Touro Law Center Criminal Procedure Fall 2010 Course Overview Takeaways List

All Classes

Class # 1 - Overview - Criminal Justice Systems and Selective Incorporation

1) Criminal Procedure vs. Criminal Law 2) Criminal Justice System Overview 3) Selective Incorporation 14th A; Bill of Rights (4,5th & 6th As) - limited application 1st, 2nd, 8th 10th

Class # 2 - NYS Constitutional Protections - Protected Areas and Interests- Reasonable Expectations of Privacy

1) 4A protects people not places in their homes and their effects 2) 4A protects people not against all searches - only unreasonable ones 3) Issue is always expectation of privacy and is that expectation reasonable 4) Open fields; garbage; helicopter searches 5) NYS Constitution can provide greater protection than 4A - 4A is only a floor for rights (open fields; dog sniffs; administrative searches, SWs for obscenity)

Class # 3 - Reasonable Expectations of Privacy - Standing

1) Electronic tracking GPS: Reasonable Expectations of Privacy may vary under 4A and NYS Const Art. I, Sec. 12 (Knotts, Karo & Weaver) 2) 4A is not expanded by technology (Kyllo) 3) No reasonable expectation of privacy in aerial searches and photos of areas not kept from view (Dow Chem) 4) No general prohibition of SWs on newspapers for TP evidence (Zurcher) 5) Standing: 4A rights are personal and cant be vicariously asserted Did D have legitimate expectation of privacy while in area searched by police can D assert application of exclusionary

rule? It is a separate issue from 4A violation issues, must be considered as threshold claim (Federal and NY Crim. Practice and contrary to Rakas - Dressler - 351) and must be established in order to assert suppression claim - It means the capacity to claim the protection of the 4A per Rakas Home Owner: Yes even if not present Overnight guest: Yes, if present or even not present; Ga v. Randolf, 126 S.Ct. 1515 (2006) Transient Commercial Criminal: No Car: Owner: Yes generally, even if not present; passenger also (Brendlin)

Class # 4 - Probable Cause - Search Warrants

1) Probable Cause: Reasonable Cause merely more probable than not 2) PC can have many bases: EW, CI, Citizen, Police Observation: circumstantial 3) No Inquiry into police motives to stop car per Whren 4) SW where hearsay used: Federal (Gates) totality of circs; NYS Aguilar Spinelli (reliability or veracity and basis) 5) SWs issuance and execution (no-knock, especially) 6) Detention of persons and their searches during execution of SWs

Class # 5 - Search Warrant Exceptions; Exigent Circumstances; Plain View and Plain Touch

1) There is a preference for warrants - stated conversely; not only are warrantless searches given more scrutiny but they are per se unreasonable and State has burden of justifying 2) Warrants can be severed - ad parts removed and items seized admitted on other grounds 3) Exigency can justify warrantless entry into homes 4) Plain View: Seizure without a warrant OK (i) police are lawfully in a position to observe the item; (ii) they have lawful access to the item itself when they seize it; and (iii) the incriminating character of the item is immediately apparent 5) Plain Touch OK Under 4A; NG Under NYS Const, Art. I Sec 12

Class #6 - Consent to Search 1) Consent to search is determined by totality of circumstances - there is no talismanic formula or bright line rules 2) Consent: Intentional relinquishment of a known right or privilege - Factors: Show of force by police; presence of guns or large number of officers; repetitive requests to overbear will; evidence relating Ds age, education, race, emotional state, experience with Cr. Justice system

3) Scope of consent depends on objective reasonableness 4) Request to consent OK even if suspicionless under 4A; NYS not contingent on 4A but on considerations of reasonableness and sound state policy 5) TP consent can be obtained from person even with apparent but not actual authority 6) No TP consent with present and objecting co-owner Class # 7 - Special Needs Searches 1) Suspicionless Searches - Special Needs = Special Needs Exceptions to 4A are when Court says so [Dressler 327] Searches *Safety Inspections *-Administrative Searches *Border Searches *Vehicle Checkpoints *Terror Checkpoints *Searches of Students *Drug Testing - 1) immediate objective of program must not be to generate evidence for criminal cases; generally upheld if involves pervasively regulated job; 3) there should be relationship between testing and concern of drug use - strengthened with empirical evidence; 4) regulations authorizing drug tests likely to be upheld if remove most if not all discretion in who is tested and 5) program ensures dignity for testee 2) Searches of Probationers and Parolees - permitted due to lack of reasonable expectation of privacy - even in case in parolees by police

