Term
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Definition
| Was there a search or a seizure? If no, you're done with 4th analysis. Does the 4th amendment apply? If no, stop Was a warrant necessary? If so, was there a search/arrest warrant? Was there probable cause? Was the warrant valid? Was the scope of the warrant exceeded? Did an exception to the warrant/pc requirements apply? |
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Term
Remedy for violation of 4th amendment? (Exclusionary Rule) |
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Definition
| If the 4th is violated, then the evidence is excluded at both state and federal trial (Criminal) |
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Term
When does the Exclusionary Rule apply? (US v. Calandra) |
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Definition
| Outside of trial, the ER cannot be used. There is no right to have evidence excluded. This purpose is only served at trial. The point is not to convict people whose rights have been violated. If not at trial, ER is not applicable. ER is to deter police impropriety. This was a Grand jury proceeding Calandra did not want to testify and incriminate himself. Since this was not a trial, ER did not apply. |
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Term
Defective Warrant Good faith exepmtion (US v. Leon) |
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Definition
| Police get a search warrant from magistrate, serve warrant, Leon is convicted. Found out that the affidavit supporting the warrant was insufficient, evidence excluded. US appealed, what did the police do wrong? Magistrate should not have issued the warrant, but why punish police? They did nothing wrong, therefore evidence should not be excluded. Police acted in good faith. |
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Term
Limits of Good Faith Exemption (Groh v. Ramirez) |
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Definition
| Particularity clause of the 4th, particularly describe the person or place to be searched. Officer mistyped the warrant. Swapped when and where for who/what. Defense argued invalid warrant. Prosecution, harmless mistake. Should incorporate the affidavit with the warrant. SC, not only no, but hell no. Strict textual interpretation of the particularity clause. No good faith exception. |
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Term
| Exclusionary Rule Pros and Cons |
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Definition
| Cons: The guilty go free because the constable blundered The integrity of the system suffers when criminals go free on a technicality No meaningful deterrent effect Pros: Loss of reliable evidence is a small price for liberty from government intrusion It has proven effective It protects the innocent as well as the guilty It is designed to prevent not to punish Whatever its practical effect it has a symbolic effect |
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Term
| Limits of the Exclusionary Rule |
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Definition
Does not apply to: Impeachment evidence: The defendant The witness Civil cases: Forfeitures (esp. property of convicted criminals) |
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Term
Fruit of the poisonous tree doctrine (Wong Sun v. US) |
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Definition
| Wong Sun v. US Fruit of the poisonous tree. Evidence developed from illegally obtained evidence also excluded. Sung confessed to crimes several days after being arrested due to illegal search. |
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Term
| Fruit Of The Poinsonous Tree Test from Wong Sun |
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Definition
| Test: has the evidence been obtained by the exploitation of the illegality or by other means? |
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Term
Fruit Of The Poisonous Tree Doctrine as applied to confessions (Brown v. Illinois) |
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Definition
Applied FOTPT Doctrine to confessions. Brown was illegally arrested, Mirandized, and questioned. He confessed to a murder. SC held that Miranda alone does not protect the persons 4th Amendment rights. Factors the Court would consider: 1) temporal proximity of the arrest to the confession 2)the intervening circumstances 3)the purpose and flagrancy of the official misconduct |
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Term
More FOTPT Doctrine as appplied to confessions. When is the taint purged? Look at the totality of the circumstances (Facts) (Dunaway v. NewYork) |
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Definition
Police brought D to station w/o probable cause for interrogation. Detention was illegal arrest. Police gave Miranda and D confessed. 1. There was not a significant passage of time, illegally arrested then immediately questioned2. This confession could not be separated from the initially illegality |
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Term
More FOTPT Doctrine as appplied to confessions. When is the taint purged? Look at the totality of the circumstances (Facts) (Rawlings v. Kentucky) |
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Definition
Illegal arrest + Miranda, confession, 45 minutes time passage, taint purged, time diff is only one factor, detention was at a residence. Police also discovered evidence at the house while there. Statements were spontaneous. 1. 45 minutes passed2. The factors are still the same, but they are now being applied differently3. The time isn’t that important, based on the totality of the circumstances |
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Term
More FOTPT Doctrine as appplied to confessions. When is the taint purged? Look at the totality of the circumstances (Facts) (Taylor V.Alabama) |
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Definition
| 6 hours passed 6 hours is not enough time to purge the taint. “I’ll know it when I see it” law. Intervening circumstances determine purging, look at the facts. |
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Term
More FOTPT Doctrine as appplied to confessions. When is the taint purged? Look at the totality of the circumstances (Facts) (Nix V. Williams) Inevitable Discovery Exception |
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Definition
| Δ in custody for murdering young girl, but police haven’t found body. Δ tells police where body is upon police questioning after Δ invoked right to silence. Search team already in area where body located. 1.The Inevitable Discovery Exception: If proven that derivative info would have been discovered by the police regardless of their unconstitutional acts, evidence will be admissible. BOP- preponderance of the evidence |
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Term
Who may invoke the Exclusionary Rule? Standing Jones v. US Overruled by Katz |
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Definition
Illegal search of apartment where Jones was at. Drugs were found. Jones sought to exclude. Court held that even though Jones had no interest in the property, exclusion. Two Tests 1) Legitimately on premises Anyone legitimately on premises where a search occurs may challenge its legality by way of motion to suppress, when its fruits are proposed to be used against him. 2) Automatic Standing Rule A) If charged with possession, you automatically have standing to object to a search.B) Anyone on premises where search occurred can challenge the search |
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Term
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Definition
Reasonable expectation of privacy 1) reasonable expectation of privacy 2) object expectation of privacy right to exclude possessory interest not required |
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Term
Standing Factors Rakas v. Illinois |
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Definition
Court held that standing should depend on whether the police action sought to be challenged is a search with respect to the person challenging the intrusion 1. Standing Rule: Imports rule from Katz; don’t use property a. Reasonable expectation of privacyb. Objective recognition of expectation of privacy2. Factors to Determine Reasonable Expectation:a. right to exclude others from the premisesb. continuing access + possessory interestc. legitimate presence + possessory interestd. bailment – if holding for another. |
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Term
Searches and Seizure When is a person seized for 4th amendment purposes? Henry v. US |
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Definition
| Seized for 4th amendment purposes when their liberty has been restricted in a significant way. |
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Term
Seizure California v. Hodari |
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Definition
| Seizure requires application of physical force or submission to police authority. |
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Term
Arrest Warrants Payton v. NY Home arrest rule |
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Definition
| 1. Arrest in Home Rule: If have an arrest warrant, DON’T need a search warrant to arrest person in home if have reason to believe the person is in home. |
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Term
Arrest not in Home Steagald v. US |
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Definition
| Police have arrest warrant for Defendant have information that he is hiding out with a friend. Friend says he's not there, police search find him. SC says that this is different than Payton, no implicit authority to look for someone wherever they may be, need Search Warrant for other than their residence, or consent of owner. |
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Term
| Arrest Warrant Factors Generally |
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Definition
| Arrest Warrants: 1) Issued by neutral and detached magistrate 2) Based on PC 3) Must identify with particularity the person to be seized 4) Incorporates the CL- not required for a felony except for arrest in dwellings. |
