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Course: Criminal Procedure Fall 2000 Nina
School: University of Detroit
Year: 2000
Professor: Curry
Course Outline provided by



Chapter 1 - Basic Principles

I. A Criminal Case

Class Notes

  • parties in crim case: prosecutor (has alot of discretion) and defendant (citizen)

  • crim laws come from statutes - legis branch

  • prosecutor is in exec branch

  • chief exec in MI is John Engler

  • chief law enforcement officer in MI is Att Gen Granholm

  • theoretically att gen has supervisory power, but seldom used

  • need to know where crim pro comes from

  • rules are drafted by committee, mi sup ct adopts them

  • ct rules & proced are duty of ct

  • sub crim law is duty of legis

  • what are the limitations on the rules? Constitution (mi and fed)

  • if mi constit adds more rights to us constit, that’s ok

  • always know what ct case is from, whether ct is addressing constit, statute, or ct rule issue because not all us sup ct cases are applicable to states

  • to get to ct of app from trial ct, D probably got convicted, appellant is almost always D. Know who appellant is.

  • 3 ways to get to us sup ct:

  1. seek review from state’s highest ct in crim case

  2. direct appeal

  3. habeaus corpus - constit right in us constit. Must exhaust state remedies to go to fed ct. Ex: Giddeon v Wainwright (att gen is D) - D needs to show the ct he has good reason to hold that person)

II. The Nature of the Procedural System and sources of procedural rules

Book Notes

  • Most of Bill of Rights are now binding on states

  • Constit rules represent only min protections that must be afforded crim D

III. Incorporation Doctrine and Prospective Decisionmaking

A. Incorporation

Book Notes

  • total incorp has not been adopted by Ct (ex: no grand jury req on state cts, 7th amend jury trial in civil cases not binding on states, bail clause of 8th amend)

  • most of Bill of Rights have been incorp

  • Duncan v LA (1968) - held the right to jury trial, guaranteed by 6th amend is binding on states. Look at whether the right is fundamental to determine if it will be incorporated. Ct determined that trial by jury is fundamental right.

Book Summary (p 16-17)

  • citizen cannot rely on dp if a specific bill of rights guarantee would provide same constit protection

  • where specific bill of rights protection has trad reg an area of crim invest or prosec, but provides no prot in a particular case, it is very unlikely that citizen can rely on more gen dp guarantee

  • indep prot under dp clause remains viable where govt activity has some purpose other than enforc of crim law

  • indep prot under dp cl remains viable even in crim cases where no specific bill of rights guarantee has trad applied

  • NOTE: if a state ct explicitly relies on state constit law to provide more prot to citizens than fed constit, state court’s decision on this matter cannot be reviewed by US SUP CT

  • MI v Long (US SUP CT 1983) - state ct must place explicit reliance on state law in order to avoid US SUP CT review, otherwise it will be presumed that the state ct was construing fed constit

B. Retroactivity

Book Notes

  • when sup ct reviews actions of govt in crim case, the legal rule it makes applies to similar govt conduct arising after the date of the decision

  • one rule ct always follows is to give the benefit of the new rule to the litigant who estab it, even though that constitutes retroactive application

  • Teague v Lane (1989) - adopted Harlan view and held that new rules are gen inapplicable to habeas cases. Case announces new rule when it breaks new ground or imposes a new oblig on state or fed govt. Harlan view: new rules gen should not be applied retroactively to cases on collateral review, with 2 exceptions: 1) new rule should be applied retro if it places certain indiv conduct beyond law-making auth to proscribe; 2) should be applied if it req observance of those rules implicit to ordered liberty. The ct held unless they fall w/in one of those exceptions, new constit rules of crim pro will not be applicable to those cases which have become final before new rules are announced.

  • After Teague, new rules are gen inapplicable to those whose convictions have been finalized. Finalization is defined as date when us sup ct has denied cert of d’s direct appeal OR when time to petition for cert runs out.

  • When decision merely applies settled precedent, it is not a new rule, and is completely retroactive - rationale is that if a constit rule is not new, the state ct should have applied it correctly, and therefore failure to apply it is proper grounds for habeas relief.

Class Notes

  • purpose of crim law:

  • deter potential wrongdoers/people at large

  • rehabilitation

  • retribution (only logical justif for death penalty)

  • safety factor (get that person out of way)

    • crim defense attorney worries about $

    • prosecutor thinks what is the appropriate result of this person, given all of the values inherent in crim law

    • Review of Movie - importance of proced protections

    1. Deputizing people - deputy sheriff did not have authority to do it

    2. Judge did not get involved, said it was up to sheriff

    3. Improper arrest: no probable cause, no warrant

    4. No Miranda warnings - their stmts were coerced (inadmissible). Profiling involved (mexican guy, old guy not competent to testify)

    5. No right to counsel, right to investigate

    6. No right to jury, no secrecy in deliberation, no impartiality

    7. Not allowed to present evid/witnesses, couldn’t confront their witnesses

    8. Used letter against one in sentencing


    Chapter 2 - Searches & Seizures of Persons and Things

    I. Intro to 4th amendment

    Book Notes

    • 4th amend states: the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.

    Class Notes

    • govt conducts “searches and seizures” through officers

    • why do we have 4th amend? Because of bad British practices (taxation w/out rep, boston tea party, govt investigates) they were randomly going to people’s houses

    • 4th amend comes into play when there’s an investigation

    • it was estab as control on govt, protects right of the people

    • US v Verdugo-Urquidez (1990) - held that 4th amend does not apply to a search of prop owned by a non-resident alien & located in a foreign country.