Class # 8 - Warrantless Arrests; Searches Incident to Arrest; Police Pursuits

1) Warrantless arrests - validity doesnt depend on police motivations - only objective PC is issue 2) Dominion and control over contraband in automobile can provide PC to arrest all occupants in vehicle - NYS presumption is similar 3) Warrantless arrests for non-breach of peace misdemeanors permitted under 4A - NYS does not allow 4) PC determinations must be made by court within reasonable period of time (e.g.,@ 48 hours) but adversarial proceedings not required 5) Searches incident to arrest permitted as exception to warrant requirement and are reasonable under the 4A 6) Traffic Stops Dont Allow for Warrantless Searches of Car Absent Other Evidence 7) Per 4A: There is No Arrest/Custody Unless Touching - a Pursuit is not a Seizure under 4A - it is under NYS law 8) Per 4A police may pursue fleeing Ds some indicia or suspicion; NYS: need reasonable suspicion

Class # 9 - Arrests and Searches of Homes

1) The 4A has drawn a firm line at the entrance of the house. Absent exigent circumstances, that threshold line may not be reasonably crossed without a warrant [consent too] - Payton rule 2) Need SW to enter TPs home to search for and seize a person - Steagald 3) Police may search arrestees person and grabbale area - area in immediate control for weapons and destructible evidence - Chimel 4) Warrantless entry and search of home permitted on exigent circumstances - State has burden 5) Police may refuse owner/occupant entry to home in order to obtain SW if PC and he/she refuses consent to enter - McArthur 6) Warrantless Protective Sweep of home by police permitted on specific facts - must be cursory and only to dispel reasonable suspicion of danger - Buie Class # 10 - Car Stops and Searches 1) Review police stops of automobiles based on reasonable suspicion by totality of circumstances no divide and conquer - Arvizu 2) Innocent citizens may be stopped in cars by this standard 3) No investigative stops of cars to inquire of whereabouts of TPs (Spencer) 4) Investigative stops of cars cannot be unreasonably prolonged beyond basis - if so and search taint and suppression - Banks & Caballes 5) Searches automobile permitted following arrest of occupant if arrestee is: a) unsecured and within reaching distance of the passenger compartment of a stopped automobile at the time of the search, b) or when it is reasonable to believe evidence relevant to the crime might be found in the vehicle. Gant/Belton [Thorton, Torres and Blaisich] 6) The Belton Rule encompasses searches of passenger containers [Wyoming v. Houghton] 7) Warrantless inventory searches valid under 4A to a) protect owners property; b) insure against claims of lost or stolen property and c) protect police and public as long as no showing police acted in bad faith and undertaken pursuant to reasonable police regulations relating to inventory procedures in good faith [Bertine] Class # 11 - Exclusionary Rule and Good Faith 1) Evidence obtained in violation of 4A by means of unreasonable search or seizure is inadmissable in State criminal prosecutions (Weeks & Mapp) a) Rationale: Deterrence and Integrity of Judicial System 2) Objectively Reasonable action by police in good faith does not warrant application of Exclusionary Rule [Leon] 3) Good faith applies to violations of Knock and Announce provisions of SWs

4) Good faith applies to executed warrants not properly vacated [Herring] But not in NY Jennings/Santa 5) New York has not applied the good faith exception to the exclusionary rule [Bigelow] 6) Aside from Good Faith there are limitations to application of exclusionary rule: a) Attenuation (Harris) b) Identification evidence for Payton violations (Jones - NY) c) Impeachment of the D (Harris & Walder] - But Not impeachment of witnesses other than Ds [James] d) Questioning of GJ witnesses based on illegally obtained evidence OK [Calandra] e) Use in parole revocation hearings - OK [Scott]

Class #12 - Lesser Intrusions: Stop, Detain & Frisk 1) Stop and Frisk (Terry Stops) permitted under 4A without PC on articulable facts leading reasonable person with experience to justify intrusion, i.e., concern armed and dangerous; criminality may be at hand later cases refine to reasonable suspicion (Terry) a) intrusion is for self protective purposes and limited to outer garments to search for guns, knives, clubs or other hidden instruments for the assault of the police officer b) stop must be justified at inception c) information can be hearsay + other indicia, including police observations and experience bit not simply anonymous tips d) emergency permits police to engage in Terry stops based on anonymous tip [Simmons]