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Term
What is NOT an arrest Terry v. Ohio |
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Definition
| Search of a person who was not committing a crime at the time. No PC, patdown of client OK, searching person is not OK. Plain feel doctrine, for weapons/drugs. Based on safety of the officer. AKA: A Terry Stop |
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Term
| Requirements for Terry stop |
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Definition
| Requirements for Terry Stopa. Officer must articulate what his reasonable suspicions are. The officer must have reasonable suspicion of that criminal activity has just taken place, it is in progress, or it is about to take place. b. Then, the officer may briefly detain the individuals for investigating the circumstances. The detention may be no longer than necessary to consider the investigation. |
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Term
| Post Terry: 3 categories of Police-Citizen Contacts |
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Definition
1. Arrest and Search Incident a. Probable Cause required Rational is officer protection and preservation of evidence 2. Stop and Frisk a. Reasonable suspicion that criminal activity is/was/will be afoot. Scope limited to search for weapons-not evidence 3. Consensual encountera. Fourth Amendment not implicated |
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Term
Stop v. Encounter US v. Mendenhall |
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Definition
| Stop: reasonable person would believe that he is not free to leave, he is detained. |
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Term
What is Reasonable Suspicion? 4 factors |
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Definition
| 1) Use common sense to evaluate the facts 2) Deference given to expertise of law enforcements officers 3) Totality of the consequences 4) Reasonable mistakes of fact do not preclude finding of reasonable suspicion |
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Term
Scope of a Stop under Terry Pennsylvania v. Mims Automobile stop |
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Definition
Can order driver out of car for pat down. |
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Term
Scope of a Stop under Terry Automobile Stop with Passenger Maryland v. Wilson |
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Definition
| OK to order passenger out & pat down, officer safety Automatic Companion Rule |
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Term
Scope of a Stop under Terry Plain Feel Doctrine Minnesota v. Dickerson |
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Definition
| What if pat down reveals something that feels like contraband? Like a bag of weed? If it is clear, and officer is reasonably sure that it is contraband, escalate to PC standard, can retrieve contraband. |
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Term
Scope of Stop under Terry Protective Sweep Doctrine Maryland v. Buie |
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Definition
| Buie holed up in house. Surrenders, comes out w/o gun. Police go in to house to retrieve the gun, see other evidence of drugs, seize that too. Police had reasonable suspicion that he had a gun and for them to go into the house to get the gun and to sweep the house. |
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Term
| Scope of the Arrest Approach |
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Definition
| a. Scope of the “Arrest” i. Was there a “search? ii. Was there a search warrant? iii. Was there Probable Cause? iv. Was a warrant necessary? v. Was the warrant valid? vi. Was the scope of the warrant exceeded? vii. Did an exception to the warrant/probably cause requirements apply?1. Search incident to a lawful arrest2. Carroll Doctrine/automobile exception3. Plain vie4. Frisk after Terry stop5. Consent6. Regulatory purpose |
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Term
Searches Generally Katz Standard |
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Definition
| 1. The Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protections. |
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Term
Curtilage and Open Fields Doctrine Hester v. US Aff'd by Oliver v. US |
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Definition
| In this pre-Katz case, Court upheld a warrantless search conducted by officers who were admittedly trespassing on the defendant’s land, on the ground that the property searched was not cartilage immediately surrounding the defendant’s home, but rather part of the open fields.Landowners do not possess a legitimate expectation of privacy in the fields which are far removed from the landowner’s home and cartilage, even if efforts have been made to maintain some degree of isolation |
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Term
Warrant requirements Neutral and Detached Magistrate Coolidge v. New Hampshire AG Issued Warrant, valid or invalid? |
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Definition
Invalid Search warrants issued by the state AG are invalid; cannot be neutral and detached b/c involved in prosecution. Must be issued by a member of the judicial branch. |
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Term
Warrant requirements Neutral and Detached Magistrate Lo-Ji Sales, Inc v. NY Magistrate aided in identifying porno? Valid or Invalid? |
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Definition
Invalid The magistrate abandoned his neutral and detached role. He put himself in the shoes of the police. |
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Term
Warrant requirements Neutral and Detached Magistrate Connally v. Georgia Magistate paid based on warrants issued. Valid or invalid? |
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Definition
Invalid Its pretty hard to be neutral and detached when the amount of money you earn is related to the amount of warrants you issue. |
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Term
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Definition
| Is there enough evidence that it is reasonable to seize this evidence or this person (not enough to convict them) |
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Term
Warrants based on Hearsay 2 Requirements to issue |
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Definition
| a. Sufficient underlying circumstances to show how the informant reached his conclusion b. Affidavit must detail sufficient underlying circumstances that establish that informant’s reliability Magistrate decides. |
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Term
| Reliability of unamed informants |
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Definition
| Inherent in the person1. Law enforcement officers are very reliable ii. Unnamed informants Must demonstrate reliability in affidavit to the magistrate why the informant should be believed 1. Magistrate will make the decision 2. If it is just a third party who hopes to have more lenient punishment in the future- less reliable |
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Term
Basis of issuing warrant based on unamed informant Illinois v. Gates |
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Definition
| Based on the totality of the circumstances, applying your common sense, is it more likely than not (or is there a reasonable basis for belief) that evidence will be found |
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Term
Defendants right to identify informant Roviaro v. US Balancing test |
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Definition
Individual’s right to prepare his defense against government’s right to protect the health and safety of its informants. |
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Term
Bright line rule for use of anonymous informationto support probable cause Florida v. JL |
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Definition
| Truly anonymous information can never support probable cause |
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Term
Challenging the warrant 4 corners rule Franks v. Delaware |
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Definition
| 4 corners rule: Requires that probable cause has to appear within the four corners of the warrant and the affidavit when read together. You can’t orally supplement the information in order to have probable cause. |
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Term
| Requirements of the Warrant Affidavit |
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Definition
1) Probable cause based only on facts presentedto the magistrate. 2) Particular description of the place to be search 3) Particular description of things to be seized |
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Term
| Execution of the warrant (Time) |
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Definition
| 1. Some jurisdictions have established a fixed amount of time2. Some jurisdictions say within a reasonable time and leave it up to a case by case determination as to what a reasonable time it |
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Term
Execution of the Warrant (Notice) Wilson v. Arkansas |
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Definition
| 1. Wilson v. Arkansas (1995)- None--> Knock and Announce2. Hudson v. Michigan (2006)- Exclusionary Rule- doesn’t apply to a Knock and Announce violation |
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Term
| Execution of the Warrant (Scope) |
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Definition
| 1. Detention of individuals during the search2. The scope of the search is determined by what it is you are searching for |
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Term
| Warrantless Searches (General) |
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Definition
| Presumptively unreasonable (with a warrant, not presumption either way) Defendant only has to prove the search was w/o warrant to go forward (BOP) Different requirements for each exception. |
