old employed man charged w/ simple assault for repeatedly striking wife. Injuries required

ER visit, but no admission. No prior convictions. Police have been called to home on 4 prior occasions. Probably releaseAny conditions? (1) Released on Own Recognizance (ROR)no conditions (2) Report to Halfway House (3) Report to Jail every night (4) Ankle Bracelet (5) Be creative b. Presumed Innocentpretty problematic to lock someone up who has never been convicted ii. Defendant 2: 22-yr-old unemployed man charged w/ possession (20 rocks of crack) w/ intent to distribute. 1 prior felony drug conviction & 1 prior felony gun conviction. Mom says he can live with her pending trial. a. Probably release with conditions b. But big flight risk and severe nature of conviction
a. -- 49 --

Criminal ProcedureCollins Spring 2007Clark iii. Defendant 3: 25-yr-old unemployed female charged w/ possession of unregistered handgun in her home. Prior

arrests for drug possession, passing forged checks, & simple assault but no convictions. Lives in jurisdiction w/ her two-yr-old & six-month-old children. Has already failed to appear once in connection w/ this case. a. Probably release with conditions (1) Ankle bracelet? House arrest is uncommon because its so expensive (2) But if you lock her up, what do you do with the kids? iv. What weighs more? Type of Offense? Perceived/Actual Violence? Flight Risk? Prior Convictions? Kids?
Pretrial Release 32. Method of Release i. 50 Years Ago a. About 54% of Defendants were detained pending trial b. Bail set by trial court or clerical personnel for the court or the police. No meaningful appellate review c. Decision usually based on the seriousness of the charges d. Usually saw financial release conditions ii. Vera Institute of Justice, Fair Treatment for the Indigent: The Manhattan Bail Project (1961) a. Dual Premise (1) Make an effort to get judges more verified information about defendants (2) We should release more peoplemake Release on own recognizance more likelytrust people b. System: Scoring system based on a variety of factors c. Results: (1) Judges accepted 59% of the recommendations for release, a figure that increased over time (2) In the Control group, only 19% of defendants were released on their own recognizance (3) 1.6% of those released willfully failed to appear d. Impact of Pre-trial Detention on Trial Outcomes: (1) Vera found 40% of those released pre-trial were ultimately convicted, compared to 77% in control group (2) 16% of those released pre-trial received a prison sentence, compared to 96% of control group. (3) Why? (a) Are detainees held because they are more serious offenses (b) Is judge used to seeing you in a coat an tie, or in a jumpsuit behind bars? (c) If you do well after release, if shows that you could do well with some non-prison sentence punishment (d) Less time to work on defense iii. Current Statistics (1992) a. 63% of felons released pre-trial b. Non-financial release conditions are more commonabout 60% of the cases (1) About 24% of these felons are ROR. Remaining defendants have some kind of condition on their release c. 40% of cases still involve a financial condition (1) Full cash bail (2) Surety bondto bail bondsman (usually about 10%) (3) Deposit bondto court (4) Property bondto court d. What do you do to get people released? What factors count? (1) Do you own a house? Who do you live with? (2) What is the nature of the crime accused? (3) Have you been convicted before? e. Negative side of pre-trial release (1) 14% of released defendants re-arrested for committing a new offense while on release (2) ~25% of Ds fail to appear (but this includes technical failureslike Michael Jacksonwho was ill) f. Really important factors to judges (1) Prosecutor recommendation (a) In a close case, prosecutor has motivation to recommend detention (b) Likely skewed b/c prosecutor trying to pass the buck to judge if accused does something post-release (2) Nature of offense iv. ALABAMA RULES OF CRIMINAL PROCEDURE 7.2, 7.3 Pretrial Detention -- 50 --

Criminal ProcedureCollins Spring 2007Clark 33. The 8th Amendment: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual

punishments inflicted.
34. TENNESSEE CONSTITUTION art. 1, 15, 16 35. 18 U.S.C. 3142(e), (f) (Bail Reform Act of 1984) i. Allows pre-trial detention if the judge finds by clear and convincing evidence that no condition or combination

of conditions can reasonably assure the safety of any other person or the community generally
ii. 3142(f)(1): anyone charged with one of the crimes designated by the statute (a crime of violence, a crime

where the potential sentence is life imprisonment or death, a drug crime where the penalty is 10 years or more, or anyone facing a felony charge who has two or more prior felony convictions). iii. 3142(f)(2): Anyone who poses a serious risk of flight or obstruction of justice. iv. If youre in (f)(1) category, rebuttable presumption youll be detained if you commit a crime while on release in another case or if convicted of or finished serving your sentence for one of these offenses in past 5 yrs. v. Issues: (f)(1) list seems reasonable, but crime of violence is broad, and its easy to get 10 yrs on a drug claim 36. United States v. Anthony Salerno (1987) i. Facts: Anthony Salerno is the purported head of the Genovese crime family ii. Due Process challenge a. Innocent until convicted, so you cant be detaining them as punishment b. But, pre-trial detention is not based on punishment for a non-convicted crime; instead its the states regulatory interest in protecting the public in case the state is right. c. Court says that the state has a regulatory interest in community safety which can, in appropriate circumstances, outweigh an individuals liberty interest. d. But, this liberty interest can only be outweighed after a hearing with clear & convincing proof this person poses a danger to the public. Additionally, theres a req. of probable cause to hold the person for trial. iii. 8th Amendment Challenge a. 8th Amendment does not guarantee a right to bail, but when available, it cannot be excessive b. Historically, bail not avail. in capital cases, which included many more crimes than murder back in the day. iv. Dissent (Stevens): Poses an extension of the majoritys decision. Thinks its unconstitutional 37. NEW MEXICO CONSTITUTION art. II, 13 i. 60 day time limit on pre-trial detention ii. Applies to people facing any felony charge now, who have two prior felony convictions iii. Also applies to anyone facing a dangerous weapon felony charge now, who has one prior felony conviction 38. VIRGINIA CODE 19.2-120 i. Can detain those who have previously failed to appear; or ii. Who are an unreasonable danger to himself or the pubic. iii. If convicted within the last 16 years of a drug offense or a violent offense, and you are now charged with one of these offenses, there is a presumption of detention. 39. Changes: i. We release a lot more people than we used to ii. But, Bail Reform Act allows govt to detain the accused for long periods of time based on minimal showing. 40. Feroz Abbasi v. Secretary of State (Ct. App., Civ. Div. 2002)
CHAPTER THIRTEEN: CHARGING Prosecutorial Screening 41. Overview i. Charging = largely done by prosecutors, but police perform a screening function too. Judges rarely involved. ii. Normal process = officer comes to prosecutor who determines which charges to file. But, other options, too: a. Declination: Prosecutor can decide not to file charges for whatever reason b. Diversion: Prosecutor can offer to divert accused from trial to some alternative rehabilitation program 42. Declination and Diversion i. Declination Policies a. Types of Guidelines (1) General principles: no specifics on crime or offender type. (a) Example: Washington (see infra) (2) Specific guidance: names classes of offenses or offenders who will be declined. -- 51 --

Criminal ProcedureCollins Spring 2007Clark (a) Example: U.S. Attorneys office guidelines setting a financial threshold. (3) Procedural guidelines: describe only the process to be followed. b. U.S. DOJ, U.S. Attorneys Written Guidelines for Declination of Alleged Violations of Fed. Criminal Laws (1) About of all arrests do not result in charges (a) Some are clearly acceptableinnocent persons and those where there is insufficient evidence (b) Others are less clearly acceptablesome prosecutors draw a firm line where they dont prosecute (i) Monetary losses less than $5000 or drug charges with less than X amount (ii) First-time immigration offense. (iii) Particularly, those offenses where the state can prosecute c. Statement of Assistant Attorney General Philip Heymann (1) In the late 1970s Congress got upset at low rates and forced DOJ to testify before Congress. (a) Congress was mad because they decided the law, and it was DOJs job to enforce the laws (b) But, if Congress isnt willing to pay for more, then DOJ has to limit its scarce resources d. REVISED CODE OF WASHINGTON 9.94A.411(A) (1) Prosecutor may decline to prosecute, even though, technically, suff. evid. exists, in situations where: (a) prosecution would serve no public purpose (b) prosecution would defeat the underlying purpose of the law in question (c) prosecution would result in decreased respect for the law (2) Examples (a) Contrary to legislative intent (b) Antiquated statute (c) De minimis violation (d) Already confined on another charge and new violation is a misdemeanor (e) Pending prosecution on another charge and new violation adds nothing substantial (f) High disproportionate cost of prosecution (g) Improper motives of complainant (h) Grant of immunity or a cooperating witness (i) Victim request (in assault case with little injury, property crime with no big loss) ii. Diversion of Defendants a. MONTANA CODE 46-16-130 b. State v. Wallace Baynes (N.J. 1997) (1) Facts: Prosecutor sets up guidelineno diversion if buying dope within 1000 feet of a school. Denies

diversion for a married guy with kids and buys a miniscule amount of heroin 900 feet from a school
(2) Judge steps in and says violation prosecutor violated state directive to consider diversion. (a) Shows written guidelines can be troubling (b) Mandatory prosecution laws?