Class #13 - Lesser Intrusions: Stop, Dedtain & Frisk (Continued) 1) A Terry frisk and protective search of a vehicle is permissible for police protection on reasonable belief based on specific and articulable facts which taken together with rational inferences from those facts warrant the officers in believing the suspect is dangerous and the suspect may gain immediate control of weapons [Michigan v. Long] 2) Stop and Identify laws do not violate either 4A or 5A; NYs CPL 140.50(1) - police may demand on reasonable suspicion but no penalty 3) A Terry frisk is permissible where a police officer reasonably suspects that a passenger in a vehicle otherwise lawfully stopped is committing or has committed a criminal offense and moreover reasonably suspects that the passenger is armed and dangerous [Johnson] 4) New Yorks - Police-Citizen Encounters - case and statutory law driven: (later cases - P. v. Hollman & Saunders 79 N.Y.2d 181,195 (1992) - tie to NYS Const., Art. I. Sec 12)

Four Levels of Intrusion: the all or nothing approach is rejected like Terry But.... Level 1 Request for Information: The police may approach a civilian when they have some articulable, objective credible reason for doing so even if that reason is not necessarily indicative of criminality. This is not equivalent to a stop. These encounters should be brief and not be harassing or intimidating. CPL 140.50(1) Level 2: Common-Law Right to Inquire: This is a greater level of intrusion that must be based upon a founded suspicion that criminal activity is afoot. Here, the officers questioning might lead a person to believe they are suspected of criminality. Level 3: Forcible Stop and Frisk: The police may stop and frisk an individual when they have a reasonable suspicion that the individual has committed, is committing or is about to commit a crime (misdemeanor or felony) - Quantum of evidence sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe criminal activity is at hand; In such a situation, and as a corollary, the police may frisk the individual if the officer reasonably suspects he is in danger because the individual is armed. - This is a Terry Stop and Frisk - CPL 140.50(3) and is a limited seizure Level 4: Arrest: The most intrusive Level of a police encounter is an arrest. The police may arrest an individual when they have probable cause/reasonable cause to believe that individual has committed a crime [DeBour/LaPene]

Class # 14 - Fifth Amendment Privilege Against Self-Incrimination 1) Supervisory authority of S Ct extends only to federal criminal prosecutions - power of Ct to upset state convictions is limited to enforcement of 14A DP [McNabb-Mallory] 2) Defendants have RTC following filing of formal charges - i.e., indictment or complaint: [Spano - but decided on coerced confession grounds; Massiah] 2A) Confession otherwise suppressed on failure to provide RTC may be admissible for impeachment purposes [Ventris] 3) Once D becomes a suspect/arrested and police interrogate no interrogation or other effort to obtain admissions without counsel present even if not formally charged yet [Escobedo] 4) Admissibility of confessions in State criminal prosecutions weighed under same standard as federal and thus a matter of DP [Malloy v. Hogan] 5) Compulsory production of personal records violates 4A unreasonable searches and seizures and 5A self-incrimination [Boyd] 6) But not all compelled production violates 5A - only documents that are testimonial and/or the act of production would be testimonial [Fischer/Doe] 7) The police may use SWs with PC to seize records that may incriminate without violating the 5A [Andreson & Fischer] Class # 15 - Constitutional Right to Counsel/ Effective Assistance

1) 6A RTC applicable to states under 14A requires appointment of counsel at government expense for indigent Ds in cases with potential incarceration [Gideon; Argersinger] 2) Stenographic transcripts required to be paid for criminal indigents even if penalty is only a fine [Griffin, Mayer] 3) Indigent criminal defendants have right to appointment of appellate counsel for appeals but not for discretionary appeals [Douglas, Ross] [NY provides attorneys for indigents on discretionary appeals to CA] 4) In order to establish ineffective assistance of counsel claims under 6A: Two Pronged Test: (1) D must show counsels performance was deficient and (2) that the deficient performance prejudiced (i.e., but for counsels errors, the result would have been different and this must be established by reasonable probability sufficient to undermine confidence in the outcome), the D so that trial result is unreliablebut judicial review must be highly deferential [Strickland] 5) NY ineffective assistance test under 6A and NY Const: Art I, Sec. 6 - viewed in totality was representation meaningful? [Baldi] 6) A Defendant has a right to self representation if properly warned and minimally skilled [Faretta]