    • He was not in US and that’s why 4th amend did not apply

    • they arrested him in Mexico & brought him back.

    • NOTE: there’s no exclusionary rule for kidnapping (Eichmann)

    • Gen Rule: search w/out warrant is unreasonable

    • Requirements for exclusionary rule to come into play:

    1. need state action, officer/govt must do searching & seizing. Ask: who’s doing the search?

    2. Warrant must be based on probable cause.

    3. Need search or seizure/arrest. What do you need here?

    A. Reasonable expectation of privacy

    • ex: glove compartment in car= yes, if there’s probable cause to find what cop is searching for

    • pulled over for speeding ticket = no

    • looking for weed = yes

    B. One that society is willing to accept

    • Remedy for unreasonable search is suppress evidence. You also have civil remedy. You could define it as a crime.

    • Component of damages for civil remedy is a problem (maybe could get loss of income, etc.... admin aspect

    II. Threshold Req for 4th amend prot: what is a search, seizure?

    A. Reasonable Expectation Test

    Book Notes

    • Katz v US (1967) - phonebooth case. Govt activity in electronic listening & recording to Ds words violated privacy in booth, and constituted search & seizure w/in 4th amend. This restraint was imposed by agents themselves, not by judicial officer. They needed to get permission. This kind of electric surveillance is subject to 4th amend conditions.

    • 2-Prong test from Katz: 1) govt conduct must transgress a citizen’s subjective manifestation of privacy interest; and 2) privacy interest invaded must be one that society is prepared to accept as legit.

    • Ct has held many times that there is no legit privacy interest in illegal activity

    Class Notes

    • Katz expanded right of privacy. Before Katz, you had to have prop interest

    • in phonebooth, you have reas expect of privacy (old law req some invasion, like trespass)

    • ex: MI Constitution Art I, sec II - look up curtilage. Is garage part of it? Is it attached? Yes. Separate? Remember MI has to interpret 4th amend according to fed law, which states the min req.

    • MI v Sitts

    • if people have access to it, you have less expect of privacy

    Book Notes

    • Open fields - no legit expect of privacy (only curtilage is protected), curtilage defined by whether an indiv may expect an area immed adjacent to home will remain private)

    • curtilage - is protected by 4th amend, but quest on how far it extends. US v Dunn (1987) - ct held that a barn located approx 50 yards from the fence surrounding a residence on almost 200 acres of prop was outside curtilage. 4 factors for curtilage questions:

    1. proximity of area claimed to be curtilage to the home

    2. whether area is included w/in an enclosure surrounding home

    3. nature of uses to which area is put

    4. steps taken by resident to protect area from observation by people passing by.

    Acess by members of Public

    • Pen registers - device records #s called by D on his home phone. Ct held use of pen register did not constitute a search, so no warrant was required

    • Electronic pagers - 6th cir Meriwether, ct held: no reas expect of privacy when d transmitted his # the pager. Ct said d assumed risk that anyone from public who had the pager would get message

    • cordlesss phone -

    • trash - Greenwood, ct held: officer inspection of trash, in front of Ds house did not constitute search, so cop did not need warrant or probable cause. Ct said public had access to trash, so no reas expect of privacy

    • aerial surveillance - ct held 4th amend is not violated by aerial observation w/out a warrant from an altitude of 1000 ft of a fenced-in backyard w/in curtilage of home. Also held there was public access, no reas expect of privacy.

    • Ordinary overflights - Riley: ct held surveillance of backyard from helicopter hovering at 400 ft was not a search (public access again)


    Investigation which can only uncover illegal activity

    • canine sniffs - Place - Ct held canine sniff of closed luggage for drugs was not a search. If trained dog alerts to luggage, officers cannot open luggage immediately. If dog positively alerts, this legally obtained info can be brought to magistrate to attempt getting warrant (it’s up to magistrate from here)

    • thermal detection devices -

    Sensory Enhancement Devices

    • electronic beepers - tracking public mvmt - Knotts - ct held this was ok

    • jails, prison cells, convicts - no constit prot expect of privacy

    • public schools & pub employees - TLO - ct declined to equate schools w/prisons.

    • NOTE: even if ct finds reas expect of privacy. Then the official intrusion is reviewed for its reasonableness. Therefore, in TLO ct held that the school official’s inspection of a student’s handbag was a search, but it was reas because official had reas suspicion that student had cigarettes in her bag.

    Class Notes

    • electronic devices - usually not a search

    • split now over heating devices

    • what about encryption? Issue in cong, do computer manuf have to provide back door for govt...

    • canine sniff - not a search, anything that enhances senses is not a search

    • govt has alot of power here and they use it

    • generally, beepers can’t be placed in someone’s house unless you have warrant

    • acc’d to 2nd cir you can’t use telescope to peer into someone’s bedroom window

    III. Tension between reasonableness and warrant clauses

    A. Importance of the warrant clause generally

    Book Notes

    • searches & seizures conducted w/out warrant are presumed unreasonable (w/a few exceptions)

    B. Reason for the warrant requirement

    Johnson v US (1948)

    • cops smelled opium in hotel lobby, knocked on door & introd themselves, said they smelled opium, D denied it, they searched room and found it

    • it was unlawful, w/out warrant to arrest D and search here living quarters.

    • Reason for 4th amend is so that inferences are drawn by “neutral and detached magistrate” instead of cop. They could have got warrant. Because no warrant was sought, search was unreasonable.