Office of the District Attorney Orleans Parish, Louisiana, Diversionary Program Requirements First arrest, but cannot be a violent crime, drug distribution, weapons offense, heroin possession Abuses alcohol or drugs Will accept treatment and acknowledges wrongdoing 17-yrs-old or more & lives in New Orleans iii. Hypos: Possible Defendants a. Tom: 19-yr-old student at comm college, prior conviction for misdemeanor theft. Sells 3 joints to classmate (1) Prosecution: Hes just in it for the money. He has no other motivation to stop selling drugs than jail. He will probably get the most deterrent effect out of being prosecuted b. Janice: 19-yr-old single mother of 2. On welfare, high school dropout, addicted to drugs. One prior arrest for possession with intent to sell crack cocaine. Sells 3 rocks of crack cocaine to a neighbor. (1) Diversion: Shes got a lot to lose with the two kids who will end up in foster care. Unfortunately, her prior conviction will probably eliminate her eligibility for diversion. c. Fred: 45-yr-old married father of two, employed at gas station. No prior record, addicted to drugs. Arrested for purchasing 3 rocks of crack cocaine. (1) Diversion: Hes got a lot to lose. Maybe the fright of being arrested will scare him straight. It might be a better allocation of resources to let him go and prosecute him if you see him again.
c. (1) (2) (3) (4) -- 52 --

Criminal ProcedureCollins Spring 2007Clark d. Heres an idea: Lets say Fred bought his 3 rocks of cocaine from his neighbor Janice. She goes to

rehabilitation for her addiction, but instead of taking her kids to foster care, give them to Fred to care for while Janice is in rehab so he realizes the repercussions of his actions. 43. Selection of Charges and System i. Selection Among Charges a. U.S. Department of Justice, Principles of Federal Prosecution & MINNESOTA STATUTES 388.051 b. State v. Tanya Caskey (Iowa 1995) (1) Facts: Caskey is DWI with her children in the car and charged with a class C felony neglect of a dependent person. Argues that she should have been charged with an aggravated misdemeanor of child endangerment, instead, because the children did not suffer serious injury and it better fits the offense. (2) Court says (a) The behavior comes within the plain and rational meaning of the language of the felony. (b) Need not look further no abuse of prosecutorial discretion. c. U.S. v. Batchelder (1979): There is no due process problem with two statutes authorizing different punishments for the exact same conduct. (1) The problem, for innocent citizens, is prosecutors commonly undercharge to get trial thru system better. (2) The other problem is that Congress frequently just writes a new law rather than checking if an existing law will cover the behavior intended to be stopped (3) Another problem is overcharging in order to induce plea-bargaining. (4) Essentially prosecutors have significant discretion. ii. Selection of System a. Snyder, Sickmund, & Poe-Yamagata, Juvenile Transf. to Crim. Ct in 1990s: Lessons Learned frm 4 Studies b. Mechanisms for Choosing Between the Adult and Juvenile Systems (1) Judicial waiver: after hearing, judge will decide whether to transfer you to adult court from juvenile court. (2) Prosecutorial discretion: the prosecutor gets to choose where to file charges. (3) Reverse waiver: the legislature places the juvenile in adult court in the first instance, and the juvenile can try to get himself back into juvenile court. (a) Usually more difficult to achieve than judicial waiver (b) Adult court judges are less likely to return to juvenile court than juvenile court judges because juvenile court judges are more familiar with the system and what the options are. (4) Statutory exclusion: legislature excludes categories of offense or offenders from juvenile court (a) Frequently based on combination of factors involving age and seriousness of offense c. Kristy Maddox v. State (Ark. 1996) (1) Facts: Christy Maddox threw a Mountain Dew bottle at a car while driving. She appeals saying that the offense was not violent and discounted testimony of her mother (2) Court saysAdult system (a) Seriousness of the offense and the use of violence in committing the offense (b) Repetitive patter of offenses, showing no rehabilitative prospects (c) Character traits and other factors bearing on rehabilitation d. Also, it mattes whether youre in State or Federal Court (1) Problem 13-3: Federal Day: Prosecutors can opt to put you in federal court any day, but 1 random day of the week, all drug arrests are prosecuted in federal court. (2) Sounds good but kind of random. 44. Selective Prosecution i. United States v. Christopher Armstrong (1996) a. Armstrongs Evidence of Racism in the Public Defenders Office (1) Affidavit from paralegal at federal public defender office, states that all 24 crack cases handled by the office in 1991 involved black defendants. (2) Affidavit from a drug counselor saying that blacks and whites are equal users and dealers of crack. (3) Affidavit from a private defense lawyer saying non-black defendants are prosecuted more often in state court, where the penalties are less. b. Trial Courts Discovery Order (1) Govt must list all cases from past 3 years that involved cocaine & firearms violations. Must specify: (a) The race of the defendants (b) The level of law enforcement involved in the investigation
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Criminal ProcedureCollins Spring 2007Clark (c) Its criteria for deciding to prosecute these defendants for federal offenses c. Showing if de facto discrimination requires discriminatory intent and discriminatory effect (1) Respondents failed to satisfy the threshold showing: they failed to show that the gov't declined to

prosecute similarly situated suspects of other races ii. Vindictive Prosecution: Cant increase charges just because they exercise their procedural rights. a. Have to come up with some other, valid reasons
CHAPTER FOURTEEN: JEOPARDY Double Jeopardy 45. Overview i. 5th Amend: No person shallbe subject for the same offence to be twice put in jeopardy of life or limb. ii. What does double jeopardy prevent? a. A second prosecution after you have been acquitted b. A second prosecution after you have been convicted c. Multiple punishments for the same offense iii. When does double jeopardy attach? a. In a jury trial, at the moment the final panel is seated and sworn b. In a bench trial, at the star of the evidence when the first witness is called c. It will unattach after a mistrial, as long as there was manifest necessity for the mistrial d. Double jeopardy does not bar a retrial if the defendant gets his conviction reversed on appeal (1) Exception: if the conviction is reversed for insufficiency of the evidence 46. Same Offense i. The Blockberger Test: Two different statutory provisions constitute separate offenses if each provision
AND

JOINDER

requires proof of a fact which the other does not

ii. Hypo: Robbery, Assault, and Assault with a Deadly Weapon a. Elements of Robbery: (1) Taking property; (2) by means of assault b. Elements of Assault with a Deadly Weapon: (1) Assault; (2) with a Deadly Weapon c. Elements of Simple Assault: (1) Assault d. May convict of both Robbery & ADW but not SA, which = lesser included charge of both Robbery & ADW iii. Three Possible Tests for Double Jeopardy a. The Blockberger same elements test [federal rule] (1) Allows separate trials for charges arising from the same conduct (2) The complaint against Blockberger is that the state can use separate trials to practice and see which

evidence is received and how their case works outonly the same episode test bars this. b. The same conduct test: you cannot try to convict a defendant in a second trial of offenses based on the same conduct for which he was convicted in the first trial (1) Doesnt add a lot of additional protection (2) Courts are willing to parse out the Conduct c. The same episode or same transaction test: cannot try to convict a defendant in a second trial of charges based on the same episode which was the basis of the charges in the first trial d. Hypo: A man kidnaps, rapes, & murders a woman. Under either Blockberger or same conduct, he may be tried for all 3 at separate trials. But under same episode he must be tried on all three in same trial. iv. Robert Taylor v. Commonwealth (Ky. 1999) a. Facts: D and girlfriend in car and break down; carjacks a good Samaritan; makes assister lay on ground, and then fires gun at his head; charged w/robbery and assault. (1) Two crimes require showing of different elements, although some overlap, at least on face of indictment (2) However, there is some muddying of the waters in the actual trial b. Court saysNo Double Jeopardy problems c. Dissent: prosecution failed to maintain the distinction and by time jury was charged, robbery and assault charges had merged v. State v. James Lessary (Haw. 1994) a. Hawaii court rejects same episode test and adopts same conduct test under state constitution b. But parses the conduct so finely that it doesnt bar the second trial vi. NEW YORK CRIMINAL PROCEDURE LAW 40.20
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Criminal ProcedureCollins Spring 2007Clark vii. Problem 14-2: Multiplicity 47. Collateral Estoppel i. What it is: When an issue of ultimate fact has been once determined by a valid and final judgment, that issue

cannot again be litigated between the same parties in any future lawsuit. ii. How does this differ from double jeopardy? a. Focuses more on the facts proven than on the statutory elements. b. Only applies in the multiple trial setting c. Would be possible to have two separate offenses for double jeopardy purposes but be barred by collateral estoppel from doing a second trial iii. Avery Ferrell v. State (Md. 1990) a. Trial 1: acquitted of assault with intent to murder; guilty on various robbery and handgun offenses but gets a new trial because the jury was not unanimous b. Trial 2: hung jury on all charges c. Trial 3: government only pursues charges for armed robbery and use of a handgun during a felony. Jury acquits on the handgun charge and is hung on the armed robbery charge d. Trial 4: government charges armed robbery and Ferrell moves to dismiss on collateral estoppel grounds e. Court says: The jury acquitted the defendant of the handgun charges so they mustve decided issue if ID f. Dissent: Had they decided Ferrell was not the robber, they wouldve acquitted him of armed robbery charge
Joinder 48. Overview i. Think of joinder rules as establishing both maximum and minimum charges prosecutor may combine. ii. In terms of setting a minimum, about 10 states have mandatory joinder rules, which means prosecutors have to

try certain charges together. These states really concerned w/ problems Ds face when they must go through multiple trials. So, these states provide more protection to Ds than constitutional double jeopardy rules. iii. Majority of states have permissible joinder rules, which give prosecutors the option of trying certain charges together but dont require them to do so. Majority probably stick with permissive rules, instead of mandatory rules, because double jeopardy principles will in a rough sense serve to limit prosecutors the same way iv. The maximum charges that a prosecutor can combine will be set through the permissive joinder rules. v. Judges can split up cases where the charges are improperly joined, or he can grant a severance when trying charges together that could be otherwise joined will somehow prejudice a defendant 49. Discretionary Joinder and Severance of Offenses i. FED. R. CRIM. P. 8(a): Joinder of Offenses. The govt can try multiple offenses together in a single trial if: (1) the offenses charged are of the same or similar character (2) the offenses are based on the same act or transaction (3) the offenses are connected with or constitute parts of a common scheme or plan [most problems here] ii. FED. R. CRIM. P. 13: iii. FED. R. CRIM. P. 14: Severance. (a) A court may sever counts or defendants if consolidation for trial appears to prejudice a defendant (b) before ruling on a defendants motion for severance, a court may order the prosecutor to disclose to the court any defendants statement the that the government intends to use in evidence b. Note: Bruton problems on Pg. 926: Tr. ct must protect confrontation rights of a non-confessing defendant where a codefendant has confessed and that confession is admissible only against the confessing defendant. iv. VT R. CRIM. P. 8(a): v. VT R. CRIM. P. 14: vi. How much prejudice is enough? a. Courts will not find sufficient prejudice if: (1) Evidence related to the two different offenses can be kept separate and distinct (2) Evidence related to both offenses would be admissible at both trials even if 2 offenses tried separately. b. To figure this out you have to go through an analysis under F.R.E. 404(b). Would the evidence related to one offense be admissible at the trial of the other because it would show the defendants motive, intent, absence of mistake or accident, common scheme or plan, or identity? vii. Damian Long v. United States (D.C. 1996) a. Facts: Long is charged with assault with intent to rob three victims while armed on Orren St, and attempted robbery while armed and felony murder while armed of another victim several minutes later on Trinidad
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Criminal ProcedureCollins

