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Crim Pro Outline, Combined Investigations: o 4th Amendment: Unreasonable searches and seizures prohibited o 5th Amendment: Compulsory self incrimination prohibited o 6th Amendment: Right to counsel at post charging interrogations and identifications o 14th Amendment (due process): Impermissible eyewitness IDs prohibited o 14th Amendment (equal protection): Invidious discrimination prohibited Judicial Proceedings: o 5th Amendment: Prohibitions against double jeopardy, and against compulsory self incrimination in official proceedings o 6th Amendment: Rights to counsel, confrontation, compulsory process, jury trial, speedy trial, fair trial, local trial o 8th Amendment: Right to bail; prohibition of cruel and unusual punishments o 14th Amendment (due process): Rights to notice, proof beyond reasonable doubt, disclosure of exculpatory evidence, fair proceedings generally o 14th Amendment (equal protection): Invidious discrimination prohibited PURPOSES OF DUE PROCESS RULES 1. To protect citizens against misconduct by government officers (especially police), in order to promote: Privacy Liberty Dignity 2. To improve quality of our adversarial system of justice, in order to: protect citizens against government misconduct (in order to preserve privacy, freedom and dignity) and to increase accuracy Fundamental Rights/Ordered Liberty Approaches Palko v. Connecticut: 1. Double jeopardy clause of Fifth Amendment 2. This didnt violate the fundamental principles of liberty and justice, so not incorporated by the Fourteenth Amendment 3. This was overruled in Benton v. Maryland, which found that double jeopardy prohibition represents a fundamental ideal and should apply to the states through the 14th amendment. Adamson v. California: 1. Privilege against self-incrimination clause of Fifth Amendment (limited comment about Ds refusal to testify) 2. Isnt applied against the states by the Fourteenth Amendment because the Due

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Process Clause doesnt draw all the rights of the Bill of Rights under its protection 3. In Dissent, Black wants to extend all the Bill of Rights against the states, no more and no less Modern Approach: Selective Incorporation SC has made many individual rights guaranteed against the Federal Gov by the Bill of Rights applicable to the states by reading them into the due process clause of the 14th Amendment SC has never held the 14th totally incorporates all of the provisions of the BoR. Rochin v. California: P. 71 o Ds stomach was pumped to find heroin. o Court ruled this unconstitutional because this type of behavior shocks the conscience. o Evidence that has been obtained by means that shock the conscience will not be admissible even though no specific rule has been violated. o Dissenters worry that this type of analysis will depend on the attitudes of the judges. Irvine v. California: o Cops entered Ds home and installed a mic in his bedroom and listened for over a month. o Whether or not this shocked the conscience it wasnt enough to prevent admission of the evidence. o Changed the incorporation for this test to specific, well-defined rights. Duncan v. Louisiana: P. 2 o SC decided that those portions of the BoR that are fundamental to our concept of ordered liberty have been incorporated by the 14th Amendment and are applicable to the states. o Held that the 6th amendment right to a jury trial was a right incorporated into the 14th. o This is because the right to a jury trial was deemed fundamental to the proper administration of justice. The new test is whether the right is fundamental, whether it is necessary to an Anglo-American scheme of ordered liberty. Right to establish innocence after conviction DAs office v. Osborne: o State says no right because it will ruin the finality of judgments. o SC says there is no constitutional right and the court cant create a right, thats better left to the legislature. This should be handled by state criminal procedure.

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Retroactivity Danforth v. Minnesota: o Rules announced by the SC on direct review apply retroactively to all other cases on direct review, all future trials, and all federal habeas corpus proceedings but they do not provide the basis for a federal collateral attack on a state court conviction. o This rule doesnt require states to retroactively apply decisions to cases that were already final but it also does not prohibit them from doing so. Plea Bargaining P. 184 North Carolina v. Pearce: P.190 o D may not be punished for appealing a conviction o If D wins appeal and is retried and again convicted, the sentence is presumptively vindictive and therefore unconstitutional under the due process clause. o Sentence can only be harsher if based on things that occurred after the time of the original sentencing. Texas v. McCullough: o Like Pearce but instead says a higher sentence may be based on any new information that has entered the record since the sentencing. Blackledge v. Perry: P. 191 o If D appeals his conviction, the prosecutor may not substitute higher charges in the trial de novo because it is presumptively vindictive (as in Pearce) unless based on things that occurred after the time of the original sentencing. Bordenkircher v. Hayes: P. 184 o Prosecutor offered a reduced sentence if D would plead guilty, or mandatory life sentence if he did not. D chose not to. o D was convicted and received the harsher sentence. o Court held that this was not presumptively vindictive. o Prosecutor may seek higher sentence after D rejects plea bargain. o This conduct did not violate the Due Process Clause because pleas are meant to be negotiated and D had proper notice of the prosecutors intentions from the outset, assumes prosecution and D to be on roughly equal footing o Dissent thought the Due Process Clause was intended to protect against prosecutorial vindictiveness. (Prosecutor cant punish someone for exercising a right.) Majority distinguishes prior case law on this point, arguing this is what the system runs on. o Prosecutor is also free to seek a higher punishment from start. o A state may drive as hard of a bargain as the law allows.

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U.S. v. Goodwin: o Prosecutor seeking higher charges after D has requested a jury trial is not presumptively vindictive and is therefore not subject to Pearce and Blackledge. More like Bordenkircher v. Hayes. Santobello v. NY: P. 184 o D pleaded guilty after negotiations with prosecutor, who had agreed not to recommend a sentence. New prosecutor recommended the maximum sentence. o When a plea rests on the agreement with a prosecutor, the promise must be fulfilled o Once court accepts the plea pursuant to a plea bargain, D has a right to have the bargain enforced. o If prosecutor breaks the promise the court must decide if the circumstances require specific performance or if D should be granted an opportunity to withdraw the plea. o If D fails to keep his part of the bargain, the prosecution can have the plea vacated and may reinstate the original charges. Mabry v. Johnson: o D and prosecutor negotiated for guilty plea. But then, before a plea was entered, prosecutor realized he had made a mistake, and D would have to serve more time. DPC not code of ethics for prosecutors, but rather concerned with deprivation of liberty. o The only time a plea can be attacked is when its consensual character is called into question, and there is no question of consent here. U.S. v. Benchimol: o Prosecutor recommended probation as terms of plea bargain required, but court disregarded and sentenced D to a harsher sentence. o There is no requirement for a judge to take the recommendation bargained for by the prosecutor. o And prosecutor is not obligated to act enthusiastically about the plea so judge believes it is a good idea. o All that is required is that the prosecutor does what he agreed to do in the plea agreement. Requisites for a valid plea P.182

Plea must be voluntary and intelligent. D must be addressed personally in open court on the record. The judge must make sure D knows the nature of the charge to which the plea is offered and the crucial elements of the crime charged. D must know the max possible penalty and any statutory minimum penalty. D must know he has the right to plead not guilty. D must know that by pleading guilty he is waiving his right to a trial.

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Competency is required. o D must have sufficient present ability to rationally understand the proceedings as well as the ability to consult with counsel. North Carolina v. Alford: P. 183 o In federal cases, before entering a plea, the court must determine that there is a factual basis for the plea. This is in the fed rules of crim pro. o This isnt constitutionally required in state cases but some states have rules requiring it. o D need not admit his guilt for a valid guilty plea to be entered (in some state courts). o All that is required is that the state has introduced strong evidence of Ds guilt and Ds voluntary plea appears to be an intelligent choice among his alternatives. The court may then accept the plea.