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Term
Warrantless Search Exception Weeks v. US |
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Definition
Search Incident to Lawful Arrest It makes no sense to require a separate requirement to search someone validly arrested, standards are the same PC. Search for 2 reasons: Find evidence of the crime Likely that evidence will be disposed of Safety of the officer
Original arrest must be lawful. |
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Term
Warrantless Search Exceptions Chimel v. California |
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Definition
"Wingspan" of the suspect. Are the person could quickly reach, grab, or lunge to. Chimel perimeter. Prevent destruction of evidence Provide for safety of officer
Does not stop at clothing of person, extends to immediate area. Reasoning, evidence nearby could be destroyed, weapon nearby could be used. How far does it go? Ends where a reasonable person would expect it to end. |
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Term
Warrantless Search Exception US v. Robinson Search of the person |
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Definition
All lawful arrests justify a full search of person w/out warrant, including body frisk and containers on person. |
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Term
Warrantless Search Limitation Knowles v. Iowa "Lawful Arrest" or not |
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Definition
| Stopped for traffic violation, not arrested, given ticket. Knowles was searched, found evidence, convicted. Not arrested when issued a summons. |
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Term
Warrantless Search Excpetion Carroll v. US The Automobile Exception 2 Factors |
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Definition
| A warrantless search of an automobile is permitted whena. There is probable cause to believe the vehicle contains evidence of crime; andb. The police did not have time to obtain a search warrant prior to the search |
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Term
Warrantless Search Exception Chambers v. Maroney Search of impounded car |
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Definition
Rule: If there’s PC and car is readily mobile, police may forego immediate search and seize the car to conduct search later, provided delay doesn’t unreasonably interfere w/ privacy or possessory interest. Lesser privacy interest in car than other containers b/c car primarily a mode of transportation, driving on a public highway, and vehicles heavily regulated |
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Term
Warrantless Searches Limitations US v. Chadwick closed containers in a car Searchable or not? |
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Definition
| 1. SC said that containers and etc. (things that are closed like luggage) have the highest expectation of privacy. Also if you have probable cause to seize it, then do that, don’t search it until you have a warrant. a. Functional distinction between levels of privacy- mobility is not the only issue |
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Term
Warrantless Searches Exigent Circumstances factors Hot Pursuit Warden v. Hayden |
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Definition
PC that a crime was committed Exigencies must justify immediate warrantless entry Pursuit must begin from a place the police have a right to be Law violation must be serious enough to justify police actions.
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Term
Warrantless Searches Limitation Exigent Circumstances Bodily seearches (Fluids) Scmerber v. California |
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Definition
| Bodily searches ok if: No time for warrant Clear indication that if you conduct a search or seizure you will find the evidence (AKA pc) Search and/or seizure is conducted in a reasonable way. (No stomach pumping)
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Term
Border Searches US v. Montoya de Hernandez |
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Definition
| Customs searches: "It's different at the border", touchstone of the 4th, Reasonableness. Is it reasonable to search people at the border. No REOP at the border. Border is any entry point into the US. Reason to believe. Search is otherwise reasonable.
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Term
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Definition
i. Very fluid concept (can be a little ways past the actual border) (lower courts have held this, SC hasn’t ruled on this yet)ii. Can be borders between states iii. Anywhere a boat docks |
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Term
Plain View Doctrine 5 factors |
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Definition
| 1. Officer must be within the scope of lawful activity2. Plain view doctrine allows warrantless seizures. Not warrantless searches3. Probable cause required for plain view seizure.4. Probable cause must be immediately apparent without the necessity of a further search5. Plain view discovery need not be inadvertent |
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Term
Pretextual stop Allowed or not? |
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Definition
| As long as there is probable cause to believe a violation of some law has occurred then pretextual stops and searches do not violate the 4th amendment |
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Term
Plain view limitations Arizona v. Hicks |
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Definition
Evidence must be in plain view, no manipulation of objects allowed. In this case the police looked at the underside of a stereo to get the serial number to see if it was stolen. PLAIN VIEW ONLY ALLOWS FOR WARRANTLESS SEIZURES!!! |
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Term
Consent searches What is consent? |
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Definition
Cannot be coerced Totality of the circumstances Reasonable objective test Including subtlety coercive questions Vulnerable suspect No obligation to inform of the right to consent
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Term
Consent Searches Limitations Florida v. Jimeno |
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Definition
| 1. “A man’s home is his castle” a. When you consent, you can put whatever restrictions you want to on the waiver of your rights i. On the geography, time, ii. You are giving up your constitutional protections, you are waiving them, therefore you can un-waive them |
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Term
Who can consent? Tie breaker Randolph v. Georgia |
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Definition
Wife consents/husband withdraws Police search, find contraband Tie, honor the Constitution, no consent. |
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Term
| Who can consent to what areas are to be searched, third parties. |
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Definition
3rd party can consent if resident. Roommates: Common areas Unique areas Married: all areas are common Officer not informed of non common area? Apparent authority for search. |
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Term
Regulatory Inspections and Seizures (Special Needs Searches) Camara v. Municipal Court Balancing test |
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Definition
a. A search or seizure may be justified outside traditional criminal law applications- with special needs of the government i. Balance the interests involvedb. Reasonable suspicion is enough to obtain a warrant for a regulator search of home. i. Is it reasonable to suspect that a regulation is being violated? 2. 4th Amend DOES apply to regulatory searches, so must have warrant, but it can be based on REASONABLE SUSPICION. |
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Term
Regulatory Inspections and Seizures New Jersey v. TLO School Locker Search Balancing test |
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Definition
| TLO is a minor, searched at school Claimed principal was a government agent, illegal search. Another "special needs" situation. School in loco parentis Balance: Need to protect kids Necessity of getting a warrant Teachers are state actors, but not trained LE or Attorneys. Not reasonable to expect them to get a warrant. Reasonableness under totality of circumstances. Private school, 4th does not apply, not a governmental actor. |
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Term
Parolees and Probationer Searches Griffin v. Wisconsin |
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Definition
When you are on parole (where you are incarcerated, serving a sentence, executive branch deems you are eligible to be released but some restrictions apply) or probation (judicial branch has suspended part of your sentence in return for certain terms or conditions) you are under a form of judicial restraint and so you have a lessened expectation of privacy so it is not unreasonable to say as a condition of parole or probation, your parole or probation officer can demand a urine sample, entry into your home, etc. |
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Term
Special Needs Searches Drug testing of governement employees Von Raab |
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Definition
The government's compelling interest in ensuring that employees directly involved in drug interdiction or required to carry firearms were physically fit and had unimpeachable integrity and judgment outweighed those employees' privacy interests. |
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Term
Community Cartetaker Doctrine Cady v. Dombrowski |
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Definition
| Duties of an officer that do not involve investigating criminal activity, which we expect officers to do. Do not implicate 4th Amend.2 part test:a. Police conduct must be totally divorced from detection/investigation of activity relating to the criminal statute and b. Rationale for the search must be protecting the public |