Spring 2007Clark

Ave, a block away. Long wants separate trials because he wants to present two separate defenses. Mistaken identity to Orren St. and self-defense to Trinidad Ave. Obviously, its prejudicial to his mistaken ID offense to say he murdered a man in self defense a block away a few minutes later. b. Joinder? (1) Govt states connected together under (2) same act or transaction and that Orren St. offenses constituted a substantial portion of the proof of the Trinidad offenses. Court says no, no common witnesses & Trinidad not dependent on Orren St. for success (2) Govt states common scheme or plan under (3) because he was walking around searching for someone to rob. Court says no, thats too general an allegation for rule 8(b) (3) Govt finally states similar in character and court agrees similarity of offenses under 8(a) is determined by content of the indictment. Here, both crimes were armed robberies which were closely related in time and place. (4) So, joinder is proper c. Severance? (1) The evidence of each offense is admissible at separate trial of the other to explain circumstances surrounding offense charged or as other crimes tending to show identity (2) ID contested issue, and the evidence is probative under 401. So, mutually admissible under F.R.E. 401 (3) However, Trial Judge found no prejudicial sufficient to sever no word on F.R.E. 403 balancing viii. Problem 14-3: Compulsory Joinder ix. Problem 14-4: Protective Order a. Facts: Ex-husband is charged with making terroristic threats and violating a restraining order he wants them severed because the existence of the restraining order will prejudice is defense of threats. b. In Zafiro, Court seems to say that you should sever I think. 50. Joint Trials of Defendants i. FED. R. CRIM. P. 8(b): Joinder of Defendants. The indictment may charge 2 or more defendants if they are alleged to have participated in the same act or transaction, or in the same serious of acts of transactionsThe defendants need not be charged with all crimes ii. Vt. R. Crim. P. 8(b): iii. Vt. R. Crim. P. 14(b)(2): iv. Problem 14-5: Antagonistic Brothers a. Facts: Two brothers accuse each other when both are accused of selling drugs out of their house. b. Do you sever? (1) The Supreme Court said in a case called Zafiro that Petitioners urge us to adopt a bright-line rule, mandating severance whenever codefendants have conflicting defenses. . . . We decline to do so. Mutually antagonistic defenses are not prejudicial per se. Moreover, Rule 14 does not require severance even if prejudice is shown; rather, it leaves the tailoring of the relief to be granted, if any, to the district courts sound discretion. . . . We believe, that when defendants have been properly joined . . . a district court should grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.

PART THREE: RESOLVING GUILT

CHAPTER FIFTEEN: DISCOVERY Discovery 1.
AND

AND

INNOCENCE

SPEEDY TRIAL

Generally The rules are different for Criminal than they are for Civil a. First, generally, the prosecution has a duty to turn over evidence to defense, more than defense has a duty to turn over evidence to prosecution b. Second, discovery is generally more limited ii. For exam purposes, well use the federal rule 2. Prosecution Disclosures
i. -- 56 --

Criminal ProcedureCollins Spring 2007Clark i. Two kinds of info that prosecution must turn over a. Inculpatoryinfo that will tend to incriminate D; disclosure obligations governed by statute & rule b. Exculpatoryinfo that will tend to exonerate D; mitigate culpability or punishment, disclosure obligations

are governed by the constitution and are sometimes codified in state statutes c. Broader obligations for prosecution than defense, however, obligations much narrower in criminal than civil (1) No Depositions unless witness is seriously ill and may be dead before trial or unavailable (2) Only required to give what D asks for (although must just turn it over). ii. Prosecution Duty to Turn over Inculpatory Evidence (Problem 15-1: Exchanging Words) a. Galvan shoots Sutton in a bar. Under Federal Rules & NJ Rules, what evidence are you entitled to? b. Defendants statements. (1) Federal: Any statements (written/oral) made to a person defendant knew was a government agent. (2) New Jersey: Any records of statements or confessions, signed or unsigned, by the defendant or copies thereof, and a summary of any admissions or declarations against penal interest made by the defendant that are known to the prosecution but are not recorded. (3) NC: requires disclosure of Ds stmts, but protects info from informant if not testifying at trial c. Statements of witnesses hostile to the defendant (so presumably good for the government) (1) Federal: No duty to turn over a witness list until after witness testifies on direct (2) New Jersey: Record of statements and list of names and addresses of any person whom prosecutor knows to have relevant evidence or information including a designation by the prosecutor as to which of those persons may be called as witness (3) NC: basically the federal rule (4) Why the difference? Federal systems are much more concerned about witness tampering d. Statements by Galvans friends (1) Federal: Witness statements are not typically considered documents (2) New Jersey: Presumably, since youll get the names of all witnesses, you have access to this. (3) Jenks Act : only obligates you to turn over statements of your own witnesses (4) NC: dont have to turn over until after trial e. Ballistics and other reports (1) Federal: (F) Reports of Examinations and Tests Govt is obligated to turn over even things that they dont know about since police and prosecution are considered the same. One of the clearest categories of items that must be turned over. (2) New Jersey: Very close to an open-file system where prosecution just opens their files for defense. (3) NC: would probably have to turn them over f. What if there is a failure to turn-over? Happens frequently b/c DA has to turn over their info and the polices info, which the DA often does not know about. (1) Could be dismissed if egregious (rare) (2) Could be a new trial (3) Could be something else (a) Bar state from use of info at trial (b) Continuance until D can follow up on it g. NOTE: federal rules are more favorable as to witness info pre-trial in capital cases
iii. Prosecutions Duty to Turn Over Exculpatory Information a. Generally, the duty to disclose inculpatory evidence is only triggered when Defense makes a request for it. b. But Exculpatory information is entirely different c. Key Supreme Court Cases on Disclosing Exculpatory Information (1) Brady v. Maryland: Key case. Government must disclose all exculpatory information in its possession (2) U.S. v. Bagley: Exculpatory information includes impeachment information, including any deals you

made with the witness, or that the witness is a paid informant, or any benefit whatsoever (you bought them a hot dog, let them call their mom, gave them a witness fee, or even that you let your locked-up defendants have sex with their girlfriends in your office) (3) Key Fights: Is it exculpatory information? If theres a question, disclose. If you are in doubt, and its embarrassing or bad for you, ask the judge to make the call, in camera.
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Criminal ProcedureCollins Spring 2007Clark (a) Kyles v. Whitley (U.S. 1995): The question is not whether the defendant would more likely than not

have received a different verdict with the evidence, but whether its absence he receive a fair trial, understood as a trial resulting in a verdict worthy of confidence. (b) Strickler v. Greene (U.S. 1999): the question is whether the favorable evidence could reasonably be taken to put the whole case in a different light as to undermine confidence in the verdict. The defense does not have to demonstrate a different verdict was more likely than not. iv. Discovery Review: a. Inculpatory info governed by statute, lots of consistency for statements from Ds to police, scientific reports, expert reports, and physical evidence must let D counsel see these if they ask (1) MOST states also require govt to let D counsel see items taken from the D at arrest (2) The DIVIDE is where you have to turn over civilian statements (a) Fed rule: witness lists not required to be turned over or any oral statements made by D to civ. witness (b) There is a trend towards increasing govt discovery obligations with a more open file discovery b. Exculpatory info is governed by Constitution must be turned over whether D asks for it or not (1) 2 big fights: (1) is the evidence exculpatory? (2) If so, was it material? (2) NOTE: these are fact-driven inquiries v. NORTH CAROLINA GENERAL STATUTES 15A-903 vi. NEW JERSEY COURT RULE 3:13-3 vii. Problem 15-2: Discovery from Victims viii. Rauland Grube v. State (Idaho 2000) a. Facts: Woman killed by a shotgun 8 yrs later, Grube tried & convicted. Post-trial, a new witness, Gifford came forward and said [1] he told Grube about the murder & Grube reacted with genuine surprise and [2] he saw a police officer in area. He also said he told this to the prosecution before trial but it wasnt disclosed b. Court saysYes, a Brady violation, but it would not so affect outcome of the case as to require a new trial. c. Dissent saysYes, a Brady violation, but it would clearly affect the outcome of the case NEW TRIAL ix. HAWAII PENAL PROCEDURE RULE 16 x. UTAH CRIMINAL PROCEDURE RULE 16 xi. Problem 15-3: Preserving Evidence (Smelly Couch) a. Couch had murder evidence in it, but after holding it awhile, disposed of b/c fire hazard & smelly b. AZ v. Youngblood (S.Ct): for D to get relief on destruction of evidence cases, must show bad faith on part of govt. If destruction was in ordinary course of business, D is not entitled to relief c. In light of new technology (DNA), should police be required to hang on to evidence longer? xii. Recap: Defense is only entitled to prosecutions inculpatory discovery if it asks for it. a. Some states use open file policy, but witness-tampering concerns prevent disclosure in many other states. b. Brady: Government has a duty to turn over all exculpatory material to the Defense. (1) Two big questions: (1) Is it exculpatory? (2) Is it harmless error? (2) Big Brady witness can place someone else at scene of crime (3) Little Brady a key witness has tons of prior convictions c. Should there be Brady disclosures prior to plea negotiations? (1) I think so at least big Brady. Many prosecutor offices have policies to turn over big Brady info. d. How long should evidence be held post-trial? (1) Arizona v. Youngblood, D must show bad faith in destruction process (2) Evidence preservation is a big key in discovery especially since advent of DNA.
3.