    Class Notes

    • cops smell opium in hotel lobby

    • no voluntary consent, but they had probable cause

    • she was in the equivalent of her home (recog in MI)

    • important to get warrant from neutral & detached magistrate, prevents overzealous cops from infringing on someone’s rights

    IV. Obtaining a search warrant - constit prerequisites

    A. Demonstrating Probable Cause (4th amend req prob cause for warrant)

    1. Creation of 2-pronged test

    Spinelli v US (1969)

    • ct cited Aguilar test: 1) need to cite underlying circumstances necessary to enable magistrate to make judgment; 2) need to support informant info as credible

    • ct held: informant tip, even when corroborated to extent here, was not sufficient for probable cause (cop did not offer reason why informant tip was credible or how informant knew Spinelli or that he was running bookmaking operation)

    • what is req to show prob cause for warrant? Some reliability

    Book Notes

    • Majority in Spinelli accepts following propositions:

    • cop is presumed to be honest when making affidavit, thus cop credibility never questioned

    • source of cop’s info is questioned

    • if cop says he has 1st hand knowledge of facts for probable cause, only quest is whether those meet threshold. Magistrate listens and makes judgment of sufficiency

    • if cop is relying on someone else for all or part of info, then you have to make 3 determinations:

    • who is the source of the info, and is source reliable? Reliability is 1st prong of spinelli

    • what are bases of source’s knowledge? Credible info is 2nd prong

    • assuming source is reliable, are facts alone or together w/other facts sufficient to satisfy prob cause?

    • If source is not reliable, cop may be able to show reliability by corroborating details provided by informant

    • if basis of info is unclear from informant, but it seems that they could not have known info but for personal observation, they might be viewed as credible

    • if informant info falls short, cops can supplement it

    • magistrate should look at everything and see if govt has shown probability of crim activity

    Class Notes

    • Spinelli dealt w/informant’s tip, not an ordinary citizen. W/ord citizen, there’s no reliability challenge

    • for arrest/search to be legal you need:

    • probable cause

    • warrant

    • before you even get to that, you need a search/arrest and some govt action

    • affidavit of fbi agent to go to neutral & detached magistrate, to make determination of prob cause

    • one kind of info, cop provides from own senses, but from informant, by def it’s hearsay

    • what could agent do to make this affidavit constit valid? What other kind of info to make hearsay more reliable?

    • Corroborated info from cop

    • needs to show how he knows informant is reliable (like past things the informant was correct on, stmt against his interest, excited utterances) THINK OF EXCEPTIONS TO HEARSAY RULE, ADMISSIONS

    • spinelli 2-pronged test: credibility, set forth underlying circum (reliability)

    • fortas dissent wanted to have more common sense approach

    2. Rejection of a rigid 2 prong test

    IL v Gates (1983) NEW RULE

    • ct adopts totality of circumstances test (balancing test, more fluid)

    • ct said don’t need to satisfy both prongs of spinelli

    • a deficiency in one may make up for the other

    • only probability of crim act is needed for prob cause

    • ct abandons spinelli test

    • ct says it’s duty of reviewing ct to ensure that magistrate had a “sub basis for concluding p.c. existed”

    Class Notes

    • keep reality in back of your mind

    • problem is you have hard evid here, if you suppress it, crim goes free

    • anonymous tip case

    • remember overall purpose of 4th amend

    • gates makes it easier for police, cts are reluctant to say search/cops are bad

    • Insufficient corroboration: US v Leake (6th cir 1993) - controls in MI. Ct found insuff corrob after cops found 300 pounds of weed in guy’s basement. Got call from anonymous tip, but it wasn’t enough.

    • Gates Test Applied: MA v Upton (1984) - Ct reversed Ma sup ct, said there was enough corrob. Ma ct says their constit provides more prot than Gates (they use 2-prong spinelli test). Ct says hey look, we rejected that test. On remand, Ma state sup ct decided to follow spinnelli anyway. If you were in fed ct in Mass, fed ct would have to follow Gates

    • hard question: how do you determine what is p.c.? most cops don’t know constit law on 4th amend. Cops have to decide these questions.

    3. Quantity of info req for probable cause

    • Prady-Binett (DC Cir 1993) - small rectangular block wrapped in duct tape - cop saw it - cop thought it had drugs - ct concluded that based on totality of circum, there was a fair prob that the block contained drugs

    • prob cause applies to searches and arrrests. Prob cause is determined by whether: there’s a fair prob that area or object to be searched contains evid of crime. Prob cause to arrest is determined by whether there’s a fair prob to believe that the person arrested has committed crime. These 2 merge sometiems: ex: in Prady, if there was prob cause to believe block had drugs, then there was also prob cause to arrest

    • collective knowledge - if officer A demonstrates to magistrate prob cause to arrest D, any other cop can make arrest, don’t need to have indep knowledge. Same rules applies in warrantless search cases

    • staleness of info - not good, but watch out for continuing crim operation

    • law office search - no extra prot apply if there is prob cause to believe lawyer is engaged in crim activity

    • reasonable particularity - 4th amend req that warrant must set forth location of place to be searched w/reas particularity

    • Winston v Lee (US 1985) - ct held unreas, a med proced that removed bullet from D

    4. Anticipatory Warrant (not a hot issue)

    • usually upheld

    • based on a future event

    • if there’s prob cause, based on affidavit, need event happening (will prob be upheld)

    5. Executing the Warrant (what to tell cop if he never executed warrant)

    • I should read affidavit & warrant, to see if there’s prob cause

    • ask: what are you looking for? Limitations:

    • address (could limit to house or garage, can only go to the one in the warrant)

    • time

    • scope of contents (what you’re searching for)

    • ex: drugs, you can look in small places

    Class Notes

    • Suppression hearing - hearing to enforce the exclusionary rule

    • in MI, is it better to object to search of prelim exam or pre-trial motion? Practice pointer - problem with motion is that it gets deferred to day of trial

    • at suppression hearing, govt has burden of proof to show search was legal

    • knock and announce rule

    • Stevens - WI ct announced blanket rule that cops who have warrant seeking evid of drug dealing can always enter w/out announcing their presence (because drugs can be disposed of quickly)

    • however, this case was overruled

    • knock & announce - biggest propents are cops.

