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I. FOURTH AMENDMENT: APPLICATION TO ARREST, SEARCH AND

SEIZURE

The Fourth Amendment reads: “The right of the people to be secure in their persons,
houses, papers, and e!ects against unreasonable searches and seizures shall not be violated,
and no Warrants shall issue, but on probable cause, supported by Oath or a"rmation, and
particularly describing the place to be searched, and the persons or things to be seized.”
This amendment protects persons against unreasonable arrests or other seizures as well as
unreasonable searches. In addition, when a warrant is required, it must comply with these
constitutional requirements.

A. General Fourth Amendment Principles

1. Standing

Fourth Amendment rights are personal and may not be asserted vicariously. A
defendant cannot successfully challenge governmental conduct as a violation of the
Fourth Amendment protection against unreasonable searches and seizures unless the
defendant himself has been seized or he has a reasonable expectation of privacy with

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regard to the place searched or the item seized. It is not enough that the introduction
as evidence of an item seized may incriminate the defendant or that the evidence was
seized from a co-conspirator. United States v. Padilla, 508 U.S. 77 (1993).

Example: Defendants Al and Bob are accused of burglarizing an electronics store.

Police found stolen DVD players in Al’s apartment after an illegal warrantless search.
Only Al has standing to raise the issue of a Fourth Amendment violation; Bob may not
raise it in his own defense, as his rights were not violated.

2. The Exclusionary Rule

The right to be free from unreasonable searches and seizures must be distinguished
from the remedy. The primary remedy is the “exclusionary rule,” which prevents the
introduction at a subsequent criminal trial of evidence unlawfully seized. This remedy is
judicially created, not constitutionally mandated. The remedy provided by the
exclusionary rule generally applies to criminal trials; it does not apply in other court
proceedings, including federal habeas corpus review of state convictions, grand jury
proceedings, preliminary hearings, bail hearings, sentencing hearings, and proceedings to
revoke parole. Evidence will also not be excluded at trial when introduced as
impeachment evidence against the defendant. Finally, the exclusionary rule is not
applicable to civil proceedings. See § I.C.6., Exclusionary Rule, infra, for an expanded
discussion.

3. Standard of Review

The judge, not the jury, resolves suppression issues raised by a pretrial motion to
suppress. A pretrial motion to suppress often involves a mixed question of fact and law.
On appeal, the judge’s rulings as to questions of law are reviewed de novo; factual
findings are reviewed only for clear error. Ornelas v. United States, 517 U.S. 690 (1996).

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4. Threshold of Governmental Action

The Fourth Amendment limits governmental action; it does not restrict the acts of
private parties unless the private person is acting as an “instrument or agent of the
government.” Even if governmental action exists, there still is no constitutional violation
unless the individual had a reasonable expectation of privacy and either the police did
not have a valid warrant or they executed an invalid warrantless search.

EXAM NOTE: Remember, the Fourth Amendment applies only to searches and seizures
conducted by police or someone acting under police direction.

5. Grand Jury Subpoena

Unless a grand jury subpoena is being used for harassment or is extremely broad,
requiring a person to appear before the grand jury under such subpoena does not fall
under the protection of the Fourth Amendment.

6. Broader Rights Possible Under State Constitution

A state may grant broader rights under its own constitution than are granted by the
federal Constitution. See Michigan v. Long, 463 U.S. 1032 (1983). Thus, even though the
Fourth (or Fifth or Sixth) Amendment may not restrict the state government, state
constitutional law may.

B. Arrest: Unreasonable Seizure of Persons

1. Seizure: Objective Test—Not Free to Leave

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A person is seized by the police when the o"cer physically touches a subject or when
the subject submits to the o"cer’s show of authority. Terry v. Ohio, 392 U.S. 1 (1968).
The application of physical force to the body of a person with intent to restrain is a
seizure even if the person does not submit and is not subdued. Torres v. Madrid, 592 U.S.
___, 141 S. Ct. 989 (2021) (police shooting of suspect who continued to flee after being
shot constituted a seizure under the Fourth Amendment). When the actions of the
police do not show an unambiguous intent to restrain or when the individual’s
submission to a show of governmental authority takes the form of passive acquiescence,
a seizure occurs only if, in view of the totality of the circumstances, a reasonable
innocent person would believe he was not free to leave. The test is whether a
reasonable person would feel free to decline the o"cers’ requests or otherwise
terminate the encounter.

a. Intentional detention

The police o"cer must intentionally employ physical force or a show of authority in
order for the o"cer’s actions to result in a seizure.

Example: During a high-speed chase, an o"cer forced the driver of the pursued
automobile o! the road. The o"cer’s intentional use of deadly force against the driver
constituted a seizure. Scott v. Harris, 550 U.S. 372 (2007).

Compare: During a high-speed chase, an o"cer accidentally struck and killed the
passenger of the pursued motorcycle when the motorcycle tipped over. The o"cer’s
accidental use of deadly force against the passenger did not constitute a seizure.
County of Sacramento v. Lewis, 523 U.S. 833 (1998).

However, as long as the o"cer intentionally employs force or makes a show of authority,
the o"cer’s purpose need not be to detain the defendant in order for the defendant to
be seized. Consequently, when a police o"cer makes a tra"c stop, not only the driver

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but also any passengers are deemed to be seized. Therefore, the passenger as well as
the driver may challenge the constitutionality of the stop. Brendlin v. California, 551 U.S.
249, 251 (2007).

2. Contrast Stop and Frisk

A temporary detention for the purpose of a criminal investigation is a “stop,” not an

arrest, but is still a seizure for Fourth Amendment purposes. The test for a stop is
whether the o"cer, by means of physical force or show of authority (to which the
subject has submitted), has in some way restrained the liberty of the citizen. Seizure
includes physical restraint or an order to stop so that the o"cer can frisk and ask
questions on the street.

3. Arrest Warrants

An arrest warrant is issued by a detached and neutral magistrate upon a finding of

probable cause that a crime has been committed and that this person was involved in
committing the particular crime. However, an arrest made pursuant to a warrant that
failed to satisfy the probable cause requirement is not illegal when the o"cer making
the arrest independently had probable cause for making the arrest.

a. Entry into arrestee's home

A warrant to arrest an individual implicitly authorizes entry into the arrestee’s home to
serve the warrant if the police have reason to believe that the arrestee is present.
Payton v. New York, 445 U.S. 573 (1980).

b. Entry into third-party's home

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Absent valid consent or exigent circumstance, a police o"cer may not search for the
subject of an arrest warrant in the home of a third party without a search warrant.
Otherwise, evidence found is not admissible against the third party. Steagald v. United
States, 451 U.S. 204 (1981). However, the absence of a search warrant does not a!ect
the validity of the arrest of the subject of the arrest warrant because the subject does
not have a greater right to privacy in a third-party's home than he would have in his own
home. United States v. Agnew, 407 F.3d 193 (3d Cir. 2005) (arrestee could not challenge
the validity of the arrest undertaken pursuant to an arrest warrant coupled with the
police o"cer's reasonable belief that the arrestee was on the premises).

4. Warrantless Arrests

Unlike searches, police generally do not need a warrant to make a valid arrest in a
public place, even if they have time to get one. U.S. v. Watson, 423 U.S. 411 (1976). The
police may not arrest an individual in his own home without a warrant, absent exigent
circumstances or valid consent to enter the arrestee’s home. Payton v. New York, 445
U.S. 573 (1980). An individual, however, may not prevent a valid arrest in a public place
by retreating into his home. United States v. Santana, 427 U.S. 38 (1976).

a. Crime committed in the presence of the arresting party

Either a police o"cer or a private individual has a right to arrest without an arrest
warrant if either a felony or a misdemeanor is committed in the arresting party’s
presence. In determining whether a crime has been committed, the question is whether
an o"cer could conclude—considering all of the surrounding circumstances—that
there was a substantial chance of criminal activity. District of Columbia v. Wesby, 583
U.S. ___ (2018).

b. Crime committed outside the presence of the arresting party

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In situations in which a felony has been committed outside the presence of the one
making the arrest, a police o"cer may arrest anyone whom he has probable cause to
believe has committed a felony, but a private individual may make an arrest only if (i) a
felony has actually been committed and (ii) the private individual reasonably believes
that the person being arrested is guilty.

c. Misdemeanor arrest

A warrantless arrest of a person for a misdemeanor punishable only by a fine is not an

unreasonable seizure under the Fourth Amendment. Atwater v. Lago Vista, 532 U.S. 318
(2001). Note that the misdemeanor must have been committed in the presence of the
arresting party; probable cause to believe that a misdemeanor was committed, without
actually witnessing the crime, is not su"cient for a valid warrantless arrest.

d. E!ect of invalid arrest

An unlawful arrest alone has no bearing on a subsequent criminal prosecution, and it is

not a defense to the crime charged. If the police have probable cause to detain a
suspect, they may do so even if they illegally arrested him (e.g., in his home without a
warrant).

An unlawful arrest has legal significance, however, when there is a seizure of evidence.
Evidence seized pursuant to an unlawful arrest may be suppressed at trial. A voluntary
confession made after an unlawful arrest will not automatically be suppressed. Note,
however, that the unlawfulness of the arrest may be considered as a factor when
determining whether a confession was truly voluntary. If the confession is too closely
tied to the illegal arrest, it may be suppressed. See Wong Sun v. U.S., 371 U.S. 471 (1963).

C. Search and Seizure

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1. Governmental Action

Searches conducted by private citizens are not protected by the Fourth Amendment—
there must be governmental action. However, the police may not circumvent the
Fourth Amendment by intentionally enlisting private individuals to conduct a search of a
suspect or areas in which the suspect has a reasonable expectation of privacy.

2. Defining “Search”: The Violation of a Reasonable Expectation

of Privacy

Only unreasonable searches and seizures are subject to Fourth Amendment

protections. An unreasonable search occurs when the government (1) invades a place
protected by a reasonable expectation of privacy, or (2) physically intrudes upon
a constitutionally protected area (persons, houses, papers, or e!ects) for the purpose of
gathering information. Katz v. United States, 389 U.S. 347 (1967); Florida v. Jardines, 569
U.S. 1 (2013) (using a drug-sni"ng dog on a homeowner’s porch for the purpose of
investigating the contents of the home constituted a search); United States v. Jones, 565
U.S. 400 (2012) (placement of GPS device on defendant’s vehicle for the purpose of
monitoring the vehicle’s movements constituted a search).

EXAM NOTE: Be aware of fact patterns that involve an individual with no expectation
of privacy, such as when incriminating evidence is seized at another individual’s home.
Remember that the government’s action is valid unless there is a legitimate expectation
of privacy or the government trespassed upon the defendant’s private property.

a. Locations searched 1) Home

Although the Supreme Court has stated that “the Fourth Amendment protects people,
not places,” (see id. at 351), the Fourth Amendment, by its terms, protects against an
unreasonable governmental search of a “house.” This protection extends to persons

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who have the right to immediate possession of a dwelling, such as the renter of an
apartment or a dormitory. Chapman v. United States, 365 U.S. 610 (1961).

a) Curtilage

In addition to the home itself, an area immediately surrounding the home known as the
“curtilage” may be covered by the “umbrella” of the home’s Fourth Amendment
protection.

In determining whether the area is protected, the following four-factor test applies:

i) The proximity of the area to the home;

ii) Whether the area is included within an enclosure surrounding the home;

iii) The nature of the uses to which the area is put; and

iv) The steps taken by the resident to protect the area from observation by passersby.

United States v. Dunn, 480 U.S. 294 (1987).

Example: A barn was 60 yards away from the main house and 50 yards away from the
innermost fence surrounding the house. The barn was not being used for domestic
purposes and, despite being surrounded by a fence, was fenced in a manner that did not
prevent persons from observing what lay inside the fence. Consequently, the barn and
the area immediately surrounding it lay outside the curtilage. Information of illegal drug
activity being conducted within the barn gained by drug enforcement agents while
within that area did not constitute an unreasonable search. Id.

b) Open fields

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Private property that lies outside the curtilage of a home, such as a farmer’s field, is not
protected by the home’s umbrella of Fourth Amendment protection. Under the “open
fields” doctrine, governmental intrusion on such property is not a search. The owner
does not have a reasonable (i.e., objective) expectation of privacy, even though the
owner may have a subjective expectation of privacy based on the fact that the land is
fenced, protected from public view, and “no trespassing” signs are posted. United
States v. Oliver, 466 U.S. 170 (1984).

c) Overnight guest in a home

While an overnight guest in a home does not have an ownership interest in the home,
such a guest does have a reasonable expectation of privacy, at least as to the areas of
the home to which the guest has permission to enter. Minnesota v. Olson, 495 U.S. 91
(1990). (As to the ability of the owner or guest to consent to a search of the home, see
§ I.C.4.f, Consent searches, infra.)

Contrast short-term use of home for illegal business purpose: Short-term use of
a home (e.g., several hours) with the permission of the owner does not give rise to a
reasonable expectation of privacy, at least when the home is being used for an illegal
business purpose (e.g., bagging cocaine for sale on the streets). Minnesota v. Carter, 525
U.S. 83 (1998).

2) Motel room

As with the search of a home, the search of a motel room by a government agent may
be an unreasonable search. A motel clerk’s consent to a governmental search of a room
during the time it is rented is insu"cient to justify the search. Stoner v. California, 376
U.S. 483 (1964).

3) Business premises
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In general, business premises are protected by the Fourth Amendment. G.M. Leasing
Corp. v. United States, 429 U.S. 338 (1977). However, such premises may be subjected to
administrative searches, see § I.C.4.g., Administrative searches, infra.

4) Prison

A prison inmate has no reasonable expectation of privacy in his cell. The limitations on
Fourth Amendment rights are justified by the need to maintain institutional security and
preserve internal order and discipline. Hudson v. Palmer, 468 U.S. 517 (1984). Unlike a
convict, a pretrial detainee may have a limited expectation of privacy in his cell.
However, a detainee’s cell may be subject to a routine search, and the detainee’s person
may be subject to a strip search or a full-body search after a contact visit with someone
from the outside. Bell v. Wolfish, 441 U.S. 520 (1979). Jail administrators may also
require all arrestees committed to the general population of a jail to undergo no-touch
visual strip searches, even if the arrest was for a minor o!ense and even in the absence
of reasonable suspicion that the arrestee possesses a concealed weapon or other
contraband. Florence v. Board of Chosen Freeholders of County of Burlington, 566 U.S.
318 (2012).

5) Trespass

While the fact that a governmental agent is on property without permission may make a
warrantless search unreasonable (e.g., a search of a home), the fact that a governmental
agent is illegally on property does not automatically make the search illegal (United
States v. Oliver, supra), nor does the fact that a governmental agent is legally in a public
place make the search legal (Katz v. United States, supra).

b. Items sought 1) Papers and e!ects

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The Fourth Amendment, by its terms, protects “papers and e!ects.” For example, a
person retains a reasonable expectation that items placed within his luggage will be free
from a purposeful, exploratory physical manipulation of the luggage. Bond v. United
States, 529 U.S. 334 (2000).

Compare smell emanating from object. A person does not have a reasonable
expectation of privacy with regard to a smell emanating from his luggage, at least when
the smell arises from an illegal substance. United States v. Place, 462 U.S. 696 (1983).

When papers and e!ects are transferred to a third party, such as checks and deposit
slips given by a customer to a bank, a person no longer has a reasonable expectation of
privacy in these items. Similarly, financial statements maintained by a bank are bank
records in which the customer has no reasonable expectation of privacy. United States
v. Miller, 425 U.S. 435 (1976).

Example: A defendant who hides drugs in a friend’s purse in order to avoid their
detection by police has no legitimate expectation of privacy in the purse. Rawlings v.
Kentucky, 448 U.S. 98 (1980).

2) Automobiles

Although, under the Fourth Amendment, stopping a car constitutes a seizure of the
driver and any passengers, Brendlin v. California, 551 U.S. 249 (2007) (passenger),
Delaware v. Prouse, 440 U.S. 648 (1979) (driver), there is a lesser expectation of privacy
with regard to the automobile and its contents than with a home. Wyoming v.
Houghton, 526 U.S. 295 (1999). Even so, o"cers must have an articulable, reasonable
suspicion of a violation of the law in order to stop an automobile. A call to 911 reporting
erratic driving may give the police the reasonable suspicion needed to make a tra"c
stop if the report is reliable. Navarette v. California, 572 U.S. 393 (2014). The fact that a

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person who is in lawful possession of a rental car is not listed on the rental agreement
does not defeat his or her otherwise reasonable expectation of privacy. Byrd v. United
States, 584 U.S. ___ (2018).

a) Checkpoints

Police may stop an automobile at a checkpoint without reasonable, individualized

suspicion of a violation of the law if the stop is based on neutral, articulable standards
and its purpose is closely related to an issue a!ecting automobiles. A roadblock to
perform sobriety checks has been upheld, while a similar roadblock to perform drug
checks has not. Compare Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990)
(sobriety check) with Indianapolis v. Edmond, 531 U.S. 32 (2000) (check for presence of
illegal drugs).

Compare random stops: Police may generally not stop an automobile, even for a
driving-related matter, without a reasonable, individualized suspicion of a violation of the
law, unless the stop is e!ected on the basis of neutral, articulable standards. Delaware v.
Prouse, 440 U.S. 648 (1979) (no random stop of a driver to verify driver’s license and car
registration).

i) Immigration law enforcement

When the purpose of the stop relates to the enforcement of immigration laws, any car
may be stopped on a random basis at the border of the United States without a
reasonable suspicion of wrongdoing. Almeida-Sanchez v. United States, 413 U.S. 266
(1973). When a search does not occur at the border or its functional equivalent, all cars
may be stopped at a fixed checkpoint without a reasonable suspicion of violation of an
immigration law, but a car may not be singled out and randomly stopped without a
particularized and objective basis. United States v. Cortez, 449 U.S. 411 (1981) (holding
the stop of one car proper when o"cers could reasonably surmise that the car was

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involved in criminal immigration activity); United States v. Martinez-Fuerte, 428 U.S. 543
(1976) (a"rming convictions based on stops at checkpoints at which all cars were
stopped).

ii) Search for witnesses

A checkpoint maintained by police for the purpose of finding witnesses to a crime

(rather than suspects) is not per se unreasonable, as long as (i) the checkpoint stop’s
primary law enforcement purpose is to elicit evidence to help them apprehend not the
vehicle's occupants but other individuals; (ii) the stop advanced a public concern to a
significant degree; and (iii) the police appropriately tailored their checkpoint stops to fit
important criminal investigatory needs and to minimally interfere with liberties
protected by the Fourth Amendment. Illinois v. Lidster, 540 U.S. 419 (2004).

b) Car’s VIN

The driver of a car does not have a reasonable expectation of privacy in the vehicle
identification number (VIN) a"xed to an automobile. New York v. Class, 475 U.S. 106
(1986). Consequently, a police o"cer’s moving of papers that obstructed his view of this
number did not constitute a search under the Fourth Amendment, and a gun found
while doing so was admissible into evidence.

3) Abandoned property

Abandoned property is not protected by the Fourth Amendment.

Example: There is no reasonable expectation of privacy in garbage set curbside for

pickup. California v. Greenwood, 486 U.S. 35 (1988).

4) Conversations

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A conversation is subject to protection by the Fourth Amendment. Berger v. New York,

388 U.S. 41 (1967); Katz v. United States, supra.

c. Persons and their attributes 1) Physical characteristics

There is no expectation of privacy in one’s physical characteristics; therefore, a demand

for a handwriting or voice sample is not a search. United States v. Mara, 410 U.S. 19
(1973) (handwriting exemplar); United States v. Dionisio, 410 U.S. 1 (1973) (voice
exemplar).

Furthermore, DNA identification of arrestees is a reasonable search that can be

considered part of a routine booking procedure. When o"cers make an arrest
supported by probable cause and they bring the suspect to the station to be detained in
custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting
and photographing, a legitimate police booking procedure that is reasonable under
the Fourth Amendment. Maryland v. King, 569 U.S. 435 (2013).