Class # 16 - Police Interrogations: Miranda 1) Miranda: Prosecution cannot use Ds statements made during interrogation in custody to police unless there are procedural safeguards: These include: fully effective means to inform D or clearly inform D of a) right to remain silent and assure continuous opportunity to exercise this right; b) any statement he does make can be used as evidence against him; and c) that he has the right to the presence of an attorney, retained or appointed at all times during questioning A) If D indicates at any time he wants to consult with an attorney, there can be no questioning B) If D is alone and says in any manner he does not wish to be interrogated, the police may not question him C) D can choose to answer some questions without attorney but not others until he has consulted with attorney if he wishes D) If D indicates desire to remain silent but has attorney present, there may be circumstances further questioning would be permissible 2) Any waiver of Right to Counsel (Miranda Rights), must be made knowingly voluntarily and intelligently to make D acutely aware he is not in the presence of persons acting solely in his interest 3) Custody means deprived of freedom of action in any significant way - not only formal arrests 4) Miranda applies whatever the background of the person interrogated and notwithstanding any other evidence D knew of these rights 5) Adherence to Miranda holding isprerequisite to admissibility of any confession later obtained = Exclusionary Rule 6) Miranda is Constitutionally based [Dickerson] 7) Mere use of compulsive questioning without use at criminal proceeding doesnt violate 5A [Chavez] 8) Statements obtained in violation of Miranda but not otherwise coerced or involuntary may be used for impeachment of D [Harris]

9) Miranda is not violated by the introduction of non-testimonial evidence obtained asa result of an unwarned, voluntary statement from a Defendant [Pantane] 10) Miranda safeguards come into play whenever D in custody and subjected to interrogation of its functional equivalent (Innis)

Class # 17

Police Interrogations and Confessions - Miranda - Continued

1) Where D asserts RTC while in custody State may not engage in efforts to obtain confession (functional equivalent of interrogation) [Innis-Williams] 2) There is an exception to the requirement of Miranda warnings in cases of public safety emergencies and the exception doesnt depend on the subjective motivations of the police [Quarles] 3) Miranda is not required in non-custodial interrogation, even when D in prison on other charges even when D is questioned with deception [Perkins] 4) Miranda warnings do not have to be provided per a script as long as four rights adequately conveyed: 1) right to remain silent; 2) anything said will be used against D; 3) right to presence of an attorney during questioning and 4) if D cant afford an attorney one will be provided free of charge for questioning [Powell] 5) Right to remain silent under Miranda requires unequivocal (express) assertion [Berghuis] 6) The Edwards Rule: The police may not engage in further custodial interrogation of a person who has requested an attorney until either counsel has been made available or the suspect himself initiates further conversations, exchanges or communications with the police [Edwards] 7) The Edwards rule, does not apply if a break in custody lasting 14 days has occurred. [Shatzer] 8) A defendant can voluntarily waive Miranda after counsel is appointed at arraignment/bail hearing under 5A & 6A [Montejo] 9) Obtain confession first, then Mirandizefor defendants in custody is not in compliance with Miranda [Seibert] 10) Where the is no deliberate misconduct contact by the police of an attorney imposes no obligation for them to inform a defendant in custody - any Miranda warnings and waivers after if proper are valid [Moran] 11) A defendants RTC is offense specific and where related to case in which he has attorney already is determined by Blockburger (1932) Double Jeopardy test [Cobb] Federal RTC - Miranda Waivers Ineffective Without Attorney 1) Arraignment: RTC but D can waive this right voluntarily if no attorney appointed at bail hearing and no request for attorney [Montejo] Only applies to charges on which attorney appears or is retained [Cobb/McNeill] 2) D Requests unequivocally and in custody: RTC [Escobedo/Miranda/Edwards] Until counsel has been made available or the suspect himself initiates further conversations, exchanges or communications with the police - applies to charge on which defendant made request for attorney and all other unrelated charges But Miranda waiver OK if D released from custody and 14 days elapses [Shatzer]

3) Attorney Enters [Williams vs. Moran]