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Term
Community Caretaker Doctrine Inventory Searches South Dakota v. Opperman |
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Definition
| Impounded vehicle that had more than one parking ticket. Searched car and inventory contents of vehicle and found drugs in glove compartment.2. Rule: Warrantless inventories are permissible on regulatory grounds provided they are:a. Pursuant to lawful impoundmentb. Of a routine nature (national norm)c. Not a mere pretext to conceal investigatory police motive.3. Strong gov’t interest in inventory of car for: protection of police against complaints of stolen property from car, safety protection of police and public. |
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Term
Emergency Doctrine Warrantless Search |
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Definition
| 1. Emergency Doctrine: When there’s an emergency creating substantial danger to persons or property, there’s a right to be on premises and 4th Amend does not apply.2. Is there an emergency that has nothing to do w/ criminal activity creating a valid reason for police to be on premises?3. If have right to be on premises, what do officers see and when do they see it? 4) Must be w/in reasonable time |
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Term
Emergency Doctrine Limitation Mincey v. Arizona |
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Definition
| AZ statute authorized PD to go onto premises to investigate serious crimes. Police respond to call, emergency, gather evidence. Return a few days later, gather more evidence. Arrest Mincey. Search several days later was bad. Emergency no longer existed. Statute cannot trump 4th. |
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Term
Technological Surveillance Trespass Doctrine Olmstead v. US |
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Definition
Olmstead: Police were targeting Olmstead tapped his line out at the pole, not on his property. Got permission from phone company. Recorded phone conversations. No 4th amendment violation, protects persons, houses, papers, and effects, not spoken words. |
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Term
Technological Surveillance Trespass Doctrine On Lee v. US Body Bug OK? |
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Definition
UC agent, wore wire to record co-conspirators conversations. Ruled, no violation of 4th. No trespass. Wire wearer was doing so voluntarily. No property violation, speech is not persons, houses, papers, effects. |
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Term
Technological Surveillance Limitation Kyllo v. US |
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Definition
Device must be at general level of public accessability, not military grade. Kyllo suspected by DEA of being a bigtime MJ grower. Bought home in suburban neighborhood, guts inside, grows MJ. Police want search warrant. Get helicopter with FLIR show house creating massive heat. Thermal imaged the house. Kyllo claims violation of the 4th, government says no REOP in what you allow to leave your home. Court disagrees, thermal device was a military grade device. Not reasonable for kyllo to expect someone to have this type of item, not in general use. What is the general level of public accessibility to the device used? Could the device inadvertently detect lawful activity. |
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Term
Technological Surveillance Limitation Illinois v. Caballes Incidental drug sniffing dog search valid? |
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Definition
Yes Dog is not a High tech device. Caballes stopped for traffic violation. 2nd police officer (K-9) comes to scene. While 1st officer is writing ticket, 2nd officer walks dog around the car. Dog alerts. Based on dog alert, impound car, arrest Caballes. Caballes argues Kyllo, tech. assisted search. Court says no, even though dog is a high tech device per se, the dog does not detect lawful activity. |
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Term
5th Amendment When does it apply? Lefkowitz v. Turley |
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Definition
| For the amendment to make any sense, it has to apply to any proceeding that might result in a criminal proceeding |
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Term
5th Amendment When does it apply? Criminal v. Civil cases. |
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Definition
| The 5th amendment only applies to criminal proceedings. You may not avail yourself of this privilege in civil matters. |
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Term
5th amendment protection of documents Fisher v. US |
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Definition
R: Contents of documents not protected if prepared b/f gov’t subpoena was created If you prepare documents & gov’t didn’t force you to, there is no 5th amdmt protection. |
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Term
5th amendment: What is testimonial? Hiibel v. Nevada |
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Definition
i. NV passed statute that required identification upon arrest. Hiibel refused to identify self. ii. There is no reasonable fear that a person’s name shall be used against him. iii. Statute is legitimate. |
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Term
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Definition
1) Transactional Immunity 2) Use and Derivative use Immunity |
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Term
| Transactional Immunity defined |
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Definition
| Full immunity for the event that occurred |
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Term
Use and Derivative Use Immunity Defined |
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Definition
1. narrower form allowing immunity only for compelled testimony and no evidence can derive from it. Use: If I can convict you w/o using the testimony you can still be convicted. Derivative, derived from your testimony, cannot be used. 2. Burden of proof on moving party (Δ) to suppress and government has ultimate burden to show there was no violation |
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Term
5th Amendment claim by third Party Couch v. US |
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Definition
Not allowed US Subpoenas' Couch's financial record from accountants. Accountant says no, might incriminate my client. Court says right is personal, accountant cannot exercise it for another. You can be compelled to testify against your client. |
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Term
Confessions and Due Process Coerced Confessions allowed? |
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Definition
Rule: Due process clause prohibits use of confession if confession given involuntarily applies only to gov’t duress (not private individual force, 5th amendment applies only to gov’t) Court held that any confession obtained by torture us inherently unreliable. "will of the suspect is overborne by the police" |
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Term
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Definition
Creates exclusionary rule remedy for 5th amendment violations. (not constitutional doctrine)Evidence is excluded if coerced – only @ federal court level1. Congress enacted statute in response (b/c court has yet to make it constitutional) |
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Term
Confessions gained by Psychological torture allowed? Spano v. NY |
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Definition
Psychological torture is not permitted. Confession is not reliable. |
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Term
6th Amendment: Whenis it implicated? Massiah v US |
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Definition
| 6th amendment is triggered at indictment. |
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Term
Extension of Massiah Escobedo v. Illinois When is 6th Implicated? |
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Definition
| Extended 6th to include all police interrogations even before indictment. Extended Messiah. History was that the 6th was a trial right, only triggered after formal trial process begins. Cast bad light on previous cases. |
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Term
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Definition
| 1. Right to remain silent2. Warned that anything said may be used against them3. Right to consult with counsel4. Right to court-appointed counsel if indigent |
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Term
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Definition
Custodial interrogations & coercive nature of police interrogation environment requires that precautions be taken to ensure that whatever comes out is both voluntary and comports with whatever rights court determines to apply. i. Ct basically says Escobedo isn’t working; we shouldn’t have used 6th (Escobedo overruled) ii. 5th amendment now provides protection & in order to ensure state is not coercing |
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Term
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Definition
If these 4 warnings are NOT given, it may not be used against them |
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Term
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Definition
| Miranda only applies to “custodial interrogation" |
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Term
Waiver of Miranda Rights allowed? |
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Definition
YES If the police obtain a confession through custodial interrogation, the state must bear the “heavy burden” of meeting the “high standard” of proving that a suspect “voluntarily, knowingly and intelligently” waiver her rights to silence and counsel.” |
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Term
