Criminal Procedure Short Review Outline

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I. 4th Amendment
II. 5th Amendment
III. 6th Amendment
IV. 8th Amendment
V. 14th Amendment

I. 4th Amendment [people should be free from unreas searches and seizures]
Arrest
1. Rule:
- An arrest occurs when the police take a person into custody against her will for the purposes of crim
prosecution or interrogation. Arrest warrants generally not required prior to arresting someone in a public
place. Must be based on PC – trustworthy facts or knowledge suff for a RP to believe suspect has committed
or is committing a crime.
- Exception: The non-emergency arrest of an individual in his own home requires an arrest warrant.
2. Detentions
- Stationhouse detention: Need PC to arrest you to compel you to come to police station either for
fingerprinting or questioning.
- Automobile stops: Generally police can’t stop car unless they have at least reas suspicion to believe that law
has been violated. But, if special law enforcement needs are involved then can set up roadblocks to stop cars
w/out individualized suspicion. A valid roadblock must – stop cars on basis of some neutral, articulable std
and be designed to serve purposes closely related to a particular prob related to autos and their mobility.
Search & Seizure
[D has 4th right if there’s been seizure by the gov concerning a place or thing in which D had REOP.]
1. Gov conduct
- Publicly paid police on or off duty. Any private ind acting at direction of public police.
- Privately paid police not gov conduct unless deputized w/ the power to arrest you.
2. Reas expectation of privacy
- Totality of circs test but automatic categories of standing are: own premises searched, live on premises,
overnight guest.
o No standing: Passengers in cars who don’t claim to own the car or the prop taken out of car – don’t
have standing just b/c present when search took place. Drug dealer briefly on premises of someone
else solely for bus purpose of cutting up drugs for sale no standing to object to search of that place.
- No REOP in: sound of your voice, handwriting, paint on outside of your car, bank accounts, location of your
car on public roads or its arrival at a private residence, areas outside the home and curtilage, trash left for
collection, land visible from public space (open fields, flying over), smell of your luggage.
[did gov have a valid warrant (issued by neutral and detached magistrate on a showing of PC and reas precise as to
the place to be searched and items to be seized?)] [if yes to gov conduct and REOP, then…]
3. Valid search warrant?
- PC: A warrant will be issued only if there is PC to believe that seizable evid will be found on the person or
premises to be searched.
o Informers: If aff is based on informer’s tip then must meet totality of circs test. Aff may be suff even
though reliability and credibility of the informer or his basis for knowledge aren’t established.
o Invalid search warrant: Will be invalid if D establishes – false stmt, intentionally or recklessly
included, and material to finding PC.
- Neutral and detached magistrate – state atty general not neutral.
- Proper execution

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 o Only the police can execute a warrant and it must be executed w/out unreas delay. Must knock and
announce their purposes (unless reas suspicion based on facts that announcing would be dangerous or
futile). Police may seize any contraband or evidence of fruits/instrumentalities of crime they discover
(even if not in warrant).
o Can detain people found on searched premises.
[if no valid search warrant, then can you save by good faith defense?]
[if never had warrant at all, then can you fit into exception?]
4. Exceptions (SPACES)
- (1) Search Incident to Lawful Arrest
o PO may search the person and areas into which he might reach to obtain weapons or destroy evid (incl
entire passenger compartment of car – not trunk).
o PO may also make protective sweep of area if they believe accomplices may be present.
o Search must be contemporaneous in time and place w/ the arrest.
o Arrest must be lawful.
o Inventory search of belongings or car incident to incarceration OK.
- (2) Plain View
o PO may make warrantless seizure when they:
1. are legitimately on premises,
2. discover evidence of fruits/instrumentalities of crime or contraband,
3. see such evid in plain view, and
4. have PC to believe that the evid is EFI of crime or contraband.
- (3) Automobile Exception
o If PO have PC to believe vehicle contains fruits, instrumentalities of crime, they may search the whole
vehicle and any container that might reas contain the item for which they had PC to search.
o PC nec to justify warrantless search of car can arise after car is stopped.
- (4) Consent
o Consent must be voluntary and intelligent.
o Don’t have to warn you that you have right to not consent.
o Saying they have warrant when they don’t will negate consent.
o Any person w/ an apparent equal right to use or occupy the prop may consent to a search.
- (5) Exigent Circs
o Can seize evid likely to disappear before a warrant can be obtained.
o Can search and seize if in hot pursuit of a fleeing felon. Can even follow into private dwelling.
- (6) Stop and Frisk
o PO can stop w/out PC if she has an articulable and reas suspicion of criminal activity.
o If PO also reas believes person may be armed and presently dangerous then can do protective frisk.
o Admissible evid if during patdown, PO can reach into clothing and seize anything that PO reas
believes based on plain feel is a weapon or contraband.