Class # 18 - New York Right to Counsel Rules NY RTC Rules - Confessions 1) NY Samuels Rule: RTC indelibly attaches to a matter when a criminal action is commenced against D charging him with that matter and D may not waive cuonsel on that matter in custody or not without counsel present [Samuels] 2) NY Invocation by Defendant of RTC Rule: The right to counsel indelibly attaches to a matter when a person requests the assistance of a lawyer at any time on that matter and that person may not on that matter validly waive Miranda rights without counsel present [Davis] 3) NY Entry of Attorney Rule: RTC indelibly attaches once an attorney enters the proceeding such that the police may not obtain valid Miranda waiver from the defendant in the absence of counsel unless there is an affirmative waiver in the presence of counsel - the RTC encompasses related cases [Hobson/West/Cohen] 4) NY Rogers Rule: Once an attorney has entered the proceeding, thereby signifying that the police should cease questioning, a defendant in custody may not be further interrogated in the absence of counsel on the represented matter or any unrepresented matters [Rogers]

Class # 19: Lineups and Other Identifications 1) There is no RTC at corporeal lineups (and other corporeal ID proceedings) pre-commencement of proceedings; Ds have a RTC post-commencement at corporeal lineups (and other corporeal ID proceedings) [Wade/Kirby] 2) Commencement is defined as the start of judicial proceedings against D (e.g., complaint filing, indictment, arraignment, preliminary hearing) [Moore] 3) There is no RTC during police arranged photo-identifications pre or post commencement [Ash] 4) There is no RTC at police arranged show-ups pre-commencement of proceedings [Stovall] 5) Identification procedure issues :1)Whether the identification procedure was so unnecessarily suggestive and conducive to irreparable misidentification and 2) Does the in-Court ID have an independent basis as proven by clear and convincing evidence? The burden is on the state - by clear and convincing proof Cts weigh: a) opportunity to view; b) degree of attention; c)accuracy of the description; d) the

witnesses level of certainty e) the time between the crime and the confrontation [Wade,Stovall/Braithwaite/Braithwaite] 6) Show-ups are inherently suggestive but are permitted if there is exigency and they are conducted close in time and location from scene of crime [Brisco] 7) There have been some courts/jurisdictions that have required Double-Blind and/or Sequential lineups and photo-identifications [Silva-Santiago]

NY RTC - Identification Proceedings Rules 1) Pre-commencement of proceedings lineup- Defendant makes no request for attorney - No RTC [Blake] 2) Pre-commencement of proceedings- lineup - Defendant makes request for attorney - no RTC [Hawkins] 3) Pre-commencement of proceedings - police aware D has attorney on pending charge and D requests that attorney to be present during lineup - RTC (police must notify and provide reasonable time to be present) [Coates] 4) Pre-commencement - attorney on unrelated case enters this case and police aware - RTC (police must notify and provide reasonable time to be present) [LaClere] 5) Post-commencement of proceedings lineup - RTC [Blake] Class # 20: Fruit of the Poisonous Tree/Attenuation

1) While the Exclusionary Rule and the fruit of the poisonous tree require exclusion of evidence, including verbal evidence, obtained as the result of police illegality, where the conduct was so attenuated so as to purge the primary taint (dissipate the taint), it will be admissible [Wong Sun-Nardone] 2) Considerations for whether a confession will be considered the fruit of an illegal arrest include whether there were Miranda warnings, the temporal proximity of the arrest and confession, were there intervening circumstances and particularly, the purpose and flagrancy of the official misconduct with voluntariness of the confession as a threshold issue. The burden of showing admissibility on a totality of circumstances review rests on the prosecution. [Brown-Harris] 3) An in-Court identification will not be suppressed due to an illegal arrest of D [Crews] 4) In order to obtain suppression of a live witnesses testimony following (who was discovered by) police illegality, a direct/causal link between the initial illegality and testimony must be shown [Ceccolini] 5) If the prosecution can establish by a preponderance of evidence that the information ultimately of inevitably would have been discovered by lawful mean, the evidence should be admitted under the Inevitable Discovery rule. [Nix] 6) Fruit of the Poisonous Tree Exceptions to Exclusionary Rule Definitions: Attenuation - Is there a break in the taint between unlawful act and obtaining the evidence? [Silverthorne] Independent Source - Is the evidence obtained independently or wholly separately (i.e., not linked causally) from illegality? [Wong Sun]

Inevitable Discovery - would evidence have inevitably (or eventually or probably) been discovered lawfully by preponderance of evidence proof, notwithstanding police illegality? [Nix]