Arrest, Search and Seizure Search and Seizure chart on P. 31. The Exclusionary Rule P.3 chart P.4 Wolf v. Colorado: P.2 o The prohibition against unreasonable searches and seizures is incorporated into the 14th amendment and is therefore applicable to the states. Mapp v. Ohio: o All evidence obtained by searches and seizure in violation of the constitution is inadmissible in state court. o Exclusionary rule is incorporated into the 14th amendment. U.S. v. Leon: P.11 o As an exception to the exclusionary rule, evidence obtained in a search and seizure that violates the 4th amendment is admissible where the police officers acted under the objectively reasonable belief that they were not violated Ds rights. o In this case officers searched under a defective, but facially valid, warrant but relied in good faith on that warrant so the evidence was admissible. o Rationale is because the exclusionary rule has no deterrent effect in these cases so society bears all of the harms but reaps none of the benefits. o The same goes for police searches/seizures pursuant to a facially valid statute that is later declared unconstitutional. The evidence wont be ruled inadmissible. IL v. Krull P. 11. The good faith reliance rule wont work if P.12 1. The affidavit on which the warrant was issued was so lacking in probable cause that no reasonable cop would have relied on it

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2. the warrant is defective on its face (doesnt state with particularity the place to be searched/things to be seized) 3. the affiant lied to or misled the magistrate 4. the magistrate has wholly abandoned his judicial role Hudson v. Michigan: P. 13 o Exclusion is not an appropriate remedy for violations of the knock and announce rule pertaining to the execution of a warrant. o Rationales: 1. Remedy is too attenuated from purposes of rule which are to protect human life, limb, property, privacy, and dignity. 2. Cost of excluding evidence where search warrant was valid is too high when compared to benefit gained from deterrence. 3. There are other deterrents to prevent violations such as civil suits and internal police disciplinary sanctions. o Usually cops have to knock and announce their authority/presence and be refused entry before using force to enter the place to be searched. o This req is waived if cop has reasonable suspicion based on facts specific to this particular entry, that knocking and announcing would be dangerous or futile or that it would inhibit the investigation by leading to the destruction of evidence. Herring v. U.S.: o To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence. o Exclusion is only required when the police conduct is sufficiently culpable that such deterrence [as may be obtained] is worth the price paid by the justice system Protected Areas and Interests For the 4th amendment to apply the search/seizure must be government conduct. Katz v. U.S.: P. 30 o Changed old rule based on whether the place to be searched was thought to be protected by the 4th amendment. o Changed rule because the 4th amendment protects people, not places. o New rule says a search falls within the protection of the 14th amendment if the government action intrudes into an area where a person has a reasonable and justifiable expectation of privacy. o Phone booth counts under this new rule.

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o There can be no reasonable expectation of privacy in things held out to be public. o Doesnt need to be a physical intrusion to be a search. o Any form of electronic surveillance, including wiretapping, that violates a reasonable expectation of privacy constitutes a search. Greenwood v. California: P. 35 o Ds trash was searched without a warrant. o D had no reasonable expectation of privacy in his trash. o You never have a reasonable expectation of privacy when you turn over your belongings to a 3rd party. o No warrant is necessary to search Ds trash. Open fields doctrine: Area outside of the curtilege is held open to the public and are subject to police search without violating the 4th amendment Florida v. Riley: P. 35 o The police are free to observe from the are, even if it is within the curtilege, so long as they are in airspace where the public is legitimately allowed to fly. o Rationale: There can be no legitimate expectation of privacy in things that may be observed by the public while flying in public air space. United States v. Karo: o You need a warrant to monitor a beeper in a private place. Kyllo v. U.S.: P. 36 o Because of the strong expectation of privacy within the home, obtaining by sense technology (heat sensors) any info regarding the interior of a home that could not otherwise have been obtained without physical intrusion constitutes a search at least where the technology is not in general public use constitutes a search. U.S. v. Place: P. 37 o There is no unconstitutional search when contraband in luggage is sniffed out by a drug dog. o This is because there is no legitimate expectation of privacy in contraband. o Also, no search because the contents of the container arent disclosed to the police (unless their drugs). Zurcher v. Stanford Daily: P. 41 o Searches of persons not suspected of a crime are permissible as long as probable cause exists to believe that evidence of someones guilt (or other items subject to seizure) will be found. o Also, the 1st amendment doesnt preclude the warranted search of a news office.

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Probable Cause P.38 For probable cause, the cope must present to the magistrate sufficient underlying facts and circumstances such that a reasonable person would conclude that seizable evidence would be found on the premises or person searched. This may be by affidavit or sworn testimony. The info must enable the magistrate to make an independent evaluation of whether probable cause is present. Aguilar v. Texas: P. 38 o Affidavits or sworn testimony must allege facts, not mere conclusions. Spinelli v. U.S.: P. 38 o An unsupported allegation that the suspect is a known gambler is conclusory. Without specific facts, such an allegation should be afforded no weight in determining probable cause. o Also, when using a tip, you must look to the credibility of the source and the quality of the information that the source claims to have. Probable cause based on informants tips: IL v. Gates: P. 38 o In determining probable cause must use a totality of circumstances analysis. o The affidavit must show by a totality of the circumstances that there is a fair probability that contraband or evidence of crime will be found in a particular place. o The two considerations are whether the info comes from a reliable source and whether the informant had a sound basis of knowledge for the info. o As applied to informants this means an informants lack of credibility/reliability in the past (or the fact that the tipster is anonymous) is not fatal because all that is required is that the affidavit, taken together, permit the magistrate to make a common sense evaluation of probable cause. o In this case, the unreliable tip was corroborated by police observing the tipped behaviors which was enough to establish probable cause because it showed that the tipster knew what they were talking about. Maryland v. Pringle: P. 19 o An arrest, with or without a warrant must be based on probable cause. o This requirement is satisfied when, at the time of arrest, the facts and circumstances within the officers knowledge and of which they have reasonably trustworthy information are sufficient to warrant a prudent person to believe that the suspect had committed or was committing an offense.

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o Where contraband is found in a car with multiple people, the officer has probable cause to believe that any and all of the men had committed the crime of possession, alone or jointly, of contraband and make an arrest. Search Warrants A warrant must describe with reasonable certainty the place to be searched and the items to be seized. o If it does not, the warrant is unconstitutional even if the underlying affidavit gives such detail. Maryland v. Garrison: P. 40, 43 o Where there is probably cause to search a single apartment, the warrant must specify the apartment to be searched, listing the building address is insufficient. o However, if the cops reasonably believe there is only one apartment on the 3rd floor, they may obtain a warrant to search the 3rd floor apartment. o This is true even if during the course of the search they discover that there are in fact 2 apts on the 3rd floor. o Also, the scope of the search may not exceed the premises described in the warrant and the search is limited to locating the items described on the warrant. o But, if the cops make an objectively reasonable mistake when executing a warrant, the evidence obtained is still admissible. o For example, if the cops have a warrant for one apartment but mistakenly search an adjoining apartment and discover evidence of crime, the evidence is admissible despite the error so long as the mistake is objectively reasonable. Richards v. Wisconsin: P. 21, 42 o A warrantless arrest in the home is presumed unreasonable unless exigent circumstances are present or the arrestee consents. o A cop must announce his authority and purpose before using force to enter a home to make an arrest or search it. o Usually failure to knock and announce renders the arrest unlawful. o This is because an announcement helps the occupant to prepare for entry and avoids unnecessary property damage. o SC held that a bright line rule always allowing no-knock warrants was unconstitutional and the no-knock decision must be made on a case by case basis. o Even though a failure to announce is illegal, exclusion of evidence is not an available remedy. o The decision not to knock and announce may be made if the officer has reasonable suspicion, based on facts specific to this particular entry, that knocking and announcing would be dangerous or futile or that it would inhibit the investigation (by leading to the destruction of evidence).