5. Persons or places searched

- Border searches: No warrant nec for border searches. No 4th rights at border. Roving patrols inside border may stop a
car for questioning if PO reas suspects that car contains illegal aliens.
- Wiretapping: All wiretapping and eavesdropping require a warrant. Exception – Everybody assumes the risk that the
person whom he is speaking will either consent to gov monitoring the conversation or wired.
- Public school students: Warrantless search OK for drug tests of public school students who participate in extracurricular
activities.
- Admin searches: Admin searches of a bus w/in a highly regulated industry OK w/out warrant.
6. Exclusionary rule
- Harmless or reversible error: If illegal evid admitted, a resulting conviction should be overturned on appeal
unless gov can show beyond reas doubt that the error was harmless.
- Limitations on exclusion:

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 o Grand jury W may be compelled to testify based on illegally seized evid.
o Not available remedy in civil or parole revocation proceedings.
o Search must’ve violated either fed const or fed statute.
o 3 part good faith defense to exclusion: Will not exclude evid where police rely in good faith on…
 (1) judicial opinion later changed by another opinion.
 (2) statute or ordinance later declared unconst.
 (3) defective search warrant.
 4 exceptions: Can’t use good faith defense if…
1. aff underlying warrant so lacking in PC no reas PO would’ve relied on it.
2. warrant defective on face (failure to state w/ particularity place to be searched or
things to be seized).
3. PO lied to or misled magistrate.
4. magistrate wholly abandoned his judicial role.
o Use of excluded evid for impeachment purposes.
 Confessions in violation of Miranda & all illegally seized evid can be used to impeach D’s
trial testimony.
- Fruit of the poisonous tree (exclude all evid obtained or derived from illegally seized evid).
o 3 ways gov can break chain btwn original unlawful:
 Independent source – if gov can show they had source ind of original illegality.
 Inevitable discovery – We would inevitably have discovered this evid anyways.
 Intervening acts of free will on part of D.

II. 5th Amendment [Self-Incrimination/Miranda/Double Jeopardy]

Privilege Against Self-Incrimination
1. Rule:
- A person may refuse to answer a q whenever his response might furnish a link in the chain of evid needed to
prosecute him.
- Any person (D,P) can assert in any proceeding (civil, crim, admin).
- You have to claim the privilege in civil case the very 1 st time q is asked or you are waiving for later crim
prosecution.
2. Scope – 5th protects only testimonial or communicative evid that is compelled and not real or physical evid.
- Testimonial: No PSI basis to object to a lineup or other ID procedure. 5 th doesn’t protect us from gov using
our bodies to incriminate use (blood, hair).
- Compelled: If D produces of free will then PO can seize (like taking incriminating notes at mtg). Can’t make
you take lie detection test or undergo custodial police interrogation.
3. 5th PSI can be eliminated in 3 ways
- (1) Grant of immunity. Use and derivative immunity. We will not use your immunized testimony or
anything derived from it to convict you. But can prosecute on evid we can show we had before the immunity
grant.
- (2) No possibility of incrimination. Ex: Statute of limitations has run.
- (3) Can be extinguished by waiver. If crim D takes stand then waives PSI to all legitimate subjects of CE.
4. Can’t comment on failure to testify or silence
- Unconst for P to make neg comment on D’s failure to testify or his remaining silent upon hearing M warnings.

Miranda
1. Rule
- For a confession to be admissible under 5th PSI, a person in custody prior to interrogation must be read their
Miranda rights.
- Necessary only if D knows that he is being interrogated by a gov agent.
2. Custody
- In custody if at the time of interrogation, you are not free to leave. Based on objective circs.

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 - Probation interviews and routine traffic stops not custody.
3. Interrogation
- Any words or conduct by the police where they should know it would likely elicit damaging response from D.
- M warnings not required before spontaneous stmts.
4. Waiver
- If custodial interrogation then police must give warning and get a waiver. Waiver must be knowing,
voluntary, and intelligent.
- No waiver from silence or shoulder shrugging.
5. Right to remain silent
- If accused says he wants to remain silent then police must scrupulously honor this request by not badgering the
accused.
6. Right to counsel
- If accused unambiguously indicates he wants atty then all questioning must stop until counsel has been
provided unless accused waives his right.
- Not offense specific.