Class # 21: Arraignment; Bail; Preliminary Exams and Grand Jury

1) There is no constitutional right to bail - just bail that is not excessive. Purpose of bail is to assure Ds presence in Court. Bail set in excess of amount necessary to assure presence is unconstitutional [8A; Stack] 2) Pre-trial detention pursuant to the Bail Reform Act is Constitutional as long as procedural requirements followed [Salerno] 3) Following arrest, D must be produced in court for arraignment without unreasonable delay - delay in arraignment is factor in totality of circumstances on issue of voluntariness of confession [Federal rule, presumptively less than 6 hours; NY Rule presumptively less than 24 hours] [Maxian, FRCr. P.5; NYCPL 120.90 & 140.10] 4) Following a warrantless arrest, a defendant is entitled to a prompt judicial review (within 48 hours) regarding whether a there was proof by PC that a crime was committed a and that the D committed the crime the hearing is not adversarial and there is no appointment of counsel [Pugh/McLaughlin] 5) Grand juries may receive hearsay evidence in determining whether to vote an indictment [Costello] 6) Prosecutors are generally not required to present exculpatory material to GJ [Williams] Class # 22 - Discovery; Brady, Jencks and Rosario 1) Prosecutorial duty goes beyond ordinary advocate - as quasi-judicial officer, obligation to see that justice is fulfilled [Berger] 2) Criminal discovery is primarily informal/voluntary and mostly by statute or rule 3) A conviction obtained by deliberate use of perjury by State is not in compliance with DP under 5A/14A [Mooney] 4) Exculpatory material (tends to exculpate or reduce the penalty) must be produced by prosecutor if material and in his/her custody or control - this includes impeachment material - The Brady Rule [Brady/Bagley/Agurs/Giglio/Kyles] 5) Standards for determination of DP violation based on Brady failure a) Federal: Reasonable probability result would be different with or without request [Bagley/Kyles] b) NY: Reasonable probability result would be different if there is no or only general Brady request by D; Reasonable possibility if there is a specific Brady request by D Determination is not based on good or bad faith of prosecutor 6) Exculpatory Brady material must be disclosed as soon as it comes to attention of prosecutor who has burden of due diligence to obtain; impeaching material need not be disclosed prior to pleas of guilty and must be disclosed sufficiently in advance of trial to permit reasonable defense use [Ruiz] 7) Brady disclosure obligations by prosecutor may include oral information not recorded in written or other tangible form [Rodriguez]

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8) Government must disclose all statements of witnesses it intends to call as witnesses at trial in any form (including notes or recordings) in possession or control (Jencks/Rosario; F.R.Cr. P 16.1; C.P.L. 240.44 & 240.45) a) NY: failure to produce at trial: sanctions required on request of D; if on appeal- reasonable possibility result would be different [C.P.L. 240.75] b) There are reciprocal requirements on defense to disclose statements/notes of Ws (not D) called at trial

Class # 23 - Plea Bargaining 1) Plea bargains must be knowing, voluntary and intelligently entered with factual basis and all promises and conditions stated on the record - specific rights noted as waived: Right to Jury Trial; States Burden of Proof; Confrontation; Right to be Represented by Counsel Right to Call Witnesses and Present Evidence, Self-Incrimination [FRCr.P 11(b)(1)-(3)] 2) For a plea to be valid the D must be counseled, absent a waiver, the judge must develop on the record the factual basis for the plea, if induced by promise [Santobello] 3) There is no absolute right to have a guilty plea accepted and it may be rejected in the exercise of sound discretion by court [Santobello] 4) DA must abide by plea bargain promises where they are inducements to the plea [Santobello] 4) If Court cannot fulfill promise at plea, defendant entitled to be restored to pre-plea status - withdrawal of plea 5) With proper factual basis as to strength of case against D, plea of guilty while claiming not guilty valid and may be accepted in courts discretion, if voluntary and knowing [Alford/Serrano] 7) Federal and New York pleas: guilty, not guilty, guilty but not responsible (insanity) and plea bargains (guilty of all charges, guilty of lesser charges, guilty of some but not all charges); Nolo contendre is federal plea only [F.R.Cr..P. 11 and C.P.L.220.10] 8) Release from civil liability against municipality/government in return for agreement to dismiss criminal charges are constitutionally valid where they are entered voluntarily and there is no prosecutorial misconduct [Rumery] - Note contrary New York rule - these agreements are invalid [Cowles] 7)Wired, Linked or Package pleas by co-defendants are valid where there is heightened scrutiny by court to ensure they are voluntary [Fuimifreddo] 8) Plea bargains can include waivers of specific rights, including the right to appeal by defendants if agreement specifically placed on record and are voluntary, knowing and intelligent; some appellate rights cannot be waived, these include jurisdiction, legality of sentence and constitutional speedy trial [Callahan] 9) The failure by defense counsel to correctly a pleading defendant of deportation consequences may invalidate a plea based on constitutional ineffective assistance [Padilla]