    • Last 6 mo there’s a split on what happens if cop doesn’t knock & announce. Us sup ct says you don’t have to suppress evid if cops don’t do it. 6th cir says yes you do have to suppress

    • can’t challenge 4th amend issue on habeaus corpus (Stone v Powell)

    • Destruction - p would have to show search was overly destructive (ex; tearing out walls to look for alcohol)

    • Unnecessarily intrusive searches - Hummel (8th cir1994) - birthing clinic case

    • When is search completed?

    • When it’s reasonable. They don’t have to stop w/little chunk they find, they can look more where they’d be reasonably hidden

    • cts have held that you don’t have to show warrant before search BUT - you don’t have to open door if they don’t show it, it’s reas for you to say no

    • why do we need neutral & detached magistrate?

    • Protect indiv from govt

    • magistrate cannot be part of law enforcement branch

    • legal training: Shadwick (US 1972) - generally, you can have legally non-trained magistrate for minor offenses - but not for major cases

    • what if magistrate gets $ for issuing warrants? No, can’t do it, not neutral & detached anymore

    • always remember purpose of 4th amend - protect citizen

    • warrant req

    • reason req

    • neutral & det magistrate

    • talking primarily about search warrants


    V. To apply or not apply the Warrant Clause

    **In general, search/seizure is presumptively unreas if there’s no warrant based on prob cause

    A. Arrests in public and in the home

    1. Standards for warrantless searches

    • cop can arrest w/out warrant if he has reas cause to believe person has committed:

    • felony

    • misdemeanor - if cop has reas cause to believe such a person must be arrested immed OR may cause injury to himself or others OR misd is committed in front of cop


    2. The constiti rule: arrests in public

    • Watson (US 1976) - cop got call from informant saying D had a stolen credit card, cop knew informant, informant set up D - cops arrested D. Cop asked D if he could search car, D said go ahead, cop found more stuff. Ct held D’s arrest valid, under statute and rule. BOTTOM LINE: if cop has prob cause to believe person has comm felony, cop can arrest suspect in public place w/out a warrant

    • Use of excessive force when making arrest

    • TN v Garner (US 1985) - ct held under 4th amend, deadly force may not be used to prevent escape of felon unless it is necessary to prevent escape & officer has prob cause to believe D poses signif threat of death or serious physical injury to cop or others

    • Graham (US 1989) - ct held all claims of excessive force in making arrest are governed by 4th amend stand of reas

    • McLaughlin (US 1991) - Gerstein, ct held 4th amend req prompt jud determination of prob cause as prereq to pretrial detention following a warrantless arrest. Here, ct held a juris that provides jud determinations w/in 48 hours of arrest will, as gen rule, comply w/promptness req of Gerstein. However, if D does not get prob cause determination w/in that time, burden shifts to govt to demonstrate existence of a bona fide emergency or other extraordinary circum.

    3. Arrests in the home

    • Payton (US 1980) - home is very private, therefore ct held cops need warrant to enter unless there are exigent circum

    • Hotels and Motels

    • Morales (8th cir 1984) - this is considered home during rental period, and it has to be lawfully possessed (so cop needs warrant)

    • arrests in home of 3rd party

    • Steagald (US 1981) - search warrant must be obtained to look for suspect in home of 3rd party, absent exigent circum. Note:

    • arrest warrant only req magistrate’s determination that there is prob cause to arrest person, not specific as to location

    • search warrant would req magistrate to determine there is prob cause to believe suspect is in home of 3rd party

    • after this case, cop must know where suspect lives. If D lives there, cop needs arrest warrant. If D is just a visitor, need search warrant

    • overnight guest - need arrest warrant, Olson

    • material witness

    • cops have power to arrest & detain mat’l witness to crime, if it is shown that it is impractiable to get his presence by subpoena

    Class Notes

    • when is someone arrested? When they are detained against their will

    • what do cops need to arrest someone? Probable cause

    • difference: arrest warrant does not say where person is

    • cops don’t always need warrant to arrest someone (ex; when they witness misd, felony, or immed danger to cop)

    • ex: I say to cop, that guy robbed me a week ago, go arrest him, can he? In public - he can do it w/out warrant. In home - needs warrant

    • no reas expectation of privacy in your car (windows). If there’s prob cause to think you comm crime, cop can usually arrest you in car w/out warrant

    • Watson - don’t need warrant to arrest in pub place. Dissent says we’re giving stricter stand on search than arrest. Ex: guy has suitcase, cop thinks it has drugs in it, can’t search w/out warrant

    • excessive force is determined by jury, really a civil question

    • arrest has to be proportionate to activity of person

    • what happens after someone is arrested?