2) Blood samples

Except in unusual situations, blood samples require warrants, but breath samples do
not. The involuntary, warrantless blood test of a drunken-driving suspect was
appropriate when police could reasonably have believed that the delay necessary to
obtain a search warrant would likely result in disappearance of the blood-alcohol
content evidence, and the test was administered according to accepted medical
practices. Schmerber v. California, 384 U.S. 757 (1966). However, the reasonableness of a
warrantless blood test is determined case by case, based on the totality of the
circumstances. The Fourth Amendment mandates that police o"cers obtain a warrant
before a blood sample can be drawn, if they can reasonably do so without significantly
undermining the e"cacy of the search. Birchfield v. North Dakota, 579 U.S. ___, 136 S. Ct.
2160 (2016); Missouri v. McNeely, 569 U.S. 141 (2013).

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When a driver is unconscious and cannot be given a breath test, the exigent-
circumstances doctrine (discussed infra) generally permits a blood test without a
warrant. Mitchell v. Wisconsin, 588 U.S. ___, 139 S. Ct. 2525 (2019).

3) Government informants

Some surveillance and investigation techniques have been held not to implicate any
reasonable expectation of privacy because the targets of the surveillance were regarded
as having assumed the risk that the people with whom they were interacting would be
government agents. There is no reasonable expectation of privacy in conversations
carried on with government informants or undercover o"cers. Similarly, if one party to
a telephone call consents to wiretapping or agrees to record the call at the
government’s request, such monitoring will not trigger the Fourth Amendment rights of
any other party to the call. United States v. White, 401 U.S. 745 (1971). A person also
runs the risk that a third party to whom she turns over information may disclose such
information to the government. United States v. Miller, 425 U.S. 435 (1976).

d. Methods used to search 1) Fly-over

An inspection conducted from at least 400 feet in the air, whether by an airplane or a
helicopter, does not violate a reasonable expectation of privacy and therefore is not a
search for the purposes of the Fourth Amendment. Florida v. Riley, 488 U.S. 445 (1989)
(helicopter); California v. Ciraolo, 476 U.S. 207 (1986) (airplane).

2) Technological device

Attaching a device to a person’s body without consent in order to track that person’s
movements is a search for Fourth Amendment purposes. Grady v. North Carolina, 575
U.S. 306 (2015). Similarly, collection by law enforcement of cell-site location information

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records from wireless carriers in order to track a suspect’s whereabouts requires a

warrant. Carpenter v. United States, 585 U.S. ___ (2018).

With regard to automobiles, the Fourth Amendment does not prohibit the police from
using technological devices to enhance their ability to search (e.g., radar detectors,
computers to search license plates, surveillance equipment). United States v. Knotts,
460 U.S. 276 (1983) (placement of a tracking device on a car). However, physically
intruding upon a suspect’s property to install a technological device (e.g., a GPS tracker
on a car to gather information) may constitute a search. United States v. Jones, supra.

It is important to note the distinction between Knotts and Jones—in Knotts, the device
was installed with the permission of the former owner (a person other than the suspect)
before the car came into the defendant’s possession; defendant Jones, on the other
hand, owned the vehicle in question at the time the government installed the GPS
device.

The use of a device or sense-enhancing technology (e.g., a thermal sensing device) that
is not in use by the general public to explore the details of a dwelling that would
previously have been unknowable without physical intrusion constitutes a search. Kyllo
v. United States, 533 U.S. 27 (2001). Moreover, use of an electronic listening device to
eavesdrop on a conversation made from a public phone booth can violate the speaker’s
reasonable expectation of privacy. Katz v. United States, supra.

Flashlight. Because flashlights are ubiquitous, the use of a flashlight at night to

illuminate the inside of a car does not constitute a search for Fourth Amendment
purposes. Texas v. Brown, 460 U.S. 730 (1983).

3) Canine sni!

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Use of a trained dog to sni! for the presence of drugs is a search if it involves a
physical intrusion onto constitutionally protected property. Florida v. Jardines, 569
U.S. 1 (2013) (curtilage). In the absence of a physical intrusion, the use of drug-sni"ng
dogs does not violate a reasonable expectation of privacy. Illinois v. Caballes, 543 U.S.
405 (2005) (car); United States v. Place, 462 U.S. 696 (1983) (luggage in a public place).

O!cer’s sense of smell: A police o"cer may also rely on his own sense of smell in
ascertaining the presence of illegal drugs or alcohol. United States v. Sharpe, 470 U.S.
675 (1985) (marijuana); United States v. Ventresca, 380 U.S. 102, 104, 111 (1965) (alcohol).

4) Field test of substance

A field test performed on a substance to determine if the substance is contraband is not

a search for Fourth Amendment purposes. United States v. Jacobsen, 466 U.S. 109
(1984).

3. Search Warrant Requirements

When a search occurs, a warrant serves to protect a person’s privacy interests against
unreasonable governmental intrusion. A valid search warrant must be issued by a
neutral and detached magistrate based on probable cause, must be supported by oath
or a"davit, and must describe the places to be searched and the items to be seized.

Warrantless searches are per se unreasonable unless the search satisfies one of seven
exceptions to the warrant requirement.

a. Probable cause

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Probable cause to conduct a search requires a police o"cer to have more than
reasonable suspicions that evidence of illegal conduct will be found, but does not
require the police o"cer to be certain that such evidence will be uncovered. Facts
supporting probable cause may come from any of the following sources:

i) A police o"cer’s personal observations;

ii) Information from a reliable, known informant or from an unknown informant that
can be independently verified; or

iii) Evidence seized during stops based on reasonable suspicion, evidence discovered in
plain view, or evidence obtained during consensual searches.

1) Right to attack truthfulness of a"davit

Generally, a search warrant that is valid on its face may not be attacked by a defendant
as lacking in probable cause. A defendant can challenge a facially valid warrant only
when the defendant can establish, by a preponderance of the evidence, that:

i) The a"davit contained false statements that were made by the a"ant
knowingly, intentionally, or with a reckless disregard for their truth; and

ii) The false statements were necessary to the finding of probable cause.

Franks v. Delaware, 438 U.S. 154 (1978).

2) Informants

Courts use the totality of the circumstances test to determine whether information
provided by a police informant is su"cient to create probable cause. The a"davit
generally does not need to include any particular information about the informant,

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including the informant’s identity, so long as a neutral magistrate can find that, based on
the informant’s information and all other available facts, there is probable cause to issue
the warrant. Illinois v. Gates, 462 U.S. 213 (1983); McCray v. Illinois, 386 U.S. 300 (1967).

b. Particularity

A search warrant must describe with particularity the place to be searched and the
objects to be seized. United States v. Grubbs, 547 U.S. 90 (2006). Warrants that, in
addition to describing specific documents to be seized, also refer to “other fruits,
instrumentalities and evidence of the crime at this [time] unknown” are not converted
into illegal general warrants by the inclusion of such language. The reference to a
“crime” has been interpreted as being limited to a particular crime (e.g., false pretenses),
rather than any crime. Andresen v. Maryland, 427 U.S. 463 (1976). A warrant need not
specify the manner of its execution.

c. Anticipatory warrant

Police do not have to believe that contraband is on the premises to be searched at the
time the warrant is issued. The probable cause requirement is satisfied when, at the
time that the warrant is issued, there is probable cause to believe that the triggering
condition will occur and, if that condition does occur, there is a fair probability that
contraband or evidence of a crime will be found in a particular place. United States v.
Grubbs, supra.

d. Third-party premises

A search warrant may be issued to search the premises of a person who is not
suspected of a crime. Zurcher v. Stanford Daily, 436 U.S. 547 (1978).

e. Execution of warrant 1) By whom

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A warrant cannot be executed by a private citizen. Generally, only a police o"cer may
execute a warrant, but administrative warrants may be executed by the appropriate
governmental o"cial (e.g., fire inspector).

2) Timing

A warrant that is not timely executed (i.e., an unreasonable delay occurs) may be subject
to challenge on the grounds that probable cause ceased to exist.

3) Manner of execution—knock and announce

Most states and the federal government mandate that a police o"cer, when executing
either a search or an arrest warrant, must generally announce his purpose before
entering. The knock-and-announce rule gives individuals the opportunity to comply with
the law, to avoid the destruction of property occasioned by a forcible entry, and to
collect themselves with dignity before answering the door. The rule also serves to
protect o"cers and the inhabitants of the building from physical harm because an
unannounced entry may provoke violence in supposed self-defense by the surprised
resident. A state may permit an exception to the rule if the entry is made under exigent
circumstances, such as when there is a reasonable belief of danger to the o"cer or
destruction of evidence. Ker v. California, 374 U.S. 23, 34 (1963).

Note, however, that the interests protected by the knock-and-announce requirement do

not include the shielding of potential evidence from discovery. Thus, violation of the
“knock and announce” rule does not trigger the exclusionary rule (see § I.C.6., infra) with
respect to evidence discovered as a result of a search conducted in violation of the
“knock and announce” rule. Hudson v. Michigan, 547 U.S. 586 (2006).

4) Seizure of evidence not specified

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A search warrant confers authority to search only the places and persons named in it.
That said, any evidence of a crime, instrumentalities or fruits of a crime, or contraband
found in plain view while properly executing the warrant, whether or not specified in the
warrant, may be seized (see § I.C.4.e., “Plain view” doctrine, infra).

5) Treatment of persons not specified in the warrant

Independent justification is needed to search persons not named in a search warrant;

mere proximity to a named person does not supply such justification. Ybarra v. Illinois,
444 U.S. 84 (1979). However, in conducting a search for contraband pursuant to a
warrant, any occupant of the premises to be searched may be detained in a reasonable
manner, which may include the use of handcu!s, for a reasonable time while the search
is conducted. Muehler v. Mena, 544 U.S. 93 (2005); Michigan v. Summers, 452 U.S. 692
(1981). Such a detention is only justified for individuals within the immediate vicinity of
the premises to be searched. If an individual is not in the immediate vicinity of the
premises, then a detention of that individual must be justified by some other rationale.
Bailey v United States, 568 U.S. 186 (2013) (detaining suspect one mile away from
premises was unreasonable).

4. Exceptions to the Warrant Requirement

EXAM NOTE: Warrantless searches are frequently tested on the MBE. Be aware of
answer choices that include concepts that apply to one type of warrantless search when
another is being tested.

a. Search incident to a lawful arrest

A warrantless search is valid if it is reasonable in scope and if it is made incident to a

lawful arrest. If the arrest is invalid, any search made incident to it is likewise invalid.
Therefore, if a suspect is stopped for a tra"c o!ense and given a citation but not

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arrested, then there can be no search incident to lawful arrest. Knowles v. Iowa, 525 U.S.
113 (1999).

1) The Chimel standard

A lawful arrest creates a situation that justifies a warrantless contemporaneous search

of the person arrested and the immediate surrounding area (i.e., his “wingspan”) from
which a weapon may be concealed or evidence destroyed. Chimel v. California, 395 U.S.
752 (1969).

If the arrest occurs in a home, it is permissible to conduct a “protective sweep” for

confederates (i.e., people who might launch an attack) in spaces immediately adjacent to
the place of arrest, even without probable cause or reasonable suspicion. A “protective
sweep” allows a quick and limited visual inspection of those places immediately adjacent
to the place of arrest in which a person might be hiding (e.g., adjacent rooms, closets,
showers). If the o"cers have reasonable suspicion that confederates are hiding beyond
these immediately adjacent areas, they can broaden their search for people in those
places too. Maryland v. Buie, 494 U.S. 325, 334 (1990) (finding that after police properly
arrested defendant in his home after defendant came up from his basement, the police
were permitted to conduct a protective sweep of the basement to ensure their safety).

2) Time limitations (temporal unity)

A search incident to a valid arrest must take place contemporaneously with the arrest in
order to be valid.

3) Scope of search

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The right to search incident to a lawful arrest includes the right to search pockets of
clothing and to open containers found inside the pockets. The right also extends to
containers “immediately associated” with the person (such as a shoulder bag or purse).

The search incident to lawful arrest exception does not extend to an arrestee’s cell
phone or laptop. Absent exigent circumstances, police must obtain a warrant before
searching digital information of a person arrested. Riley v. California, 573 U.S. 373 (2014).

4) Vehicle search incident to arrest

To justify a warrantless search of an automobile incident to arrest, the Fourth

Amendment requires that law enforcement demonstrate either (i) that the arrestee is
within reaching distance of the passenger compartment at the time of the search and, as
a result, may pose an actual and continuing threat to the o"cer’s safety or a need to
preserve evidence from being tampered with by the arrestee or (ii) that it is reasonable
that evidence of the o!ense of arrest might be found in the vehicle. Arizona v. Gant, 556
U.S. 332 (2009).

5) Impounded vehicle

A legally impounded vehicle may be searched, including closed containers, such as glove
box or a backpack, as part of a routine inventory search. South Dakota v. Opperman,
428 U.S. 364, 369–71 (1976). The warrantless search need not take place at the time that
the vehicle is seized.

b. Exigent circumstances

Warrantless entry into a home or business is presumed unlawful unless the government
demonstrates both probable cause and exigent circumstances. In determining the
existence of exigent circumstances, courts use the “totality of circumstances” test. As a

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corollary to this doctrine, police may also secure the premises for a reasonable time to
enable o"cers to obtain a warrant when the police have reason to believe that the
failure to do so could result in the destruction of evidence. Illinois v. McArthur, 531 U.S.
326 (2001).

The exigent-circumstances rule does not apply when the police create the exigency by
engaging or threatening to engage in conduct that violates the Fourth Amendment.
Kentucky v. King, 563 U.S. 452 (2011).

1) Hot pursuit

If the police have probable cause to believe that an individual has committed a felony
and they are pursuing him to arrest him, then they have the right to enter a private
building during the pursuit, to search that building for the person or his weapons while
they are present on the premises, and to seize evidence found there, even though the
material found is “mere” evidence and neither fruits nor instrumentalities of a crime.

If the police have probable cause to believe that a suspect has committed a
misdemeanor, then the police may act without waiting for a warrant if the totality of
the circumstances shows an emergency—a need to act before it is possible to get a
warrant. Those circumstances include the flight from the police itself, but pursuit of a
fleeing misdemeanor suspect does not categorically justify warrantless entry into a
home. Lange v. California, 594 U.S. ___, 141 S. Ct. 2011 (2021).

No such exigency exists in pursuing someone suspected of a nonjailable tra"c o!ense;

the hot-pursuit exception is inapplicable in that instance. Welsh v. Wisconsin, 466 U.S.
740 (1984).

2) Emergency situations

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A search without a warrant is authorized whenever there is a reasonable apprehension

that the delay required in obtaining the warrant would result in the immediate danger of
evidence destruction or the threatened safety of the o"cer or the public, or when a
suspect is likely to flee before a warrant can be obtained.

Whether a person is in need of aid is judged on the basis of a police o"cer’s objective
reasonable belief that the person needs aid. Aid includes emergency assistance to an
injured occupant as well as protection of an occupant from imminent injury. Neither the
o"cer’s subjective motive for searching without a warrant nor the seriousness of the
crime the o"cer was originally investigating are relevant in making this determination.
Brigham City v. Stuart, 547 U.S. 398 (2006).

c. Stop and frisk 1) Stop—limited seizure/detention

A “stop” (also known as a “Terry stop”) is a limited and temporary intrusion on an

individual’s freedom of movement short of a full custodial arrest. Merely approaching a
person, but not restricting the person’s movement in any way, does not constitute a
detention. A stop is justified on the reasonable suspicion, based upon articulable
facts, that the detainees are or were involved in illegal activity. Terry v. Ohio, 392 U.S. 1
(1968). Whether reasonable suspicion exists is based on the totality of the
circumstances. It requires more than a vague suspicion, but less than probable cause,
and it need not be based on a police o"cer’s personal knowledge.

Example: Police were justified in stopping a suspect who (i) was standing on a street
corner in a high-crime area and (ii) fled upon noticing the police, even though neither
factor alone would constitute reasonable suspicion to justify a stop. Illinois v. Wardlow,
528 U.S. 119 (2000).

Reasonable suspicion can be based on a flyer, a police bulletin, or an informant’s tip, but
only if the tip is accompanied by su"cient indicia of reliability. United States v. Hensley,
469 U.S. 221, 233–34 (1985).

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In addition, a police o"cer’s reasonable mistake of law can support reasonable suspicion
to conduct a tra"c stop. Heien v. North Carolina, 574 U.S. 54 (2014).

2) Frisk—limited search

An o"cer who does not have probable cause to arrest may nonetheless make a limited
search of a person he has lawfully stopped, such as a pat-down of the outer clothing, if
he has reasonable suspicion that the person was or is involved in criminal activity and
that the frisk is necessary for the preservation of his safety or the safety of others (i.e.,
reasonable suspicion that the person has a weapon).

Under the “plain feel” exception, if an o"cer conducting a valid frisk feels with an
open hand an object that has physical characteristics that make its identity immediately
obvious (i.e., he has probable cause to believe that the item is contraband), then the
o"cer may seize the evidence. Police may also briefly seize items if the o"cers have a
reasonable suspicion that the item is or contains contraband.

3) Terry stop and frisk of a car

Pursuant to a lawful stop of a vehicle, police may conduct a search of the passenger
compartment for weapons, if:

i) The police possess a reasonable belief that the suspect is dangerous and may gain
immediate control of weapons; and

ii) The search of the passenger compartment is “limited to those areas in which a
weapon may be placed or hidden.”

Michigan v. Long, 463 U.S. 1032, 1048–50 (1983).

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Police may order occupants out of a vehicle that they have lawfully stopped. Maryland v.
Wilson, 519 U.S. 408 (1997).

When police make a lawful tra"c stop, they are automatically detaining both the driver
and the passenger. They may only frisk the driver or the passenger if they have
reasonable suspicion that the person is carrying a weapon. Arizona v. Johnson, 555 U.S.
323 (2009).

4) Limits on time, place, and investigative method

A Terry stop must be temporary and last no longer than is necessary to e!ectuate the
purpose of the stop. The investigative methods employed should be the least intrusive
means reasonably available to verify or dispel the o"cer’s suspicion in a short time.
Police can require that the detained person identify himself. Failure to comply with this
request can result in the arrest of the detained person.

After the conclusion of a tra"c stop, absent reasonable suspicion, police extension of
the stop in order to conduct a dog sni! violates the Fourth Amendment’s protection
against unreasonable seizures. Rodriguez v. United States, 575 U.S. 348 (2015).

When police hold a suspect beyond the amount of time necessary to e!ectuate the
purpose of a Terry stop, the seizure becomes an arrest and must be supported by
probable cause.

5) Development of probable cause

If the o"cer conducting the stop develops probable cause, the o"cer may then make
an arrest and conduct a full search incident to that arrest. If the stop involves a vehicle,
the o"cer may search the passenger compartment and all containers therein, whether
open or closed, if the arrestee is within reaching distance of the passenger

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compartment of the vehicle or if it is reasonable to believe that the vehicle contains

evidence of the o!ense of arrest. See § I.C.4.a.4), Vehicle search incident to arrest,
supra, discussing the Gant rule.

d. Automobile exception

The Fourth Amendment does not require police to obtain a warrant to search a vehicle
if they have probable cause to believe that it contains contraband or evidence of a
criminal activity. The police may search anywhere in a car that they believe there to be
contraband, including the trunk and locked containers, so long as they have probable
cause to do so. United States v. Ross, 456 U.S. 798, 825 (1982). The search may also
extend to passengers’ belongings, Wyoming v. Houghten, 526 U.S. 295, 302 (1999), as well
as to mobile homes, California v. Carney, 471 U.S. 386, 393–394 (1985). Any other
evidence observed in plain view may also be seized.

Note that the automobile exception does not permit the warrantless entry of a home or
its curtilage in order to search a vehicle therein. Collins v. Virginia, 584 U.S. ___ (2018).

1) Pretextual stop

Police may use a pretextual stop to investigate whether a law has been violated, even if
they have no reasonable suspicion, provided that they have probable cause to believe
that the law for which the vehicle was stopped has been violated. Whren v. United
States, 517 U.S. 806 (1996) (seizure of illegal drugs constitutional even though police
stopped a car for a tra"c violation as a pretext to investigate a hunch that the
occupants possessed drugs).

2) Containers within a car

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Probable cause to search a vehicle extends only to containers and compartments that
reasonably could hold the evidence they are searching for. If the police have probable
cause to search only a particular container, they may search only that container, and not
the entire car. Arkansas v. Sanders, 442 U.S. 753 (1979); California v. Acevedo, 500 U.S.
565, 570 (1991). (Note, however, that what the o"cers find in one container may give
them probable cause to believe evidence is contained elsewhere in the car.)