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Muehler v. Mena: P. 29 o When executing a search warrant, the police may detain those people who are present on the premises while the search is conducted. o This includes handcuffing and questioning the occupant for several hours during a weapons search in a house belonging to gang bangers. o This is based on the legitimate law enforcement interest of preventing flight if incriminating evidence is found. o It also makes the search easier to complete and helps to ensure the safety of the officers. Warrantless Arrest/Search of Persons

U.S. v. Watson: P.20 o The police need not obtain a warrant before arresting a person in a public place o This is true even if there was time and opportunity to do so. o If the officer has probable cause to believe that a felony has been committed and that a particular person has committed the offense, he may arrest that person without a warrant in a public space. Atwater v. Lago Vista: P. 20 o A cop with probable cause may make an arrest without a warrant even if the crime is minor, doesnt involve a breach of the peace, and is punishable only by a fine. U.S. v. Robinson: P. 45 o A search may be conducted without a warrant where it is incident to a constitutional arrest. o So long as the arrest is constitutional (based on probable cause and, if necessary, with a warrant), the cops can conduct a search of that person. o The rationale is to protect the officer (remove any weapons) and to preserve evidence. o The police need not fear for their safety or believe they will find evidence though, they can always conduct a search pursuant to the arrest. Chimel v. California: P. 46 o A search pursuant to an arrest may cover the person arrested and the areas within the persons immediate reach (wingspan). o This search prevents the concealment or destruction of evidence and prevents the arrestee from seizing a weapon to resist arrest or assist in escape. Segura v. U.S.: o The police are also allowed to secure the area after an arrest (that is, search the adjacent rooms/hallways/closet to be sure that no one may immediately launch an attack while the officer is making the arrest.

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Payton v. NY: P. 21, 8 o An arrest in the home requires a warrant unless there are exigent circumstances. o Ds 1st confession was at home and was thrown out as fruit of the unconstitutional arrest. o The 2nd confession was allowed because it wasnt fruit of the unconstitutional arrest. o Because the cops had probable cause to arrest D, they didnt gain anything from the constitutional arrest so the subsequent confession was not an exploitation of the constitutional entry. Steagald v. U.S.: P. 22 o Absent exigent circumstances, cops executing a valid arrest warrant may not seize the person named in the warrant in the home of a 3rd party without first obtaining a separate search warrant for the 3rd partys home. o This violates the home-owners rights, not the arrestees rights so the arrestee lacks standing. To have the standing to challenge a search under the 4th amendment, the person must have a legitimate expectation of privacy. o This is usually determined on a case by case basis assessing the claimants reasonable expectation of privacy based on the totality of the circumstances. A person always has standing when: o The person owns or has a right to possession of the place searched o The place searched was the persons home (with or without the right to possession) o The person was an overnight guest of the owner of the place searched. Minnesota v. Olson. P. 32. o In contrast, there is no reasonable expectation of privacy if the person is there for a commercial purpose. Minnesota v. Carter P. 32. If A is staying in Bs home (even overnight) and the cops come in to Bs home with an arrest warrant for A and find new evidence against A, A may not suppress the new evidence. o Allowing A to suppress would give A greater privacy rights as a guest than A enjoys in his own home. If A lives at Bs home, cops with an arrest warrant for A may enter to make an arrest without a search warrant. Any evidence discovered would be admissible. If there are exigent circumstances, entry is always legal therefore no ones rights have been violated.

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Warrantless Search and Seizure of Vehicles Carroll v. U.S.: P. 38, 48, 49 o A major exception to the warrant requirement is the automobile exception. o Police may search a vehicle if they have probable cause to believe that it contains the fruits or instrumentalities of crime, evidence of crime or contraband. o Also, as long as the stopping of a car is lawful, what the cops then observe may ripen into probable cause for a search. o This is because you have a lesser expectation of privacy in your car and because the vehicles mobility means that the evidence can be easily transported away from the jurisdiction and lost forever. o Probable cause allows the cops to search an entire automobile (interior compartment and trunk). California v. Carney: o The automobile exception applies to motor homes and RVs because they too have a lesser expectation of privacy than a home and are also mobile. California v. Acevedo: P. 49 o So long as the cops have probable cause, they do not need a warrant to search any container once it is placed inside of a car. o This is true even if the container is locked. o If the cops dont have probable cause to search the rest of the car, they must limit the search to the container. o Police may only search a container if the item(s) they are looking for could be contained within the container. Ex.: Cant look for illegal aliens in a purse. NY v. Belton: P. 46 o If a cop makes a valid arrest of an occupant of a car, he may then conduct a warrentless search of the passenger compartment of the car (including any containers found therein). o This is because the entire passenger compartment is deemed within the persons wingspan. Arizona v. Gant: o Limits NY v. Belton. o The cop may only search the interior of the vehicle pursuant to the arrest if the arrestee is within reach of the area at the time of the search (not in handcuffs) or there is reason to believe that the search will yield evidence of the crime for which D was arrested. Wyoming v. Houghton: P. 156 o Police may use probable cause to search containers in vehicles without a warrant.

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o This is not limited to the drivers belongings. o The passengers belongings are subject to the same standard. o Like the driver, the passenger has a reduced expectation of privacy. When a person is arrested and taken to the police station, the cops may make a full inventory search of his person and all property in his possession before he is jailed if the search is done pursuant to established procedure. o This is reasonable to protect the suspects property, the protect the cops against false claims of theft of property, to discover dangerous objects/keep contraband out of jails, and to assist in indentifying the suspect. Colorado v. Bertine: o Similar to a jailhouse inventory search, the police may make an inventory search of impounded vehicles pursuant to established procedure. o The may generally open containers found to ensure against claims of lost, stolen, or vandalized property and to guard against danger. o Evidence found during this search is admissible under the plain view doctrine. o If the inventory search gives rise to probable cause to search the vehicle for additional evidence, no warrant is needed for further search. Consent to Search An exception to the search warrant requirement is consent. Schneckloth v. Bustamonte: P.57 o A search may be conducted without a warrant if voluntary and intelligent consent is given. o Knowledge of the right to withhold consent is not a prerequisite to proving that intelligent consent was given. It is only a factor to be considered. o The police dont have to warn a person of the right to withhold consent. The scope of the search is limited to the scope of the consent. Consent may be revoked, in which case the officer must stop. U.S. v. Matlock: P. 58 o Any person with an equal right to use or occupy the property may consent to a search o Any evidence found may be used against the other owners or occupants. o Government has the burden of proving that the consenting individual has joint access or control of the premises for most purposes. o This burden may be satisfied by circumstantial evidence. o Where 2 people share an apt, either may consent in the others absence to a search of the common areas but not to areas reserved by the other occupant.

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Illinois v. Rodriguez: P. 58 o Consent is valid so long as the cops reasonable believe that the person giving consent had an equal right to use or occupy the searched premises. o It doesnt matter if the person didnt actually have the rights. o Rationale: 4th Amendment protects only against unreasonable searches and it isnt unreasonable for the police to believe that proper consent was obtained in these cases. Georgia v. Randolph: P. 59 o The cops may not act on consent from 1 occupant if a co-occupant is present and objects to the search and the search is directed against the co-ocupant. o This is true so long as the tenants have equal rights (not such as parent child). Stop and Frisk

Terry v. Ohio: P. 23, 25 o Not all seizures must be supported by full probable cause. o Limited stops and detentions may be justified on a lesser showing o Police have the authority to detain a person briefly for questioning even without probable cause to believe the person has committed a crime. o This investigatory stop doesnt constitute an arrest. o It is permissible if: 1. The cop observes unusual conduct 2. leading to a reasonable suspicion that criminal activity may be afoot 3. and the cop has the ability to point to specific and articulable facts to support that suspicion o A stop occurs when the police conduct is such that a reasonable person would believe that he is not free to leave o There is no rigid time limit for the length of an investigative stop. o To determine if the length of a stop is permissible the court considers: 1. The purpose of the stop 2. the reasonableness of the time in effectuating the purpose 3. the reasonableness of the means of investigation. o If a stop is unreasonable long or intrusive, it will be considered an arrest and will be held invalid unless there was probable cause for an arrest. o Once the cop has stopped a person, he may frisk the person (conduct a limited patdown of the outer clothing for weapons) if the officer reasonably suspects he is in danger. This usually means the cop reasonable believes the person is armed and reasonable dangerous o This limited frisk isnt as wide reaching as a search incident to arrest.