Miranda Elements What is "Cusody"? Berkemer v. McCarty |
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Definition
| Look at the reasonable state of mind for the arrestee and if a reasonable person in his or her shoes would believe that he is under arrest and not just detained- then he is under arrest for purposes of Miranda |
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Term
Miranda Elements What is "Interrogation"? Rhode Island v. Innis |
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Definition
Interrogation must reflect a level of interrogation above and beyond that of custody in and of itself Look for Police asking questions about material matters relating to the subject under investigation and not just ordinary booking information |
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Term
How broad is Miranda, what offenses does it apply to? Illinois v. Perkins |
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Definition
| Miranda only applies to the charge brought against you. Miranda is an offense specific requirement. Mere strategic deception by police is ok, so long as it is not overbearing the will. |
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Term
Does booking information implicate Miranda? Name, age, address, etc |
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Definition
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Term
Mirdanda Implications False Friend Technique Frazier v. Cupp |
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Definition
False friend technique. No inherent problem with police being untruthful to a suspect. When the police lie to a suspect, it is a factor to be considered with the totality of the circumstances, up to a point. Miranda's purpose to make sure that confessions and statements made by a suspect are of their own free will and that they are aware of the consequences and the rights they have. |
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Term
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Definition
Is the statement made voluntary? Look at police action Torture, threats of violence, etc, that overbear the will of the suspect, look at status of suspect & capacities. Length of interrogation, food, rest Degree of isolation from family, friends, counsel,
Characteristics of suspect Age, injuries, mental state
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Term
Can statements made prior to Miranda right being given be used to impeach inconsistent testimony? Harris v. New York |
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Definition
Yes Allowed if prosecution did not use in their case in chief. Prosecutor is not required to allow obvious perjury. Miranda is not a complete bar to statement; only state may not present evidence. |
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Term
Whom does Miranda protect the person from? Colorado v. Connelly |
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Definition
Purpose of Miranda is not to protect Defendants from themselves, but from police. Defendant was rambling making incriminating statements w/o police inquiry. If incriminating statements aren’t product of police interrogation than there is not a Miranda issue. |
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Term
Public Safety Exception to Miranda New York v. Quarles |
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Definition
Concern for public safety overrides not wasting time on warning & Miranda was done in a reasonably timely manner |
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Term
| Admissibility of the Fruits of a Miranda Defective confession. Oregon v. Elstadt |
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Definition
| As long as confession voluntary, inadvertent failure to Mirandize will not render properly Mirandized confession inadmissible. |
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Term
Purposeful evasion of Miranda before confessions allowed? Missouri v. Siebert |
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Definition
NO Practice of interrogation before Mirandizing makes confessions inadmissible. |
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Term
Attempt to Mirandize, effects on subsequent confession US v. Patane |
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Definition
Confession allowed Patane not Mirandized, makes incriminating statements. Warned, confession again. Officer tries to Mirandize, Patane says I know my rights. Whether Miranda is a Constitution rule or not, the FOTPT does not apply. FOTPT is designed to punish misconduct, here there was no misconduct. |
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Term
Waiver of Miranda following invocation Michigan v. Mosely |
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Definition
| Police must honor suspects right to cut off questioning, doesn't mean questioning cannot be resumed, or attempted, does not undermine right to silence. Not a violation. |
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Term
Can Miranda right to Silence be implied? NC V. Butler |
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Definition
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Term
Waiver of Miranda right to counsel after invocation. How clear must the suspect be that he wants a lawyer? Davis v. US |
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Definition
| Davis arrested, says maybe I should talk to a lawyer, police continue questioning, makes incriminating statements. Argues that when he said the above the police should have stopped. Suspect must make it CLEAR they want a lawyer, no equivocation. |
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Term
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Definition
Statements made while not in custody are admissible for any purpose Custodial statements in violation of Miranda are admissible for impeachment purposes if otherwise voluntary Custodial statements are admissible for any purpose if there was a valid waiver of rights Custodial interrogation may not begin until there has been an affirmative waiver of rights and may continue until there has been an unequivocal exercise of rights.
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Term
6th Amendment Right to speedy trial. Gerstein v. Pugh How long until Probable Cause Hearing? |
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Definition
| Gerstein: PC hearing within 30 days of arrest or at arraignment. |
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Term
6th amendment right to counsel means right to effective counsel Powell V. ALabama |
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Definition
| Appointed lawyer was not a member of the Alabama bar, and was a drunk, asleep most of the time. SC overturned convictions. Lack of effective counsel is equivalent to no counsel, no due process. 6th was not incorporated to the states at this time. |
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Term
6th Amendment applied to states Gideon v. Wainwright |
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Definition
Gideon v. Wainwright Gideon charged with minor offense. Carrying concealed weapon. Bench trial, no atty, could not afford one. Court said it had no authority to appoint an advocate. Black states: Right to counsel is incorporated against the state. |
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Term
When do you have the right to counsel? What is indigency? Agersinger v. Hamlin |
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Definition
| In any crime where you go to jail, you have a right to counsel If there is no possibility of jail, nor right to counsel States define indigency for purposes to right to counsel. The rule must be applied uniformly. |
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Term
6th Amnedment right to counsel If you cannot afford to hire an Attorney do you have the right to choose a particular Attorney? |
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Definition
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Term
6th Amendment right to counsel limitation Morris v. Slappy |
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Definition
| Slappy never contacted Court appointed lawyer. This was not the lawyers fault, was Slappy's fault since he never contacted the Lawyer . Right to Attorney is not unlimited. |
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Term
When is the 6th Amendment triggered? Massiah v. US |
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Definition
When adversarial proceedings have begun. Counsel must be provided at or before any critical stage of the trial. Adversarial proceedings begin when formal charge IS MADE. Formal charges made by judicial body, not officer. Trial like event. Where assistance of counsel can be helpful and w/o counsel the trial would be a sham. |
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Term
6th Amendment right to counsel Events not considered critical stages? |
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Definition
| Identification by photo, handwriting, probation proceedings. |
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Term
| Restriction on the Right to Retained Counsel Caplan & Drysdale Chartered v. US |
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Definition
| 6th amendment must yield to overriding States interests. Such as used of forfeitable funds to hire counsel. |
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Term
Do you have a right to counsel on appeal? Douglas v. California |
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Definition
Yes, ONE appeal No 6th amendment right to counsel on appeal. Right comes from the due process clause of the 14th Are there any limits on it? Right to an Attorney only attaches if your liberty interest is at risk. You get a Court appointed Attorney on ONE appeal. Assistance of the Attorney allows for review of record to develop any errors to be argued. Due process only grants adequate, not perfect access to the Courts. |
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Term
| Obligation of Counsel in Meritless Appeal Does counsel HAVE to make a meritless appeal? Anders v. California |