Example: A driver left a residence holding a closed paper bag, which o"cers had
probable cause to believe contained narcotics, based on an informant’s tip. The bag was
placed in the trunk, and the driver drove away. Police were authorized to stop the
vehicle, open the trunk, and inspect the bag. However, the search was limited to the bag
only. If they did not find the bag, they could only open and search containers big enough
to store the bag. Id. at 579–80.

3) Trunk

If police have probable cause to search the trunk, not just a container placed in the
trunk, then they can search the entire trunk and every container in the trunk, even if
locked.

e. “Plain-view” doctrine 1) In public view

Items in public view may be seized without a warrant because one cannot have a
reasonable expectation of privacy in things that are exposed to the public (e.g., physical
characteristics, vehicle identification numbers, or items in open fields).

2) In private view

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In situations in which there is a reasonable expectation of privacy, a police o"cer may

seize an item in plain view of the o"cer, even if the item was not named in the search
warrant, as long as (i) the o"cer is lawfully on the premises, (ii) the incriminating
character of the item is immediately apparent, and (iii) the o"cer has lawful access
to the item (e.g., viewing an object through a window is insu"cient if the o"cer does
not have lawful access to the inside of the house). The discovery of the item does not
need to be inadvertent. Horton v. California, 496 U.S. 128 (1990); Arizona v. Hicks, 480
U.S. 231 (1987).

Example: O"cer Olivia was executing a valid warrant to search Defendant Doug’s home
for a gun suspected to have been used in a murder. On entering the premises, Olivia
saw bags of cocaine piled on Doug’s co!ee table. Under the “plain view” doctrine, Olivia
could properly seize the bags, even though the warrant applied only to a gun.

f. Consent searches

Consent can serve to eliminate the need for police to have probable cause as well as to
first obtain a warrant in order to conduct a search.

1) Voluntary

For permission to constitute consent, the permission must be given voluntarily.

Permission given under threats of harm or compulsion does not constitute consent. In
determining whether a person’s response constitutes consent, courts evaluate the
totality of the circumstances in which the response is made.

a) False assertion of authority

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Permission given in acquiescence to lawful authority (e.g., a warrant) is not voluntary.

Consequently, if the o"cer conducting the search erroneously states that he has a
warrant, then permission given in reliance on that statement does not constitute
consent. Bumper v. North Carolina, 391 U.S. 543, 549 (1968).

b) Knowledge of the right to withhold consent

The failure by police to inform the person from whom consent is sought that she has
the right to withhold consent does not invalidate the consent. Schneckloth v.
Bustamonte, 412 U.S. 218, 233 (1973).

c) Consent based on deceit

A government agent pretending to be a narcotics buyer, for example, may accept an

invitation to enter the premises for the purposes contemplated by the occupant (i.e., to
purchase drugs). The o"cer or agent may then seize things in plain view. Lewis v.
United States, 385 U.S. 206 (1966).

2) Third-party consent

When the person from whom consent is sought is not the defendant, in addition to the
voluntariness of the permission, the authority of that person to consent can be an issue.

a) Property of a third party

Generally, a third party has the authority to consent to a search of property that she
owns, occupies, or has control over. As such, the defendant cannot suppress evidence
seized during such a search on the grounds that he (the defendant) did not consent to
the search.

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b) Property of the defendant

Generally, a third party does not have the authority to consent to a search of property
owned or occupied by the defendant. The defendant can generally suppress evidence
seized during such a search unless (i) an agency relationship exists between the third
party and the defendant that gives to the third party the right to consent on behalf of
the defendant, or (ii) the defendant otherwise gives the third party such rights with
respect to the property that the defendant assumes the risk that the third party would
allow the property to be searched (e.g., a shared du#e bag, property entrusted to a
bailee). Frazier v. Cupp, 394 U.S. 731, 740 (1969).

c) Jointly controlled property

When the property to be searched is under the joint control of the defendant and a
third party (e.g., co-tenants of an apartment, a house jointly owned by a husband and
wife), the authority of the third party to consent turns on whether the defendant is
present at the time of the search.

i) Defendant not present

If the property to be searched is under the joint control of the defendant and a third
party, and the defendant is not present at the time of the search, then the third party
has authority to consent. The third party has actual authority when she has joint access
or control for most purposes. U.S. v. Matlock, 415 U.S. 164, 170–171 (1974). In addition,
the third party’s consent may be valid even though she lacks actual authority if the
police reasonably believe that she has such authority (i.e., apparent authority). Illinois v.
Rodriguez, 497 U.S. 177, 184 (1990).

ii) Defendant present

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When the property to be searched is under the joint control of the defendant and a
third party, and the defendant is present at the time of the search, then the police may
not rely on third-party consent if the defendant objects to the search. Georgia v.
Randolph, 547 U.S. 103, 114–116 (2006). When the defendant is not present, however, a
third party may consent to a search even if the defendant previously was present and
objected to a search at that time. Fernandez v. California, 571 U.S. 292 (2014).

iii) Ownership versus current control

In some instances, ownership of the premises is not su"cient to confer authority to

consent to a search. For example, a landlord may not consent to a search of the tenant’s
premises. Chapman v. United States, 365 U.S. 610, 617 (1961). Similarly, a hotel clerk
cannot consent to the search of a guest’s room until the guest has permanently checked
out. Stoner v. California, 376 U.S. 483, 489 (1964). However, some circuits have held that
the owner of a house can consent to a search of rooms occupied by non-paying guests.

iv) Parental consent

When a child lives with a parent, the parent has the authority to consent to a search of a
child’s room even if the child is an adult. However, a parent may lack authority to
consent to the search of a locked container inside the child’s room, depending on the
age of the child. U.S. v. Block, 590 F.2d 535, 540 (4th Cir. 1979).

3) Scope of consent

Although a search is limited to the area to which the consent applies, the search may
extend to areas that a reasonable o"cer would believe it extends. For example, consent
by a driver to search his car for drugs extends to a closed container within the car that
could contain drugs. Florida v. Jimento, 500 U.S. 248, 252 (1991).

4) Burden of proof
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The prosecution must prove that the permission was freely given; the defendant is not
required to show that the permission was coerced.

g. Administrative, special needs, and inventory searches

Administrative search warrants are generally required for nonconsensual fire, health, or
safety inspections of residential or private commercial property.

1) Probable cause

The probable cause requirement for administrative searches is less stringent than that
for a criminal investigation. Evidence of an existing statutory or regulatory violation or a
reasonable plan supported by a valid public interest will justify the issuance of a warrant.
Camara v. Mun. Court of San Francisco, 387 U.S. 523, 533 (1967).

2) Use of administrative searches

The government may not use administrative searches to investigate criminal activity.
However, discovery of evidence during the search does not invalidate the search. The
following administrative-type searches may be validly made without a warrant:

i) Searches of people entering an airplane boarding area, as long as the passenger

can prevent the search by not boarding the plane;

ii) Searches of businesses in highly regulated industries such as liquor stores, gun
shops, strip-mining operations, and automobile junkyards, because of urgent public
interest and under the theory that the business impliedly consented to warrantless
searches by entering into a highly regulated industry;

iii) Oral statements seized by wiretaps, when matters of national security are at issue;

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iv) Searches of students by public school o!cials, so long as they are based on
reasonable grounds (this standard is lower than probable cause and calls for only a
“moderate chance” of finding the expected evidence, rather than a “fair probability” or
“substantial chance”), and the measures adopted for the search are reasonably related
to the objectives of the search and not excessively intrusive in light of the age and sex of
the student and the nature of the infraction. New Jersey v. T.L.O., 469 U.S. 325, 340–341
(1985); Sa!ord Unified Sch. Dist. #1 v. Redding, 557 U.S. 364, 370-371 (2009).

v) Special needs searches, such as drug testing for railroad employees involved in an
accident or student athletes during the athletic season. To be a special need, the state
interest must be a real, current, and vital problem that can be e!ectively addressed
through the proposed search. Even if the need exists, it must be balanced against the
privacy interest at stake and the character of the intrusion. Bd. of Educ. v. Earls, 536 U.S.
822, 829 (2002);

vi) Inventory searches of items in o"cial custody, such as impounded vehicles. After
lawfully taking custody of property, police may conduct a warrantless search of other
property to protect the owner’s property while in custody, to protect police from claims
of theft, and to protect o"cers from danger. Inventory searches must be performed
according to standardized criteria and procedures. Subjective intent of the o"cer is
irrelevant;

vii) Routine international border searches of border crossers and their belongings
within the United States, including (i) stops, but not searches, by roving patrols who
reasonably suspect that undocumented immigrants may be in an automobile, (ii)
opening of international mail if authorities have reasonable cause to suspect contraband
in the mail, and (iii) subsequent reopening of mail after the item had been resealed and
delivered to the recipient;

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viii) Vehicle checkpoints and roadblocks set up to stop cars on the basis of a neutral
articulable standard and designed to serve a limited purpose closely related to the
problem of an automobile’s inherent mobility (e.g., to get drunk drivers o! the road);

ix) Factory searches of the entire work force to determine citizenship of workers;

x) Searches of government employees’ electronically recorded documents and

conduct, file cabinets, and desks if they are justified by a reasonable suspicion of
work-related misconduct or a non-investigatory, work-related need;

xi) Detention of a traveler whom authorities have reasonable suspicion is smuggling

contraband in his stomach;

xii) Searches of parolees and their homes, even with no reasonable suspicion, when a
parolee agrees to submit to searches by a parole o"cer or police o"cer at any time as a
condition of his parole. The rationale being that because there is a greater need to
search parolees since they are less likely to be law-abiding citizens, a parolee has a lower
expectation of privacy;

xiii) Seizure of contaminated or spoiled food; and

xiv) Searches for the cause of a fire that occurs within a reasonable time after the fire
is extinguished, but excluding searches for other evidence unrelated to the cause that
would establish that the fire was attributable to arson. Michigan v. Cli!ord, 464 U.S. 287
(1984) (search of home); Michigan v. Tyler, 436 U.S. 499 (1978) (search of business
(furniture store)).

h. Wiretapping

To obtain a warrant authorizing a wiretap, o"cers must satisfy the below requirements.
The warrant must:

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i) Be limited to a short period of time;

ii) Demonstrate probable cause that a specific crime has been or is about to be
committed;

iii) Name the person or persons to be wiretapped;

iv) Describe with particularity the conversations that can be overheard; and

v) Include provisions for the termination of the wiretap.

Upon termination of the wiretap, the conversations that have been intercepted must be
shown to the court. Note that a person assumes the unreliability of those to whom she
speaks and has no Fourth Amendment claim if she finds out later that the listener was
wired or recording the conversation. United States v. White, 401 U.S. 745 (1971).
Furthermore, a speaker who makes no attempt to keep his conversation private has no
Fourth Amendment claim. Katz v. United States, 389 U.S. 347 (1967).

In addition, a wiretap related to domestic security surveillance requires that a neutral

and detached magistrate—not the president—make the determination that a
wiretapping warrant should issue, and the wiretap must comply with the Omnibus Crime
Control and Safe Streets Act. However, there is no requirement for prior authorization
when a covert entry is planned to install the electronic equipment, or when a pen
register is used.

5. Raising the Issue of Standing

To establish that a search violated his Fourth Amendment rights, a defendant must show
a legitimate expectation of privacy with regard to the search (see § I.C.2., supra). To
make such a showing, which is sometimes referred to as “standing,” the defendant may

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have to admit facts that would incriminate him. Consequently, testimony given by the
defendant to establish standing cannot be admitted as evidence against the defendant at
trial.

6. Exclusionary Rule

Under the exclusionary rule, evidence obtained in violation of the accused’s Fourth,
Fifth, or Sixth Amendment rights may not be introduced at her trial to prove her guilt.
Under the Fourth Amendment, evidence seized during an unlawful search cannot
constitute proof against the victim of the search. Weeks v. United States, 232 U.S. 383
(1914).

a. Fruit of the poisonous tree

Subject to some exceptions, the exclusionary rule applies not only to evidence initially
seized as a result of the primary government illegality, but also to secondary “derivative
evidence” discovered as a result of the primary taint, also known as the “fruit of the
poisonous tree.”

Example: A police o"cer conducts an unconstitutional search of a home, finds an

address book, and uses that address book to locate a witness. The witness will not be
allowed to testify, because her testimony would be a “fruit” of the unconstitutional
search.

b. Exceptions

Evidence, whether primary or derivative, may still be admissible if one of the following
exceptions to the exclusionary rule applies.

1) Inevitable discovery rule

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The prosecution can prove that the evidence would have been inevitably discovered in
the same condition through lawful means.

2) Independent source doctrine

The evidence was discovered in part by an independent source unrelated to the tainted
evidence.

3) Attenuation principle

The chain of causation between the primary taint and the evidence has been so
attenuated as to “purge” the taint. Both the passage of time and/or intervening events
may attenuate the taint.

Example: An o"cer makes an unconstitutional investigatory stop, learns during the

stop that the suspect was subject to a valid arrest warrant, arrests the suspect, and
seizes incriminating evidence during a search incident to that arrest. The evidence the
o"cer seizes as part of the search incident to the arrest is admissible. Utah v. Strie!,
579 U.S. ___, 136 S. Ct. 2056 (2016).

4) Good-faith exception

The good-faith exception applies to police o"cers who act in good faith on either a
facially valid warrant later determined to be invalid or an existing law later declared
unconstitutional. Michigan v. DeFillippo, 443 U.S. 31 (1979). Good faith is limited to the
objective good faith of a reasonable police o"cer.

This exception does not apply if:

i) No reasonable o"cer would rely on the a"davit underlying the warrant;

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ii) The warrant is defective on its face;

iii) The warrant was obtained by fraud;

iv) The magistrate has “wholly abandoned his judicial role”; or

v) The warrant was improperly executed.

5) Isolated police negligence

Isolated negligence by law-enforcement personnel will not necessarily trigger the

exclusionary rule. To trigger the rule, police conduct must be “su"ciently deliberate
such that exclusion can meaningfully deter it.” The exclusionary rule serves to deter
deliberate, reckless, or grossly negligent conduct or, in some circumstances, recurring or
systemic negligence. Herring v. United States, 555 U.S. 135, 144 (2009).

Example: Defendant Don goes to the police station to pick up an impounded vehicle.
Policeman Paul believes that there might be a warrant out from another county for
Don’s arrest and calls the other county’s sheri! to check. The sheri! tells Paul that
there is a warrant out for Don’s arrest. Paul immediately arrests Don and in a search
incident to the arrest finds illegal drugs and an illegal weapon on Don. Minutes later, the
sheri! calls back to say that the warrant had actually been recalled and she had made a
mistake. The exclusionary rule will not apply to the drugs and the weapon because Paul
was relying in good faith on the erroneous information from the sheri! in conducting
the arrest. The exclusionary rule should be applied only if there is substantial additional
deterrence of police misconduct to be gained. Herring v. United States, 555 U.S. 135
(2009).

6) Knock and announce

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The exclusionary rule does not apply to evidence discovered as a result of a search
conducted in violation of the “knock and announce” rule, if the search was otherwise
authorized by a valid warrant. Hudson v. Michigan, 547 U.S. 586 (2006).

7) In-court identification

A witness’s in-court identification of the defendant is not fruit of an unlawful detention.

Thus, the identification cannot be excluded. On the other hand, live testimony may be
excluded as fruit of illegal police conduct if there is a su"cient link between the illegal
police conduct and the testimony.

c. Harmless error

Even if the trial court wrongfully admitted illegally seized evidence, the appellate court
can refuse to order a new trial if it finds that the error was harmless beyond a
reasonable doubt, meaning that the erroneously admitted evidence did not contribute
to the result.

Note: The denial of the right to counsel is never a harmless error.

d. Enforcement

When the defendant challenges a confession or the admissibility of evidence, by right, a

hearing is held to determine whether the confession or evidence is fruit of the
poisonous tree. This hearing is held outside the presence of the jury. The defendant has
a right to testify at this hearing, and the state bears the burden of establishing
admissibility by a preponderance of the evidence.

e. Obtaining evidence by questionable methods

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Evidence obtained in a manner that shocks the conscience is inadmissible. Examples of

such methods of gathering evidence include inducements by o"cial actions that o!end
the sense of justice and serious intrusions into the body, such as with surgery to remove
a bullet. Contrast that, however, with a cheek swab to obtain a DNA sample, which is a
reasonable intrusion because it is quick and painless, and involves no surgical intrusion
beneath the skin. Maryland v. King, 569 U.S. 435 (2013).

II. FIFTH AMENDMENT RIGHTS AND PRIVILEGES

A. The Privilege Against Compulsory Self-Incrimination

The Fifth Amendment provides that no person shall be compelled in any criminal case to
be a witness against himself. It is applicable to the states through the Fourteenth
Amendment.

1. Persons

A person means an individual. Artificial entities such as corporations, partnerships, and

labor unions may not assert the privilege, but a sole proprietorship may. The privilege
does not extend to the custodian of corporate records, even if production would
incriminate the custodian individually.

2. Testimonial Evidence

The privilege protects only testimonial evidence. Nontestimonial physical evidence

(such as a blood or urine sample, Breathalyzer test result, handwriting exemplar, voice
sample, or other evidence of physical characteristics) is not protected.

3. Compulsory Disclosure
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The privilege generally does not apply to an individual’s voluntarily prepared business
papers or to records required by law to be kept, such as tax returns. Fisher v. United
States, 425 U.S. 391 (1976). However, a person can refuse to comply with a requirement
to register or pay a tax where the requirement is directed at a select group “inherently
suspect of criminal activities.” Marchetti v. United States, 390 U.S. 39, 52 (1968)
(occupational tax on bookies); Leary v. United States, 395 U.S. 6 (1969) (registration and
tax based on transfer of marijuana).

a. Subpoena

A person who is served with a subpoena requiring the production of possibly

incriminating documents may invoke the privilege if the act of turning over the
documents constitutes self-incriminating testimony. United States v. Hubbell, 530 U.S. 27
(2000).

b. Warrant for seizure of documents

The Fifth Amendment does not prevent law-enforcement o"cials, pursuant to a valid
warrant, from searching for and seizing documents that would incriminate a person.
Andresen v. Maryland, 427 U.S. 463 (1976).

1) Diaries

Generally, the government may not compel production of a diary. The contents of a
diary are similar to oral testimony, and as such are considered testimonial in nature.
Because one cannot be compelled to testify against himself, the government may not
compel production of documents that are similarly testimonial in nature. See, e.g.,
Schmerber v. California, 384 U.S. 757 (1966).

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Note, however, that if the diary’s production is not compelled, e.g., it is found incident to
a lawful arrest, its contents likely are admissible (assuming the entries were made
voluntarily).

c. Court-ordered exam

Admissions of incriminating statements made during a court-ordered psychiatric

examination are generally deemed involuntary and not admissible at trial unless the
defendant is given Miranda warnings before the interview and waives his rights.

4. Nature of Proceedings

The privilege extends to a witness in any proceeding, whether civil or criminal, formal or
informal, if the answers provide some reasonable possibility of incriminating the witness
in future criminal proceedings. McCarthy v. Arndstein, 266 U.S. 34 (1924). However, the
privilege cannot be invoked when the government requires civil records to be
maintained and reported on for administrative purposes, because they are public
records, unless those records fulfill a registration requirement of a select group of
inherently suspect criminal activities and compliance would require self-incrimination.
The privilege does not extend to identification requests at Terry stops. A violation
occurs the moment the compelled statements are used against a person.

5. Invoking the Privilege

a. Defendant’s privilege

A defendant who wishes to invoke the privilege simply invokes it by not taking the stand.
Included in this right is the state’s inability to compel the defendant to testify. The
prosecution cannot bring the defendant’s failure to take the stand to the jury’s attention.

b. Witness’s privilege

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A witness, on the other hand, may be compelled to take the stand and can invoke the
privilege only in response to a specific question when there is some reasonable
possibility that answering the question will incriminate the witness. However, such an
invocation after testimony has already been made may violate a defendant's right to
confrontation, guaranteed by the Sixth and Fourteenth Amendments, if it prevents
adequate cross-examination. Douglas v. Alabama, 380 U.S. 415 (1965).