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o The rationale is that the governmental interests in effective crime prevention and detection and ensuring officer safety outweigh the severe but brief intrusion of a stop and frisk. Minnesota v. Dickerson: P. 56 o If a cop does a terry frisk the cop may reach into the suspects clothes and seize any item that based on its plain feel, the officer reasonably believes is a weapon or has probable cause to believe is contraband. o This is only true if the incriminating character of the object is immediately apparent. o This is essentially the same justification as the plain view rule. Reasonable Suspicion: o Reasonable suspicion involves something less than probable cause but requires something more than a vague suspicion based on gut instinct, the high incidence of crime in the area, and the defendants suspicious looks. o The suspicion must be based on objective articulable facts. o The totality of the circumstances must be taken into account. o The detaining officers must have a particularized, objective basis for suspecting the particular person of criminal activity. Florida v. J.L.: P. 24 o An anonymous tip that a person is carrying a gun, by itself, is insufficient to justify a stop and frisk. Illionois v. Wardlow: P. 55 o A persons unprovoked flight after seeing a marked cop car passing by in a high crime area provides sufficient reasonable suspicion for a terry stop. o Rejects a per se rule that flight always provides reasonable suspicion for a terry stop. o Suggests reasonable suspicion will almost always exist if flight occurs in a high crime area. Florida v. Royer: P. 17, 24, 56 o No arrest or seizure/stop occurs when an officer simply approaches a person in a public place and asks him if he is willing to answer questions so long as he isnt involuntarily detained. o An investigatory stop must be temporary and no longer than necessary to effectuate its purpose. o The investigative methods must be the least intrusive reasonably available to verify or dispel the officers suspicion. o Taking the suspect into a police room without his consent turned the stop into a seizure. U.S. v. Drayton: P. 17-18

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o It isnt a seizure/stop if cops board a bus before departure and ask people for ID or consent to search their luggage. o The test is whether, under the totality of the circumstances, a reasonable person would feel free to decline the cops requests or terminate the encounter. o Things to consider are if cop is blocking aisle/door, if he is in uniform, if he has a gun, if he asks in threatening/menacing manner. o The cops conducting the search need not tell the people they are free not to cooperate. Brendlin v. California: P. 26-27 o Stopping vehicles is the same as stopping people in Terry. o Cant stop just to check license and registration o Cop needs reasonable and articulable suspicion that a crime (including a traffic law) has been committed o A car stop constitutes a seizure of the driver and the passengers as well o Rationale: the stop curtails the travel of the passengers as well as the driver because a passenger wouldnt feel free to leave the scene. o This means if car is stopped without reasonable suspicion, passenger has standing for 4th amendment violation and can challenge the admissibility of evidence found during the stop. Whren v. U.S.: P.26 o If cop has reasonable suspicion, he may stop car even if he also has ulterior motive and the stop is just pretextual. U.S. v. Place: P. 24, o If the cops have reasonable suspicion that a persons containers have narcotics they may detain the unopened containers temporarily to investigate the circumstances. o Although this is a seizure, the strong governmental interest outweighs the minimal intrusion. o This seizure may be no longer that necessary. o A 90 minute detention of luggage was held unreasonable in this case. o Government intrusions that only reveal possession of controlled substances (dog-sniff tests or coke field tests) dont invade any legitimate interest in privacy and therefore D has no standing to assert a 4th amendment violation. Use of Deadly Force Tenessee v. Garner: P. 22 o It is a 4th amendment seizure if a cop uses deadly force to apprehend a suspect. o A cop may not use deadly force unless it is reasonable to do so under the circumstances.

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o Reasonable to bump a car to end a dangerous high speed chase even though it crippled the D. This is because the suspect posed a threat to their own life and the lives of others. o Unreasonable to shoot a fleeing burglar in the head. Because there was no evidence D was dangerous or armed. Probable cause that D had committed the burglary was irrelevant. The Right to Counsel The basic right to counsel: o The 6th Amendment provides that in all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his defense. This includes the right to the appointment of counsel. o This right applies in all felony cases or in cases where a jail sentence is imposed or a suspended sentence accompanied by probation is given. o SC held this was incorporated by the DPC of the 14th to apply in State cases in Gideon v. Wainwright. P. 151. This right is considered fundamental and essential to a fair trial. o If D was entitled to a lawyer at trial, failure to provide counsel results in automatic reversal of the conviction even without any showing of specific unfairness in the proceedings. Gideon v. Wainwright. P. 154 o Fuller v. Oregon: P. 151 Some states have passed statutes that require, as a condition of probation, that the convicted D pay back to the state the fees of the appointed attorney. As long as the statutes provide exemptions for Ds who cant afford repayment and do not arbitrarily discriminate against particular Ds or groups of Ds, these statutes are constitutional. A recoupment program requiring reimbursement only from Ds actually sentenced to prison violates the EPC. Cases to which the right to counsel applies o The right to counsel is violated in all criminal prosecutions if a defendant is not given the opportunity to have the assistance of counsel and imprisonment is imposed. Argersinger v. Hamlin, Scott v. Illinois. P. 151 o The right to counsel exists only where imprisonment is imposed. Where a crime is punishable by fine or imprisonment, the 6th amendment isnt violated where D is denied counsel but only a fine, no imprisonment, is imposed. o Alabama v. Shelton: P. 151 Ds right to counsel is violated where D is denied counsel and D receives a suspended jail sentence and probation. When the right to counsel begins o The right to counsel does not attach until a prosecution is commenced.

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This is said to take place at the initiation of adversary judicial criminal proceedings by way of formal charge, preliminary hearing, indictment, information, or arraignment. o Rothgery v. Gillespie County The right to counsel attaches at the initial appearance before a judicial officer, where D learns the charge against him and his liberty is subject to restriction. This marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel. The Equality Principle in post-conviction proceedings o Griffin v. Illinois: P. 205 When a state grants the right to appeal, it cant do so in a way that discriminates against convicted individuals because of their poverty. The EPC is violated if the state makes appellate review less accessible to the poor than the rich. Under EPC, D must be provided with free transcripts if transcripts are necessary for the first guaranteed appeal. o Douglas v. California: P. 205 Where a state provides an appeal granted to all as a matter of right, counsel must be appointed for indigents. This means that D is entitled to a lawyer at the first automatic appeal. The constitution is violated when the rich man, who appeals as of right, enjoys the benefit of counsels examination into the record, research of the law, and marshalling of arguments on his behalf, while the indigent, already burdened by a preliminary determination that his case is without merit, is forced to shift for himself. o D is entitled to a lawyer at all sentencing hearings. o D is not entitled to counsel at probation or parole revocation proceedings where the trial has already been completed and the sentence determined. o Ross v. Moffitt: D isnt entitled to counsel in discretionary appeals where the appellate court may choose whether or not to grant the request for appeal. Counsel also need not be provided for an indigent on a petition for cert to the SC. o Evitts v. Lucey: Right to counsel on appeal is based on the DPC. On first appeal as of right, D given assistance of counsel is guaranteed that the counsel will be effective. Counsel has on obligation to raise every nonfrivolous issue requested by the client though.