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Definition
| Yes. You cannot mislead the appeals Court, must make it plain that the appeal is request of client. File brief indicating that you do not believe that there is no appealable issue and move to withdraw. Called an Anders brief. If Court agrees then the appeal is denied. If the Court disagrees and thinks that there is a potential issue for appeal then the Court will accept the appeal and appoint new counsel. |
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Term
Do you have a right to trial transcripts? Griffin v. Illinois |
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Definition
| You have a right to the trial transcripts. If you have a right to appeal, then you have a right to the tools needed for the appeal. |
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Term
Do you have a right to experts at trial if you cannot afford them? Ake v. Oklahoma |
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Definition
6th refers only to counsel. 14th due process again, yes, but, basic tools including expert witnesses, where necessary. Majority of Courts interpret Ake narrowly. Does not have to cover developing a defense, only presenting it. Experts are picked by the Court. They MAY give you the expert you want. |
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Term
Two factors to show ineffective counsel Strickland v. Washington |
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Definition
| 1)Must show counsel made errors such that below standard of reasonableness 2)Must show that counsels incompetent representation improperly prejudiced him. Reasonable probability that but for counsel’s unprofessional errors result of the proceedings would have been different. Must be probability sufficient to undermine confidence in the outcome |
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Term
Presumed Prejudice Rule US v. Cronic |
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Definition
| Facts: Gov’t investigated case for 4 years. Attorney appointed only had 25 days to learn how to try a case b/c 1st case. Δ claimed ineffective assistance of counsel.There is presumption of ineffective assistance of counsel in limited circumstances: a) Case where atty has clear conflict of interest and cannot advance the interest of one client w/o hurting another client b) This case does not fall w/in presumption. Would require showing of why circumstances led to ineffective assistance of counsel. |
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Term
Conflicts of Interest Cuyler v. Sullivan |
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Definition
Despite waiver; b/c of risk of ineffective L’s performance causing a reversal b/c of ineffective assistance of counsel any conflict can be waived but is not required to do so and the court doesn’t have to accept your waiver (ct can overrule and require new counsel) |
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Term
Do you have the right to self representation? Faretta v. California |
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Definition
Common sense corollary that if you have the right to counsel, that you also have the right not to have counsel. Since it is a constitutional right you can waive it. When you elect to represent yourself, you have waiving your right to counsel and courts have to honor that. |
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Term
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Definition
After arrest Custody/bail decision before judicial officer Probable cause when arrested w/o warrant or indictment (Gerstein v.Pugh)
Preliminary Hearing Grand Jury Indictment |
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Term
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Definition
| i. Not required in state prosecutions- Hurtado v. California (1884)1. Only constitutionally mandated on the federal governmentii. Investigative and Charging functions1. Don’t decide facts and guilt or innocence2. Subpoena power a. Witnesses and tangible evidence3. Grant immunityiii. Secret proceedings1. What happens in a Grand Jury room stays there as a general proposition unless a court orders them to be unsealed. a. Typically when it goes to trial and the defendant is going to testify the grand jury testimony will be unsealed- for impeachment purposes if nothing else |
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Term
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Definition
Charging is the decision making process that the government prosecutor goes through in deciding what charges to bring against a criminal defendant |
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Term
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Definition
| Joinder is the term that relates to which defendants are going to be charged and how they are going to be tried (whether one at a time or jointly) |
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Term
Composition of the Grand Jury re: Discrimination Campbell v. Lousiana |
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Definition
Discrimination is NOT allowed, must be representative cross section of venirepersons. |
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Term
Vindictive Prosecution NC v. Pierce |
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Definition
| 1. Pierce was charged with a felony in NC. NC has the system that if you plead guilty in lower court with a misdemeanor and you appeal, it is a trial de novo rather than an appeal on the merits. He was convicted of the misdemeanor and appealed. Prosecutor was furious, brought back original charges. He was convicted. Case went to US SC which reversed. 2. Court said that prosecutor was punishing defendant for operating his right to appeal- a constitutional right- which violates due process |
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Term
Vindictive Prosecution limitations Blackledge v.Perry |
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Definition
Presumption of vindictiveness, any new punishment must be overturned unless prosecutor can prove that they are not being vindictive. In this case new evidence wass found that supported the increase of the charge to a felony. |
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Term
Vindictive Prosecution Discretion of the Prosecutor to select which statute to charge under US v. Batchelder |
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Definition
| Congress decides what is a crime. As a general proposition, the courts are not going to interfere with Congress’ right to set national policy (as long as it is constitutional) It is none of the courts’ business for the executive branch to determine which charges to bring. As long as the charge itself is constitutional and the motivation of the prosecutor is not constitutionally suspect (singling out a particular class), then the courts are not going to involve themselves in that process. |
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Term
Selective Prosecution and Equal Protection Yick Wo v. Hopkins |
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Definition
| Constitutional statute enforced in discriminatory manner is unconstitutional |
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Term
Selective Prosecution and Equal Protection Test Factors Oyler v. Boyles |
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Definition
| Test: Defendant must show1. That there has been a failure by the government to prosecute others who are similarly situated, 2. That failure to prosecute others similarly situated is intentional on the part of the prosecutors, 3. That intentional failure to prosecute was based on arbitrary decision motivated by an unconstitutional motivation (such as discrimination based on race, religion, national origin, etc.) |
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Term
Discovery and Exculpatory Evidence Discovery Defined |
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Definition
Discovery- the general notion that certain evidence in a criminal context is turned over to the opposition, whether it is prosecutor to defendant or defendant to prosecutor 1. Discovery process has no constitutional applications- purely a creature of statute or court rule. a. Whatever information you are required to turn over to your opponent, you look no further than the statute or court rules of your jurisdiction where you are practicing, what if anything you are required to turn over |
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Term
Discovery and Exculpatory Evidence Exculpatory evidence defined |
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Definition
| Exculpatory evidence does have constitutional applications. Evidence that tends to show not that the defendant is innocent of a crime, but also evidence that would tend to show that the defendant is guilty of a lesser crime than he is charged with and evidence that would mitigate the punishment. Also includes evidence which negatively affects the credibility of the prosecutions witnesses. |
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Term
Exculpatory Information-Prosecutor abets perjury Napue v. Illinois |
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Definition
Due process is violated when prosecutor abets perjury. Prosecutor offered defendant a deal if he testified for the prosecution. At trial defendant stated that prosecutor did not offer him a deal. |
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Term
Exculpatory Evidence Failure to disclose Dos the prosecutor have am AFFIRMATIVE duty to isclose? Brady v. Maryland |
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Definition
Rule: Prosecutor has an affirmative duty to reveal exculpatory evidence upon request1. Burden on prosecutor2. If refuses, they must be prepared to defend the fact that it isn’t exculpatory If unclear if exculpatory, prosecutor should: 1. Disclose 2. Seek in camera ex parte review by trial court |
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Term
Request for Exculpatory Evidence General or specific? US v. Agurs |