Defense Disclosures
i. Increasing trend to make discovery a two-way street. A less adversarial paradigm. ii. PENNSYLVANIA RULE OF CRIMINAL PROCEDURE 573(c) a. Discovery obligation imposed if Alibi & Insanity defenses invoked (self-defense common in other states) (1) For Alibi defense must disclose: specific information as to place or places where defendant claims to have

been at the time of the alleged offense and the names and addresses of witnesses whom the defendant intends to call in support of such a claim. (a) Why? To me, point is to get to truth of the matter. If alibi true, maybe it will keep trial from occurring. (b) But, arent you just giving prosecution a chance to come up with strong rebuttal evidence?
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Criminal ProcedureCollins Spring 2007Clark (2) Within 7 days after service of such notice of alibi defense or of insanitythe attorney for the

Commonwealth shall disclose to the D the names and addresses of all persons the Commonwealth intends to call as witnesses to disprove or discredit the Ds claim of alibi or of insanity or mental infirmity. [essentially, Prosecution turns over eye-witness/expert list] (a) Why does this make sense? (b) Well, for insanity relies heavily on experts, so this will save time at trial (3) Note: Despite rules, most Ds dont disclosesometimes they dont care, more often, they dont know (a) Either way, government doesnt usually succeed in precluding defense, usually just get a continuance to prepare. Otherwise its just unfair to D (ineffective assistance of counsel appeal down the road) (4) What about self-defense? Many other states require pre-trial disclosure for self-defense. b. Discretionary with the court (1) Upon [1] motion, and showing of [2] materiality to the preparation of Commonwealths case and [3] that the request is reasonable, court may order D, subject to Ds rights against compulsory self-incrim, to allow attorney for Commonwealth to inspect & copy or photograph any of the following requested items: (a) Results or reports of physical or mental examinations, and of scientific tests or experiments (b) Names and addresses of eyewitnesses whom the D intends to call in its case-in-chief. iii. State v. John Lucious (Ga. 1999) a. Facts: Georgia has an Act that encourages reciprocal discovery. If D agrees to abide by act, significant burdens of discovery open on both sides, if not, only get constitutionally guaranteed evidence [not much] (1) D declines to participate and files a broad-based constitutional challenge to the Act after being denied discovery of Ps files. (2) Not raised, but isnt it a self-incrimination problem? S. Ct. says stmts by 3rd parties do not violate selfincrimination. Nor does most physical evidence (3) Due Process, Confrontation Claus, Right to Effective Assistance of Counsel, but all fail. b. Court says None of the discovery issues D raises fall under constitutionally required discovery (1) No due process right to discovery, only a right to reciprocal discovery (2) Confrontation Clause is a trial right, it cannot require pre-trial disclosure (3) No constitutional right to discovery (4) If furthers legitimate state interests by establishing a closely symmetrical scheme of discovery in criminal cases that maximizes the presentation of reliable evidence, minimizes the risk that a judgment will be predicated on incomplete or misleading E, and fosters fairness and efficiency in criminal proceedings iv. Should we have adversarial discovery or collaborative and open disclosure? a. Its a big, giant criminal procedure question. b. In some ways, the criminal system is about telling the jury as little as possible. 4. Discovery Ethics i. Hypo: What do you do if client brings you a gun and says This is the murder weapon, get rid of it!? a. The rules say: if its from your client, no duty to turn it over, but if from 3rd party, you have to turn it over if you think the 3rd party will destroy it if you return it to them. b. But, whats the right thing to do? (1) Is the search for the truth more important than the attorney-client relationship? (2) There is a great L.A. Law episode about this. ii. Michael Hitch v. Pima County Superior Court (Ariz. 1985) a. Facts: the fact that the D took a watch from the victim is important. A 3rd party brings Ds attorney the watch which she found in his jacket pocket. Does counsel have to turn it over? b. Practice Tip: go to ethics section of local bar for help! (1) Rule 3.4 of the Model Rules of Professional Conduct: A lawyer shall not unlawfully obstruct another partys access to evidence or unlawfully alter, destroy, or conceal material having evidentiary value. (2) Standards from the ABA Criminal Justice Section: Normally, you should just return the item to its original location and warn the source against destroying or hiding the item, but (a) Lawyer can hold the item long enough to test it (b) Lawyer can hold the item if he reasonably fears destruction of the item or harm to a person (c) Lawyer who holds the item must do so in a manner that does not impede the lawful ability of law enforcement to obtain the item. (d) If item is contraband or if people are in danger, lawyer shall disclose or deliver the item to authorities (e) If required by law, the lawyer shall disclose or deliver the item to authorities
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Criminal ProcedureCollins Spring 2007Clark (3) Collins sez: (a) If someone comes into your office and says I have something to give you, say STOP! (b) If its money, great, but if its potential evidence in the case, these are my obligations. c. Court says (1) Must weigh the counselors duty to his client and the counselors duty to the court. (2) Here, the duty to the court is stronger Speedy Trial Preparation

Generally Who wants a speedy trial? a. When D is free, prosec. is more likely to push for speedy trial in order to preserve evidence. D wants to be free as long as possible and wants witness memories to fade. (Maybe reverse if D believes hes innocent) b. When the D is locked up, defense is more likely to be pushing for a speedy trial because they want to be released, and prosecution is somewhat sated because D is behind bars. ii. Pre-Accusation Delay: How long it takes from the time the offense is committed until charges are brought iii. Post-Accusation Delay: How long it takes from the time charges are filed until you are brought to trial 6. Pre-accusation Delay i. Limitations on Delay a. Statutes of Limitation (slide) (1) States vary. But generally no SOL for murder, but SOLs for everything else (2) General features of statutes of limitations: (a) Give a longer period to get an indictment for more serious crimes. (b) Delay the start of the running of the SOL for certain crimes where the victim might be especially vulnerable, like fiduciary crimes and crimes against children. (3) Offer various ways in which the running of the statute can be tolled (D has fled the country, for example). b. Due Process (slide) (1) Only arise when you are within the statute of limitations (2) In U.S. v. Marion and U.S. v. Lovasco, the Supreme Court held the defendant must prove (1) unreasonable delay; and (2) actual, specific prejudice to the defense (3) No due process violation if good faith investigative delay is responsible for the timing of the charges (4) Delaying the charges solely to gain a tactical advantage for the prosecution would be a due process problem. For example, the prosecution cannot delay in order to hold a club over the defendant, to postpone the beginning of defense investigation, or wants to avoid concurrent sentencing ii. NEW YORK CRIMINAL PROCEDURE LAW 30.10 iii. State v. Shane Trompeter (Iowa 1996) a. Facts: State deliberately delayed charging D with second offense until he was 18. They knew of the incident at the first trial, but deliberately delayed in order to gain a tactical advantage. b. Court says (1) Rule: Marion and Lovasco: D must prove unreasonable delay and actual, specific prejudice to defense (2) Tactical advantage is an illegitimate reasonunjustifiable government conduct (3) Additionally, a plan to obtain consecutive sentences rather than concurrent is also an illegitimate reason (4) Furthermore, this is out of plumb with the states juvenile system iv. Problem 15-4: Child Victims
5. i. 7.

Speedy Trial After Accusation

i. 6th Amendment guarantees the accused a speedy and public trial ii. State v. David Magnusen (Miss 1994): Parse out the different reasons for delay a. Facts: Magnusen charged with rape, aggravated assault, robbery, and burglary b. Delay: Detained 15 months prior to trial (1) 198 days from arrest to indictment (2) 104 days from indictment to arraignment (Collins sez: shocking!) (3) 147 days from arraignment to dismissal c. Court saysFederal Constitutional test set our in Barker v. Wingo: Look at following 4 factors (1) Length of Delay -- 60 --

Criminal ProcedureCollins Spring 2007Clark (a) Not per se unreasonable, but long enough to consider the other factors (b) Counting against his length of delay, he would have been in jail for 133 days of detainment anyway. (c) But, one of the things the court missed was that the appeal tacked on an addition 2 years. (2) Reasons for Delay (a) Most of the delay was due to the crime lab. Although a wing of the state, it shouldnt count as much

against the prosecution because it wasnt actually the prosecutions fault

(b) Congested trial docket is not a big concern (c) Part of the delay is attributable to Ds request for new counsel just before arraignment (3) Whether the defendant asserted his right to a speedy trial: He did, but not vigorously (4) Whether the defendant was prejudiced: Not here d. Primarily, the court seemed concerned with litigation fairness iii. Many states have speedy trial statutes a. Times vary, but federal statute uses 70 days; CA uses 60 days; others use longer b. Almost always see D waiving speedy trial act rights because 70 days isnt enough for either P or D to

prepare for a complicated case

iv. Remedy for violation of speedy trial right: Dismissal WITH prejudice v. 18 U.S.C. 3161 vi. 18 U.S.C. 3162 vii. California Penal Code 1382 viii. California Penal Code 1387 ix. Problem 15-5: Whos Delay? CHAPTER SIXTEEN: PLEAS 8.
AND

BARGAINS

Bargain About What?