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Strategic decisions rest within counsels professional judgment and include the methods to use for a vigorous and effective advocacy. The failure of counsel to file a timely notice of appeal constitutes ineffective assistance of counsel. o Ake v. Oklahoma: P. 130, 152, 176 When D can make a colorable showing that he might benefit from the insanity defense, or the prosecution is going to produce psychiatric evidence at sentencing to prove potential future dangerousness, an indigent D is constitutionally entitled to a evaluation at state expense. In federal court, by statute, D may obtain investigative, expert, or other services necessary for an adequate defense. If D has made a preliminary showing that he is likely to be able to use the insanity defense, the state must provide a psychiatrist for the preparation of the defense. o Mayer v. City of Chicago: P. 205 If appellate review requires a transcript of the trial proceeding, such a transcript must be made available to a convicted indigent free of charge. This rule applies even in misdemeanor cases. Where a complete transcript is needed, the state bears the burden of showing that something less will suffice. Forfeiture and the right to the assistance of counsel o Caplin & Drysdale, Chartered v. U.S. A forfeiture statute doesnt impermissibly burden Ds 6th Amendment right to retain the counsel of his choice. D has no 6th Amendment right to spend another persons money for services rendered by an attorney even if those funds are the only way that D will be able to retain the counsel of his choice. Such money, though in Ds possession, is not rightfully his so forfeiting it doesnt violate Ds rights. Choice of counsel o An indigent D has no 6th Amendment right to choose the lawyer the court will appoint to represent him. o D does have a 6th Amendment right to the retained or volunteer counsel of his choice. o The court can disqualify a lawyer of the Ds choice because of a potential conflict. Wheat v. U.S. o The government can freeze Ds assets (assuming it otherwise has the authority to do so even if one effect is to prevent the D from retaining the counsel of his choice. Effective Assistance of counsel

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o 6th amendment provides the right not just to be represented by counsel but also the right to be represented by effective counsel. If counsels representation is ineffective, a resulting conviction could be overturned. Claim is usually based on an allegation that but for counsels ineffective performance, D would not have been convicted. Claim may also be made that counsels ineffective assistance caused D to receive a sentence that was longer than it would have been with effective assistance. This claim can be based on any increase in jail time. A claim can be raised retained as well as appointed counsel. An ineffective assistance claim cant be raised with regard to a proceeding to which the right to counsel doesnt apply. o Strickland v. Washington: P. 156-57 Convictions are rarely set aside because of ineffective assistance of counsel. Failure to do what appears to be good practice or even failure to know the law doesnt necessarily result in reversal of a conviction. The purpose of the effective assistance guarantee of the 6th amendment not to improve the quality of legal representation but rather to ensure that criminal Ds receive a fair trial. The question is whether the counsels representation fell below an objective standard of reasonableness. SC held more specific guidelines arent appropriate and judicial scrutiny of counsels performance must be highly deferential. The court must indulge a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance. D must overcome the presumption that under the circumstances, the challenged action might be considered sound trial strategy. o U.S. v. Cronic: P. 157 A claim for ineffective assistance of counsel typically can be made out only by pointing out specific errors of trial counsel It cant be based on an inference drawn from counsels inexperience, lack of time to prepare, gravity of the charges, complexity of defenses, or accessibility of witnesses to counsel. Effective assistance of counsel is present unless the adversarial process is so undermined by counsels conduct that the trial cannot be relied on to have produced a just result. D must show that: 1. Counsels performance was deficient and 2. but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different. o Instances where a 6th amendment violation for ineffective assistance of counsel were found/not found P. 157-158

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o Rompilla v. Beard: P. 158 In a capital prosecution, failure of counsel to look at the case file of Ds prior crime that the prosecution had indicated would be central to proving aggravating circumstances justifying imposition of the death penalty, even when family members and D himself have suggested that mo mitigating evidence is available was held to violate the 6th amendment right to effective assistance of counsel. The file would have revealed leads that would have given counsel new mitigating info about the client, including that he suffered from mental illness, retardation, and fetal alcohol syndrome, and that he had been abused as a child. o Florida v. Nixon: P. 157 In a capital murder trial, counsels failure to obtain a clients affirmative consent to the strategy of going to trial and not challenging guilt, rather than pleading guilty, in the hopes of having more credibility at sentencing does not constitute ineffective assistance of counsel. D does have the right to exercise personal authority over some decisions though: how to plead, whether to testify, whether to waive a jury or an appeal, and whether to be present at trial. Lawyer has the authority to make all other decisions, even over Ds objection. D can try to replace counsel because of strategic differences but its very hard for appointed lawyers and sometimes hard for retained lawyers as well. Conflicts of interest o Defendants at a joint criminal trial may have their own attorneys appointed or may elect to share the services of a single lawyer o If the joint representation causes a conflict of interest (such as counsel where counsel suspects that he can use testimony incriminating one defendant to exculpate the other) the court must appoint separate counsel. o The court must inquire about a conflict of interst if it knows or reasonable should know that a particular conflict exists. Culyer v. Sullivan. o If D doesnt object to the joint representation at trial, on appeal, it must be shown that an actual conflict of interest adversely affected the lawyers performance. o A conflict of interest doesnt constitute ineffective assistance unless D can demonstrate that counsel actively represented conflicting interests and that the conflict adversely affected the attorneys performance. D must also show that but for counsels unprofessional errors resulting from the conflict, the result would have been different. Mickens v. Taylor. o Wheat v. U.S.: P. 153 The court may refuse to allow an attorney to represent a D when the attorney is representing 2 co-Ds and a serious potential for conflict is present.

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Even when all co-Ds waive their right to conflict-free representation, the court has discretion to refuse the joint representation. o Prejudice is presumed from defective representation if Counsel is totally absent or is prevented from assisting the accused The court denies counsels objection to representing D because of a conflict of interest Where a conflict of interest actually affected the adequacy of representation The Right to Self Representation Faretta v. California: P. 155 o D may waive the right to counsel and represent himself at trial. o The right of self-representation in not inferior to the right of assistance of counsel Requirement for effective waiver of counsel. P. 155 o To waive the right to counsel, D must be advised of the right to counsel and be competent to intelligently and voluntarily abandon the right. o D must also be competent to proceed pro se. o If these requirements are met, D must be allowed to proceed without counsel. Waiver at trial. o Indiana v. Edwards: P. 155 At trial, it isnt enough for D to state in open court his desire to waive the right to counsel. The trial court must conduct a thorough inquiry to determine that the waiver is made knowingly, intelligently, and voluntarily and that D is competent In determining whether Ds waiver was knowing and intelligent, the court must carefully scrutinize the waiver to ensure that D has a rational and factual understanding of the proceeding against him. The SC hasnt established a standard for determining Ds mental competence but has said it is possible for D to be competent to stand trial but incompetent to represent himself based on the trial judges consideration of the defendants emotional and psychological state. Interrogation and Confession Basic Issues o Voluntariness (DPC of the 14th Amendment)