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Definition
| Rule: 1. If specific request:a. Turn overb. Be prepared to defend anything he withholds2. General request = No request a. Difference must be material enough to alter outcome of the trial |
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Term
Exculpatory Evidence Does he prosecutor have to disclose if witnesses were paid for their testimony? US v. Bagley |
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Definition
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Term
Exculpatory Evidence Duty to disclose Kyles v. Whitley |
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Definition
| The prosecution has an affirmative duty to disclose evidence favorable to a defendant. The suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. |
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Term
Speedy trial When does the clock start? US v. Marion |
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Definition
| When does the clock start? When a formal charge is made. |
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Term
Speedy trial When does it apply, what is the sanction? Dogget v. US |
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Definition
| Speedy trial only applies to criminal trials What is the sanction? Only remedy is dismissal |
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Term
Speedy trial Delay, how speedy does the trial have to be? US v. Lovasco |
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Definition
| Lovascowas indicted, but not yet arrested Took 2 years to arrest him, was able to prove the government knew where he was the whole time. Government cited Marion, π was not on bond or awaiting trial. Holding: 6th probably did not apply, but the due process clause of the 14th amendment could apply. Witnesses had died. If the delay was to gain tactical advantage it would violate. |
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Term
| How speedy does a speedy trial have to be? |
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Definition
There is no bright line rule. It is going to be a totality of the circumstances analysis 1. How complicated is the case, who occasioned the delay, etc., 2. if the defendant the one causing the delay- then that will not go against the prosecution because Δ basically waived right to speedy trial |
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Term
Eye witness identification Wade-Gilbert Rule First part US v. Wade |
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Definition
Wade robbed federal bank. 2 employees identified him. Wade was indicted, 7 months later he was put in a lineup. Wade was not given a lawyer at time of line up "critical stage" (Massiah) line up was Constitutionally impermissible, since in court identification was FOTPT, it had to go out. |
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Term
Eye witness identification Wade-Gilbert Rule Second part Gilbert v. California |
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Definition
| Was arrested, to try to identify him, made him give samples of handwriting. Sent to expert to identify him. Gilbert made same argument at Wade. Wade-Gilbert Rule Wade: have the 6th amendment trial rights been violated, no lawyer post indictment at a critical stage Not so for Gilbert. Taking handwritings was not a critical stage. |
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Term
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Definition
| Wade-Gilbert rule does not extend to photographic lineups only live lineups, or handwriting samples. |
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Term
| Due process limitations on Eyewitness identifications Is there a 14th amendment violation when police lead the witness? Stovall v. Denno |
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Definition
YES Two part test for due process violation for out of court identification. Burden is on the Δ to prove Stovall or Wade violation Must show identification was impermissibly suggestive. Identification was unreliable under the totality of the circumstances. But for the actions of the police, the witness would not have been able to identify the suspect. |
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Term
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Definition
| Not a Constitutional subject. Police cannot help you commit crimes. Must originate with criminal. Not entrapment if the person is predisposed to commit the crime. |
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Term
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Definition
| Guilty pleas MUST be voluntary, have to entered by someone who understands the quality of the plea. |
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Term
Guilty Pleas Alford Plea NC v. Alford |
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Definition
Indicted for capital murder. There was a law, if you plead guilty to 1st degree murder you get life. Def said he wanted to plead guilty since it was in his best interests to plead even though he would not say he was guilty. Plea must be made knowingly, voluntarily, and intelligent. |
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Term
Guilty plea Requirements for a valid guilty plea Bordenkircher v. Hayes |
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Definition
| Requirements of a valid guilty plea Decision must be intelligently made Aware of charges Aware of possible sentence Aware of the rights waived by the plea Defendant must be Competent Plea must be voluntary Factual basis for the plea. |
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Term
Right to Jury Trial Applied to States Duncan v. Louisiana |
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Definition
| Duncan convicted up A&B, La. Constitution did not allow for jury trial except for worst crime. Supreme Court said 6th guaranteed a right to jury trial incorporated and applied to the states. Right to trial for what? Serious offenses, not petty ones. |
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Term
Jury trial, number of jurors? Johnson v. Louisiana |
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Definition
Nothing magic about the number 12. Can have more than 12 if they want to. As long as the 9 to 3 ratio is maintained, then there is a constitutionally ok verdict. Lower courts have held unanimously that in a capital case verdicts have to be unanimous |
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Term
Jury trial Voir Dire of Jurors To what extent should the parties have the right to question jurors about the issues in the case? Witherspoon v. Illinois |
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Definition
| SC said- The right to uncover bias or prejudice must be permitted if the question(s) related to an issue that is inexplicably intertwined in the case. But you are not entitled to automatic exclusion of a juror that is predisposed a particular way unless the juror indicates that they cannot follow an instruction of law. |
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Term
Jury trial Composition of the jury Taylor v. Louisiana |
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Definition
| Moved to dismiss the jury since women were excluded. Cannot discriminate. |
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Term
Jury Selection& Equal protection Racial discrimination: Allowed in jury selection? Batson v. KY |
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Definition
NO: Factors: a. Δ must show membership in protected class,b. Δ must make prima facie showing of patterns of systematic exclusion by prosecutor (then burden shifts)c. Prosecutor must then rebut by showing decision based on classification-neutral reason. |
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Term
Jury Selection and Equal protection The Jury's right to serve Holland v. Illinois |
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Definition
| 1. Focused on right of juror to serve, but who represents the juror2. Court said- Although it is the jurors right to serve, we leave it to the parties in the case to represent that interest3. Batson and J.E.B. no longer just apply to the defendant4. The prosecutor can make a Batson challenge5. Rule: 1st step of Batson Test eliminated |
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Term
Jury Selection Who can raise a Batson Callenge? Georgia v. McCollum |
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Definition
| Either side can raise a Batson challenge. |
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Term
Modification of Batson Johnson v. California |
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Definition
| 1. There no longer is a step number 1 to the 3 step process, now 2 part process. 2. Rule: If Δ satisfies step 2 of Batson – Δ proffers evid to trial ct that prosecution is systematically excluding – its difficult to reverse on appeal. |
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Term
Jury Selection and Equal Protection Is discrimination based on gender allowed? JEB v. Alabama |
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Definition
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Term
Right to impartial jury Can the Mayor sit in as a jury member? Ward v. City of Monroeville |
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Definition
NO
Rule: Executive branch member (mayor) cannot serve as judicial member |
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Term
Right to a fair trial Pre-Trial publicity test Irvin v. Dowd |
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Definition
| Test is not whether a person has heard about the case, it is if they can set aside what they have heard and judge the merits of the case. |
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Term
Right to fair trial Exclusion of the Press THE FUGITIVE CASE
Sheppard v. Maxwell |
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Definition
| 1. Rule: Ct must balance Con guarantees of 1st and 6th amendments. Ct may place reasonable restrictions on both right to fair trial and right of press access.2. Press has right to cover, but may not disrupt trial. Δ right to fair trial doesn’t mean press banned |