    • Booked & [processed

    • may question them

    • McClaughlin, 48 hrs max to arraign, in MI it’s 24 hours. Steps for arraignment on warrant:

    • how can you have arraignment on warrant w/warrantless arrest? Get warrant after arrest, go to prosec or magistrate to determine prob cause

    • can inform D of charges

    • also, have how D will plea, most juris have D stand mute (gen not guilty)

    • bond determination (in fed ct maybe detention), gen bond is set

    • determine whether attorney is going to be there (assigned)

    • McClaughlin - 48 hour rule to be brought before magistrate. In MI, it’s as close to 24 hours as possible. What if person is detained longer? Burden shifts to govt. What’s remedy? Try habeaus corpus, show cause hearing

    • look for reas expect of privacy

    • if you’re living in someone else’s house, they need warrant to arrest you

    • if you’re visiting someone, they have prob cause, arrest warrant would have to state person was in that house, 3rd party concern

    • remember what an arrest is, keep in mind def of arrest

    B. Stop and Frisk

    • Terry (US 1968) - D was convicted of carrying concealed weapon. Ct said - where cop sees unusual conduct which leads to reas concl, in light of his experience, that crim act may be afoot & persons may be armed & dangerous, in course of investig, he identifies himself & makes reas inquiries, he is entitled to do stop & frisk.

    • First, decide if & when cop seized & searched ....Whenever cop accosts indiv & restrains his freedom to walk away, he’s seized that person. 4th amend comes into play even when there’s no full blown search

    • Second - was it reas for officer to interfere w/D’s personal security when he did? Dual inquiry:

    • was officer’s action justified at its inception AND

    • whether it was reas related in scope to circum which justif interf?

    Must look at the govt interest, good faith not enough

    • Bottom line: ct permitted stops & frisks on less than probable cause, it also invoked the reas clause over the warrant cl as the standard

    • Adams v Williams (US 1972) - cop got tip from informant that D had gun and drugs, pulled guy over, and w/out seeing gun, just reached in and took gun from D’s waist, and arrested him. Ct held search reasonable.

    • Penn v Mimms (US 1977) - BRIGHT LINE RULE. Cops saw D driving car w/expired plate. They pulled him over for traffic violation, they ordered him out of the car, saw a bulge in his jacket, cop thought it was a weapon, frisked him and found gun. Ct held cop acted properly under Terry, therefore the gun was properly admitted at trial. CT HELD THAT COPS, IN THE COURSE OF A LEGAL STOP OF A CAR, HAVE AN AUTOMATIC RIGHT UNDER TERRY TO ORDER THE DRIVER OUT OF THE VEHICLE. Biggest concern is safety of cops.

    • NY v Class (US 1986) - D was stopped for traffic violation. Cops looked in windshield of car to get car’s VIN # - but the number was covered by papers on the dashboard. One cop entered car to move the papers away & found a gun, which was admitted against D. Ct relied on Mimms and said cop acted reasonably. Ct held: TO OBSERVE A VIN # GENERALLY VISIBLE FROM OUTSIDE A CAR, A COP MAY REACH INTO THE PASSENGER COMPARTMENT OF CAR TO MOVE PAPERS COVERING THE VIN AFTER ITS DRIVER HAS BEEN STOPPED FOR TRAFFIC VIOLATION AND EXITED THE CAR.

    • Michigan v Summers (US 1981) - ct held cops with search warrant for a home can req occupants of home, even if leaving when cops arrive, to stay while search warrant is executed. (To prevent flight, and destruction of evid)

    • Mendenhall (US 1980) - “Free to leave test” D was in airport, agents approached her requested....she consented to strip search, they found drugs. Ct (Stewart) said a person is seized under 4th amend if a reas person would have believed that he was not free to leave (this test did not command majority of ct)

    • FL v Royer (US 1983) - plurality applied “free to leave test” guy was at airport, matched drug courier profile, was approached by agents, went along with them, they took his tickets and luggage, found drugs. Ct summarized law on “stops”:

    • w/out warrant to search D’s luggage and in the absence of prob cause or exigent circum, validity of the search depended on D’s purported consent

    • where validity of search rests on consent, state has burden of proving that consent was obtained and that it was freely and vol given

    • cops do not violate 4th amend by asking people quest on the street or other public places - but the person approached does not have to answer quest - person may not be detained even momentarily for refusing w/out reas grounds - and refusal to listen or answer does not furnish those grounds

    here, agents took D’s driver license, tickets, and did not tell him he could depart - he was seized under 4th amend.

    • INS v Delgado (US 1984) - majority of ct adopted Mendenhall test here. Ct found that INS did not seize workers when they conducted factory surveys to find illegal aliens (even though there were guards at the exits)

    • FL v Bostick (US 1991) - bus sweeps are ok

    • Brower (US 1989) cops set up roadblock w/intent to stop suspect, he crashed into it and ided. Ct said D was seized under 4th amend

    • Hodari (US 1991) - cop activity preceding a seizure is not governed by 4th amend, person who fails to submit to a non-physical showing of auth is not prot by 4th amend

    Class Notes

    • Terry was written by liberal Warren ct, it’s a stop & frisk case)

    • cops don’t have to have any suspicion to ask name

    • def of arrest - detaining suspect against his will

    • short detention - allows frisking - Why? For immediate safety of cops. See how this limited exception to prob cause was supposed to only protect officer & do pat down has been expanded

    • dissent said nothing in constit allows this

    • every search & seizure case is fact intensive - always answer quest w/analysis of facts. Ex: what if: they find prob cause, reas cause...)