6. Counseling Clients to Invoke the Privilege

Attorneys may counsel their clients to invoke the privilege and will not be held in
contempt of court. Otherwise, the person invoking the privilege would be denied his
Fifth Amendment protection.

7. Invocation of Privilege Should Not Impose a Burden

The state cannot penalize a defendant for invoking his right against self-incrimination by
not testifying or cooperating with authorities. The prosecution cannot comment to the
jury on the defendant’s refusal to speak in accordance with his Miranda rights. U.S. v.
Hastings, 461 U.S. 499 (1983). A violation in this regard by the state triggers the
harmless-error test. However, if during trial the defendant claims that he was not
allowed to explain his story, then the prosecution may comment on the defendant’s
failure to take the stand.

8. Waiving the Privilege

A defendant waives the privilege by taking the witness stand; a witness waives the
privilege by disclosing self-incriminating information in response to a specific question.
Having taken the stand, the defendant cannot assert the privilege in response to the

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prosecution’s proper cross-examination of his testimony, including impeachment

questions.

9. Immunity

The prosecution may compel incriminating testimony (at trial or before a grand jury) if it
grants immunity to the individual and the individual must testify. The testimony cannot
be used against the individual, directly or indirectly, in a subsequent prosecution.

a. Transactional immunity

Often called “blanket” or “total” immunity, “transactional immunity” fully protects a

witness from future prosecution for crimes related to her testimony.

b. Use and derivative-use immunity

“Use and derivative-use” immunity only precludes the prosecution from using the
witness’s own testimony, or any evidence derived from the testimony, against the
witness. The Supreme Court has held that the grant of “use and derivative-use”
immunity is all that is constitutionally required to compel the testimony of a witness.
Kastigar v. United States, 406 U.S. 441, 452–453 (1972). Testimony encouraged by a
promise of immunity, however, is considered coerced and involuntary.

c. Federal and state immunity

Testimony under a grant of immunity may not be used by another U.S. jurisdiction to
prosecute the defendant. See United States v. Balsys, 524 U.S. 666 (1998); Murphy v.
Waterfront Comm’n, 378 U.S. 52 (1964). Thus, a state grant of immunity will preclude
admission of the testimony in a federal proceeding.

B. The Fifth Amendment in a Police Interrogation Context

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In the seminal case of Miranda v. Arizona, the U.S. Supreme Court held that a suspect has
a constitutional right not to be compelled to make incriminating statements in the
police interrogation process. Miranda v. Arizona, 384 U.S. 436 (1966). Miranda once was
considered to be necessary in nearly every encounter with police. However, the
Supreme Court has been gradually narrowing the scope and limiting the use of Miranda.

Any incriminating statement obtained as the result of custodial interrogation may not
be used against the suspect at a subsequent trial unless the police provided procedural
safeguards e!ective to secure the privilege against self-incrimination (i.e., informed the
suspect of his Miranda rights). An incriminating statement includes not only a
confession, but other inculpatory statements, and is subject to suppression even though
the defendant intended the statement to be exculpatory.

1. Custodial Interrogation

Custodial interrogation is questioning initiated by a known (as opposed to undercover)

law-enforcement o"cer after a person is in custody.

a. “Custodial”

Custody is a substantial seizure and is defined for Miranda purposes as either a formal
arrest or a restraint on freedom of movement to the degree associated with a formal
arrest. New York v. Quarles, 467 U.S. 649, 655 (1984).

If there has been no formal arrest, the question is whether a reasonable person would
have believed he could leave, given the totality of the circumstances. Thompson v.
Keohane, 516 U.S. 99 (1995). A child’s age is a relevant factor in determining whether a
reasonable child would have believed he was in custody. J.D.B. v. North Carolina, 564 U.S.
261 (2011).

1) Police station

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While police questioning an individual at a police station typically constitutes a custodial

interrogation, the fact that the questioning takes place at a police station does not
automatically make the encounter custodial.

Example: A woman voluntarily goes to the police station to talk about a crime. As soon
as she arrives, she is informed by the o"cer on the case that she is free to leave at any
time and is not under arrest. Even though she is speaking with the police at the police
station, the totality of the circumstances establishes that she is not in “custody,” and
therefore Miranda will not apply. See California v. Beheler, 463 U.S. 1121 (1983); Oregon v.
Mathiason, 429 U.S. 492 (1977).

2) Crime scene

The questioning of a person at the scene of a crime or pursuant to a field investigation

does not constitute custody for Miranda purposes as long as the person questioned is
not under restraint equivalent to that of formal arrest and has the right to leave the
presence of the questioning o"cer.

3) Tra"c stop

Tra"c stops generally are not considered custodial because they generally are brief and
temporary. Berkemer v. McCarty, 468 U.S. 420 (1984).

4) Prison

Imprisonment alone does not necessarily create a custodial situation within the meaning
of Miranda. The questioning of a prisoner, who is removed from the general prison
population, about events that took place outside the prison is not categorically
“custodial” for Miranda purposes. A standard, objective “totality of circumstances”
analysis applies when an inmate is interviewed, including consideration of the language
that is used in summoning the prisoner to the interview and the manner in which the

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interrogation is conducted. Howes v. Fields, 565 U.S. 499 (2012) (holding that defendant
was not in custody for purposes of Miranda during seven-hour interrogation that lasted
well into the night, because he was told at the outset of interrogation, and was reminded
again thereafter, that he could terminate the interrogation and go back to his cell
whenever he wanted).

5) Continuation of custody

The failure of a police agency to provide Miranda warnings to a suspect can render
inadmissible a statement given to a second policy agency that continues the
interrogation of the suspect in the same location immediately after the termination of
the interrogation of the suspect by the first police agency, even though the second
police agency gave the suspect Miranda warnings and questioned the suspect about an
unrelated crime. Miranda v. Arizona, 384 U.S. 436, 494-497 (1966) (addressing Westover
v. United States).

b. “Interrogation”

Interrogation refers not only to express questioning, but also to any words or actions
that the police know or should know are reasonably likely to elicit an incriminating
response. Rhode Island v. Innis, 446 U.S. 291 (1980).

1) Voluntariness of statement

Volunteered statements are not protected by Miranda, as they are, by definition, not the
product of interrogation.

A confession is involuntary only if the police coerced the defendant into making the
confession. Whether a statement is voluntary or coerced is determined based on the
totality of the circumstances (including facts such as the conduct of the police, the

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characteristics of the defendant, and the time of the statement). A claim that a
confession should be excluded because it is involuntary must be decided by the trial
judge as a preliminary question of fact, and not by the jury.

a) Trickery

Trickery by the police or false promises made to the accused by the police may render a
confession involuntary. However, deceit or fraud by the interrogators (i.e., lying about a
co-conspirator’s confession) does not itself make the confession involuntary.

b) Character of the defendant

The defendant’s age, state of health, education, or intoxication are all factors in
determining the coercive nature of the confession. Although a potentially significant
factor, the defendant’s mental condition alone cannot violate the voluntariness
standard. There must be coercive police activity for the confession to be found
involuntary. Colorado v. Connelly, 479 U.S. 157 (1986).

EXAM NOTE: Remember to apply the Miranda warnings only when an individual is
subject to a custodial interrogation. If the police have no intention of questioning the
individual, or if the individual is not in police custody, then the Miranda warnings are not
applicable.

2. Compliance

Once a custodial interrogation begins, anything the defendant says is inadmissible until
the defendant is informed of the Miranda rights and the defendant waives those rights.

The failure to give a suspect the Miranda warnings does not require suppression of
physical fruits of the suspect’s “unwarned but voluntary statements.” United States v.
Patane, 542 U.S. 630, 640 (2004).

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a. Content

The warnings, which must be given before interrogation begins, need not be a verbatim
repetition of the language used in the Miranda decision.

Law-enforcement o"cials must inform suspects:

i) Of their right to remain silent;

ii) That any statement uttered may be used in court;

iii) Of their right to consult an attorney and to have the attorney present during an
interrogation; and

iv) That an attorney will be appointed to represent indigent defendants.

b. Timing

The Miranda warning must be given before interrogation begins. If interrogation is

stopped for a long duration, and then resumed, the warning must be given again. The
length of time between the warning and the defendant's incriminating statement is a
factor in determining whether the defendant has validly waived his Miranda rights.

c. Right to counsel invoked

The right to counsel under the Fifth Amendment is not the same as the constitutional
requirement of the right to counsel under the Sixth Amendment. The right to counsel
under the Fifth Amendment is not automatic. To invoke the right to counsel under the
Fifth Amendment, a suspect must make a specific, unambiguous statement asserting his
desire to have counsel present. If a suspect makes an ambiguous statement regarding
the right to counsel, the police are not required to end the interrogation or to ask
questions or clarify whether the suspect wants to invoke the right. Davis v. United

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States, 512 U.S. 452 (1994). However, once that right to counsel is invoked, all
interrogation must stop until counsel is present. Edwards v. Arizona, 451 U.S. 477, 484
(1981). If the suspect voluntarily initiates communication with the police after invoking
his right to counsel, a statement made by the suspect, such as a statement that the
suspect spontaneously blurts out, can be admissible because it is not made in response
to interrogation. In addition, police may re-open interrogation of a suspect who has
asserted his Fifth Amendment right to counsel if there has been a 14-day or more break
in custody (such as the release back into the general prison population of a suspect who
has been incarcerated for another crime). In such circumstances, the o"cers must give
fresh Miranda warnings and get a valid waiver before beginning questioning. Maryland v.
Shatzer, 559 U.S. 98 (2010).

d. Right to silence invoked

As with the Fifth Amendment right to counsel, the defendant must make a specific,
unambiguous statement asserting his desire to remain silent. Merely remaining silent in
response to police questioning does not invoke the privilege. Salinas v. Texas, 570 U.S.
178 (2013); Berghuis v. Thompkins, 560 U.S. 370 (2010). If a defendant invokes his
Miranda right to remain silent, the interrogator(s) must “scrupulously honor” that
request (e.g., immediately cease interrogation, allow for a significant passage of time,
give a second set of warnings). However, if after the defendant is released from custody,
the defendant indicates a desire to speak to police, then a subsequent interrogation
would be lawful, as long as the defendant was not coerced. The defendant must again
receive fresh Miranda warnings.

e. Grand jury

There is no requirement to give Miranda warnings to a witness testifying for the grand
jury. The witness may, however, consult with an attorney outside the grand jury room.

3. Exceptions to the Miranda Requirement

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a. Public safety

When the public’s safety is at risk, the police are not required to give Miranda warnings
before questioning a suspect.

b. Routine booking

The “routine booking question” exception allows police to ask a suspected drunken
driver routine biographical questions and to videotape the driver’s responses without
first giving the driver Miranda warnings.

c. Undercover police

Miranda warnings are not required if the suspect being questioned is not aware that the
interrogator is a police o"cer. Illinois v. Perkins, 496 U.S. 292, 294 (1990).

Example: The police placed an undercover o"cer, posing as a criminal, in the

defendant’s jail cell, and the undercover o"cer engaged the defendant in a conversation
designed to elicit details of the crime for which the defendant was suspected. Such
statements were admissible in the absence of Miranda warnings. Illinois v. Perkins, supra.

4. Waiver

A defendant may waive his Miranda rights. The burden is on the government to
demonstrate by a preponderance of the evidence that the waiver was made knowingly
and voluntarily. See 1.b.1) Voluntariness of statement, above.

There can be no e!ective waiver, however, until the Miranda warnings are properly
given. Silence on the part of the suspect is not su"cient to waive his Miranda rights.
However, a suspect who has received and understood the Miranda warnings, and has not
invoked his Miranda rights, waives the right to remain silent by making an uncoerced

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statement to the police. Berghuis v. Thompkins, 560 U.S. 370 (2010). The police are not
required to inform the suspect of the defense counsel’s e!orts to reach the defendant
by telephone and need not inform counsel that the defendant is being questioned.

5. Use of Statements Taken in Violation of Miranda

The failure to give Miranda warnings is not a violation until a statement obtained without
the use of warnings is used at trial. Chavez v. Martinez, 538 U.S. 760 (2003).

a. Impeachment purposes

Statements taken in violation of Miranda may be used to impeach the credibility of the
criminal defendant if he takes the witness stand and gives testimony at variance with his
previous admissions. Harris v. New York, 401 U.S. 222, 224 (1971). To be admissible for
impeachment, the statement must be voluntary and trustworthy. The impeaching
admissions may not be used directly in deciding ultimate issues of guilt or innocence;
they may only be used in determining the defendant’s veracity.

Post-arrest silence by a defendant who has received Miranda warnings generally may not
be used by the prosecution as either impeachment or substantive evidence without
violating the defendant’s right to due process. Doyle v. Ohio, 426 U.S. 610 (1976); United
States v. Hale, 422 U.S. 171 (1975). The Supreme Court has never applied the waiver
doctrine to allow post-arrest silence to be admitted for impeachment purposes if the
silence occurred after the defendant waived his right to remain silent. However, some
states require a defendant to re-invoke his right to remain silent after a waiver to
prevent the admission of his subsequent silence as impeachment evidence. Compare
Bass v. Nix, 909 F.2d 297 (8th Cir. 1990), with Schragin v. State, 378 S.W.3d 510 (Tex. App.
2012).

b. Involuntary confessions

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Involuntary confessions (e.g., those produced by coercion) cannot be used either

substantively or for impeachment purposes. If a coerced confession is admitted into
evidence, however, reversal is not automatic; the harmless-error test is applied, and the
conviction will stand if the prosecution can show other overwhelming evidence of guilt.

C. Fruits of a Tainted Confession

1. Physical Evidence

Derivative physical evidence (e.g., a gun) obtained as a result of a non-Mirandized

confession (i.e., a confession that is inadmissible due to the police’s failure to give
Miranda warnings) is admissible, so long as that confession was not coerced. United
States v. Patane, 542 U.S. 630 (2004).

2. Second Confession

A Miranda violation does not automatically require the suppression of incriminating

statements made by the defendant after receiving Miranda warnings. Oregon v. Elstad,
470 U.S. 298 (1985). However, a second confession may be suppressed when the
circumstances indicate that the substance of Miranda has been drained away. For a
plurality of the court, the test is an objective one—a reasonable person in the suspect’s
position would not have understood the Miranda warnings to convey a message that the
suspect retained a choice about whether to remain silent. For the justice who cast the
deciding vote (Justice Kennedy), the test is a subjective one—did the police act with an
intent to circumvent the purpose of the Miranda warnings. Missouri v. Seibert, 542 U.S.
600, 611 (2004).

III. SIXTH AMENDMENT RIGHT TO COUNSEL

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The Sixth Amendment provides that the accused shall have the right to a jury trial, the right
to a public trial, the right to confront witnesses against him, the right to cross-examine
witnesses, the right to be present at his own trial, and the right to “the assistance of counsel
for his defense.” The right to assistance of counsel encompasses not only the right to hire
private counsel, but also the right to be provided with counsel without charge if the accused
is unable to a!ord counsel.

A. Applicability: Right to Counsel

1. Types of Proceedings

The Sixth Amendment provides a constitutional right to counsel in any case in which the
defendant is sentenced to incarceration, even if that sentence is suspended. Scott v.
Illinois, 440 U.S. 367 (1979); Alabama v. Shelton, 535 U.S. 654 (2002).

2. Applicable Stages

The Sixth Amendment right to counsel applies at all critical stages of a prosecution,
after formal proceedings have begun. The right automatically attaches when formal
judicial proceedings have begun, whether that be at a post-arrest initial appearance
before a judicial o"cer, or by way of formal charge, preliminary hearing, indictment,
information, or arraignment. There is no right to counsel at post-conviction
proceedings such as parole and probation hearings or habeas corpus hearings. For a
discussion of a defendant’s right to counsel on an appeal (see § VI.B. Appeal, infra).

EXAM NOTE: Unlike the Fifth Amendment right to counsel, the defendant does not
need to invoke the Sixth Amendment right to counsel. The failure to provide counsel at
trial results in automatic reversal of a conviction.

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a. Critical stages

The Supreme Court has summarized its definition of “critical stage” as those
proceedings between an individual and an agent of the state that amount to trial-like
confrontations, at which counsel would help the accused in coping with legal problems
or meeting his adversary. Rothgery v. Gillespie County, 554 U.S. 191, 212 (2008).

Generally, there is a Sixth Amendment right to counsel at the following critical stages:

i) Post-indictment lineups and in-person identifications;

ii) Post-indictment interrogations, whether custodial or otherwise;

iii) Arraignment and preliminary hearing to determine probable cause to prosecute, bail
hearings, and pre-trial motions; and

iv) Plea bargaining, guilty pleas, trials, and sentencing.

Note that direct appeals as a matter of right, while not protected by the Sixth
Amendment, do require that the state provide counsel to the indigent on equal
protection grounds. Douglas v. California, 372 U.S. 353 (1963).

b. Noncritical stages

The right to counsel generally does not apply to the following events:

i) A witness viewing photos of the alleged defendant;

ii) Pre-charge (investigative) lineups;

iii) Taking of fingerprints, handwriting exemplars, voice exemplars, or blood samples;

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iv) Hearings to determine probable cause to detain the defendant (Gerstein hearing);

v) Discretionary appeals; and

vi) Post-conviction proceedings, such as parole or probation hearings, including habeas

corpus. (The Sixth Amendment does apply, however, to probation revocation hearings
that include sentencing.)

3. Indigence—Right to Appointment of Counsel

When the right to counsel exists, an indigent defendant has the right to the appointment
of counsel. Johnson v. Zerbst, 304 U.S. 458 (1938) (federal trial); Gideon v. Wainwright,
372 U.S. 335 (1963) (state trial, Sixth Amendment right to counsel incorporated by Due
Process Clause of the Fourteenth Amendment).

4. Right to Counsel of Choice

In general, a defendant who is able to a!ord a lawyer is entitled to the counsel of his
own choosing, while an indigent defendant is not entitled to the appointment of counsel
of his own choosing. United States v. Gonzalez-Lopez, 548 U.S. 140, 147–148 (2006)
(defendant who retains his own counsel has the right to be represented by that
attorney); Wheat v. United States, 486 U.S. 153, 159 (1988) (indigent defendant has right
to an e!ective advocate, not to an attorney preferred by defendant). However, a
defendant cannot compel a lawyer to represent him even if the defendant has the ability
to pay the lawyer. Id. In addition, the court can deny a defendant his chosen counsel
when the lawyer is not a member of the bar or is otherwise disqualified from
representing the defendant. Id. (person who is not a member of the bar may not
represent anyone but himself; court may disqualify a lawyer who has a serious conflict of
interest).

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5. Waiver

a. In general

The Sixth Amendment right to counsel can be waived so long as relinquishment of the
right is voluntary, knowing, and intelligent. Patterson v. Illinois, 487 U.S. 285 (1988);
Brewer v. Williams, 430 U.S. 387 (1977).

Even though Miranda rights purportedly arise from the Fifth Amendment, an accused
who receives proper Miranda warnings will be considered su"ciently apprised of his
Sixth Amendment rights and the consequences of abandoning those rights. As long as
the defendant is given Miranda warnings and voluntarily waives those rights, the
defendant’s waiver of his Sixth Amendment rights will also be considered knowing and
intelligent. Patterson v. Illinois, 487 U.S. 285 (1988).

EXAM NOTE: Remember, even if the defendant has made a valid waiver of his right to
counsel, statements made during interrogation must be voluntary to be admissible at
trial, i.e., the police still cannot use compelled statements.

b. Subsequent waivers pursuant to Edwards and Montejo

Recall that in the Fifth Amendment context, once an individual in custody asserts the
Fifth Amendment right to counsel, no subsequent waiver of that right is valid in a police-
initiated custodial interrogation unless counsel is present. Edwards v. Arizona, 451 U.S.
477 (1981). Under the Edwards rule, any subsequent waiver of the Fifth Amendment
right to counsel under these circumstances is presumed to be involuntary. McNeil v.
Wisconsin, 501 U.S. 171 (1991).