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Term
Right to public trial Who's right is it? Waller v. Georgia |
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Definition
| Right to a public trial, who's right is it? Δ or the public Powell says both. - State proves overriding interest requires protection
- Closure is not broader than necessary
- Reasonable alternatives are considered
- Findings adequate to support the closure are found
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Term
Right to a public trial When is it applicable? Gannett Co. v. Depasquale |
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Definition
| Δ wanted hearing closed, was pre-trial motion to suppress. Press sued to be in one case. Public has no right to attend pre-trial hearings. 6th amendment is defendant's right to public trial, not the press's |
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Term
Right to a Public Trial Who has it and when? Richmond Newspapers Inc. v Virginia |
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Definition
| Δ wanted proceedings closed, press wanted in. Right of press to attend the trial is guaranteed absent a compelling reason. |
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Term
Right to Confront witnesses Can it be waived? Illinois v. Allen |
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Definition
YES
Δ has the right to be in Court, face accusers. Δ is pro se' Δ abusive in Court and was removed. Found guilty, appealed and holding was reversed. Appealed to SC, Court said that there was a 6th amendment right, but his conduct waived that right. |
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Term
Competence to stand Trial Pate v. Robinson |
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Definition
| Δ on trial for murdering wife Δ is indigent, Court appointed Attorney. CA concedes that Δ shot wife, wants to raise insanity defense. Attorney did not follow statutes to plead insanity. Found guilty. SC looks to 6th confrontation clause, to confront one must be competent. State statutes were artificial hurdles. Issue of competency must be resolved to go forward. |
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Term
Right to remain Silent Can the prosecutor use that against the defendant? Griffin v. California |
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Definition
NO
Δ did not testify, prosecutor noted that in his closing comments. Said that Δ should have said something if what he was accused of was not true. SC said that this was violation of 5th and 6th, cannot confront prosecutor, cannot confront closing statement. |
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Term
Co-Defendant COnfessions "Bruton Problem" Bruton v. US |
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Definition
Δs make incriminating statements. Δ A Makes incriminating statements about A. A is on trial. A testimony is hearsay, allowed as admission by party opponent, A is unavailable since he has the 5th amendment right. A has option to waive and testify, or confront person laying foundation. With A&B, A says I did it so did B. If A&B are on trial jointly. Can be used against A, there is a confrontation clause problem with respect to B, no one can compel A to testify due to the 5th, B cannot confront. Solution: try them separately, or or redact and edit the statement of A. "Bruton problem" |
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Term
Marital Privilege and Confrontation Clause Crawford v. Washington Davis v. Washington |
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Definition
Crawford & Wife involved in domestic dispute. Wife makes statement Wife wants to drop charges. Attorney invokes marital privilege Her statement was gainst a party opponent. Wife is unavailable. Can statement be used This guts Ohio V. Roberts except that the it gives you the opportunity to confront witnesses. Is the evidence testimonial or not testimonial? Should the wife's statement be allowed in? Yes Davis v. Washington 2006 Scalia Davis→ domestic violence situation, victim calls 911, which is recorded, describes how husband is beating her. Ultimately she does not want to testify as in Crawford. State uses 911 call under exception to hearsay rule as her statements to 911 operator were excited utterance. Then crawford comes down. Hammond→ Consolidated with Davis. 911 call, officer shows up, victim is there, she makes statement to police officer. Again she will not testify, offered again excite utterance. Scalia: Davis: 911 recording is not testimonial, not contemplated for use at trial 6th is not implicated, if they pass hearsay, OK to use. Hammond: Statement to officer, questioning victim. Contemplated for prosecution. 6th is implicated. Unusable. If incriminating evidence is generated in contemplation for use in Court then the 6th is implicated. |
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Term
Jeopardy When does it attach? Crist v. Betz |
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Definition
| When jury is sworn, beginning of trial, for a bench trial, when 1st witness is asked the first question. |
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Term
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Definition
When the Δ has successfully appealed his conviction or had it overturned. Trial judge dismisses the case against the Δ prior to a verdict. Mistrial.
2 & 3 depend on who caused the problem. If the Δ causes it, jeopardy doe not attach. If the prosecution causes the problem jeopardy may attach. |
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Term
Double Jeopardy Does it apply on appeal? Green v. Black |
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Definition
NO Double Jeopardy on appeal, DJ does not attach. Appeal is a continuation or a waiver of DJ. Green charged w/ 1srt deg murder, convicted of 2nd degree. Appealed and won appeal, remanded, argued DJ, Court said DJ does not attach, but on re-trial he could only be tried for 2nd degree murder since the first verdict was effectively an acquittal of 1st degree murder. |
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Term
Does Double Jeopardy attach to errors of law? Burks v. US |
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Definition
| YES Error of law was that the evidence was insufficient as a matter of law. Case should have never gone to the jury. DJ attaches. |
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Term
| Is a retrial ever permitted under circumstances where the problem is not the fault of the prosecution.? Illinois v. Somerville |
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Definition
YES
Mistrial due to no fault of the prosecutor. Retrial is allowed, DJ does not attach. Hung jury. |
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Term
Does double Jeopardy attach doe to Prosecutorial misconduct? |
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Definition
| Prosecution misconduct, DJ attachment depends on degree of misconduct. Not all misconduct implicates DJ. If prosecutor intends to cause mistrial, DJ attaches. |
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Term
Collateral Estoppel and Double Jeopardy Ashe v. Swenson |
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Definition
| Δ charged DUI, caused accident killed passenger. Charged DUI, manslaughter. Acquitted on DUI charge. Convicted of manslaughter. Fact preclusion: Manslaughter required DUI charge |
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Term
Double Jeopardy What is the "same offense"? Blockburger v. US |
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Definition
| Same elements test. Is offense A the same as offense B? List elements side by side. If A has elements not in B and vice versa, not the same offense. |
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Term
| Multiple Punishments for the Same offense? Missouri v. Hunter |
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Definition
| If the legislature clearly intended that result then yes. |
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Term
Dual Sovereigns and Jeopardy US v. Lanza |
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Definition
| Δ is convicted in state Court, light sentence. US Attorney indicts in federal Court. Convicted in fed Court. Claimed Dj, convicted twice. US is Republic of 5o states. 6th prevents multiple punishments by same sovereign. No DJ for federal + state prosecution. |
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Term
Dual Sovereigns and Jeopardy Bartkus v. illinois |
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Definition
| Tried in Fed Court, acquitted State prosecutor indicted and convicted him. Claimed DJ, SC said no, different sovereigns. |
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Term
Dual Sovereigns and Double Jeopardy 2 states Heath v. Alabama |
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Definition
Allowed Heath in GA, neighbor in Alabama, pulls a gun and kills him in Alabama. Prosecuted in GA and convicted. Life sentence. Alabama prosecutor tries him and gets death sentence, dual sovereignty again. Allowable. |
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Term
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Definition
| On the record Trial de novo Not required Constitutionally |
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Term
Harmless Error Chapman v. Califonia |
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Definition
| Standard is if it can be said beyond a reasonable doubt that despite the Constitutional error the Δ received a fair trial the error is harmless. |
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Term
| What happens to cases on appeal when sc makes an announcement? Linkletter v. Walker |
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Definition
| Is it a new rule of law? If yes it applies to any case on appeal. Of no, does not apply to cases in the pipeline. How monumental is the new law? |
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