    • DO THIS ON EXAM - explain majority & minority rule

    • factor in all these cases - place that search is happening, high crime area is emphasized by ct, looks like you have less expect of privacy there

    • if there’s a high crime area, informant, some corroboration, that looks like enough for Rehnquist ct

    • Mimms - ct expanded Terry - if cop stops you for traffic violation, all they need is reas suspicion under Terry, then the cop can order person out of car

    • Mendenhall - not binding precedent, profile case., free to leave test


    • govt has to prove consent in evid hearing (they assert facts, they prove them)

    • airport searches/arrests - have to be based on totality of circum, same for every search/arrest

    • Bostick - whether reas person, who is innocent, would feel free to leave (O’Connor). Ct held this was not an arrest, therefore consent given after is OK

    • ct says cops are not req to tell you that you can refuse consent, because nobody would consent, low view of 4th amend

    • Inyo illustrates there must be intent to seize, that will = seizure

    • Hodari is the tag game, test is complete when suspect submits to arrest

    1. Grounds for a stop - reasonable suspicion

    • 2-prong test for ct:

    • ct must investigate source of info upon which reas susp is based AND

    • ct must evaluate whether info creates sufficient cause to justify stop

    • Al v White (US 1990) - ct held an anonymous tip which was significantly corroborated provided reas susp for a stop, applied Gates test

    • Cortez (US 1981) - test for seeing whether reas susp exists: look at totality of circum. Based on that picture, cops must have a particularized & objective basis for suspecting person of crim activity. Particularized susp has to elements, both req to make stop permissible: must be based on all circum, data, pattersn of behavior and this must raise reas susp that person stopped is engaged in wrongdoing

    • Remember, in Terry, ct said stop was less instrusive than arrest, so it could be conducted by less proof than prob cause req for arrest

    • Ornelas-Ledesma (7th cir 1994) - NADDIS hits, old car, ct found stop was supported by reas susp

    • relevance of race as factor

    • profiles - admin tool for cops (ex are source city, use of alias, having lots of cash, etc)

    2. Limited searches for police protection under Terry’

    • MN v Dickerson (US 1993) - frisk cannot be used to search for evid. Ct said Terry frisks are only justified for protective purposes - not for search of evid. Facts: cop lawfully stopped guy, did patdown, felt small object in his pocket, knew it wasn’t a weapon, but pulled it out of his pocket anyway. Ct said cop exceeded his power under Terry

    • MI v Long (US 1983) - ct held Terry is not restricted to prot frisks of a person and also extends to protective exam of areas, ct upheld exam of passenger compartment

    • MD v Buie (US 1990) - protective sweeps are ok w/ reas susp (quick and limited search of a premises, incident to arrest & conducted to protect safety of cops). Here cops entered residence to arrest D

    • detention of prop under Terry - can happen w/reas susp. Can have depriv of liberty & prop interest

    • AZ v Hicks (US 1987) - cops lawfully entered premises from which weapon had been fired & noticed 2 sets of expensive stereo equip. Suspecting they were stolen, one cop moved the radio to look at serial #. Ct said prob cause was req for this search (govt argued it was just a cursory inspection)

    Class Notes

    • as suspicion rises, intrusion rises

    • the more resistance to an arrest, the more force can be used

    • Note: at the least, cops show mere presence, show of authority

    • ex: it’s not reas for cop to use deadly force, like in a roadstop, unless cop is in danger or other people are

    • what kind of suspicion do you need for Terry stop? Reasonable, articuable, but less than prob cause (so you could have prob cause for Terry stop too)

    • Terry stop is just a stop to investigate, as opposed to a full arrest (where liberty is taken away)

    • to send someone to prison, by def, you need prob cause to arrest, reas susp

    • diff between prison & jail

    • Note: arrest is a depriv of liberty (so you don’t actually have to be hauled to jail)

    • Ornealas case - attempt to quantify prob cause req

    • what about race of suspect? It can be relevant w/other factors, but it shouldn’t be determinative. Profiling is also used in traffic stops

    • what’s the purpose of frisk? To protect officer

    • Dickerson - ct said cop overstepped his bounds because he had reas articuable susp, but he went beyond that, ct thought he was on fishing expedition

    • profiles are not necessarily bad, it doesn’t taint whole thing, you have to look at info cop used

    • to move people for short time, need less than prob cause, but more than articuable susp. Ex of mvmts - move them to back of car, out of car, to diff parts of airport.

    • Police cannot do Dragnet Arrest - arrest everyone in neighborhood because crime happened there - you need prob cause to take them to police headquarters on when you interfere w/their freedom/liberty

    • how long can Terry stop last? Short time, fairly limited

    • for arrest & seizure of prop, test is the same


    • under Terry, can’t move things, can’t search for evid when basis of Terry is prot of cop

    C. Search Incident to Arrest - The Arrest Power Rule

    • Chimel v CA (spatial limitations US 1969) - 3 cops went to D’s house w/arrest warrant for burglary of coin shop. Wife was home, let them in, they waited for D, asked to search he said NO, but they told him they could search anyway because it was a lawful arrest, but they didn’t have search warrant, they searched whole house. Rule: cops can search arrestee and area immed w/in his control (close enough where D could grab weapon). Case by case approach

    • WA v Chrisman (post-arrest mvmt US 1982) - ct said every arrest is presumed to be dangersous (stupid kid told cop come to my dorm room)

    • Butler (10th cir 1992) - cops went to D’s trailer w/arrest warrant, ground had glass, they noticed D wasn’t wearing shoes, they told him to get shoes on, they followed him in, and found illegal weapons. Ct relied on Chrisman, said cops acted properly.