A similar presumption used to apply in the Sixth Amendment context, but has been
overturned. See Michigan v. Jackson, 475 U.S. 625 (1986) (overturned by Montejo v.
Louisiana, 556 U.S. 778 (2009)). Therefore, if an accused has not actually asserted his
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right to counsel (e.g., if the court automatically appoints counsel to the accused before
trial), there is no presumption that any subsequent waiver of the right to counsel will be
involuntary. Montejo v. Louisiana, 556 U.S. 778 (2009). The Edwards rule will still apply if
the accused has actually asserted his right to counsel, but remember that the Edwards
rule only applies in custodial interactions. See Edwards v. Arizona, 451 U.S. 477 (1981).
Therefore, even after Sixth Amendment rights attach, the police may initiate non-
custodial interactions with the accused outside the presence of his lawyer, and there will
be no presumption that any knowing waiver of the right to have counsel present for the
interaction is involuntary. Montejo v. Louisiana, 556 U.S. 778 (2009).

c. Right to proceed pro se

A defendant has the constitutional right to refuse counsel and proceed pro se at trial.
The waiver of the right to counsel must be knowingly and intelligently made. To that
end, the court should make the defendant aware of the dangers and disadvantages of
self-representation, such as the inability to raise an “ine!ective assistance of counsel”
defense on appeal. Faretta v. California, 422 U.S. 806 (1975). In addition, the court may,
even over the defendant’s objection, “appoint a ‘standby counsel,’ to aid the accused if
and when the accused requests help, and to be available to represent the accused in the
event that termination of the defendant’s self-representation is necessary.” Id. at 834, fn
46. A defendant who is competent to stand trial may nevertheless be found
incompetent to represent himself. Indiana v. Edwards, 554 U.S. 164 (2009).

6. Withholding Information

The police are under no obligation to inform a suspect that an attorney has been trying
to reach him, and may even withhold that information intentionally, so long as the Sixth
Amendment right to counsel has not yet attached. Moran v. Burbine, 475 U.S. 412 (1986).
If the Sixth Amendment right has attached, this sort of interference with the attorney-
client relationship might be a violation of that right.

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B. O!ense-Specific

Once the Sixth Amendment right to counsel is properly invoked, it applies only to the
specific o!ense at issue in those proceedings. McNeil v. Wisconsin, 501 U.S. 171, 175–176
(1991).

1. Blockburger Test

Two crimes committed in one criminal transaction are deemed to be the same o!ense
for Sixth Amendment purposes unless each o!ense requires proof of an element that
the other does not. Texas v. Cobb, 532 U.S. 162 (2001); Blockburger v. United States, 284
U.S. 299, 304 (1932).

2. Compare to Miranda

Unlike under the Miranda standard, under the Sixth Amendment standard, the
requirement for counsel to be present applies only to interrogations about the o!ense
charged. However, like with Miranda, the defendant may make a knowing and voluntary
waiver of the right to counsel being present.

Example: Defendant Dave has been charged with burglary and is out on bail awaiting
trial. The police also suspect Dave in an unrelated arson case, and they bring him to the
police station to question him about the arson. Dave is given the Miranda warnings and
waives his right to remain silent, but he asks to see his attorney. The police do not call
Dave’s attorney but continue to interrogate Dave until he confesses to the arson. While
the police did violate Dave’s Fifth Amendment right to have an attorney present during
questioning, they did not violate his Sixth Amendment right to counsel, as the arson was
unrelated to the burglary, and he hadn’t been charged with the arson.

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Moreover, the focus in determining whether there has been a violation of a defendant’s
Sixth Amendment right to counsel is on purposeful police conduct—whether the police
have tried to deliberately elicit the incriminating statement from the defendant.
Fellers v. United States, 540 U.S. 519 (2004). In contrast, there may be a violation of a
defendant’s Fifth Amendment right to counsel if the police know or should know their
conduct is reasonably likely to elicit an incriminating response.

C. Remedies for Denial of Counsel

1. E!ect on Conviction

If a right to counsel at a trial proceeding under the Sixth Amendment is denied, the
defendant’s conviction should be automatically reversed, even without a specific
showing of unfairness. Gideon v. Wainwright, 372 U.S. 335, 339 (1963). Automatic
reversal also applies to a conviction obtained after a court has erroneously refused to
permit an attorney chosen by the defendant to represent him, when that attorney is not
supplied by the state. United States v. Gonzalez-Lopez, 548 U.S. 140 (2006).

2. E!ect on Guilty Plea

If the defendant has pleaded guilty at a preliminary hearing, without being given the
opportunity to have counsel, then the defendant has the right to withdraw the plea, and
it may not be used against the defendant as an evidentiary admission. White v.
Maryland, 373 U.S. 59, 60 (1963).

3. E!ect on Denial of Counsel at Nontrial Proceedings

A denial of counsel at a nontrial proceeding, such as a lineup, is subject to harmless-

error analysis. United States v. Wade, 388 U.S. 218, 223 (1967).

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4. Admissibility of a Defendant’s Statements to Informants

Post-indictment statements that a defendant makes to a police informant are

inadmissible when the police intentionally create a situation likely to induce the
defendant into making incriminating statements about the crime for which he was
indicted without the assistance of counsel. United States v. Henry, 447 U.S. 264, 274–275
(1980). There is no Sixth Amendment violation, however, if the police place an
informant in the defendant’s cell simply to listen and report the defendant’s statements,
without questioning the defendant. Kuhlmann v. Wilson, 477 U.S. 436, 456 (1986).

5. Exclusionary Rule Under the Sixth Amendment

a. Fruits doctrine

The fruit of the poisonous tree doctrine is applicable to violations of the Sixth
Amendment right to counsel. Nix v. Williams, 467 U.S. 431 (1984). Both statements and
physical evidence obtained as a result of a Sixth Amendment violation are inadmissible.

b. Impeachment

If the police initiate a conversation with an accused individual who has requested
counsel, any incriminating statements made by the defendant may still be used for
impeachment purposes, despite the fact that the improper police conduct precludes
admission of the statements as part of the prosecution’s case in chief. Michigan v.
Harvey, 494 U.S. 344, 350–351 (1990).

D. Ine!ective Assistance of Counsel

1. Standard of Competence
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The right to counsel encompasses the right to be assisted by a reasonably competent

attorney and is presumed. The right to e!ective counsel extends to the defendant’s first
appeal. To reverse a conviction on the ground of ine!ective counsel, the claimant has
the burden to show that:

i) Counsel’s representation fell below an objective standard of reasonableness; and

ii) Counsel’s deficient performance prejudiced the defendant, resulting in the

reasonable probability that the outcome would have been di!erent.

Strickland v. Washington, 466 U.S. 668, 687 (1984). Counsel’s mere inexperience,
strategy, choice of appellate issues, or even failure to produce mitigating evidence have
all been found insu"cient to rise to the level of ine!ective counsel. Bell v. Cone, 535 U.S.
685 (2002); Jones v. Barnes, 463 U.S. 745 (1988); United States v. Cronic, 466 U.S. 648
(1984). The failure of defense counsel to raise a federal constitutional issue that was law
at the time of the trial, but was later overruled, does not constitute ine!ective assistance
of counsel. Lockhart v. Fretwell, 506 U.S. 364 (1993).

a. Appeal

Although there is no constitutional right to appeal, when a lawyer’s deficient

performance costs a defendant an appeal that the defendant would have otherwise
pursued, prejudice to the defendant is presumed with no further showing from the
defendant of the merits of his underlying claims. Roe v. Flores-Ortega, 528 U. S. 470,
484. This presumption exists even when the defendant, as part of a guilty plea, has
signed a waiver of his right to appeal. Garza v. Idaho, 139 S. Ct. 738, 742 (2019).

2. Conflict of Interest

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The representation of defendants with conflicting interests may amount to ine!ective

assistance of counsel. In general, to overturn a conviction on the basis of a conflict of
interest, a defendant must show that there was an actual conflict of interest and that
such conflict adversely a!ected the attorney’s performance.

a. Actual conflict

To find an actual conflict, a court must determine that the defense attorney is subject to
an obligation or unique personal interest that, if followed, would lead her to adopt a
strategy other than that most favorable to the defendant.

b. Adverse impact

Adverse impact can be established by demonstrating that some plausible alternative

defense strategy or tactic might have been pursued and such strategy or tactic was
inherently in conflict with, or not undertaken, due to the attorney’s other loyalties or
interests. The conflicting character of the strategy is not su"cient if the strategy
actually was rejected because another strategy was viewed as even more favorable to
the accused.

c. Knowledge of the court

If an attorney representing codefendants makes a timely motion for appointment of

separate counsel based on a potential conflict of interest, then the trial judge must
either grant the motion or at least conduct a hearing to determine whether
appointment of separate counsel is warranted under the circumstances. Failure of the
judge to do so requires automatic reversal of a subsequent conviction. Holloway v.
Arkansas, 435 U.S. 475, 484 (1978). Actual conflict and prejudice are presumed under
such circumstances.

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Unless the trial court knows or reasonably should know that a conflict exists, however,
the court is not required to inquire about multiple representations. Cuyler v. Sullivan,
446 U.S. 335, 347–348 (1980). Actual conflict (rather than potential conflict) is required
to be shown on appeal if the issue of separate trials was not brought up during the trial,
and the defendant must show that the conflict adversely a!ected counsel’s
performance. Mickens v. Taylor, 535 U.S. 162, 173 (2002).

d. Rule 44(c)

When co-defendants are represented by the same attorney, Rule 44(c) of the Federal
Rules of Criminal Procedure requires the court to conduct a prompt inquiry into
potential conflicts of interest and advise the defendants of the right to separate
representation. Failure to comply with the Rule, though, will not constitute a per se
reversible error, and an appellate court will likely ask whether the end result was
representation by counsel under an actual conflict.

e. Disqualification despite waiver

A trial court has the authority to disqualify a defense attorney, even over the objection
of the defendant, if the court concludes that there is serious potential of a conflict of
interest. Wheat v. United States, 486 U.S. 153, 158–159 (1988).

3. Communication of Formal Plea O!er

The right to e!ective assistance of counsel extends to the plea bargaining stage.
Defense counsel must accurately communicate to the defendant any formal o!er from
the prosecution to accept a plea on terms and conditions that may be favorable to the
defendant. To show prejudice once a plea o!er has lapsed or has been rejected because
defense counsel failed to accurately communicate the o!er, a defendant must
demonstrate a reasonable probability that she would have accepted the plea o!er had it

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been accurately communicated by defense counsel. A defendant must also

demonstrate a reasonable probability that the prosecutor and trial court would have
accepted the plea if they had the discretion to reject it under state law. Missouri v. Frye,
566 U.S. 134 (2012). Ine!ective assistance of counsel at the plea bargaining stage may
constitute reversible error even if the subsequent trial and conviction are fair. Lafler v.
Cooper, 566 U.S. 156 (2012).

IV. PRETRIAL PROCEDURES

A. Eyewitness Identification Procedures

1. Types

There are two types of eyewitness identification procedures: corporeal and non-
corporeal. Corporeal identifications are “in-person,” as in lineups or show-ups. Non-
corporeal identifications are not in-person and involve police o"cers using photo arrays
for a witness to identify the perpetrator of the crime.

2. Post-Indictment Identifications—Sixth Amendment Right to

Counsel

A defendant is entitled to have counsel present at any post-indictment lineup or show-

up in which the defendant is required to participate. United States v. Wade, 388 U.S. 218
(1967); Gilbert v. California, 388 U.S. 263 (1967). The prosecution bears the burden of
establishing that counsel was present. The right to counsel does not apply to any pre-
indictment lineup, even if it takes place after the defendant has been arrested for
another unrelated crime. Kirby v. Illinois, 406 U.S. 682, 690–691 (1972).

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a. Waiver

The defendant can waive the right to have counsel present at the lineup, provided that
waiver is made knowingly and intelligently. The prosecution bears the burden of
demonstrating that the waiver was valid.

b. Remedy for violation

Testimony about a post-indictment, pre-trial identification in the absence of counsel is

inadmissible at trial, but the witness may still identify the defendant at trial if the
prosecution can show that the identification has independent reliability. United States v.
Wade, 388 U.S. 218 (1967).

c Non-corporeal identification procedures

There is no right to counsel during an identification through a photo array, regardless of

when the photo array is conducted.

3. Impermissibly Suggestive Identification Procedures—Due

Process Rights

A defendant also has a due process right pursuant to the Fifth Amendment (for federal
prosecutions) and the Fourteenth Amendment (for state prosecutions) with regard to a
witness’s identification based on an identification procedure arranged by the police that
was impermissibly suggestive. This right exists whether the identification procedure was
corporeal or non-corporeal, and whether the identification took place before or after
the indictment of the defendant. Perry v. New Hampshire, 565 U.S. 228 (2012).

a. Two-prong test

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Courts use a two-prong test to determine the admissibility of a pre- or post-indictment

corporeal or non-corporeal identification. To prevail, the defendant must demonstrate
that the procedure was impermissibly suggestive and that there was a substantial
likelihood of misidentification. In order to have the identification admitted, the
prosecution can o!er evidence that the identification was nonetheless reliable.

In making its ruling, the court is to consider the following factors:

i) The witness’s opportunity to view the defendant at the time of the crime;

ii) The witness’s degree of attention at the time of the crime;

iii) The accuracy of the witness’s description of the defendant prior to the
identification;

iv) The level of certainty at the time of the identification; and

v) The length of time between the crime and the identification.

Neil v. Biggers, 409 U.S. 188, 199–200 (1972). Only when the indicators of a witness’s
ability to make an accurate identification are outweighed by the corrupting e!ect of law
enforcement suggestion should the identification be suppressed on due process
grounds. Perry v. New Hampshire, supra, at 725, quoting from Manson v. Brathwaite, 432
U.S. 98, 114 (1977). This test applies both to an out-of-court identification and an in-
court identification that is based on a prior out-of-court identification.

1) Impermissibly suggestive

Police identification procedures that are highly suggestive usually are also impermissibly
suggestive. However, even when such procedures are highly suggestive, they may not be
impermissibly so, if they are necessary. For example, an identification made by a witness
of defendant brought in handcu!s to the witness’s hospital room by uniformed police

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o"cers was not impermissible suggestive because the witness was the only person who
could identify the perpetrator, the witness could not leave her hospital room, and it was
uncertain whether the witness would survive. Stovall v. Denno, 388 U.S. 293 (1967).

In addition, a defendant’s due process rights are violated only if it is the police who have
arranged the identification procedure to be impermissibly suggestive. For example,
when a witness, asked by a police o"cer to describe the perpetrator of an automobile
break-in, pointed out her window to the man standing next to the police o"cer, the
identification—although made as a consequence of suggestive circumstances—was not
due to identification procedures arranged by the police. Perry v. New Hampshire, supra.

b. Suppression hearing

A defendant who has moved to suppress an identification is entitled to a suppression

hearing. This hearing usually is held outside the presence of the jury, although exclusion
of the jury is not constitutionally required.

c. Remedy for violation

A conviction as the result of a trial in which an illegal identification was admitted will be
overturned unless, under the doctrine of harmless error, the appellate court is
convinced beyond a reasonable doubt that the improperly admitted identification did
not contribute to the verdict.

B. Preliminary Proceedings

Subsequent to the defendant’s arrest, various court proceedings may be held. These
pretrial proceedings, which take various forms depending on the jurisdiction, can include
a hearing to determine probable cause to detain (a Gerstein hearing), an initial

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appearance, an arraignment, a detention or bail hearing, and a preliminary hearing to

determine probable cause to prosecute the defendant. Some of these proceedings may
be combined, and some may not be required. In addition, the defendant may make
various motions, including motions to suppress evidence obtained in violation of the
defendant’s constitutional rights.

1. Probable Cause to Detain (Gerstein Hearing)

Under the Fourth Amendment, a preliminary hearing must be held after the defendant’s
arrest to determine whether probable cause exists to hold the defendant, unless such
determination has already been made before the defendant’s arrest through a grand jury
indictment or the judicial issuance of an arrest warrant. Gerstein v. Pugh, 420 U.S. 103
(1975). This hearing, known as a Gerstein hearing, need not be adversarial. There is no
right to counsel at this hearing, and hearsay evidence may be introduced, but a hearing
not held within 48 hours after arrest is presumptively unreasonable. County of Riverside
v. McLaughlin, 500 U.S. 44 (1991). However, the failure to hold this hearing does not
a!ect the prosecution of the defendant for the charged o!ense, other than the
exclusion of any evidence discovered as a consequence of the unlawful detainment.
Under the Fifth Amendment, all felony charges must be by indictment of a federal grand
jury, unless waived by the defendant.

2. Initial Appearance

Soon after the defendant is arrested, the defendant must be brought before a judge
who advises the defendant of the charges against him and of his rights and who appoints
counsel if the defendant is indigent. During this initial appearance, which may be held in
conjunction with a Gerstein hearing, the judge may also determine whether the
defendant should be released prior to trial and the conditions of the release (e.g., bail),
accept a plea from the defendant, and set a date for a preliminary hearing.

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3. Arraignment

At an arraignment, the court informs the defendant of the crime with which the
defendant has been charged and elicits the defendant’s response (i.e., plea) to those
charges. At this time, the court may appoint counsel for an indigent defendant. These
events may also take place at the initial appearance.

4. Detention Hearing

In conjunction with the defendant’s initial appearance or at a separate hearing, the court
may determine whether to release the defendant and any conditions upon such release.
At such time, the court may set bail (see § C. Right to Bail, infra).

5. Preliminary Hearing to Determine Probable Cause to

Prosecute

Subsequent to the defendant’s initial appearance, a preliminary hearing may be held to

determine whether there is probable cause to believe that the defendant has committed
a specific crime. At this hearing, which is an adversarial proceeding, the defendant has
the right to counsel. Coleman v. Alabama, 399 U.S. 1 (1970). A defendant who has been
indicted by a grand jury is not entitled to this hearing.

C. Right to Bail

There is no explicit constitutional right to bail. However, any denial of bail must comply
with the Due Process Clause. Therefore, the setting of excessive bail or the refusal to
set bail is immediately appealable. Furthermore, bail set higher than an amount
reasonably calculated to ensure the defendant’s presence at trial is “excessive” under
the Eighth Amendment.

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1. Statutory Bail Provisions

The Bail Reform Act of 1984 governs release or detention determinations in federal
courts in criminal proceedings. Many states have modeled similar statutory bail
provisions on the Act.

2. Presumptions Pre- and Post-Conviction

There is a presumption in favor of pre-trial release. A detention hearing must be held at

the initial appearance for there to be a release. However, there is a presumption against
bail post-conviction, pending appeal. The Federal Rules of Evidence do not apply at
detention hearings.

3. Pre-Trial Detention

Certain pretrial detention practices that are reasonably related to maintaining jail
security are permissible and do not violate due process or the Fourth Amendment.
These include routine inspections of inmates’ cells, prohibiting receipt of outside food
or personal belongings, body-cavity searches, and double bunking.

D. Competency

Incompetency is a bar to trial. The judge has a constitutional duty to investigate and
determine the competence of the defendant to stand trial if such evidence is apparent
to the judge. A separate hearing is held to assess the defendant’s competency. The test
for whether a defendant is competent to stand trial is the same test for determining
whether the defendant is competent to plead guilty: whether the defendant
comprehends the nature of the proceedings against him and has the ability to consult
with a lawyer with a reasonable degree of rational understanding.

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If the defendant is declared mentally incompetent to stand trial, and the charge is a
serious criminal o!ense, then the government may administer antipsychotic drugs.
Three conditions must be met before the defendant can receive these drugs:

i) The treatment should not cause serious side e!ects that would a!ect the fairness of
the trial;

ii) The treatment is necessary and there is no less intrusive method to further the
government’s important interest; and

iii) The treatment is medically appropriate.

Sell v. United States, 539 U.S. 166 (2003).

Insanity Defense Distinguished: The insanity defense considers the defendant’s

mental condition at the time of the crime, whereas incompetence concerns the
defendant’s mental condition at the time of the trial. Detention also varies depending
on whether it is based on incompetency or insanity. In a successful insanity defense, the
defendant may be detained in a mental hospital for a longer term than incarceration
requires. If a defendant is found to be incompetent, confinement in a mental hospital
must be limited to a brief period of time for evaluation.

The conviction of a legally incompetent defendant or the failure of the trial court to
provide an adequate competency determination violates due-process principles by
depriving the defendant of the constitutional right to a fair trial. State courts may place
the burden of proving incompetence on the defendant, but they may not require the
defendant to prove it by clear and convincing evidence.