Double Jeopardy
1. Rule
- Under 5th, a person may not be retried for the same offense once jeopardy has attached.
2. Attaches in jury or bench trial
- Jury trial: Jeopardy attaches at swearing of jury.
- Bench trial: Jeopardy attaches when 1st W sworn.
- Usu doesn’t apply in civil cases.
3. Exceptions permitting retrial
- (1) Hung jury.
- (2) Mistrial for manifest necessity or D wants to terminate.
- (3) State can retry D who has successfully appealed a conviction.
- (4) Breach of an agreed upon plea bargain by D then original charges can be reinstated.
4. Same offense or lesser included, unless new evid
- 2 crimes are the same offense unless each crime requires proof of an additional element that the other doesn’t
require, even though some of the facts are the same.
- Attachment of jeopardy for greater offense bars retrial for lesser included offense. Vice versa.
5. Does not apply to separate sovereigns
- Can be tried for same conduct by both a state and the fed gov or 2 diff states, but not by a state and its
municipalities.

III. 6th Amendment [Counsel/Speedy Trial/Jury Trial/Confront Witnesses]

Right to Counsel
1. Rule:
- A D has right to counsel or have one appointed if he is indigent at critical stages of prosecution like: post-
indictment interrogation, prelim hearings, post-charge lineups, felony trials, misdemeanor trials when
imprisonment actually imposed.
2. No rights
- Photo ID, taking of physical evid, pre-charge lineups.
3. Waiver and right to defense oneself
- D has right to defend himself at trial if judge believes waiver is knowing and intelligent.
4. Effective assistance of counsel
- To prove ineffective assistance of counsel must show:

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 o Deficient perf by counsel and
o But for the deficiency the result of the proceeding would’ve been diff.
- D has to point out specific deficiencies and can’t base claim on inexperience, lack of time to prepare, trial
tactics, failure to argue frivolous issues.

Right to a Speedy Trial

1. Rule:
- Whether 6th right to speedy trial is violated depends on totality of circs.
- Factors: length of delay, reason for delay, whether D asserted his rights, prejudice to D.
- Remedy: Dismissal w/ prejudice.
2. Attaches once someone has been arrested or charge.

Right to a Jury Trial

1. Serious offense – 6 months
- Right to jury trial if max authorized sentence exceeds 6 months.
2. # and selection of jurors
- Min # is 6 – must be unanimous.
- No const right to jury of 12.

3. Cross-sectional req
- Right to have fair representative cross-section of community.
4. Death penalty
- Can’t automatically exclude juror for cause for jurors who express doubt about death penalty. Must be
determined whether juror’s views would prevent or substantially impair ability to perform duties.
5. Guilty pleas must be voluntary and intelligent
- A guilty plea is a waiver of the 6th right to a jury trial.
- Judge must advise D personally:
o (1) nature of charge,
o (2) max authorized sentence and any mandatory min sentence,
o (3) that D has a right to plead not guilty and demand a trial.
- Remedy: D may withdraw his plea and plead again.
- 4 good bases for withdrawing your guilty plea after sentence:
o (1) plea was involuntary,
o (2) lack of jur,
o (3) ineffective assistance of counsel.
o (4) failure of P to keep an agreed up on plea bargaining.

Right to Confront Witnesses

1. Rule
- 6th grants D in crim case the right to confront adverse W – observe W demeanor and opp to CE.
- Exceptions: Right not absolute. Judge can remove disruptive D or D may voluntarily leave ctroom during
trial. Co-D’s confession.

IV. 8th Amendment [Cruel and Unusual Punishment/Death Penalty]

Cruel and Unusual Punishment

1. Punishment proportionate to offense
- 8th prohibits cruel and unusual punishment which is any penalty that is grossly disproportionate to the
seriousness of the offense committed.
2. Death penalty

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 - Not inherently violative of 8th.
- Unconst if any death penalty statute doesn’t give D chance to present mitigating facts and circs.
- No automatic category for imposition of death penalty.
- Only a jury can determine the aggravating factors justifying imposition of the death penalty.
- Can be imposed for FM if D participated in a major way and acted w/ reckless and indff.
- Jury can consider impact of V’s family.
- Can’t be imposed on mentally retarded and minors.

V. 14th Amendment [Due Process]

Due Process
1. Burden of Proof
- In all crim cases the state must prove guilt beyond a reas doubt for each element.
2. Unnecessarily suggestive IDs
- Some pre-trial IDs techniques are so unnecessarily suggestive that there is substantial likelihood of mis-ID that
they deny due process of law.
- Remedy: Exclude the in-ct ID. But P can defeat by showing adequate independent source of bad lineup –
ample opp to look at the guy at the time of the crime.
3. Confessions
- For a self-incriminating stmt to be admissible and not violate 14 th DPC, it must be voluntary as determined by
totality of circs. Stmt involuntary only if there is some official compulsion.