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Was the interrogation (even after Miranda warnings) so coercive that it overbore the suspects free will? o Massiah (6th Amendment) Was the suspect a D (i.e. charges already filed), who invoked his right to counsel? If so, state cant initiate interaction in which it deliberately elicits info. o Miranda (5th Amendment) Did the interrogator give the Miranda warnings? They are required for any custodial interrogation. o 4th Amendment Did the suspect make a statement that must be excluded as the fruit of an illegal search, illegal arrest, or illegal detention? Voluntariness (required under the DPC of the 14th Amendment) o Before a confession of guilt will be allowed to be admitted into evidence, th trial judge must find that it was voluntarily made (5th Amendment and DPC of 14th) o The test for voluntariness is whether the confession was the product of an essentially free and unconstrained choice by its maker. o Voluntariness requirement serves 3 distinct purposes 1. the interest in trustworthy evidence 2. the preservation of individual freedom of choice 3. the deterrence of unlawful police conduct o Brown v. Mississippi: P. 87-88 Whether a confession was voluntarily made is to be judged on a subjective basis considering a totality of the circumstances. The question is not whether a reasonable persons will would have been overborne under the circumstances, but rather whether the Ds will was actually overborne. Factors to consider include: 1. Ds personal characteristics: age, education, intelligence, experience, physical and mental health 2. the nature of the detention: delays in arraignment, whether D was advised of his constitutional rights, Ds access to counsel and the outside world, conditions of confinement 3. The manner of interrogation: length and #of sessions, number of interrogators, conditions of interrogation, and 4. The use of force, threats, promises, or deceptions. o Modern test for exclusion of involuntary confessions is did the police use coercive or offensive means to obtain the confession and under the totality of the circumstances, did the police overcome the will of the accused? o Ashcraft v. Tenessee: P. 88 An unduly long interrogation may cause a confession to be considered involuntary. In this case, a nonstop 36 hour interrogation rendered the confession involuntary.

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Massiah v. U.S. 6th Amendment: P. 91-93 o Even if a statement is admissible under the voluntariness test, it can still be excluded from trial if the taking of the statement violated Ds 6th Amendment right to counsel. o The right is violated if after adversary judicial proceedings have begun (after indictment), the police question D outside the presence of counsel or without a valid waiver of the right to counsel. o Massiah applies whenever the government elicits (actively attempts to secure) information from a suspect who has been charged without his attorney or a valid waiver o D need not be in custody o The person who elicits info need not have any apparent authority over D (questioning by a snitch or undercover agent counts) o A snitch who elicits info on his own and then passes it on to the government is not covered by Massiah because the elicitation wasnt procured by the government o A snitch or undercover agent can act as a listening post and then report what was heard without eliciting it, even if the agent/snitch talked with D and responded to statements made by D. The agent/snitch cant ask D questions though. o Massiah is offense specific it only prohibits eliciting info from a D once he has been charged with respect to the charges that have been filed. Eliciting confessions as to other crimes is not prohibited. Brewer v. Williams: P. 92 o Courts are more likely to find a 6th Amendment violation where D has retained a lawyer but the cops dont allow the lawyer to participate in the interrogation. o Christian burial speech given from cop to D without presence of either of his 2 retained lawyers rendered confession inadmissible because the speech served to overbear Ds will. Kuhlman v. Wilson: P. 92 o Ds 6th Amendment right to Counsel can be violated even if D wasnt explicitly questioned, as long as incriminating info was actively secured from D without the presence of counsel. o The key question is whether government agents deliberately elicited the incriminating suspect from the suspect. o Placing an informer in Ds cell who reports back what D says is not a 6th Amendment violation. o It is only a violation if the informer takes action, more than merely listening, designed deliberately to elicit incriminating remarks. Escobedo v. Illinois: P. 93 o A confession obtained from D is inadmissible when the investigation focused on the suspect, he had been taken into custody, he had requested

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and been denied the opportunity to consult with counsel, and the lawyer was present and available to consult with him even though there had been no adversarial proceeding. o This is largely unnecessary now because of Miranda. Miranda v. Arizona 5th Amendment: P. 94-105 o SC said 5th Amendment privilege against self-incrimination was the basis for determining the admissibility of a pre-trial confession in both state and federal courts o SC said police interrogation is inherently coercive. To combat this coercion and make it more likely that any statements obtained during police interrogation are voluntary, the court ruled that when a law enforcement officer interrogates a suspect in custody, the officer must inform the suspect of his rights, warn him of the consequences of waiving those rights, and obtain a waiver, otherwise any confession made by the suspect is inadmissible at trial to prove the suspects guilt. o Miranda requires the suspect be informed of 1. the right to remain silent 2. that anything said can be used against him at trial 3. that he has the right to the assistance of a lawyer 4. and that if he cant afford a lawyer one will be provided o Miranda also means the state cant compel someone to take a lie detector test without violating the 5th Amendment. o The exclusionary rule is applied to evidence obtained in violation of Miranda. If warnings arent given, any statements obtained from D arent admissible at trial, even if the 6th amendment right to counsel wasnt violated because the statement was voluntary. There is an exception to the exclusionary rule for public safety SC held that concern for public safety is paramount to adherence to the literal language of the Miranda rule, thus, when cops ask questions reasonably prompted by concern for public safety, Ds responses need not be suppressed in court. New York v. Quarles: P. 95. The public safety exception is not judged by the subjective thoughts of the officer but rather by an objective standard (whether a reasonable officer under the circumstances would think there is a public danger) If police obtain a confession from D, then read his Miranda warnings and obtain another confession, both confessions are inadmissible. Missouri v. Seibert P. 96. o What is custody or custodial interrogation? A person is in custody if his freedom of movement has been limited by the police. There must be either a formal arrest or restraint of freedom of movement to the degree associated with a formal arrest.

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The person questioning D must be a person who is known to the suspect to have authority over him (a cop, jailer, prosecutor). The determination of whether a person was in custody during questioning depends on the objective circumstances of the interrogation and not on the subjective views of the person being questioned or those of the officers conducting the questioning. A person will be found to be in custody if a reasonable person under the circumstances would feel that his freedom of action was denied in a significant way (he would not feel free to leave). Berkemer v. McCarty P. 98. A traffic stop does not constitute custody so a Miranda warning is not required for a traffic stop. Mathis v. U.S. P. 97. If D is in custody for other charges, his freedom is restrained so a Miranda warning must be given, even if the charges are unrelated to the interrogation. o Whats an interrogation? Ds statements are only subject to Miranda if given in response to interrogation. Volunteered statements (spontaneous remarks not made in response to questioning) arent covered. Interrogation isnt limited to any particular type of questioning; rather, the inquiry is whether the police should know that their actions are reasonably likely to elicit an incriminating response form the suspect. Rhode Island v. Innis: P. 99. Dialogue between 2 cops in the presence of suspect in which no response from D was invited is not an interrogation. Guilt trips without inviting response from D dont count for Miranda. Illinois v. Perkins: P. 93, 96-7. Undercover officers dont need to give Miranda warnings because there is no fear of coercion if D doesnt know the person asking questions is a cop. Miranda warnings are intended to offset the coercive nature of police dominated interrogation. Therefore, Miranda warnings need not be given before interrogation by someone whom D doesnt know to be a cop. o The Suspects refusal to talk following a Miranda violation. Michigan v. Mosley: P.101. If D says he wants to remain silent, his request must be scrupulously honored. After D indicates he wants to remain silent, the cops must immediately cease the interrogation. The cops may resume questioning after the passage of a significant time period and giving new Miranda warnings. The new interrogation may be restricted to a crime that wasnt the subject of the first interrogation. Davis v. U.S.: P.101. If Ds desire to remain silent or request for an attorney is ambiguous, the cops may ask clarifying questions but arent required to do so. The cops may continue to interrogate until an unambiguous request is received. The test is whether the