E. Grand Juries

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1. Indictment

After hearing the prosecution’s evidence, the grand jury decides whether there is
probable cause to charge a particular defendant with a particular crime and, if so,
returns a “true bill” of indictment. (This formal charging process is mandated by the
Fifth Amendment under the federal system for felonies and is used in most eastern
states, but a state is not constitutionally required to use this process, as the Fifth
Amendment Grand Jury Clause has not been incorporated by the Fourteenth
Amendment. In most western states, the charging process is initiated by filing an
information by a prosecutor.)

2. Grand Jury Proceedings

a. Defendant’s rights

The grand jury is a non-adversarial proceeding. The proceedings are conducted in

secret, and the defendant has no right to present or confront witnesses or to introduce
evidence. The defendant is not entitled to a dismissal due to a procedural defect in
grand jury proceedings, unless the defect substantially impacted the grand jury’s
decision to indict. However, the defendant (or any other witness) may make a motion
to seal the grand jury report if he believes that he has been defamed.

1) Double jeopardy

Because jeopardy does not attach until a trial begins, the Double Jeopardy Clause does
not apply to grand jury proceedings. The refusal of a grand jury to indict a defendant
with respect to a specific crime does not prevent the indictment of the defendant for
the same crime by another grand jury. United States v. Williams, 504 U.S. 36, 49 (1992).
(See § VI.A., Double Jeopardy, infra.)

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b. Role of the prosecutor

The prosecutor is the advisor to the grand jury. As such, the prosecutor’s role is to
advise the grand jury with respect to the law and assist the grand jury in its job of issuing
subpoenas for witnesses and evidence. The prosecutor has no legal obligation to
present evidence exculpating the defendant to the grand jury. Thus, a grand jury
indictment cannot be dismissed for the prosecutor’s failure to present exculpatory
evidence. The prosecutor is subject to the grand jury secrecy rules.

c. Witness’s rights

A grand jury witness has no right to counsel in the grand jury room. The witness may
request permission to consult with counsel outside of the jury room before answering a
grand jury question. A prosecutor’s failure to give a Miranda warning to a witness who
then lies to a grand jury does not prevent the prosecution of the witness for perjury.
United States v. Wong, 431 U.S. 174 (1977). Further, a witness who is a target of an
investigation and may become a defendant is not entitled to a warning of his putative
defendant status; the failure to receive such a warning does not protect a lying witness
from a perjury conviction. United States v. Washington, 431 U.S. 181 (1977).

d. Grand jury’s role

The grand jury has subpoena power to investigate matters before it or to initiate
criminal proceedings. The subpoena can be quashed by the opposing party if he can
demonstrate that the evidence sought is not relevant to the investigation. However, the
witness or defendant cannot attack the subpoena based on the grand jury’s lack of
probable cause. The grand jury is not restricted to hearing evidence that would be
admissible at trial; an indictment may generally be based on hearsay or illegally obtained
evidence. United States v. Calandra, 414 U.S. 338, 348 (1974) (illegally seized evidence
admissible in grand jury proceeding); Costello v. United States, 350 U.S. 359 (1956)

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(hearsay evidence admissible in grand jury proceeding). (Note: By federal statute,

information obtained from an illegal wiretap cannot be presented to a grand jury. 18
U.S.C. 2515.)

e. Intentional racial discrimination in the selection of grand jurors

Individuals may not be intentionally excluded from service as grand jurors on the basis of
race. The conviction of a person tried pursuant to an indictment issued by a grand jury
from which individuals have intentionally been excluded on the basis of race must be
overturned, even if the exclusion is determined to be harmless error with respect to the
conviction, and even if the person convicted is not a member of excluded race.
Campbell v. Louisiana, 523 U.S. 392 (1998); Vasquez v. Hillery, 474 U.S. 254 (1986).

F. State's Duty to Disclose

The prosecution has an a"rmative duty to disclose to the defendant any material
evidence favorable to the defendant and relevant to the prosecution’s case in chief that
would negate guilt or diminish culpability or punishment. Brady v. Maryland, 373 U.S. 83
(1963). Failure to make such a disclosure violates the Due Process Clause and is grounds
for reversal, regardless of whether the failure to disclose was intentional, if the
defendant can show that (i) the evidence is favorable to the defendant (i.e., is
exculpatory or impeaches) and (ii) the failure to disclose caused prejudice against the
defendant (i.e., there is a reasonable probability of a di!erent outcome had the evidence
been disclosed earlier). Strickler v. Green, 527 U.S. 263, 281-282 (1999); United States v.
Bagley, 473 U.S. 667, 675 (1985). This duty does not extend to disclosure of
impeachment evidence prior to a plea bargain agreement, United States v. Ruiz, 536 U.S.
622 (2002), or to post-conviction proceedings. DA's O"ce v. Osborne, 557 U.S. 52
(2009).

V. TRIAL
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A. Jury Trial

In the federal system, the Sixth Amendment provides the right to jury trials. States are
obligated under the Fourteenth Amendment to provide jury trials in criminal cases
involving only serious o!enses. Duncan v. Louisiana, 391 U.S. 145 (1968). States have
wide latitude, though, to determine the conduct and details of jury use.

Criminal defendants, with some exceptions, are entitled to be present at initial

arraignments, at every trial stage (including jury empanelment and the reading of the
verdict) and at sentencing. Lewis v. United States, 146 U.S. 370; Diaz v. United States, 223
U.S. 442, 455. Organizational defendants, defendants accused of misdemeanors, and
defendants who persist in disruptive behavior, after being warned by the judge that such
behavior could result in removal, need not be present.

1. Maximum Sentence to Exceed Six Months

There is a constitutional right to a jury trial for non-petty o"enses—those that carry
an authorized sentence of more than six months of imprisonment, regardless of the
actual penalty imposed. Baldwin v. New York, 399 U.S. 66 (1970). The right to a jury trial
attaches for crimes punishable by six months of imprisonment or less only if additional
statutory or regulatory penalties make the o!ense a “non-petty o!ense.” United States
v. Nachtigal, 507 U.S. 1 (1993) (a misdemeanor for which the maximum punishment was
six months in prison and a $5,000 fine or probation not to exceed five years was not a
serious o!ense). There is no right to trial by jury for multiple petty o!enses (those that
carry a combined total maximum term exceeding six months); the prison terms imposed
for such convictions are not aggregated.

a. Contempt

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In a civil contempt case, there is no jury trial requirement if the witness can avoid the
punishment by complying with the court order. In a criminal contempt case that has no
statutorily authorized punishment, the right to a jury trial is determined by the actual
penalty imposed. Thus, a sentence of over six months would trigger the right to a jury
trial. However, an alleged contemnor is not entitled to a jury trial simply because a
strong possibility exists that upon conviction he will face a substantial term of
imprisonment regardless of the punishment actually imposed. Moreover, if a sentence is
imposed for contempt and it is more than six months, an appellate court may reduce
the sentence to six months or less to protect the conviction against constitutional attack
for lack of a jury. There is no right to a jury trial when the sentence imposed is
probation, regardless of the length of the probation, at least when imprisonment
following revocation of probation does not exceed six months.

2. Waiver

A defendant may waive the right to a jury trial and opt for a trial by judge, known as a
“bench trial,” if the waiver is freely and intelligently made. Adams v. United States ex rel
McCann, 317 U.S. 269 (1942). However, the defendant does not have an absolute right to
a bench trial. The court or prosecutor may compel the defendant to submit to a jury
trial, unless the defendant would be denied a fair trial. Singer v. United States, 380 U.S.
24 (1965).

3. Compliance

a. Jury size and unanimity

A jury of fewer than six members is a denial of due process. Ballew v. Georgia, 435 U.S.
223 (1978). A unanimous verdict is constitutionally required of both federal and state
juries, regardless of the number of jurors. Ramos v. Louisiana, 590 U.S. ___, 140 S. Ct.

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1390 (2020), reversing Apodaca v. Oregon, 406 U.S. 404 (1972). The jury-unanimity rule
applies retroactively only to cases on direct—not collateral—review. Edwards v. Vannoy,
593 U.S. ___, 141 S. Ct. 1547 (2021).

The Federal Rules of Criminal Procedure require a unanimous vote by a 12-member jury
in federal criminal trials, unless waived in writing and approved by the court. A verdict
by 11 jurors is permitted if the 12th juror is excused for good cause after deliberations
begin.

b. Composition of the jury 1) Representative cross-section of the community

The Equal Protection Clause bars racial discrimination in the selection of juries, including
grand juries. The requirement that a jury be selected from a representative cross-
section of the community also extends to gender discrimination. However, the actual
jury selected need not represent a fair cross-section of the community. Holland v.
Illinois, 493 U.S. 474, 480 (1990).

2) All defendants may challenge jury selection discrimination

The defendant has standing to challenge the jury-selection process, regardless of any
showing of actual bias. Powers v. Ohio, 499 U.S. 400, 410–411 (1991).

3) Prima facie case

The prima facie case for absence of a representative cross-section can be established by
showing that:

i) The group allegedly excluded is a “distinctive” group in the community;

ii) The group was not fairly represented in the venire from which the jury was
chosen; and

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iii) The underrepresentation resulted from a systematic exclusion of the group in

the jury-selection process.

To rebut, the prosecution must show that the disproportionate exclusion manifestly and
primarily advances a significant governmental interest.

4) State’s right to use neutral principles

In response to a claim of intentional racial discrimination in jury selection, the state has
the right to apply neutral, nonracial principles to jury selection, even though it results in
a smaller percentage of minorities on juries. The state must prove “absence of
discriminatory intent.”

5) Peremptory challenges

Peremptory challenges are requests by both parties during the voir dire jury-selection
process to disqualify potential jurors without the need to show cause.

a) Discriminatory use

The Fourteenth Amendment Equal Protection Clause prohibits both the criminal
defendant and the prosecutor from exercising peremptory challenges solely based on
race, ethnicity, or gender. J.E.B. v. Alabama, 511 U.S. 127 (1994) (gender); Batson v.
Kentucky, 476 U.S. 79, 84 (1986) (race); Hernandez v. New York, 500 U.S. 352 (1991)
(ethnicity). The defendant need not be a member of the excluded group in order to
have standing to contest the prosecution’s use of its peremptory challenges.

If the explanation for striking a juror is deemed pretextual, then it gives rise to an
inference of discriminatory intent that makes it di"cult for the challenge to survive.
Snyder v. Louisiana, 552 U.S. 472, 485 (2008).

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The United States Supreme Court has set forth a three-prong test (the “Batson” test) to
determine whether a peremptory challenge has been exercised on the basis of race, in
violation of the Equal Protection Clause of the Fourteenth Amendment. The test
requires that:

i) The moving party establishes a prima facie case of discrimination;

ii) The party who exercised the challenge provides a race-neutral explanation for the
strike;

iii) The moving party carries her burden of proving that the other party’s
pro"ered reason was pretextual and that the strike was indeed motivated by
purposeful discrimination.

Once the party who exercised the challenge o!ers a race-neutral explanation and the
trial court has ruled on the ultimate question of intentional discrimination, the
preliminary issue becomes moot. The ultimate burden of persuasion regarding
racial motivation rests with the opponent of the strike.

b) Not constitutionally required

The loss of a peremptory challenge does not violate the right to an impartial jury. Ross
v. Oklahoma, 487 U.S. 81, 88 (1988). A defendant’s exercise of peremptory challenges
does not violate this right when the defendant chooses to use such a challenge to
remove a juror who should have been excused for cause. United States v. Martinez-
Salazar, 528 U.S. 304, 307 (2000).

c) Harmless-error doctrine

The Constitution allows states to choose between harmless-error review and automatic
reversal when a judge, acting in good faith, erroneously denies a defendant’s peremptory
challenge. Rivera v. Illinois, 556 U.S. 148 (2009). Thus, if state law permits harmless-error

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review of the erroneous seating of the juror, there is no constitutional requirement for
automatic reversal of the defendant’s conviction.

c. Impartial jury

The Sixth Amendment provides that an accused person is entitled to a trial by an

impartial jury. Claims of juror bias and misconduct are subject to the harmless-error
rule.

1) Views on race

Due process requires a court to permit a defendant to inquire on voir dire into ethnic or
racial prejudice of possible jury members if the issues to be tried involve allegations of
racial or ethnic prejudice, or race is “inextricably bound up in the case.” Ristiano v. Ross,
424 U.S. 589, 597 (1976) (voir dire regarding potential juror’s racial prejudice not
constitutionally required simply because victim was white and the defendant was black).

2) Views on capital punishment

Prospective jurors who are opposed to the death penalty may be removed for cause if
their opposition to the death penalty is so strong as to prevent or substantially impair
the performance of their duties at the sentencing phase of the trial. Wainwright v. Wirr,
469 U.S. 412, 424–425 (1985); Adams v. Texas, 448 U.S. 38, 44 (1980).

An improper exclusion of a juror from a jury that imposed a death sentence is subject to
automatic reversal. Gray v. Mississippi, 481 U.S. 648, 668 (1987).

d. Sentencing 1) Enhancements

When a sentence may be increased if additional facts are established, a jury must
generally determine the existence of such facts beyond a reasonable doubt. Other than
the fact of a defendant’s prior conviction, enhancement of a defendant’s sentence by a

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judge without such a jury determination violates the defendant’s right to a jury trial.
Apprendi v. New Jersey, 530 U.S. 466, 476 (2000). This limitation on a judge’s ability to
impose an enhanced sentence also applies when the defendant has entered a guilty
plea. Blakely v. Washington, 542 U.S. 296 (2004). However, the harmless-error test
applies to determine whether a sentence enhanced in violation of a defendant’s right to
a jury trial must be reversed. Washington v. Recuenco, 548 U.S. 212 (2006).

2) Concurrent versus consecutive sentences

Judges can decide whether sentences for multiple crimes run concurrently or
consecutively without violating this right. Oregon v. Ice, 555 U.S. 160 (2009).

e. Inconsistent verdicts

If a jury renders a verdict that a defendant is guilty of certain o!enses but not guilty of
other related o!enses, then the verdict is not reviewable on the grounds of
inconsistency, even when the jury acquits the defendant of an o!ense that is a predicate
o!ense to an o!ense for which the same jury finds the defendant guilty. United States v.
Powell, 469 U.S. 57 (1984). This rule, which permits inconsistent verdicts, is also
applicable when a defendant is convicted of an o!ense for which a co-defendant, who is
tried at the same time, is acquitted, even though the facts would logically dictate the
same verdict for each defendant. United States v. Dotterweich, 320 U.S. 277 (1943). This
rule extends to bench as well as jury trials. Harris v. Rivera, 454 U.S. 339 (1981). (Note:
The defendant may challenge a jury verdict on the grounds that there was insu"cient
evidence to establish the defendant’s commission of a crime.)

B. Guilty Pleas

A guilty plea is an admission of facts contained in the charging document (e.g.,

indictment, information).

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1. Knowing and Voluntary

Because a guilty plea constitutes both a confession and a waiver of various

constitutional rights, the plea must be both intelligent and voluntary. Boykin v. Alabama,
395 U.S. 238 (1969); McCarthy v. United States, 394 U.S. 459 (1969). The record must
reflect that the judge has determined that the defendant knows and understands the
following:

i) The nature of the charges and their essential elements;

ii) The consequences of the plea (e.g., the maximum and minimum possible sentences,
possible immigration consequences); and

iii) The rights that the defendant is waiving (e.g., right to a trial).

(Note: The judge does not personally need to explain each element of the crime. It is
su"cient for the defendant’s counsel to explain the nature and elements of the crime to
him. Bradshaw v. Stumpf, 545 U.S. 175 (2005).) The judge must also determine that the
plea did not result from force or improper threats or from promises other than those
contained in the plea agreement.

a. Factual basis for plea

The U.S. Constitution does not forbid criminal sentencing of defendants who are willing
to waive their trial and accept a plea while maintaining their innocence because an
express admission of guilt is not a constitutional requisite for the imposition of a
criminal penalty. North Carolina v. Alford, 400 U.S. 25, 37 (1970). However, under the
federal rules a judge, before accepting a guilty pleas, must ascertain that there is factual
basis for a defendant’s plea. Fed. R. Crim. P. 11(b)(3).

b. E!ect of violation

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When the court fails to ensure that the plea was knowing and voluntary, the defendant is
entitled to withdraw his plea.

2. Right to Counsel

In entering a plea, a defendant has the right to counsel. White v. Maryland, 373 U.S. 59
(1963).

3. Plea Bargain

A plea bargain between the prosecutor and the defendant is treated as a contract. The
bargain may involve the crimes with which the defendant has been charged, such as a
promise by the prosecutor to drop specific charges in exchange for the defendant’s
promise to plead guilty to other charges, or the defendant’s sentence, such as a promise
by the prosecutor to recommend a particular sentence in exchange for the defendant’s
guilty plea.

a. No right to bargain

A defendant cannot compel the prosecutor to bargain; the defendant does not have a
constitutional right to plea bargain. Weatherford v. Bursey, 429 U.S. 545 (1977).

b. Pressure to bargain

A defendant’s plea made in response to the prosecution’s threat to bring more serious
charges does not violate the protection of the Due Process Clause against prosecutorial
vindictiveness, at least when the prosecution has probable cause to believe that the
defendant has committed the crimes. Bordenkircher v. Hayes, 434 U.S. 357 (1978).
Similarly, the bringing of felony charges against a defendant after the defendant asserted

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his right to a jury trial for misdemeanor o!enses related to the same incident does not
in itself constitute prosecutorial vindictiveness. United States v. Goodwin, 457 U.S. 368
(1982).

c. No duty to disclose impeachment information

The prosecution is not required to disclose impeachment information or information

related to an a"rmative defense to a defendant when the defendant enters into a plea
bargain agreement prior to trial. The failure to disclose such information does not
render the defendant’s plea bargain involuntary. United States v. Ruiz, 536 U.S. 622
(2002).

d. Enforcement of the bargain 1) Court

When entering into a plea bargain, the agreement is enforceable against the defendant
and the prosecutor, but not against the judge. If the judge is not satisfied with the
bargain, he can reject the plea. A defendant does not have a constitutional right to have
his plea accepted by the court.

2) Prosecution

Should the prosecution violate the provisions of the plea bargain, the judge decides
whether specific performance of the plea is required or whether the defendant can
withdraw his plea. Santobello v. New York, 404 U.S. 257 (1971).

3) Defense

If a defendant fails to abide by the plea agreement (e.g., fails to testify in another trial),
then the prosecution can have the sentence vacated and reinstate the original charge.
Ricketts v. Adamson, 483 U.S. 1 (1987).

4. E!ect of the Plea on the Defendant’s Rights

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Generally, a defendant, by entering a guilty plea, waives his constitutional rights, such as
the right to a trial, the privilege against self-incrimination, and the right to confront his
accusers. However, a defendant may challenge a guilty plea on the due?process grounds
that it was not a knowing and voluntary waiver of such rights. Boykin v. Alabama, 395
U.S. 238 (1969). In addition, a guilty plea does not constitute a waiver of a double
jeopardy challenge unless the waiver is agreed to in the plea agreement. Menna v. New
York, 423 U.S. 61 (1975). A defendant may also attack a guilty plea that is due to
ine!ective assistance of counsel. Hill v. Lockhart, 474 U.S. 52 (1985). (Note: A defendant
may also challenge a guilty plea on the grounds that the court lacked jurisdiction.
Menna v. New York, supra.)

C. Speedy Trial

The Due Process Clause and federal and state statutes protect defendants from
intentional and prejudicial pre-accusation delay. The Sixth Amendment speedy trial
guarantee, the Fourteenth Amendment, the Speedy Trial Act of 1974, and other federal
and state statutes protect defendants from undue post-accusation delay.

1. Commencement of the Right

Statutes of limitations are the primary safeguards against pre-accusation delay.

However, the Due Process Clause may be violated if the delay was used to obtain a
tactical advantage for the prosecution or to harass the defendant. United States v.
Marion, 404 U.S. 307 (1971). Delay resulting from an investigation conducted in good
faith does not violate the Due Process Clause. United States v. Lovasco, 431 U.S. 783
(1977).

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Under the Sixth and Fourteenth Amendments, the time period commences at the time
of arrest or formal charge, whichever comes first. The defendant need not know about
the charges against him for the right to attach.

2. Balancing Test

The factors to be considered in determining whether the defendant has been deprived
of a speedy trial post-accusation are the:

i) Length of the delay;

ii) Reason for the delay;

iii) Defendant’s assertion of a right to a speedy trial; and

iv) Prejudice to the defendant.