Class # 24 - Jury Selection - Batson 1) Discriminatory use of peremptory challenges by either DA of DC violates jurors right to EP [Batson]

2) Batson applies cross-racially (cross-gender; cross ethnicity, etc) [Powers] 3) Batson 3 Steps: 1) Prima facie proof of discriminatory challenge against prospective juror who is member of cognizable class; 2) Original proponent of peremptory strike must present non-discriminatory reason for challenge (Production); 3) Burden of Persuasion - Batson challenger must convince court based on totality of record that reason for challenge presented on Step 2 was pretextual - Ct may review other similarly situated jurors, etc [Purkett] 4) Cognizable groups for Batson claims: USSCt: African-American, Hispanic/Latino-Americans; Gender; lower courts: Native Americans; Italian-Americans; Jewish-Americans; Muslim- Americans; Mexican-Americans; Asian-Americans; Sexual Orientation 5) Batson remedies: Seat improperly challenged jurors if available; reach back to prior panels to seat all jurors of same cognizable class previously challenged loss of mis-used peremptory can be considered by trial court in discretion; mistrial and re-start VD; reversal if on appeal [Luciano] 6) Guilty plea waives Batson claims on appeal [Green] 7) Court cannot engage in Batson-type jury recomposition for cross-section purposes even if well-motivated and with consent of parties [Nelson]

Class # 25 - Rights to Public Trial; Right to Be Present; Confrontation 1) There is a constitutional right to a public trial; closure is exception [6A; see also NY Civil Rights Law 12 and Judiciary Law 4] 2) The right to a public trial and/or pre-trial proceedings may give way to closure on a balancing of four criteria: Party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must bne no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding and it must make findings adequate to support the closure [Gannett; Waller; Free Press] 3) A defendant has a 6A right to be present at all material phases of proceedings; that right can be waived by D or disruptive conduct [Allen] 4) Jury selection is material phase of proceedings; while D has no right to be present during sidebar discussions with Ct with prospective jurors on hardship or physical disability matters, D has right to be present during colloquy relating to fairness [Antomamarchi]

lass # 26 - Sentencing

1) Trial judges are afforded broad discretion the determination of sentencing - sentences will not be modified on appeal unless abuse of that discretion [state] or clearly erroneous (facts or computation), abuse of discretion or unreasonable [federal] [Suite; Rita] 2) Trial must exercise discretion in sentencing even in plea bargains [Farrar] 3) Trial Court may consider information provided in a probation or pre-sentence report in determining

what sentence to impose but D has to notice and right to challenge [Williams] 4) Any fact as established as a statutory element utilized by trial court that enhances sentence requires a jury determination beyond a reasonable doubt [Apprendi] 5) Enhanced sentences that result from a mandatory application of the federal Sentencing Guidelines violate a defendants 6A right to a trial by jury ; the Sentencing Guidelines may be considered by the trial court as an advisory [Booker]

Class # 27 - Double Jeopardy 1) Jeopardy attaches in both federal and New York courts after the jury is empaneled and sworn or in case of bench trial, when first witness is sworn [Bretz] 2) If there is manifest necessity to terminate trial, mistrial declaration over Ds objection and Ds re-trial proper without offending Double Jeopardy Clause [Somerville] 3) Burden of demonstrating manifest necessity to declare mistrial and engage in re-prosecution of D over his objection is on State and it is a heavy one that must be established to a high degree [Washington] 4) While there is no flat rule that states that a D who moves for mistrial cannot allege DJ, where the prosecutors actions are intended to goad or provoke DC to making such an application, DJ may bar re-trial [Kennedy] 5) DJ is not implicated and D may be tried in second trial if there is a mid-trial dismissal of charges without determination of guilt or innocence on merits - Govt may appeal this and obtain reversal and re-try D [Scott] - Note: NY does not permit Peoples appeals from dismissals midtrial but does permit Peoples appeals from orders setting aside guilty verdicts [C.P.L.450.20(3)] 6) While successive prosecutions are barred by DJ clause, a second prosecution for same conduct is not barred by a sovereign such as a different State [Heath]

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