Bargaining Generally In Large Urban Counties in 2006 a. 68% of all charged felony defendants were convicted. b. 2% of the cases resulted in a conviction after trial. c. This translates in 95% of all convictions coming from guilty pleas. d. Of the 32% of cases that did not result in a conviction, only 1% of those were due to an acquittal. 27% were the result of dismissals. The rest were due to things like diversion. e. Broken down by crime, only murder cases go to trial more than 10% of the time. 29% of murder cases went to trial. The next highest category was rape, where 7% of the cases went to trial. ii. In the Federal System in 2006 a. 89% of charged defendants were convicted b. 96% of all the convictions were the results of guilty pleas. iii. Some Objections to Plea Bargaining a. Provides opportunities for lazy lawyers who want to cut corners, get on to next case, and maximize profits b. Elevates the role of prosecutors and deprecates the role of judge c. Increases the ability of favoritism and personal influence to affect the system. Can promote inequalities those who can afford the best lawyers get the best pleas. d. Conceals other abuses that may have taken place during the investigation e. Can result in unwarranted leniency f. More philosophically: (1) Treats every legal right as a bargaining chip to be traded away for a sentence discount, and thus diminishes the power of those rights. (2) Is inconsistent w/ notion that a decent society should want to hear what an accused can say in his defense before convicting him of a crime, and with the constitutional guarantees that embody this principle. 9. FED. R. CRIM. P. 11(a), (c) Types of Pleas i. Open (Blind) Pleas: I did it! a. Why? You know even without a concession from the prosecutor, the judge will give you a sentencing break ii. Sentence Plea Bargain: Plead guilty in exchange for stipulated sentence a. Judge must accept b. Judge is not bound by sentencing recommendations of prosecutor
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Criminal ProcedureCollins Spring 2007Clark c. If judge accepts the plea, he has to go along w/ stipulated sentence, but he could reject the plea entirely and

thus the sentence.

iii. Partially-Negotiated Plea: Plead guilty in agrmnt to drop other charges & recommend sentence < agreed cap a. Judge is not bound by sentencing recommendations of prosecutor b. If the plea involves a particular sentencing recommendation, the judge does not have to go along and impose

that particular sentence

iv. Charge Plea Bargain: Drop some charges in exchange for guilty plea on other chargesno sentencing agrmnt a. Convicted of robbery, murder b. If the plea involves the dismissal of charges, the judge has to go along with the dismissal. 10. Defendants Rights and Plea Bargains i. Forfeitable Rights: automatically waive as a result of plea, even if not made explicit in agreement a. Example: ability to challenge racial composition of grand jury that indicted him b. This is the issue in the Lumzy case ii. Non-Waivable Rights: there are some rights we do not allow a defendant to waive, even if he wants to. a. Example: accepting a sentence above the statutory maximum (Why?...Why would you do this?) iii. Waiveable Rights: defendant is allowed to waive some rights as long as waiver is explicit in agreement. a. Examples: right to appeal, statute of limitations challenge b. We let defendants bargain away most of their rights 11. People v. Gregory Lumzy (Ill. 2000) i. Facts: Lumzy entered into a plea agreement known as a charge bargain, meaning prosecutor agreed to drop or

reduce certain charges in exchange for a guilty plea, but was silent about the sentence.
ii. Issue: whether Lumzy automatically forfeited his right to appeal his sentence as a result of the charge bargain iii. Court says a. Right to challenge sentence was not forfeited when plea agreement was completely silent about the sentence b. But, if agreement has set a sentencing cap and D had been sentenced within that cap but was unhappy about

the sentence, the court would have found that he had implicitly forfeited his right to challenge the sentence, The court is unwilling to do that when the plea is completely silent about the sentence. 12. Problem 16-1: Waiving Right to Appeal a Sentence 13. Problem 16-2: Dealing Away Double Jeopardy
c. Categorical Restrictions on Bargaining 14. Legislative Limits i. CALIFORNIA PENAL CODE 1192.7: California seems to be trying to preclude plea bargains for certain serious

offenses after a voter referendum sought to protect victims rights and get tough on crime But all it did was shift plead bargaining to earlier stages ii. NEW YORK CRIMINAL PROCEDURE LAW 220.10: New York seems to be trying to restrict the sentencing discount for pleas, but can still get around it by changing charges. iii. REVISED CODE OF WASHINGTON 9.94A.450, 9.94A.460 15. Judicial Rules i. Raymond Espinoza v. Hon. Gregory Martin (Ariz. 1995) a. Arizona judges refused to accept plea bargains with mandatory sentences b. Court says struck down because blanket policy took away their discretion ii. Problem 16-3: Bargaining Ban in a Lower Court 16. Victim Consultation i. Options: [1] Prosecutor must take into account; or [2] Victim may block the plea ii. MAINE REVISED STATUTES tit. 15, 812; tit. 17-A, 1172, 73 iii. State v. Michael McDonnell (Ore. 1992) a. Facts: The constitutionality of the state death penalty statute had been thrown into doubt by a past ruling and an appeal is projected to take over a year (1) The prosecutor consulted family members of the murder victim about whether to settle the case by taking a guilty plea in exchange for an agreement not to seek the death penalty. After talking to the family, the prosecutor decides to pursue an appeal, try the case, and seek the death penalty (2) Post-conviction, D claimed prosecutor gave the family improper influence over the bargaining decision, basing his challenge on a statute listing proper influences on the prosecutors bargaining decision. (3) Appellate ct remands for evidentiary hearing on actual motivation of prosecutor in declining plea bargain
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Criminal ProcedureCollins Spring 2007Clark (4) At hearing, prosecutor stated he would have made decision to go forward in any eventonly consulted b.

w/ family to give them an opportunity to alter his usual practice of refusing plea bargain in murder cases. Questions: (1) Would a prosecutor ever be dumb enough to admit he gave victims family improper influence? No! (2) But, even if they based their decision on that, is it wrong to do so? (a) Family may not be able to see big picture: How strong is the case? How does it compare to others? (b) In reality, victims and their families rarely know about plea bargains: (i) Essentially, families really just want to know why. [But answers rare, and usually unsatisfactory] (ii) Gamut of reaction from families. [Some are very involved, some wont return your phone calls]

Validity of Individual Plea Bargains 17. Judicial Responsibilities i. Must ensure that a defendants plea is knowing and voluntary and that there is a factual basis for the plea ii. The Boykin case thats mentioned on page 1037 made this the federal rule iii. Fed. R. Crim. Pro. 11(b) codified Boykin: A Judge must inform a defendant of the following: (1) The possibility of perjury charges for false statements at the hearing (2) The right to plead not guilt and go to trial (3) The right to a jury trial, with the assistance of counsel (4) The rights associated with trial: confrontation, the right to testify in his defense, etc. (5) The nature of the charges to which the D is pleading guilty and the possible penalty (in great detail) (6) The terms of any provision of the plea that waives Ds right to appeal or collaterally attach his sentence b. Other parts of Rule 11 require judge to ask D if hes made any other promises, or if hes been threatened. c. Judge must also make inquiries into the factual basis for the pleaThis is where many pleas break down 18. Lack of Knowledge i. FEDERAL RULE OF CRIMINAL PROCEDURE 11(b) ii. State v. Donald Ross (Wash. 1996) I DIDNT KNOW WHAT I WAS PLEADING TO! a. Facts: Ross not told 12 mos of commy placement would follow 89 mo. incarceration following guilty plea b. Court says (1) Community placement was a direct consequence of the plea. [101 months instead of 89] (2) That he was informed of the max prison sentence is insufficient this isnt the plea agreed to. c. Direct v. Collateral Consequences (1) Ds must be told about the direct consequences of their pleas, but not collateral consequences) (2) So, what exactly are the characteristics of future events that make them a direct consequence and

therefore something that needs to be explained to the defendant? (a) Test: Look at certainty event will happen; immediacy of event; who decides if it will happen (3) There are some of the matters that might be considered collateral that come up routinely. (a) Direct: Many courts have held, albeit it as a matter of non-constitutional federal law, that the trial court must inform the defendant if he is now ineligible for parole or probation. (b) Collateral: You do not have to inform the D, however, that he might, in the future, be subject to multiple offender laws or that he has to register as a sex offender or even that he might be deported (although the Ds counsel should tell the D about these) (4) Why not 3 Strikes rule (for 1st or 2nd conviction)? Because theres no guarantee it will crop up. First, you must commit another offenseno guarantee you will commit another crime (5) Why not deportation? This is what Ds care about the most! (a) Ordinarily, the P doesnt know, D counsel has to take the lead on this. iii. United States v. Angela Ruiz (2002) I DIDNT KNOW WHAT THE GOVERNMENT KNEW! a. Facts: in exchange for a guilty plea and 2 step reduction in sentence, CA requires D to give up right to evidence state has on affirmative defense and impeachment. Ruiz wouldnt give it up, so no agreement, but pleads guilty anyway, but doesnt get sentence reduction and appeals. b. 9th Circuit: unconstitutional b/c it insists on waiver of impeaching evidence from state c. Supreme Court says (1) Constitution doesnt require pre-guilty plea disclosure of impeaching evidence; it only requires disclosure of exculpatory evidence. Sure, its a right, but its a waivable right (2) Looking at Mathews v. Eldridge Due Process Factors, the governments interest in preserving its case and other cases based on impeaching evidence outweighs Ds right.
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Criminal ProcedureCollins Spring 2007Clark d. Slide (1) Sup. Ct concludes constitution does not require disclosure or impeachment evidence before a guilty plea (2) Why not? (a) A plea can be knowing even if you do not know every useful piece of information (b) Impeachment evidence is not official because it is helpful in random ways to defendant (c) Impeachment is only valuable if D knows governments case-in-chief, and many dont (d) Release of witness impeachment info could disrupt an ongoing investigation (3) Why would a prosecutor offer a deal with this string attached? (a) Saves time and resources, saves witnesses from being visited by defense, protects informant ID (4) Are we worried they do it to hide weak cases, where all witnesses have deals or are convicted perjurers? 19. Involuntary Pleas i. Alford Pleas: I didnt do it, but I plead guilty anyway! a. FED. R. OF CRIM. P. 11(b) (1) Before accepting a plea of guilty or nolo contendere, court must address the D personally in open court