Courts weigh these factors and determine whether the state made a “diligent, good-
faith e!ort” to bring the defendant to trial. Barker v. Wingo, 407 U.S. 514, 530 (1972). A
delay caused by the inaction of an attorney assigned by the state to represent the
defendant may be attributable to the defendant, but a delay caused by the court’s failure
to promptly appoint replacement counsel when an assigned attorney withdraws or by a
breakdown in the public-defender system is attributable to the state. Vermont v. Brillon,
556 U.S. 81 (2009).

3. Remedy

If the defendant’s right to a speedy trial is violated, the charges are dismissed with
prejudice.

D. Public Trial

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1. Defendant’s Right

The Sixth Amendment guarantees a criminal defendant the right to a public trial. The
defendant may waive the right and request a closed proceeding. However, because the
request also implicates the First Amendment right of access of the press and the public,
the court must consider several factors, and the likelihood of a closed proceeding is
slight. The court may even allow the proceedings to be televised over the defendant’s
objection.

The right to a public trial extends to preliminary hearings and suppression hearings. A
suppression hearing may be closed if (i) there is an overriding interest likely to be
prejudiced by an open trial, (ii) the closure is not in excess of the interest, (iii) other
alternatives have been considered, and (iv) the court enters adequate findings to
support closure.

2. Public’s Right

Regardless of the wishes of the defendant or prosecutor, a trial must be public unless
there is either a substantial likelihood of prejudice to the defendant or a need to limit
access to ensure an orderly proceeding. This right extends even to voir dire and many
other preliminary matters. Press-Enterprise Co. v. Superior Court of CA (Press-
Enterprise I), 464 U.S. 501, 509–10 (1984).

E. Fair Trial

1. Impartial Judge

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Due process requires that a judge possess neither actual nor apparent bias. If actual or
apparent bias exists, the judge must follow a recusal process in the federal or state
jurisdiction. The impermissible bias or prejudice usually must stem from an extrajudicial
source.

2. Fair Conduct by the Prosecutor

a. Examples of misconduct

A prosecutor may not:

i) Make material misstatements of law or fact;

ii) Elicit information from the defendant outside the presence of his counsel;

iii) Express opinions about the defendant’s guilt or innocence;

iv) Make unfair or improper remarks about the defendant, his counsel, or witnesses;

v) Comment on the defendant’s failure to testify at trial; or

vi) Make improper remarks to the jury to inflame their passions to convict for an
improper reason.

b. No use of false testimony

A prosecutor may not knowingly use perjured or false testimony for the case in chief, for
sentencing, or to impeach the credibility of a witness.

c. No suppression of favorable evidence

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As discussed in IV.F., supra, due process requires the prosecution to disclose evidence
favorable to the accused (i.e., exculpatory or impeaching) when such evidence is
material to guilt or punishment. Evidence is material if there is a “reasonable
probability” that disclosure would have changed the outcome of the proceeding; a
reasonable probability is “a probability su"cient to undermine confidence in the
outcome.” United States v. Bagley, 473 U.S. 667, 682 (1985). The prosecution’s failure to
disclose evidence in its possession both favorable and material to the defense entitles
the defendant to a new trial. Brady v. Maryland, 373 U.S. 83 (1963). Under Bagley, the
prosecution’s failure to turn over specifically requested evidence will seldom, if ever, be
excused.

Similarly, police violate due process when, in bad faith, they destroy evidence that would
have been useful to the defendant at trial. The defendant does not, however, have the
right to require police to preserve all evidence if it is not certain that the evidence would
have been exculpatory.

F. Right to Confrontation

1. Trial

The accused has the right to directly encounter adverse witnesses, to cross-examine
adverse witnesses, and to be present at any stage of the trial that would enable the
defendant to e!ectively cross-examine adverse witnesses as guaranteed by the Sixth and
Fourteenth Amendments. Not only does this right allow the defendant to cross-examine
the adverse witness, but it also allows the defendant to observe the demeanor of the
adverse witness. A witness may invoke the right against self-incrimination; however,
such an invocation after testimony has already been made may violate the defendant’s
right to confrontation, guaranteed by the Sixth and Fourteenth Amendments, because
the witness’s invocation will prevent adequate cross-examination by the defendant.

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2. Compliance

a. Face-to-face confrontation

Face-to-face confrontation is not an absolute right. A criminal defendant has the right
to confront witnesses against him under the Sixth Amendment, unless preventing such
confrontation is necessary to further an important public policy and the reliability of the
testimony is otherwise assured. A defendant who voluntarily leaves the courtroom or a
disruptive defendant whom the judge removes from the courtroom has not had his right
to confrontation violated. This is to be determined on a case-by-case basis.

The state’s interest in protecting child witnesses from more than de minimis trauma as a
result of testifying in the defendant’s presence is considered an important public
purpose under this rule. Maryland v. Craig, 497 U.S. 836, 855–856 (1990).

b. Cross-examination of witnesses

The right to confrontation means more than being allowed to confront the witness
physically. The principal purpose of confrontation is to secure for the defendant the
opportunity of cross-examination of the prosecution’s witnesses.

1) Impeachment for bias

A denial of the opportunity to cross-examine a prosecution witness with regard to bias

violates the Confrontation Clause. Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).
However, such denial is subject to harmless-error analysis. Moreover, trial judges retain
wide latitude to impose reasonable limits on such cross-examination based on concerns
about, among other things, harassment, prejudice, confusion of the issues, the safety of
the witness, or interrogation that is repetitive or only marginally relevant. Id.

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2) Memory loss by the witness

The fact that a witness has a memory loss does not by itself violate the Confrontation
Clause. Delaware v. Fensterer, 474 U.S. 15, 19–20 (1985). The Supreme Court has held
that the Confrontation Clause does not bar testimony concerning a prior out-of-court
identification when the identifying witness is unable, because of memory loss, to explain
the basis for the identification. A defendant may conduct an e!ective cross-examination
if given the opportunity to address the very fact of the poor memory of the witness.
United States v. Owens, 484 U.S. 554, 564 (1988).

3) Confrontation Clause and the hearsay rule

The Confrontation Clause limits the use of hearsay evidence in a criminal trial. Out-of-
court statements by witnesses that are “testimonial” generally are barred under the
Confrontation Clause, unless the witnesses are unavailable and the defendant had a prior
opportunity to cross-examine those witnesses, regardless of whether such statements
are deemed reliable by the court. If, however, the declarant appears for cross-
examination at trial, then the Confrontation Clause places no constraints at all on the
use of the declarant’s prior out-of-court testimonial statements. Crawford v.
Washington, 541 U.S. 36, 59 (2004).

Out-of-court testimonial statements are not barred by the Confrontation Clause when
they are used for a purpose other than establishing the truth of the matter asserted (i.e.,
when they are not used for a hearsay purpose). Id. See also Tennessee v. Street, 471 U.S.
409, 417 (1985).

The Confrontation Clause has no application to “non-testimonial” out-of-court

statements. Whorton v. Bockting, 549 U.S. 406, 420 (2007).

a) Testimonial statements

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A statement is considered “testimonial” if the declarant would reasonably expect it to be

used in a prosecution. Such statements include a"davits, custodial examinations, prior
testimony, and statements given in response to police interrogation. Crawford v.
Washington, 541 U.S. 36, 40 (2004). The Supreme Court has also held that certificates
of analysis, which state the results of state laboratory tests, are testimonial evidence that
may not be admitted without accompanying live testimony by the analyst who
conducted the tests. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 340 (2009). It is not
su"cient to substitute the testimony of another analyst who is familiar with the testing
protocol but did not perform or observe the tests or sign the report. Bullcoming v. New
Mexico, 564 U.S. 647 (2011).

b) Non-testimonial statements

The Confrontation Clause permits the admission of non-testimonial statements, even if

they lack indicia of reliability. Whorton v. Bockting, 549 U.S. 406, 411 (2007). Statements
made for the primary purpose of assisting the police in the investigation of an ongoing
emergency are not testimonial. Examples of non-testimonial statements include
statements made to a 911 operator during a domestic dispute, Davis v. Washington, 547
U.S. 813, 822 (2006), and statements made to police o"cers by the victim of a mortal
gunshot wound as he lay in a gas-station parking lot. Michigan v. Bryant, 562 U.S. 344
(2011).

4) Witness unavailable

The right of confrontation is satisfied if the defense counsel had a right to cross-
examine the witness at an earlier hearing, provided that the prosecution failed in a good-
faith e!ort to produce the witness at the trial and the declarant is now unavailable.
However, if the witness is unavailable because the defendant acted with a purpose to
prevent the witness from testifying, then testimonial hearsay is admissible. Giles v.
California, 554 U.S. 353, 373 (2008).

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5) Confession of a non-testifying co-defendant at a joint trial a)

Bruton rule

The admission of a confession by a non-testifying co-defendant at a joint trial against the

defendant violates the Sixth Amendment, even when it merely corroborates the
defendant’s own confession. Bruton v. United States, 391 U.S. 123, 132 (1968). A limiting
instruction will not cure the defect. If the co-defendant testifies, then the rule does not
apply. The rule does not apply at a bench trial. Lee v. Illinois, 476 U.S. 530, 539 (1986). It
also does not apply to the statements of an accomplice who is not tried as a co-
defendant or to a co-defendant who takes the stand and denies making such a
statement. Nelson v. O’Neil, 402 U.S. 622, 629–630 (1971); Dutton v. Evans, 400 U.S. 74,
88–89 (1970).

b) Harmless error

Admission of a co-defendant’s statement in violation of Bruton, however, is subject to

harmless-error analysis. Schneble v. Florida, 405 U.S. 427, 430 (1972).

c) Severance

The accused may assert a demand for a severance of the trial of his case from a co-
defendant’s case whenever the prosecution intends to introduce a confession that is
hostile to one co-defendant, and the confession:

i) Implicates the confessing defendant but is not admissible against the non-confessing
defendant; and

ii) Cannot be edited to exclude inculpation of the non-confessing defendant.

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Bruton v. United States, 391 U.S. 123, 132 (1968). The prosecutor may avoid severance if
the court denies the use of the statement or the prosecutor chooses not to use it at
trial.

G. Due Process

1. Right to Testify

A defendant has a right to testify and to present evidence on his own behalf, including
the right to call as witnesses other persons charged as principals, accomplices, or
accessories in the same crime. Washington v. Texas, 388 U.S. 14 (1967) (Sixth
Amendment Compulsory Process Clause made applicable to the states by the
Fourteenth Amendment Due Process Clause).

2. Burden of Proof

a. Presumptions 1) Presumption of innocence

While a defendant is not automatically entitled to a jury instruction apprising the jury of
the presumption of innocence doctrine, the presumption is a basic tenet of a fair trial,
and it may be required when necessary for a fair trial. Kentucky v. Whorton, 441 U.S.
786, 789 (1979).

2) Presumptions of facts a) Permissive presumption

A permissive presumption (i.e., a presumption that the trier of fact is not compelled to
accept and that does not shift the burden of proof) regarding an element of an o!ense
does not violate the due-process requirement that the prosecution must prove each
element of an o!ense unless the presumption is irrational. A presumption is not

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irrational if it is more likely than not to flow from the proven fact on which it depends.
County Court v. Allen, 442 U.S. 140, 163–164 (1979) (upholding the statutory presumption
that the occupants of a car in which firearms are found are in possession of the
firearms).

b) Mandatory presumption

A mandatory presumption regarding an element of an o!ense violates the due-process

requirement. Sandstrom v. Montana, 442 U.S. 510, 522 (1979) (jury instruction that a
person intends the ordinary consequences of his voluntary acts constituted a
mandatory presumption when the crime—deliberate homicide—required proof of
intent). This could include either a conclusive presumption that cannot be rebutted
(which would relieve the prosecution of having to prove an element of their case), or a
rebuttable mandatory presumption (which shifts the burden of proof regarding the
element of the o!ense). To the extent that these presumptions require the trier of fact
to accept a fact as proving an element of the crime and disallow the trier of fact from
rejecting it, or shift the burden of an element to the defense, they are unconstitutional.
County Court, 442 U.S. at 159; Sandstrom, 442 U.S. at 524.

b. Elements of the prosecution’s case

The Due Process Clause requires that the prosecution prove all of the elements of the
case beyond a reasonable doubt. Due process does not require the court to use any
particular words to advise the jury of the government’s burden of proof. In some
jurisdictions, the failure to instruct on reasonable doubt may result in reversible error,
whereas in other jurisdictions, the lack of such an instruction is per se reversible error.

Sentencing factors need not be proved beyond a reasonable doubt unless the fact is
being used to increase the penalty beyond the proscribed statutory maximum, in which
case proof beyond a reasonable doubt is required. Apprendi v. New Jersey, 530 U.S. 466,

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492 (2000).

c. A"rmative defenses

The state is not forbidden by the Due Process Clause from placing the burden of
proving an a"rmative defense—such as insanity, self-defense, entrapment, or duress—
on the defendant. Dixon v. United States, 548 U.S. 1, 13 (2006).

d. Directed verdict

In a criminal case, a judge may order a directed verdict only for acquittal; the power to
convict is reserved to the jury.

After the government closes its evidence or after the close of all the evidence, if the
prosecution has failed to prove any element of the o!ense, the defense may file a
motion for judgment of acquittal of any o!ense for which the evidence is insu"cient to
sustain a conviction. A court should only grant a judgment of acquittal if it finds that
there is insu"cient evidence for a jury reasonably to find the defendant guilty. Even if
no motion for judgment of acquittal is filed on behalf of the defendant, the court may
enter such a judgment on its own motion if the evidence is insu"cient to sustain a
conviction. Fed Rules Crim. Proc R. 29(a).

The defendant may also move for a judgment of acquittal, or renew such a motion,
within 14 days after a guilty verdict or after the court discharges the jury, whichever is
later. Fed Rules Crim. Proc R. 29(b).

H. Sentencing

1. Applicable Rights

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Sentencing is considered a critical stage triggering the Sixth Amendment right to

counsel. A defendant may have the right to confrontation and cross-examination at
sentencing, particularly in death-penalty cases, or when a sentence is based upon a
finding of new facts beyond those necessary to prove the o!ense charged. Gardner v.
Florida, 430 U.S. 349, 358 (1977); Specht v. Patterson, 386 U.S. 605, 610 (1967).

2. Enhancement Over the Statutory Maximum

Any fact, other than a prior conviction, that can be used to increase a sentence beyond
the statutorily prescribed maximum must be charged in an indictment, submitted to a
jury, and established beyond a reasonable doubt. A fact is considered an element of a
crime, as opposed to a sentencing enhancement, when it can increase the maximum
sentence imposed. The failure to abide by the above procedure is a violation of the
defendant’s due-process rights under the Fifth Amendment and Sixth Amendment rights
to notice and a jury trial, both of which are incorporated against the states through the
Fourteenth Amendment. Apprendi v. New Jersey, 530 U.S. 466, 476 (2000).

It is not a Sixth Amendment violation for a judge to impose consecutive sentences based
on facts that were not found by the jury, but rather by the judge. Oregon v. Ice, 555 U.S.
160 (2009). The rule of Apprendi v. New Jersey, supra, is thus limited to sentencing for
single crimes, not to the arrangement for punishing multiple o!enses. However, a
sentencing judge, sitting without a jury, may not find the facts necessary to impose the
death penalty. Ring v. Arizona, 536 U.S. 584 (2002). Similarly, a state law allowing a jury to
issue an “advisory sentence,” but allowing the judge alone to ultimately weigh the facts
to decide whether to impose the death penalty, is unconstitutional. Hurst v. Florida, 577
U.S. 92 (2016).

Harmless-error analysis applies in deciding whether or not to overturn a sentence for a

judge’s failure to submit a sentencing factor to the jury. Washington v. Recuenco, 548
U.S. 212, 222 (2006).

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I. Cruel and Unusual Punishment

1. Applicability

The Eighth Amendment to the U.S. Constitution prohibits the federal government from
imposing cruel and unusual punishment for federal crimes, or “such punishment as
would amount to torture or barbarity, any cruel and degrading punishment not known
to the common law, or any fine, penalty, confinement, or treatment so disproportionate
to the o!ense as to shock the moral sense of the community.” U.S. Const. amend. VIII.
The Eighth Amendment’s protections are especially important when the sentences
imposed are the highest form of punishment under a state’s sentencing law.

2. Compliance

a. Non-death penalty 1) Physical conditions of incarceration

The physical conditions of incarceration amount to cruel and unusual punishment only if
the prisoner can show that prison o"cials had actual knowledge of a substantial risk to
the prisoners.

2) Physical force

A prisoner need not show serious injury to recover for a violation of the Eighth
Amendment prohibition against cruel and unusual punishment. The inquiry is whether
the physical force was applied in a good-faith e!ort to maintain or restore discipline,
rather than applied maliciously and sadistically to cause harm.

3) Sentence proportionality

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A sentence that is grossly disproportionate to the crime constitutes cruel and unusual
punishment. However, a lengthy sentence does not necessarily violate the Eighth
Amendment. Compare Weems v. United States, 217 U.S. 349 (1910) (reversing
punishment of 20 years’ imprisonment for falsifying a public record) with Harmelin v.
Michigan, 501 U.S. 957 (1991) (upholding punishment of life imprisonment without the
possibility of parole for drug dealing based on possession of more than 650 grams of
cocaine) and Ewing v. California, 538 U.S. 11 (2003) (upholding punishment of an
indeterminate sentence of 25 years to life for theft of merchandise valued at about
$1,200 after conviction of at least two other felonies, at least one of which was serious
or violent).

4) Equal protection limitations on punishment

A jail sentence is impermissible if it is imposed only because the defendant was unable to
pay a fine. If a defendant has made reasonable bona fide e!orts to pay the fine, then
revocation of probation without consideration of alternative punishments is
fundamentally unfair under the Fourteenth Amendment.

5) Repeat o!enders

Some jurisdictions have statutes imposing mandatory indeterminate life sentences (e.g.,
25 years to life) on defendants who commit three felonies, even if the felonies are non-
violent property-related o!enses. These recidivist statutes are not unconstitutional
under either the Double Jeopardy Clause of the Fifth Amendment or the Cruel and
Unusual Punishment Clause of the Eighth Amendment. Ewing v. California, supra.

6) Defendant’s perjured testimony

If a trial judge believes that the defendant perjured himself during the trial, then the
judge may take this belief into consideration when determining the sentence.

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b. Capital punishment

The death penalty may be imposed only under a statutory scheme that provides:

i) Clear and objective standards;

ii) Specific and detailed guidance; and

iii) An opportunity for rational review of the process.

1) Homicide crimes a) Aggravating circumstances

A defendant in a homicide case cannot be sentenced to death unless the trier of fact
convicts the defendant of murder and finds at least one “aggravating circumstance” at
either the guilt phase or penalty phase. Brown v. Sanders, 546 U.S. 212, 218–19 (2006).
The aggravating circumstance must meet two requirements:

i) It must not apply to every defendant convicted of murder; and

ii) It must not be unconstitutionally vague. (For example, “especially heinous,

atrocious, or cruel” conduct definition is unconstitutionally vague.)

The trier of fact can consider both statutory and non-statutory aggravating
circumstances, but the death penalty cannot be imposed without one statutorily defined
aggravating factor being found.

b) Mitigating circumstances

A death sentence violates the Eighth and Fourteenth Amendments if the sentencing
judge refuses to review or admit mitigating evidence. Mitigating evidence must be
presented if it meets a low threshold test for relevance. Woodson v. North Carolina, 428

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U.S. 280, 316 (1976).

Note: When the death penalty is not imposed (e.g., when the defendant receives a
sentence of life in prison without parole), a mandatory sentence may be imposed
without the presentation of mitigating evidence. Harmelin v. Michigan, 501 U.S. 957, 965
(1991).

Capital-sentencing courts are not required to instruct juries that the defendant need not
prove mitigating circumstances beyond a reasonable doubt. Kansas v. Carr, 577 U.S. 108
(2016).

c) Felony murder

In felony-murder cases, the death penalty may not be imposed if the defendant, acting
as an accomplice, did not kill, attempt to kill, or intend to kill, unless the defendant
significantly participated in the commission of the felony and acted with reckless
indi!erence to human life. Compare Enmund v. Florida, 458 U.S. 782 (1982) (death
penalty not permitted) with Tison v. Arizona, 481 U.S. 137 (1987) (death penalty imposed).