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request was sufficiently clear that a reasonable police officer I the same situation would understand the statement to be a request for counsel or to exercise the 5th amendment right of silence. maybe I should talk to a lawyers, is sufficiently ambiguous to permit continued interrogation. Edwards v. Arizona: P. 100. If D informs the cops he wishes to speak to a lawyer, he cant be subjected to further interrogation until his attorney has been made available to him unless he initiates discussions with the cops. This rule applies to questioning on unrelated offenses as well. Minnick v. Mississippi: P. 101. Once counsel is requested, interrogation must cease whether or not D consults counsel. The mere fact that a suspect has earlier consulted with counsel is irrelevant, the attorney must actually be present during the interrogation. The 5th amendment right to counsel is violated where the defendant requests counsel, confers with counsel, and is then forced to talk to the police without counsel present. U.S. v. Patane: P. 105 If the cops fail to give Miranda warnings and during interrogation a suspect gives the cops info that leads to nontestimonial evidence, it is unclear whether the nontestimonial evidence must be suppressed as fruit of an unlawful interrogation. In this case, the plurality held that suppression was unnecessary if the violation wasnt too egregious. The same rule can apply when the statements that violate Miranda lead to a confession following adequate Miranda warnings. Oregon v. Elstad P. 96. Moran v. Burbine: P. 103 The police may lie to attorneys about what they plan to ask/do to their client. Attorneys may not exercise Ds 5th amendment rights. Passively deceiving a suspect (not telling him that his sister hired him an attorney) is also not a 5th amendment violation. Chavez v. Martinez: P. 79 A violation of the 5th Amendment right against self-incrimination doesnt occur until the statements are used against D in a criminal case. Because D was never charged with a crime, there was no 5th Amendment violation. Montejo v. Louisiana D may validly waive his right to counsel for police interrogation, even if police initiate the interrogation after Ds assertion of his right to counsel at an arraignment or similar proceeding. Dickerson v. U.S.: P. 91

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Congress made a rule saying a confession shall not be inadmissible solely because of delay in bringing such person before a magistrate. This was held in constitutional by the SC and Miranda is still the law. Line-Ups, Show-Ups, and Other Pre-Trial Ids

U.S. v. Wade: P. 108, 110 o It doesnt violated Ds privilege against self incrimination to compel him to stand in a lineup, to utter specified words when asked to do so, or to put on some item of clothing. This is because these acts are non-testimonial and thus not within the privilege. o The 6th Amendment gives D the right to have a lawyer present during some identification proceedings to ensure fairness of the ultimate trial process. o D has the right to counsel at all face-to-face confrontations/lineups after D has been formally charged. This is regarded as a critical stage of the proceeding and is defined as a time when Ds rights can be compromised and having an attorney for D might avoid the compromise of rights. o If D is identified by a witness at a pretrial procedure and Ds right to counsel was violated there, testimony concerning that ID is inadmissible. Not all of that witnesss ID testimony is excluded though. If the witness can ID the defendant at trial, without having to rely on the earlier ID, the in court is valid. To decide whether the in court testimony is admissible, the judge must conclude that the testimony is purged of the primary taint. The question is whether the in-court ID has a source independent of the pretrial lineup. The source may be independent where the initial description is precise and later corroborated or where the witness had a particularly good view of D at the time of the crime. Factors affecting the independent source determination include: 1. the witnesss opportunity to view the criminal act 2. any discrepancy between a pre-lineup description and Ds actual appearance 3. any ID of another person prior to the lineup 4. any photo ID before the lineup, and 5. failure to identify D on a prior occasion. The harmless error rule applies to eyewitness identifications improperly admitted into evidence. Kirby v. Illinois: P. 108-109

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o The right to counsel only attaches after the initiation of an adversary criminal proceeding against the accused such as a formal charge or preliminary hearing. o There is no right to assistance of counsel at police lineups conducted prior to the time the accused in indicted or otherwise formally charged with the crime. o Some courts hold that this doesnt require an arraignment but just needs D to be taken into custody under an arrest warrant. D is only entitled to counsel and trial-like adversary confrontation. o This means D is not entitled to a lawyer at photo Ids. o This is because a photo display can be adequately reconstructed at trial for cross examination. Manson v. Braithwaite P. 110-111 o Apart from the right to counsel, a pretrial confrontation for ID purposes may be so unreliable as to infringe on Ds right to Due process of law. o In determining the constitutionality of the ID procedures, courts look to the totality of the circumstances leading up to the ID. o A DPC violation will only be found where the procedure gave rise to a likelihood that the ID was unreliable. o Even an unnecessarily suggestive ID procedure (a 1 photo show up) doesnt violate the DPC if it is found to be reliable. o Factors affecting reliability include: 1. the witnesss opportunity to view the D at the time of the crime 2. the witnesss degree attention at that time 3. the accuracy of any prior description given by the witness 4. the level of certainty demonstrated by the witness at the ID, and 5. the length of time between the crime and the ID o The suggestiveness of the ID is disapproved of and is a part of the totality of the circumstances. o A higher degree of suggestiveness is tolerated if exigent circumstances exist. Pretrial Release The 8th Amendment guarantees that excessive bail shall not be required, o This isnt a guarantee of the right to bail, only a prohibition against excessive bail once bail is granted. o It is undetermined whether the prohibition is binding upon the states. o Most state constitutions explicitly grant a right to bail and prohibit excessive bail. Stack v. Boyle: P. 115

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o The main function of bail is to assure the presence of the accused at trial. o Bail also prevents the infliction of punishment before conviction, thereby giving meaning to the presumption of innocence that underlies the criminal justice system. o Release on bail also permits D to assist in the preparation of the defense. o The SC has held that the function of bail is limited to assuring the presence of the accused at trial. o Thus, bail is excessive if it is set higher than an amount reasonably calculated to assure the presence of the accused at trial. o The SC has suggested that bail should be set on a case-by-case basis to ensure the presence of the particular D. Preventive Detention o Permits the courts to deny bail to Ds who are alleged to be dangerous to society. o Designed to ensure that dangerous individuals are not released from custody into society, where they might engage in additional criminal activities pending trial. o U.S. v. Salerno: P. 116 Federal courts have the authority to detain D when a judge determines, after a hearing, that no condition of release would reasonable assure the appearance of the person and the safety of the community. At the bail hearing, D has the right to testify, present evidence, the right to counsel, and the right to cross examine witnesses. The courts decision to detain D must be based on clear and convincing evidence. If detention is ordered, D is entitled to expedited review of the decision. The SC upheld these preventive detention provisions, on the rationale that pretrial detention is regulatory, not penal, and that the liberty interests implicated are outweighed by the governments overwhelming interest in community safety. o A hearing must be held at the first appearance in front of a judicial officer, or within 5 days after that appearance if the government seeks a continuance to determine if preventive detention is warranted. Pre-Trial Discovery P. 125-129 The 6th Amendment provides that the accused shall be informed of the nature and cause of the accusation against him. o This requires that the indictment or charging document give D sufficient detail so that he will be prepared to present an adequate defense. The principle requirement for the disclosure of info by the government emanates from the DPC.