and determine that the plea is voluntary and did not result from force, threats, or promises (other than promises in a plea agreement) (2) Before entering judgment on a guilty plea, court must determine that there is a factual basis for the plea b. North Carolina v. Henry Alford (1970) (1) Facts: Straight outta the Dash. Alford: I didnt do it, but if I dont plead guilty, theyre gonna gas me! (2) Court says (a) Fine! An intelligent choice between alternativesbad alternativesbut alternatives nonetheless (b) Judge must also decide that there is a factual basis for the charge (c) Rule: When there is a factual basis for the guilt of D, though something less than reasonable doubt, D can take a guilty plea even though the D is not admitting his/her guilt c. Alford pleas have become generally accepted as OK (1) A majority of the states follow the lead of the US Supreme Court and allow a D to plead guilty, despite claims of innocence, so long as the prosecution establishes a strong factual basis to support the conviction. (2) But most judges dont like them and refuse to acceptsort of undermines confidence in judicial system (3) Most commonly accepted in situations where D doesnt rememberI was so high that I dont remember, but I confess government can prove the case. (4) Coercion is hard to prove here; ex. threats of violence ii. Wired Pleas: Govt only accepts your plea if another agrees to your plea (Not addressed in class) a. Example: In Enron case, Govt used this technique with the Fastows. Husband wouldnt plead guilty so prosecutors decided to play hardball and arrested his wife. Playing off their strong interest in not being in jail at the same time, the prosecutors said we wont accept wifes plea unless you agree to a guilty plea. b. Voluntary? (1) Pretty strong argument that it isnt. Perhaps at some point one may be so coercive as to be involuntary. (2) But courts have engaged in a totality of the circumstances review and have never yet found a wired plea to violate the voluntariness requirement c. Problem 16-5: An Offer You Cant Refuse (1) Facts: D, unhappy shes married to older man, gets dad to kill H. Pleads to 18-yr jail term, but now says plea wasnt voluntary b/c dad was in room & her plea was wired to his felt coerced to get dad a deal (2) It is common to wire plea deals together in conspiracy, drug and some other trials (a) Govt logic: if go to trial on one of you, might as well go to trial on others (b) If one pleads out, others will just blame the one who pled out. Thus common to see wired plea deals (3) Courts have upheld wired plea bargains. (a) Voluntariness inquiry = totality of the circumstances test wired nature of plea would be a factor iii. Iowa v. Felipe Edgardo Tovar: Should Ds be allowed to plead guilty without lawyers? a. Facts: Claims his plea wasnt sufficiently knowledgeable in his first DUI b/c he didnt know that 3 DUIs down the road, his acts would be felonious b. Court says (1) Warnings Iowa S. Ct. reqd as to getting advice of counsel not reqd by fed. Const. before D enters a plea (2) Why not the rule that you cant enter a plea w/o the advice of counsel?
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Criminal ProcedureCollins CHAPTER SEVENTEEN: DECISION-MAKERS Judge or Jury?

Spring 2007Clark
AT

TRIAL

20. Availability of Jury Trial i. NOTE: in 50% of trials, there are bench trials for felonies higher % for misdemeanor trials ii. Federal Law on the Right to a Jury Trial a. You dont get a jury trial for whats deemed a petty offense, must be a serious offense b. In practice, this has meant that you are not entitled to a jury trial if the possible penalty for each individual

charge is six months or less. The Supreme Court has held out the possibility that some other factor could make an offense a serious offense entitled to a jury trial even if penalty was six months or less, but Court has never found such a case. d. The key work here is individual even if youre charged with 6 misdemeanors, each with a jail sentence of 6 months, you dont get a jury trial right, even though you may be sentenced consecutively. e. In response, lots of jurisdictions lowered their maximum misdemeanor jail time from 1 yr to 6 mos or less. (1) this cuts down A LOT on time and expense. (2) Picking a jury takes a long time Usually longer than it takes to do an entire bench trial iii. State v. Kent Bowers (S.D. 1993) a. Facts: Abortion protesters are arrested and charged with a misdemeanor, but want a jury trial. Judge says no and promises no jail time, but after finding them guilty imposes 1yr probation and suspended sentence. b. Court saysIt was wrong to deny a jury trial, but COA corrected it by eliminating suspended sentence c. SD Rule: (1) The Wikle case in 1980 and that you get a jury for any crime where direct incarceration could be imposed for any period of time. This is obviously more protective of the right to jury trial than the federal rule. (2) The Auen case in 1984 said that if a judge promised no jail time, he could deny a request for a jury, as long as the maximum authorized sentence for the crime was 6 months or less d. Impassioned Dissent: jury trials matter, and we cant just look at what the penalty is, must also consider how society looks at crime, no one wants to deal with probation under govt control e. Why did abortion protestors want a jury trial for their petty offense? (1) To politicize their cause before a jury they could use it as a platform to express their views (2) Also, in South Dakota a jury is likely to side with abortion protestors. iv. MARYLAND COURTS & JUDICIAL PROCEEDINGS CODE 12-401 v. Other State Approaches: a. Some use federal methodology and look at whether the maximum penalty for the crime is over 6 months b. Some use federal methodology but use a shorter or longer time-table c. Some dont focus exclusively on the length of the potential sentence but also consider other factors like the amount of the potential fine or whether probation is imposed d. Others look to history was the crime tried by jury at the time the constitution was adopted? e. Others basically give you a jury trial for everything, even misdemeanors. 21. Waiver of Jury Trial i. Singer v. United States (1965) Federal Rule on jury trial waiver a. Upheld fed. proc. rule reqing consent of both tr. judge & prosec. before D gets bench trial instead of jury (1) Why does judge care? (a) Hes bored or doesnt want to make the decision may be concerned about politics & re-election (b) More nobly, judge may want the community to decide (2) Why does prosecutor get to decide? Protects communitys right to serve as juror (3) Juries are the exception rather than the rule in a global sense (a) Arguments against juries litigation is too complex for the common man to understand (b) Arguments for juries Judges are on the bench too long to be accurate finders of fact ii. State v. Robert Dunne (N.J. 1991) a. Facts: D wants to put on a crazy insanity defense involving a homoerotic fantasy as a pretext for murder and overtaking the Ds sentence. D wants to waive jury trial right, but judge and prosecutor say no. b. Issue: Who does the jury right belong to? The Defendant? Or the Community? Or both? c. Court saysThe community confidence in the outcome of the trial and in the criminal justice system outweighed the Ds interest in waiving his right. Mostly because there is no right to have a bench trial iii. Other State Approaches
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Criminal ProcedureCollins a. Only about 10 states give D unilateral right to decide if its a bench or jury trial b. About 30 states give the judge the right to block c. 25 states & federal system give the prosecutor the right to block Selection of Jurors

Spring 2007Clark

22. Voir Dire i. Generally: How do you pick a jury? a. For a jury of 12, usually start with at least 60 people, then, ask them questions (1) In some courtrooms the judges ask, in others lawyers ask (2) Because lawyers are long-winded, the trend is toward judges asking b. Same 10 to 15 are in every case (1) Do you have any medical conditions that will prevent you from serving? (2) Do you have any hardships that will prevent you from serving? (3) Do you have any experience with the criminal justice system? (4) Have you or your family ever been accused of a crime? c. Special questions are submitted in writing. Judges are quite permissive about questions. d. Mostly oral, but in some bigger cases they may use a 20 or 30 page questionnaire. e. Giving Answers: method varies: [1] Stand up in court and say answer; [2] Circle your number on a sheet to

signify answer, then ask juror individually in camera

23. Striking Jurors: Dismissal for Cause i. Lots of valid reasons: make notes of your reasons a. Partiality: someone who says I hate the police or someone who says I was robbed and I cant be fair b. Disincentive to deliberate: Im an Independent Contractor, every day Im here I lose money ii. So now you got about 30 left. First 12 get put in the box, and now you get to use your peremptories 24. Striking Jurors: Peremptory Challenges i. Generally Process a. Any old reason will do for peremptories, although you need not recite it (but make a note of it) (1) I didnt like the book he was reading or He looked at me funny. (2) Jobs: Attorney, teachers, anyone under 25, psychiatrists, unemployed, law students (3) People that didnt answer any questions in voir dire (a) Why? They were lying, werent paying attention, or were trying to get on the jury b. Usually, D and P submit peremptories at the same time and jurors dont know who excused them. c. States vary in number available: D.C. = 10 (sometimes dont use them all, usually 10 not enough) ii. Rationale behind peremptories a. The defense has an interest in getting a fair minded jury (B.S.) its to get most biased jury to your side b. The defense has an interest in getting reasonable cross-section of the community to c. Using EP analysis, the right has been framed as of that the juror to servethus, it violates EP for the D to

strike on racial basis just as it violates EP for state to strike on racial basis
iii. James Batson v. Kentucky (1986) a. Facts: P used his peremptory challenges to strike all 4 black person on the venire, and a jury composed only

of white persons was selected Rule: Swainonly way you can show evidence of discrimination is by showing consistent discrimination over many cases. But thats a nearly impossible burden for Ds to show c. Batson Rule (overrules Swain): Discrimination in this case alone is enough to make out a claim (1) D must first set forth a prima facie case of discrimination in his case. (2) If successful, P must set forth a neutral, non-discriminatory reason for the peremptory strike (3) Then judge decides whether discrimination was purposeful
b. d.