    • NOTE - ct req a showing of exigency on facts of each case, fact that person has been arrested is not dispositive of whether there’s a risk of destruction of evid or harm to cops or public that would excuse warrant req

    • search can precede arrest but it cannot be used to provide prob cause to make arrest

    • Chambers v Maroney (US 1970) - cops searched car that was impouned and brought to cop station after arrest of its occupants. Ct held this search could not be justified as incident to arrest, reasons for search incident to arrest no longer remain

    • US v Robinson (US 1973) - search of person incident to arrest - cops thought D was driving w/revoked license. D stopped, cop ordered all 3 out of car, cop did search, found heroin - ct found this to be a good search. Ct said standard for search incident to arrest are not governed by stricter Terry standards. Bottom line: ct said in case of lawful custodial arrest a full search of the person is not only an exception to warrant req but also a reas search under 4th amend. Bright line test

    • NY v Belton (arrest power rule applied to cars US 1981) - cop pulled car over for speeding, smelled weed, put them under arrest for that, cop then searched the passenger compartment of car, saw black jacket on floor, searched that and found coke. Ct held: where cop has made lawful custodial arrest of occupant of car, he may as incident to arrest, search the passenger compartment of that car. Bright line rule

    • 2 bright line rules from this case - a passenger compartment is always w/in the arrestee’s grab area AND containers in the arrestee’s grab area can automatically be opened

    D. Pretextual stops and arrests






    E. Plain view and Plain touch seizures

    • doc applies to searches w/warrants or another exception to warrant req

    • Horton v CA (US 1990) - advertence is not necessary condition of plain view seizure

    • AZ v Hicks (US 1987) - ct held prob cause is necessary to justify a search that precedes a plain view seizure

    • after Hicks, cop must have prob cause to seize an item in plain view during the course of illegal activity - and prob cause must be readily apparent, w/out necessity of further search

    • Dickerson - plain touch doctrine - ct said plain touch is ok, but cop here exceeded his authority. MN Sup ct rejected plain touch doc

    F. Cars and other Movable objects

    • automobile exception - doc holds that cops may search a car w/out a warrant, as long as they have prob cause to believe it contains evid of crim activity

    • Carroll v US (1921) - bootlegging case, Detroit - Ontario. Ct said warrant could not have been req here for cops to search car because of mobility of vehicle

    • reasons for automobile exception: mobility and less expect of privacy

    • Motor homes - treated like car

    • CA v Acevedo (US 1991) - ct said Carroll governs all car searches. Cops may search car & containers in it where they have prob cause to believe contraband or evid is in there

    Class Notes

    • Chimel is not applied to cars, too many quest to ask about what’s in immed vicinity. Cops could look in drawers for coins

    • prob cause + warrant = ok (norm)

    • prob cause + arrest in house = ok but ct put geographic restriction on this (whatever person can reach, w/in immed reach)

    • reason: officer safety, destruction of evid

    • an arrest w/prob cause on street is ok w/out arrest warrant

    • how do you determine geo area? Totality of circum, look at facts. Relatively limited area, but not necessarily insignificant

    • this is not a huge hardship on cops, they can get warrant afterward

    • whole purpose for search incident to arrest - protection & preserve evid

    • prob cause + emergency = Ok, overrides warrant

    • Chambers - don’t cite often. Cops searched his car after arrest, ct said it was not at same time or almost contemp w/arrest

    • prob cause + car = ok, no warrant

    • Robinson - 2 rationales

    • Belton - lawful arrest in car, no geo limitation. But be careful w/this, remember reason behind this rule: car is mobile. It says you can have search of compartment of car because of mobility, prot - this is somewhat of a fiction, so some cts still say you need some prob cause of evid of crime. Diff views on how much you can search: 1) if cop pulls person over for violation, they can search anything, 2) you can just search area (compartment) if you have prob cause to look for what you’re looking for

    • Horton - ct says when you have warrant, you can take anything in plain view. If you have right to be there, and you’re looking for gun, you can look for other stuff

    • Hicks - cops were suspicious because poor person had expensive stereo. Ct said you can’t move anything to put it in plain view. Contrast this w/shuffling papers to get VIN. One is home, one is car - less expect of privacy


    • Dickerson - plain touch, heavy burden on govt

    • split of authority on whether you can open package, envelope in someone’s pocket - unless you have prob cause

    • generally, cop can’t say it felt like contraband

    • w/mobility, you have reduced expect of privacy

    • think about mobility as rationale

    G. Exigent Circumstances

    • state must show that immed action was reasonably necessary to safeguard the cops or public or protect against loss of evid

    • this exception merely excuses cop from having to get magistrate’s determination that prob cause exists - it does not permit a search in the absence of prob cause

    • it applies to searches & arrests

    • ex: in Payton v NY, an arrest warrant was req to arrest someone in his home. However, if exigent circum exist, an arrest warrant is excused. Same for searches of a container, premises, etc.

    • Hot pursuit - will excuse arrest warrant and search warrant where search of an area must be conducted to find suspect (Warden v Hayden ?)

    • a warrant is excused if delay in getting warrant would result in significant risk of harm to cop or public

    • O’Brien v City of Grand Rapids (6th cir 1994) - cops went to seize D’s car, D was in doorway w/rifle. D went in his house, shut the door, he didn’t point gun at anyone and did not verbally threaten to use it. 6-Hour standoff, cop gave shoot-to-kill order, they rendered him quadriplegic. Ct said his 4th amend rights had been violated, but no damages, because in fed civil rights action, cops are entitled to qualified immunity.