2) Non-homicide crimes

Punishment that is disproportionately excessive in relation to the crime committed is

prohibited by the Eighth Amendment. The death penalty is considered excessive when
the crime is rape, whether the victim was an adult woman or a child, Coker v. Georgia,
433 U.S. 584 (1977); Kennedy v. Louisiana, 554 U.S. 407 (2008) or armed robbery. Tison v.
Arizona, supra.

3) Defendant insane

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The Eighth Amendment prohibits states from inflicting the death penalty on a prisoner
who is insane or can “demonstrate a severe mental disorder.” Panetti v. Quarterman, 551
U.S. 930, 960 (2007).

4) Intellectual disability of the defendant

The Eighth Amendment prohibits execution of an individual with intellectual disabilities.

Atkins v. Virginia, 536 U.S. 304 (2002). In determining whether an individual has
intellectual disabilities, a state cannot impose a strict cuto! that precludes a finding of
intellectual disability if an individual has an IQ of more than 70 or ignore current medical
guidelines in defining an intellectual disability because either approach creates “an
unacceptable risk that persons with intellectual disability with be executed.” Hall v.
Florida, 572 U.S. 701 (2014) (IQ cuto!); Moore v. Texas, 581 U.S. ___, 137 S. Ct. 1039, 1044
(2017) (nonmedical and out-of-date medical factors).

5) Age of the defendant

The Eighth Amendment prohibition against “cruel and unusual punishment” prohibits
the execution of a defendant who was younger than 18 years of age at the time of the
commission of a crime. Roper v. Simmons, 543 U.S. 551, 569 (2005). In addition, the
Eighth Amendment prohibits the imposition of a sentence of life without the possibility
of parole on a defendant who was younger than 18 years of age at the time of the
commission of the crime if the crime was not a homicide. Graham v. Florida, 560 U.S. 48
(2010). If the crime was a homicide, the juvenile cannot be subject to a mandatory
sentence of life imprisonment without the possibility of parole. When sentencing a
juvenile, the sentencing judge must take the defendant’s youth and other relevant
circumstances into consideration. Miller v. Alabama, 567 U.S. 460 (2012). In the case of a
defendant who committed homicide before reaching the age of 18, the sentencing judge

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need not, however, make a separate factual finding that the defendant is “permanently
incorrigible” before sentencing the defendant to life without parole. Jones v. Mississippi,
593 U.S. ___, 141 S. Ct. 1307 (2021).

6) Fairness of sentencing proceedings

To minimize the risk of arbitrary action, a capital sentencing process must satisfy, at a
minimum, two general requirements:

i) The process must channel or limit the sentencer’s discretion in order to genuinely
narrow the class of persons eligible for the death penalty and reasonably justify the
imposition of a more severe sentence on the defendant compared to others found
guilty of murder; and

ii) The court must allow the jury to consider any relevant mitigating evidence that
might lead the sentencer to decline to impose the death penalty. The sentencer is also
allowed to take into consideration victim impact statements.

If the state puts a capital defendant’s future dangerousness at issue, the defendant has
the right to inform the jury that the only possible sentence besides death is life
imprisonment without parole. Lynch v. Arizona, 578 U.S. ___, 136 S. Ct. 1818 (2016).

7) Racial discrimination claims

Under McCleskey v. Kemp, 481 U.S. 279 (1987), the Supreme Court held that despite
serious statistical evidence of racial disparity in the imposition of the death penalty (e.g.,
African-American defendants who kill white victims are more likely to receive the death
penalty), it was not imposed as a result of unconstitutional discrimination.

8) Lethal injection

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Lethal injection is not considered cruel and unusual punishment because there is only a
mere possibility that the condemned may receive an improperly administered shot that
would cause him unnecessary pain.

c. Adequate medical care

Although prison inmates have a right to adequate medical care, the lack of such care
constitutes “cruel and unusual punishment” under the Eighth Amendment only when
there is a deliberate indi!erence to the serious medical needs of an inmate. Mere
negligence in assessing an inmate’s medical condition or in providing treatment is not
su"cient to trigger a constitutional violation. Estelle v. Gamble, 429 U.S. 97, 104–105
(1976).

VI. POST-TRIAL CONSIDERATIONS

A. Double Jeopardy

The Fifth Amendment protection against double jeopardy applies to the federal
government. It has been incorporated by the Due Process Clause of the Fourteenth
Amendment, and consequently it also applies to the states. Benton v. Maryland, 395 U.S.
784 (1969).

1. Protection Against Prosecution and Punishment

The Fifth Amendment Double Jeopardy Clause provides three protections:

i) Protection against a second prosecution for the same o!ense after acquittal;

ii) Protection against a second prosecution for the same o!ense after conviction; and

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iii) Protection against multiple punishments for the same o!ense.

a. Definition of “same o!ense” 1) Shared elements

If a defendant’s conduct may be prosecuted as two or more crimes, then the

Blockburger test is applied to determine whether the crimes constitute the same
o!ense for double jeopardy purposes. Under this test, each crime must require the
proof of an element that the other does not in order for each to be considered as a
separate o!ense. Blockburger v. United States, 284 U.S. 299, 304 (1932).

Example 1—No Jeopardy: A defendant robs a store and shoots and kills the store
clerk. The state prosecutes the defendant for premeditated murder. The defendant is
acquitted. The state then brings charges against the defendant for robbery. The
protection against double jeopardy does not apply because robbery and murder each
require the proof of an element that the other does not. Robbery requires, among
other elements, the proof that the defendant took the victim’s personal property;
murder requires, among other elements, the death of the victim.

Example 2—Jeopardy: A defendant robs a store and shoots and kills the store clerk.
The state prosecutes the defendant for felony murder based on the robbery. The
defendant is acquitted. The state then brings charges against the defendant for
robbery. The protection against double jeopardy applies because the state, in order to
prove felony murder in the first trial, had to prove that the defendant committed a
robbery. Harris v. Oklahoma, 433 U.S. 682, 683 (1977).

As a consequence of Blockburger, the Double Jeopardy Clause generally bars successive

prosecutions for greater and lesser included o!enses. A lesser included o!ense is one
that does not require proof of an element beyond those required by the greater o!ense.

2) Occurrence of a necessary subsequent event

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When jeopardy has attached with respect to a lesser included o!ense prior to the
occurrence of an event necessary to establish the greater o!ense, the defendant may be
subsequently tried for the greater o!ense.

Example: A defendant physically harms a victim. He is tried for battery and convicted.
The victim subsequently dies as a consequence of the defendant’s conduct. The
defendant may be tried for murder without running afoul of the Double Jeopardy
Clause. Diaz v. United States, 223 U.S. 442, 449 (1912).

3) Statutory o!enses

At a single trial, a defendant may be convicted of two o!enses, one of which is a lesser
included o!ense of the other, if both o!enses are statutory and the legislature has
specifically authorized cumulative punishment. Missouri v. Hunter, 459 U.S. 359, 368–369
(1983) (first-degree robbery and armed criminal action).

4) Conspiracy

An o!ense and the conspiracy to commit that o!ense are not the same o!ense for
double-jeopardy purposes because each requires proof of di!erent elements. United
States v. Felix, 503 U.S. 378, 389 (1992).

5) Sentence enhancement use

The use of a defendant’s prior conviction to enhance the sentence imposed on a

defendant for a current conviction does not violate the Double Jeopardy Clause. Witte
v. United States, 515 U.S. 389, 400 (1995).

b. Acquittal

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A defendant who has been acquitted of a crime generally may not be retried for the
same crime. A grant of a demurrer or motion to dismiss in favor of the accused at the
close of the state’s case is the equivalent of an acquittal. Smalis v. Pennsylvania, 476 U.S.
140 (1986) (court, having dismissed charge, could not permit prosecution to reinstate
charge later in the same trial based on defendant’s testimony). There must be a final
verdict of acquittal, however, for the Double Jeopardy Clause to apply. See Blueford v.
Arkansas, 566 U.S. 599 (2012) (holding that defendant could be retried for murder even
though jury in first trial had announced in open court that they had unanimously voted
against murder charges, because declaration in open court was not equivalent to verdict
of acquittal since jury was sent back to deliberate on lesser-included charges of
manslaughter and negligent homicide and might have revisited decision on murder
charges). An acquittal based on an error of law is nonetheless an acquittal for Double
Jeopardy purposes. Evans v. Michigan, 568 U.S. 313 (2013) (retrial following court-
decreed acquittal barred even though the court misconstrued the statute under which
defendant was charged).

2. Attachment of Jeopardy

The protection against double jeopardy is not triggered until jeopardy attaches. In a jury
trial, jeopardy attaches when the jury is empaneled and sworn in. In a bench trial,
jeopardy attaches when the first witness is sworn in.

3. Di!erent Jurisdictions

Under the dual-sovereignty doctrine, the protection against double jeopardy does not
preclude prosecution of a crime by both federal and state governments. Consequently,
a defendant may be charged and convicted for the same type of crime in a federal court
and a state court. Similarly, a defendant may be prosecuted by two di!erent states for
the same conduct. However, a state and state-created entity, such as a municipality,

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cannot both prosecute a defendant for the same conduct. Waller v. Florida, 397 U.S. 387,
394 (1970) (municipality’s conviction of defendant for violation of city ordinance for
destruction of city property precluded state prosecution for grand larceny).

4. Civil Actions

The Double Jeopardy Clause does not preclude a criminal punishment and civil penalty
for the same conduct. Therefore, even if a defendant has been found guilty in a criminal
action, the state may still bring a civil action against the defendant that arises out of the
same conduct. The protection does not apply to administrative proceedings such as a
disciplinary hearing stemming from criminal conduct, nor does it apply to a parole,
probation, or bond-revocation hearing related to a criminal charge or punishment.

A civil penalty may be treated as a criminal punishment when the penalty amount is
grossly disproportionate to governmental loss and it serves only a deterrent or
retributive purpose. Dep’t of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 783
(1994) (tax imposed on possession of illegal drugs after satisfaction of state and federal
fines and forfeitures). However, a civil forfeiture proceeding is typically not punitive in
nature. United States v. Ursery, 518 U.S. 267, 275 (1996) (forfeiture of property used in
the commission of drug crimes).

Note: Juvenile adjudicatory proceedings are criminal, not civil, actions for purposes of
the Double Jeopardy Clause. A minor who is subject to an adjudicatory hearing
regarding conduct that would constitute a crime if committed by an adult cannot
subsequently be tried as an adult for a crime based on such conduct. Breed v. Jones, 421
U.S. 519, 541 (1975).

5. Guilty Plea

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A defendant does not automatically waive her double-jeopardy rights by entering a guilty
plea, but the plea agreement may include a provision that the charges against the
defendant may be reinstated if the defendant breaches the agreement. Ricketts v.
Adamson, 483 U.S. 1, 11 (1987). A guilty plea to a lesser included o!ense does not
preclude prosecution for a greater o!ense if the greater o!ense has been charged
before the plea is entered. Ohio v. Johnson, 467 U.S. 493, 501 (1984).

6. Mistrial

The Double Jeopardy Clause does not prohibit a retrial following a mistrial if “taking all
the circumstances into consideration, there is a manifest necessity for [declaring a
mistrial].” Although the decision to declare a mistrial is left to the sound discretion of
the judge, the power should be used with “the greatest caution, under urgent
circumstances, and for very plain and obvious causes.” United States v. Perez, 22 U.S.
579, 580 (1824). If the trial judge fails to exercise sound discretion or “acts for reasons
completely unrelated to the trial problem which purports to be the basis for the mistrial
ruling,” the trial court’s decision is not entitled to absolute deference, and close
appellate scrutiny is appropriate. Renico v. Lett, 559 U.S. 766 (2010). A mistrial for the
death or illness of a judge or juror, or because of a hung jury, generally constitutes
manifest necessity and permits a retrial.

If the judge grants an acquittal instead of declaring a mistrial after there has been a hung
jury, then a retrial is not permitted. Moreover, if the prosecution asks for a mistrial
because of its inability to locate a witness, then double jeopardy prevents a retrial.

If the defendant asks for or consents to a mistrial, then she generally can be retried,
unless the request is based on bad-faith conduct by the prosecutor or judge directed
toward goading the defendant into seeking a mistrial. The manifest necessity standard
does not apply when the defendant requests a mistrial. United States v. Dinitz, 424 U.S.
600, 606–607 (1976).

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7. Appeal

a. By the prosecution

The government may appeal an adverse ruling in a criminal case only when authorized
by statute. If the trial judge grants an acquittal on an issue that does not relate to the
defendant’s guilt or innocence, such as the failure to give the defendant a speedy trial,
then the prosecution may appeal and, if the appeal is successful, the defendant may be
retried. In addition, a prosecutor may appeal an order dismissing an indictment or
suppressing evidence, a bail determination, the sentence imposed on a defendant, and a
post-verdict new-trial order.

b. By the defendant

The Double Jeopardy Clause generally does not prevent the retrial of a defendant after
an appeal on the basis of an error made at trial, such as the admission of improper
hearsay evidence or improper jury instructions. Lockhart v. Nelson, 488 U.S. 33, 38
(1988). This is true even when a conviction is overturned due to the weight of the
evidence. Tibbs v. Florida, 457 U.S. 31, 42 (1982). However, a retrial after reversal of a
conviction due to insu!ciency of the evidence is barred by the Double Jeopardy
Clause. A conviction is based upon insu"cient evidence if the evidence presented, when
viewed in the light most favorable to the prosecution, is such that no rational fact-
finder could have found the defendant guilty beyond a reasonable doubt. Burks v.
United States, 437 U.S. 1, 18 (1978).

8. Retrial O!enses

A defendant who was tried for a crime but convicted only of a lesser included o!ense
may not be retried on the originally charged crime even if the conviction is reversed.
Price v. Georgia, 398 U.S. 323, 329 (1970).

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Example: A defendant on trial for murder is found guilty of voluntary manslaughter.

The conviction is overturned on appeal due to trial error. The defendant’s retrial for
murder violates the Double Jeopardy Clause, even if on retrial the defendant again is
convicted only of voluntary manslaughter.

9. Retrial Punishment

The Double Jeopardy Clause generally does not preclude a greater sentence from being
imposed on a defendant upon reconviction after a successful appeal. However, the Due
Process Clause does prevent the imposition of a greater sentence upon reconviction if
the greater sentence is imposed as a penalty for the exercise of a statutory right to
appeal or to seek a collateral remedy. Consequently, when imposing a greater sentence
upon reconviction, the judge must articulate reasons for the greater sentence that are
based on objective information concerning identifiable conduct by the defendant that
occurred after the original sentencing proceeding. Alabama v. Smith, 490 U.S. 794
(1989). In a jurisdiction where a jury rather than the judge determines the sentence, the
jury in the retrial may impose a greater sentence unless it has been told of the
defendant’s original sentence. Cha"n v. Stynchcombe, 412 U.S. 17, 24 (1973).

a. Capital sentencing procedures

The Double Jeopardy Clause is applicable to capital sentencing proceedings when there
is a determination that the government failed to establish an aggravating factor that
would justify the death penalty. Consequently, if a jury imposes a life sentence rather
than the death penalty, then the defendant, upon retrial, may not be sentenced to death.
Bullington v. Missouri, 451 U.S. 430, 445 (1981).

10. Collateral Estoppel

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The Double Jeopardy Clause recognizes the doctrine of collateral estoppel. For
collateral estoppel to apply, the earlier decision must have necessarily determined the
issue on which collateral estoppel is sought by the defendant.

Example 1: Several victims were robbed at the same time. The defendant is initially
tried for the crime with respect to only one of the victims. The sole contested issue at
the trial is whether the defendant was a perpetrator of the crime. The defendant is
acquitted of the crime. The acquittal prevents the defendant’s prosecution for the
robbery with respect to any other victim. The fact that the jury determined that the
defendant was not a perpetrator of a robbery estops the government from trying the
defendant for robbery of any of the other victims. Ashe v. Swenson, 397 U.S. 436 (1970).

If a jury acquits a defendant on one crime but deadlocks on another crime that contains
the same element, then the jury’s verdict may serve to prevent retrial on the crime over
which the jury was deadlocked. In such a case, issue preclusion applies to the issue(s)
that the jury did determine.

Example 2: A defendant was charged with both insider trading and fraud. An element
of both crimes is the possession of insider information. The jury acquitted the
defendant of fraud but deadlocked over insider trading. By acquitting the defendant, the
jury determined that the defendant did not possess insider information. Consequently,
under the doctrine of collateral estoppel, the government could not retry the defendant
for insider trading. Yeager v. United States, 557 U.S. 110 (2009).

The burden is on the defendant to prove that the jury’s verdict necessarily determined
the issue that the defendant seeks to foreclose. Because a jury usually renders a general
verdict in a criminal trial, it is rare that a defendant will be able to meet this burden.

B. Appeal

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The Constitution neither provides for nor guarantees an individual the right to appeal.
Nevertheless, appeals are commonplace in the U.S. justice system. When a defendant is
entitled to a first appeal as of right, the defendant is guaranteed certain rights, among
them equal protection and the right to counsel pursuant to the Fifth and Fourteenth
Amendments. Douglas v. California, 372 U.S. 353 (1963) (indigent entitled to appoint of
counsel). However, despite this latter right, if an attorney believes that the appeal is
frivolous, she may withdraw so long as the appellant’s right to appeal is protected.
Anders v. California, 386 U.S. 738 (1967). There is also no right of self-representation
during an appeal. Martinez v. Court of Appeal, 528 U.S. 152 (2000). When an appeal is
discretionary, an indigent defendant does not have the right to the appointment of
counsel unless the conviction was based on a plea of guilty or nolo contendere. Ross v.
Mo"tt, 417 U.S. 600, 610, 612 (1974); Halbert v. Michigan, 545 U.S. 605, 616-17 (2005).

Errors generally must be preserved by a timely objection to be considered on appeal,

and even if properly preserved, any error, defect, irregularity, or variance that does not
a!ect substantial rights (i.e., a “harmless” error) will not serve as grounds for reversal.
However, under the plain-error doctrine, a defendant who has failed to preserve a claim
of error in district court is still entitled to appellate relief when (i) the district court
committed error under the law in e!ect at the time the appeal is heard, (ii) the error is
obvious under that law, and (iii) the error a!ected the defendant’s substantial rights.
Fed. R. Crim. P. 52(b). A constitutional error is harmless only when it appears beyond a
reasonable doubt that the error did not contribute to the verdict obtained. Mitchell v.
Esparza, 540 U.S. 12 (2003).

C. Convictions

1. Writ of Habeas Corpus

Convicts may attack their convictions, even if their appeal was unsuccessful or not
available, by challenging the lawfulness of the detention under a writ of habeas corpus.
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The convict does not have to be in custody; she may be out on probation or parole.
However, if the defendant’s sentence has expired and her prior conviction is being used
to enhance a later one, then the defendant does not satisfy the in-custody requirement
to petition for the habeas writ.

A writ of habeas corpus proceeding is civil in nature. Therefore, the “beyond a

reasonable doubt” standard is not applicable. The petitioner must demonstrate only the
unlawfulness of the detention by a preponderance of the evidence. If the petitioner is
granted the writ, then the state may appeal, and double jeopardy does not apply to
either the appeal or the retrial after the granting of the writ. An indigent person does
not have a right to have counsel appointed to assist in perfecting her habeas petition.

2. Parole and Probation

If a new sentence can be imposed upon the revocation of parole, then the right to
counsel is activated, and the parolee is entitled to representation to the same extent as a
trial. On the other hand, if an already-imposed sentence is triggered by parole
revocation, then the right to counsel is limited. The right to counsel applies only if it is
necessary for a fair hearing.

3. Access to Courts

Reasonable access to courts, with no unreasonable limitations on presenting arguments,

is a right of prison inmates. In addition, inmates cannot be prohibited from consulting
with other inmates if there is no reasonable alternative in the prison, such as a law
library.

4. Disenfranchisement

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Some states disenfranchise a convicted felon. This prohibition on voting does not
violate the Fourteenth Amendment, even when it applies to felons who have been
released from incarceration. Richardson v. Ramirez, 418 U.S. 24, 54 (1974).

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