#2 What is a valid reason for using a peremptory?

(1) Im offended, Im not racist No, a general denial is not good enough (2) Experience has taught me African-Americans are less likely to convict No, this is clearly racial (3) I had a funny feeling about this juror, he refused to make eye-contact with me. usually good enough (4) Some reasons may be illegitimate proxies for race (a) Struck because they live in a housing project or another black part of the city (b) Struck because member of Nation of Islam -- 66 --

Criminal ProcedureCollins Spring 2007Clark e. If #3 is good enough, does Batson really do anything? (1) Sometimes, judges will find pretextual reasons (2) Thomas Joe Miller-El v. Janie Cockrell (S.Ct): (a) Facts: F challenged fact that DA removed all blacks. Made prima facie case. (b) Court saysThe way DA asked questions combined with bad track record of excluding black from

Dallas juries, amounts to an insufficient showing by the DA purposeful discrimination

(c) Rule: Not just the people you strike, but the way you question the jurors. Here, the P asked different

questions to black jurors than white jurors, but also excused black jurors when they gave the same answers as white jurors f. Remedy for Batson challenge? (1) Might reseat struck jurorscan be uncomfortable (2) Preferred remedy seems to be clearing entire venire and starting over with a new 60 people, however, its expensive and time consuming g. Defense (1) Should the same rules apply to the defendant? (2) Why shouldnt the defendant have the best chance at an acquittal possible? iv. Is Batson a paper tiger? a. How hard is it to come up with valid reasons for a peremptory? b. In reality, most prosecutors dont exercise their peremptories on basis of race, but may do so coincidentally, which then forces them to strike a juror based on race, to avoid an accusation of strikes based on race. c. What are the alternatives to Batson? (1) Just get rid of Batson altogether (2) Eliminate peremptories for P, but not for D (3) Eliminate peremptories altogether, just take the first 12 qualified jurors, however, this would require an expansion of objections for cause d. The additional problem facing Batson challenges is that the cases are based on records 5 yrs old and arent really indicative of what really happened v. J.E.B. v. Alabama ex rel. T.B. (1994): Extends Batson to gender vi. Rodney Lingo v. State (Ga. 1993) a. Facts: D charged w/serious crimes; DA uses all peremptory strikes to remove 10 blacks; then uses 1 peremptory for the alternate to strike a black juror (1) Prima facie case is made out (2) But prosecutor gives reasons for all of them (a) NOTE: Batson requires DAs to keep good records of reasons for striking (b) Many of the reasons given were that the jurors were opposed to death penalty b. Court saysFinds no Batson problem c. Dissent (1) Juror #8 finds DAs conclusion that juror was belligerent was a stereotype (2) Some problems complained of applied to whites not struck, thus, thought it was pretext for racial reasons vii. Problem 17-2: Extending Batson to Religion? a. Facts: Prosecutor struck a juror because he was a Jehovahs Witness who in my experience, reluctant to exercise authority over fellow human beings. b. Religion is probably more indicative of feelings than race, however, can probably evoke most of the beliefs that would be problematic for your side through other questions.

Jury Deliberations and Verdicts 25. Instructions to Deadlocked Juries: While deliberating, the jury sends out notes that they are having trouble

whats a judge to do? i. Nothing: You havent been at this long, its a complex case, take some more time ii. Dynamite (Allen) Charge: In most states, you can give this one last charge...See handout Z, Alt B a. Doesnt tell jurors anything they shouldnt already be doing. b. Gives ammo to jurors that are willing to deliberate
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Criminal ProcedureCollins Spring 2007Clark iii. Allow Smaller Juries a. The Supreme Court has said a 6 person jury is okay, but not a 5 person jury. b. For low level crimes, 6-8 person juries are common c. Sometimes, if a juror drops out, an 11-0 decision may suffice iv. Allow Non-unanimous Verdicts (Problem 17-3: Non-unanimous Verdicts) a. What drives prosecutors crazy is when a jury hangs 11-1 (8-4 not so bad). Should we allow these? b. The Supreme Court has allowed convictions based on 11-1 votes and 10-2 votes (but not 5-1) (1) Is it inconsistent to say there is no reasonable doubt when the verdict is not unanimous? (2) Whats the purpose behind this? If its to avoid a whacko juror, than, fine, but it might also persuade the

others not to make a 12-angry men style change. c. As a judge, you cant ask the jury what the problem is? (1) Why was there the split decision? Wacko? Or a legitimate doubt? v. NEW YORK CRIMINAL PROCEDURE LAW 310.30 vi. Daniel Bailey v. State (Ind. 1996): Ind. opposition to Allen charges vii. GEORGIA CONSTITUTION art. 1, 1, para. XI viii. MONTANA CODE 46-16-110 ix. Juror Note-takingsome courts are starting to allow it a. Pro: (1) Reduces error? There are a lot of complex cases notes may help. b. Con: (1) Gives undue weight to the copious note-taking juror. What if copious note-taker wrote it down wrong? (2) By choosing selective facts to write down, you can change the outcome of the trial (3) What if theyre not paying attention by doodling? x. Juror Questions a. After testimony, a few judges solicit written questions from jurors ct & counsel screen them, then asked. Sometimes jurors have great insights like where was this witness standing? But few jurors take advantage b. Con: It questions the jurys impartiality because it involves them in the decision-making process c. Pro: You see whats going on in the jurors mind sometimes, ask great questions which help out a lot. Plus, the questions are reviewed by the judge 26. Jury Nullification i. Definition: even though the state has met its burden, the jury can still acquit. Why? a. Any reason: didnt like the law, didnt like the DA, liked the defendant, etc b. Never instructed, but occasionally, the judge will allow the defense to bring it up in closing ii. Fully-Informed Jury Association, Jurors Handbook: A Citizens Guide to Jury Duty iii. Problem 17-4: Juries and Social Justice (Is nullification appropriate in any of these cases?) a. Case 1: D has trespassed and spray-painted anti-nuclear slogans at nuclear facility b. Case 2: D is pro-life advocate charged w/blocking door to an abortion clinic c. Case 3: D is a robber charged w/taking two 12 packs of beer; b/c of his prior record, if jury convicts him, he will be facing mandatory 20 year sentence (1) Prime candidate since punishment seems unfair, although jury will probably never know of prior record d. Case 4: D is African-American male charged w/selling two ounces of crack cocaine (1) This is the most common case of nullification (2) In fact, some academics have argued for nullification by African-Americans for these victim-less, nonviolent crimes b/c the staggering amount of black males convicted is destroying the black community. (3) Some argue this is in response to the 11-1 hung juries so this alleviates the problem e. Case 5: D is 18-yr-old male charged w/ statutory rape of his 16-yr-old girlfriend (1) Whos really the victim here? Especially if the girl testifies it was consensual iv. Should we allow juries to nullify? a. If so, should we tell them they have the right to do so? Its generally considered an illegitimate practice b. Should the judge instruct the jury on it? As a rule, judges will not give a nullification instruction c. Should the D be able to argue it? As a rule, judges will not even allow defense counsel to argue it. v. Arguments Against Nullification a. Juries are not supposed to be determining the law
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Criminal ProcedureCollins Spring 2007Clark vi. In the majority of jurisdictions, probably cannot argue it, although once D does argue it, the jury has already

heard it, so too late to do anything about it. Would we be able to fix this problem by eliminating jury nullification but allowing the jury to make sentencing recommendations? b. Should we prosecute juries who nullify for defying the law?
a. CHAPTER EIGHTEEN: WITNESSES Burden of Proof 27. Reasonable Doubt i. What is it? a. My definition: It does not require certainty to convict a defendant, it requires belief beyond a reasonable
AND

PROOF

doubt. Reasonable doubt is not just actual doubt, but a doubt that you can substantiate with a reason supportable on more than an intuition or feeling. b. Winegearts instruction: A reasonable doubt is such doubt as you may have in your mind when having fairly considered all of the evidence, you do not feel satisfied to a moral certainty of the guilt of the defendant. A reasonable doubt is a fair, actual, and logical doubt that arises in the mind as an impartial consideration of all the evidence and the circumstances in the case. It is not every doubt, however, it is a reasonable one.and on and on for another 200-300 words . . . . If, after considering all of the evidence you have reached such a firm belief in the guilt of the defendant that you would feel safe to act upon that belief, without hesitation, in a matter of the highest concern and importance to you, then you have reached that degree of certainty which excludes reasonable doubt and authorizes conviction. c. Federal Judicial Center: Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendants guilt. There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced that the defendants I guilty of the crime charged, you should find him guilty. If on the other hand, you think there is a real possibility that he is not guilty, you should give him the benefit of the doubt and find him not guilty. ii. Steve Winegeart v. State (Ind. 1996) a. Facts: Hes complaining about [1] the use of the phrase to a moral certainty when the judge is telling the jury that a reasonable doubt is such doubt as you may have in your mind when after considering all the evidence you do not feel satisfied to a moral certainty of the guilt of the defendant. He also [2] doesnt like the phrase fair, actual and logical doubt in the sentence that tells the jury a reasonable doubt is a fair, actual and logical doubt. Why are these problematic? (1) Says to a moral certainty allows the jury to convict on a degree of proof below that of the due process clause. Would rather see a reference to evidentiary certainty. (2) Says that the words actual and fair expand the quantum of doubt that you needshould be able to acquit on a lesser standard of doubt than that. b. Supreme Court cases on Reasonable Doubt Instructions (1) Cage v. Louisiana: condemned an instruction that equated reasonable doubt with a grave uncertainty and an actual substantial doubt and said that what is required is not an absolute or mathematical certainty, but a moral certainty. (2) Victor v. Nebraska: upheld an instruction that included the phrases to a moral certainty and actual and substantial doubt because it included curative language. Paired the moral certainty phrase with needing to have an abiding conviction of the defendants guilt, for example. c. Court says (1) The instruction is bad, but no so bad as to fall below the constitutional minimum. So, conviction upheld. (2) Butwere going to suggest an alternative to fix this for future defendants (3) Alternatives offered: (a) No Explanation: Just say believe beyond a reasonable doubt (i) Probably better and less confusing than a really long instruction (ii) But, this still might leave jurors without a clue as to reasonable doubt. (b) Federal Judicial Center: See above (4) Recommends, but doesnt mandate, the federal judicial center instruction iii. Steele & Thornburg, Jury Instructions: A Persistent Failure to Communicate
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Criminal ProcedureCollins Spring 2007Clark iv. Problem 18-1: A Doubt with a Reason (What about requiring juries to state a reason?) a. Instruction: Reasonable Doubt is doubt for which you can give a real reason. I instruct you to give some