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o The government has an affirmative obligation to avoid knowing use of false evidence or testimony. Napue v. Illinois. P. 125 This is subject to the harmless error rule. o A DPC violation occurs when a prosecutor allows false testimony to go uncorrected even if the testimony is unsolicited and goes only to the credibility of witnesses. Brady v. Maryland o The government has a duty to disclose material exculpatory evidence that it has in its possession to D. o Failure to disclose such evidence violates the DPC. o This is known as the Brady rule. o Exculpatory evidence can be impeachment evidence o Exculpatory evidence can speak to punishment as well as guilt. o Possession of the state includes evidence that isnt in possession of the prosecutor. U.S. v. Bagley: P. 126 o Whenever the prosecutor fails to disclose exculpatory info, the conviction must be overturned if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. o Materiality is determined across all items withheld, not item-by-item. Pennsylvania v. Ritchie: P. 127 o D may obtain confidential reports only when they are favorable to D and material to guilt or punishment. o A trial judge is not required to perform an in camera review to decide which info is material to Ds case. Arizona v. Youngblood: P. 128 o Unless D can show bad faith on the part of the police, failure to preserve potentially useful evidence doesnt constitute a violation of due process of law. Some states provide that the prosecution may be entitled to receive info from the defense prior to trial. P. 79 o Williams v. Florida: P. 79 It is constitutional for a state to require D to give the prosecution notice of his intent to use an alibi defense, including the names of alibi witnesses. This doesnt violate the 5th Amendment right against selfincrimination. U.S. v. Ruiz: P. 183

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o Ds arent entitled to be told of either impeachment evidence or evidence relevant to affirmative defenses prior to entering a plea agreement o Although failure to provide such evidence might be important in determining whether the D had a fair trial, it doesnt make a plea involuntary. o A plea agreement can be voluntary even if it is based on incomplete info. Prosecutorial Discretion Preliminary hearings occur before trial and serve one of 3 purposes o To determine probable cause for an arrest and detention, to set bail, or to review the prosecutors decision to charge the accused. o A person arrested without a warrant is entitled to a judicial determination of whether probable cause exists for continued detention. o This initial hearing is a Gerstein hearing and is non-adversarial in nature and D has no right to representation by counsel Coleman v. Alabama: P. 113 o A bindover hearing differs from a Gerstein hearing in that it is adversarial. It is a probable cause to prosecute hearing and it reviews the prosecutors decision to charge D. o D has a right to counsel and if indigent, counsel must be appointed. In Federal felony cases, a person has a 5th amendment right to a grand jury indictment. Misdemeanors can be tried by information or indictment. o A grand jury indictment isnt subject to challenge on the ground that the grand jury acted on the basis of incompetent or inadequate evidence. An indictment may be based on evidence that has been illegally obtained and must be excluded at trial It can also be based completely on inadmissible hearsay evidence. Costello v. U.S.. P. 119. An indictment cant be dismissed by a federal court for a prosecutors failure to present exculpatory evidence to the grand jury, unless the prosecutors conduct violates a preexisting constitutional, legislative, or procedural rule. U.S. v. Williams. P. 119. Violations of the rules of grand jury procedure are almost always rendered harmless by the petit jury. The societal costs are far too substantial to justify setting aside verdicts simply because of an error in the grand jury proceeding. U.S. v. Mechanik. An indictment isnt constitutionally required in state criminal prosecutions. Hurtado v. California. P. 118. o The states are free to charge by information. o You dont need a preliminary examination as an alternative to an indictment. Lem Woon v. Oregon.

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o You do need a judicial determination of probable cause for extended detention ( a Gerstein hearing). Gerstein v. Pugh. P. 112. o If the state opts to use a grand jury, racial discrimination in its selection is automatically prejudicial error. U.S. v. Armstrong o Ds who pursue selective prosecution claims must demonstrate people of other races who werent prosecuted for similar crimes. U.S. v. Batchelder o If an act can be charged under either of two statutes, the prosecutor is free to pick the statute, even if one gives a harsher punishment. U.S. v. Goodwin o A presumption of vindictiveness isnt warranted where D is charged with a more serious crime after refusing to plea or accept a bench trial for a lower charge. Wayte v. U.S. o Passive enforcement of a law, where only a certain chosen segment of the offenders are prosecuted is not inherently unconstitutional McCleskey v. Kemp: P. 196 o Statistical evidence that black Ds who kill white victims are more likely to receive the death sentence doesnt establish that the death sentence is being imposed in an arbitrary and capricious and discriminatory manner. o Discretion is at the heart of the capital sentencing system and, absent exceptionally clear proof, an abuse of discretion wont be found. The Right to a Trial by Jury The right to a trial by jury is guaranteed in article II section 2 of the constitution and the 6th amendment. o Duncan v. Louisiana P. 140 SC held the 6th amendment right to a trial by jury is incorporated into the 14th amendment and applies to the states because it is fundamental to the proper administration of justice. Juries serve several purposes 1. To check against arbitrary or vindictive law enforcement 2. to improve the fact-finding process 3. to provide public participation in the criminal justice system which is essential in a democratic society. Blanton v. City of North Las Vegas: P. 140 o The right to a trial by jury applies only to serious offenses

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These include those for which imprisonment of more than 6 months is authorized or a prison term of 6 months or less combined with other penalties. For the combination to suffice, D must demonstrate that the combination of penalties is so severe that it clearly reflects a legislative determination that the offense in question is a serious one.

Burch v. Louisiana: P. 133-144 o Federal court usually requires a 12 person jury and the jurys verdict usually has to be unanimous. o The requirement of a 12 person jury has not been imposed on the states o The SC has held that a 6 person jury is constitutional but the verdict must be unanimous. The only rule stated was that the size of the jury must be large enough to ensure group deliberation and to provide a possibility of a representative cross-section of the community. The right to a unanimous jury verdict isnt absolute and depends on the size of the jury. A 12 person jury doesnt need to return a unanimous verdict. A 6 person jury needs to. 9-3 verdicts have been upheld. o 5 person juries are unconstitutional because they wouldnt provide effective group discussion, would diminish the chances of drawing a fair cross-section of the community, and might impair the accuracy of fact finding. Singer v. U.S.: P. 149 o D may waive the right to jury trial as long as the waiver is expressly and intelligently made. The government can require that the waiver be approved by the prosecution and the court. D has no right to be tried by a judge if the state insists on a jury trial. Jury Representativeness

The EPC prohibits discrimination in jury selection o This was first announced in Strauder v. West Virginia. o First applied to de facto discrimination in Norris v. Alabama. o Either D or the juror can complain o English speaking requirements are constitutional. o Campbell v. Louisiana: P. 145 D may claim a violation of his rights if a certain group is excluded from serving on a jury. D need not be a member of the excluded group to raise the claim.

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To make out a prima facie case, D must show the underrepresentation of a distinct and numerically significant community group. Applies to trial juries only. D is entitled to have the jury drawn from a venire representing a fair crosssection of the community but isnt entitled to have a particular jury be actually representative. Carter v. Jury Commissioner: P. 145 D is entitled to have the jury selected from a fair cross-section of the community. Taylor v. Louisiana: p. 145 To make out a prima facie case of unconstitutional jury discrimination, D need only show the under-representation of a distinct and numerically significant community group. D need not necessarily show an opportunity to discriminate in the jury selection process. Regardless of how exclusion occurred, any systematic exclusion of a significant and distinct community group from the venire states a cause of action.

Use of peremptory challenges o Batson v. Kentucky: P. 145 In contrast to striking potential jurors for cause, a party may generally use peremptory challenges to strike a juror for any reason, even an irrational one. The EPC forbids the use of peremptory challenges to exclude potential jurors solely on account of their race or gender (J.E.B. v. Alabama) o Georgia v. McCollum: P. 146 Its also unconstitutional for a criminal D to use peremptory challenges in a racially discriminatory manner. o Edmonson v. Leesville Concrete: Private litigants cant use peremptory challenges in a racially discriminatory manner. o Powers v. Ohio: D must show facts or circumstances that raise an inference that the exclusion of potential jurors was based on race/gender Prosecutor must come forward with a race neutral explanation for the strike (it doesnt need to be reasonable). Judge then determines whether prosecutors explanation was a genuine reason or merely a pretext for purposeful discrimination D, although they usually wouldnt have standing, can assert the rights of the excluded jurors.