reasonable explanation for the circumstances proven other than the guilt of the Defendant and if such a reasonable explanation can be found you should find the Defendant not guilty? b. NO! This was given in a horrible cop killing case, but overturned because it shifts the burden to the defense to prove some alternate theory. v. Problem 18-2: Words and Numbers a. Instruction: Quantifies reasonable doubt at 7.5 on a scale of 1-10 (Probable cause = 1; Civil burden = 5) b. Seems like a good idea, but most judges that try to use numbers have been reversed. As have judges who have made a football analogy (Take the ball to the 20 yard line! Field goal range, but not a touchdown!) vi. Problem 18-3: Presumed Innocent or Not Guilty? a. Instruction: Judge instructed jury that D was presumed not guilty rather than presumed innocent b. Overturnedshouldve said innocent of crime chargedInnocence is stronger. Some courts dont care c. Presumption of innocence continues until jury reaches a verdict. vii. What about appearing in court with prison jumpsuit or chains? a. Not OK! Dilutes presumption of innocence. b. However, a big litigation point is how far away armed marshal should sit. What if you have a dangerous D? (1) Lots of courts have used stun vests to control defendants (2) If D decides to charge with witness or judge, he kind of destroys presumption of innocence on his own then armed guards can be seen to prevent a repeat performance rather than in response to crime charged.
Confrontation of Witnesses 28. The Value of Confrontation i. Overview a. 6th Amendment: in criminal prosecutions, D shall have right to be confronted with the evidence against him b. Essentially, embodied by opportunity for contemporaneous cross-examination. It protects not only the right

to cross-examine, but the right to cross-examine fully.

ii. Michael Brady v. State (Ind. 1991) a. Facts: Brady is charged with child molestation. Victim gives testimony under Indiana statute 35-37-4-8

which authorizes use of videotaped testimony of child witnesses: (a) not in court; (b) couldnt see Brady.
(1) T.B. testified at home, while being videotaped. Judge, prosecutor, defense attorney, investigator, T.B.s

mother, and the operator of the video equipment were present. Brady was in the garage viewing T.B. over closed-circuit TV and could communicate with counsel via microphone/earpiece. (2) Basically, complied with the statute b. Why do we normally require witnesses to be in court? (1) Witness: we deem the importance of the court setting important for witnesses to impose on them the importance of telling the truth. (2) Jury: Importance for the jury to view the witness live whenever possible c. Federal law related to child witness testimony: In Maryland v Craig, the Supreme Court upheld a procedure allowing a child witness to testify during trial via a closed circuit TV. (1) The Court had previously struck down a similar procedure in the case of Coy v. Iowa because that statute did not require an individualized finding of potential trauma to the child (2) The Craig court emphasized cross-examination is the chief mechanism protected by the Confrontation Clause, and the defendants attorney was still able to perform that function with help from the defendant. d. Court says (1) Under Federal constitutional law, the Indiana statute is OK (2) However, Indiana constitutional law requires something more face to face (a) Must be live testimony. (b) Victim must be able to view D. 29. Unavailable Prosecution Witnesses i. Richardson v. Marsh (1987) a. Facts: Marsh and Williams were tried jointly for robbery and murder. Another man named Martin also allegedly took part in the crime. Williams confess and the confession was redacted so there was no inference that anyone other than Williams and Martin were involved
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Criminal ProcedureCollins Spring 2007Clark (1) For example, the confession involved the discussion of a conversation in a car between Williams and

Martin planning the robbery and murder. The redacted confession contained no information that another person was in the car, let alone that the person in the car was Marsh. (2) Note that Marsh testified at trial and admitted being in the car on the drive to the crime scene during which this conversation was allegedly taking place, but said she couldnt hear the conversation. Another witness testified that Marsh and Martin arrived at the crime scene together. So, Marsh is arguing the other evidence in the case provided a linkage between Marsh and the confession. b. Court saysupheld admission of co-Ds confession because all references to other Ds had been eliminated (1) The linkage of Marsh to the confession via other evidence is not so problematic as to require assuming the that the jury would ignore cautionary instructions (2) Bottom line: Court rejected a linkage approach in favor of a facial incrimination approach (3) Future impact: Must argue that the confession, even redacted, will tie defendant to the crime ii. Kevin Gray v. Maryland (1998) a. Facts: Bell confesses, but Bell and Gray are tried together. Bells confession names Gray and Defense seeks to exclude the confession even though its redacted. Gov needed confession b/c it was a close case (1) Prosecutions evidence: (a) Bell confessed, implicating himself, Gray, and some others. (b) A prosecution witness testified that he saw Gray chasing but not beating Williams. (c) Another prosecution witness testified that Gray participated in the beating. (2) Grays evidence: (a) Gray claimed that he was in a phone booth, talking with his girlfriend at the time of the beating. (b) Girlfriend corroborated this stmt, as did def witness who saw Gray in a phone booth at time of beating. b. Unredacted confessions: (1) Separate trials: Bells confession is excluded from Grays trial as hearsay unless Bell testifies on the stand (2) Same trial: OK if Bell testifies, but otherwise, Bruton says no, because it would require a Herculean effort by the jury to separate out Grays name from Bells confession. Bruton says: delete references to co-Def. c. Redacted confessions: (1) Under Richardson, its hard to admit these. To do so, you must redact it in a manner that is not facially incriminating, but you cant redact in such a way that it distorts the meaning of the confession. d. Court says (1) The word deletion instead of Ds name in confession was facially incriminating to the D (2) The jury could easily determine that deletion was the other person sitting at defense table
Self-Incrimination Privilege at Trial 30. Overview: Weve decided not to force a defendant to take the stand, but what effect does this have on juries?

Can the court or prosecutor talk about the defendants lack of testimony? 31. Eddie Dean Griffin v. California (1965) i. Facts: Ps closing stmt: Essie Mae is dead, she cant tell you her side of the story. The defendant wont. ii. Court says a. The jury may draw an inference on its own from the Ds silence. b. However, the government cannot enhance the inference or draw attention to the silence 32. Kevin Sean Murray v. United Kingdom (1996) i. Rememberthis was a choice for usother countries have not made that choice ii. UK: May take inferences from accuseds failure to mention particular facts when questioned, charged, etc. iii. Intl Ct. of Human Rights: You can comment on the silence of the defendant and judge can consider it if common sense allows judge to infer from silence that there is no answer. 33. This extends really, really far i. The D is hiding behind his wife! NOT OK ii. The prosecutions case is unrebutted! Not OK iii. D counsel said Defendant would testify, but he didnt OK, but it treads a fine line 34. Problem 18-5: Telling the Jury i. Facts: The prosecutor repeated the exact instruction the judge would later give to the jury ii. Court saysNot OK. It gives too much weight to the Ds silence 35. Problem 18-6: Pre-arrest Silence Generally, this is OK to bring up 36. What can the government say about a defendants silence?
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Criminal ProcedureCollins Spring 2007Clark i. In terms of commenting on Ds failure to testify, see if language manifestly intended or was of such character

that the jury would naturally and necessarily take it to be a comment on the accuseds failure to testify.
ii. In terms of commenting on a defendants silence pre-trial: a. May impeach a D during his testimony at trial with pre-arrest silence, post-arrest pre-Miranda silence, and

silence after warning AND waiver or Miranda rights. [Probably best to check with the judge ahead of time] You cannot comment on a defendants silence post-arrest and post-Miranda 37. Real world tip: If arrested for murder, say It was self-defense, Ill tell you the details after my lawyer gets here.
b. Ethics and Lies at Trial 38. State v. Troy James (Mont. 1996) i. Facts: Client refuses plea bargain & indicates hell perjure himself. Attorney says to judge hes repugnant! ii. Issue: What do you do if you know your client is going to lie on stand? a. As D Counsel (1) Advise client not to do it and advise him of the consequences of perjury. (2) If he persists in committing perjury, then move to withdraw. (3) Generally say as little as possible; if you must, approach bench w/o prosecr & tell judge whats going on (a) The prosecutor knows whats going on anyway (b) Sometimes, the judge says no(judicial economy, new lawyer = same result) what do you do, then? (i) Put guy on the stand, say what happened? then sit down as he tells a narrative. (ii) That way, your implicated as little as possible in the perjury. (4) What dont you do? (a) Dont stand up in court and call you client repugnant and give his defense strategy to the other side. b. As P counsel (1) Advise your client not to and advise of the consequences, and probably go tell D counsel because it falls

into exculpatory evidence that must be disclosed

(2) Must correct testimony if you cant get him to go back on it during questioning. (3) Ethical obligation to tell judge the witness just lied.

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