    • If evid will be destroyed in time it takes to get warrant, the warrant req is excused.

    • Mincey v AZ (US 1978) - no murder scene exception to the warrant req, govt must make factual showing of exigent circum. Facts: mincey shot & killed cop, cops came in and searched everything, for 4 days.

    • Minor offenses

    • Can’t impermissibly create exigent circum.

    • Determination of exigent circum is objective, based on totality of circum

    • if cop can foresee an exigent circum would arise at a certain time, and have prob cause & sufficient time to get warrant before exigency occurs, then the opport to obtain a warrant precludes the later invocation of the exigent circum exception

    • warrants can be obtained by phone, saves travel time

    • if exigent circum do not exist to search a house or other premises, cops must obtain a search warrant

    • MI v Tyler (US 1978) - intial investig uncovered evid of arson, several hours later, extensive warrantless searches were conducted, days later they were still searching. Ct said firefighters may enter a burning bldg, w/out a warrant to extinguish fire and for a reas time after, to invest fire. All searches were upheld except ones that occurred days later.

    H. Admin Searches and other searches and seizures based on special needs

    • if search is supported by special needs beyond crim law enfor, then ct engages in balancing of interests under reasonableness clause to determine safeguards

    • NY v Burger (US 1987) - car junkyard was searched w/out warrant, a NY stat was involved. This is a closely regulated industry, that has a reduced expect of privacy, so 4th amend has less rigor here. warrantless inspection, even in this closely reg business, will be reas if 3 criteria are met:

    • sub govt interest that informs the reg scheme pursuant to which the inspection is made

    • warrantless inspections must be necessary to further the reg scheme

    • statute’s inspec program must provide a constit adequate sub for a warrant

    • NJ v TLO (US 1985) - ct held that a warrantless search of a student’s purse was reas when the school admin had reas suspicion to believe that cigarettes were in student’s purse. Special need: state’s interest in maintaining discipline in schools

    • Skinner (US 1989) - considered constit of drug testing public employ. Ct upheld program mandating drug tests for all railroad personnel involved in certain train accidents. (Drug testing is a search, implicates privacy interests). Ct upheld d.testing as reas. Here, there was record of drug abuse

    • doesn’t matter if there’s no record of drug abuse, Von Raab, ct upheld it for customs officials

    • Vernonia School Dist (US 1995) - random urine test of athletes. Ct found special needs here, decreased expect of privacy in public school, relative unobtrusiveness of search, this is reas and constit.

    Class Notes

    • exigent circum take place of warrant

    • remember: prob cause + warrant = norm, now we have another substitute. Prob cause + exigent circum = OK

    • exigent requires immed action. Ex: drug case, destruction of evid

    • so, when do you need warrrant in drug case? When there are no exigent circum, otherwise the exception destroys the rule

    • cops can’t create exigent circum - Vale

    • need an immed need to act

    • O’Brien - cops came to get his car, which was in driveway, obviously not destroying evid here. Ct held this was not hot pursuit, he was not danger to himself or others, they needed to get warrant. But he didn’t get damages, qualif immunity (ex: of no exigent circum)

    • After O’Brien, now cops are on notice not to do this or they will pay damages

    • Mincey - homicide det came in after (that was the problem) - no threat of destruction of evid

    • Phones - cordless phones, are they prot by expect of privacy? Cong enacted law that gave some prot to cordless & reg phones

    • conflict between warrant & reas clauses

    • primary purpose of govt - to protect public

    • so what does govt have to do to inspect your house? Fire code reg, if you want certif of occupancy, have to let them inspect

    • govt needs legis scheme

    • Griffin - recognizes, probation officer can search house for reas susp

    • Burger, very important case - ct recognized commercial business has expect of privacy, ct said it was closely reg because of lots of chance of stolen goods

    • admin search - needs less than prob cause

    • drug testing - when is it allowed?

    • Remember: you need search or seizure before 4th amend comes into play, need state action

    • what kinds of jobs can govt req drug testing? Anything where safety is involved, airline pilots, train engineers

    • more on car searches - supplement case

    • Nolls v Iowa - D was issued a traffic citation. Ct said you can’t search entire car under this case.

    • Ex: if cop stops person for bad tailight, cop can order person out of car, pat them down, but if that pat down & interaction does not result in prob cause, the fact of traffic citation by itself does not allow search of car

    • but cops can ask for consent to search - Robinnette v OH - but ct says you can’t have vol consent, interaction is very coercive

    • Vernonia - all about reasonableness clause, dissent argued it should be about warrant cl

    • prof note: if teacher is high, you can show that, you have prob cause to get warrant

    • these cases started w/random drug testing for train engineers, people who carry guns, all the way to student athletes

    • in MI, random drug testing allowed in schools of teachers

    • govt is trying to get more power to randomly drug test all kinds of people, to prevent drug abuse

    • Morales (supplement) - gang colors case, US SUP CT

    • Chandler - GA prov that says if you want to be Att Gen, you have to submit to drug test. Us sup ct said govt does not have right to do this

    Roadblocks and suspicionless seizures

    • DE v Prouse (US 1979) - indiv stops. Ct held a cop could not, in absence of reas susp, stop a car & detain driver in order to check his license & registration. - too much discretion for cop - fear

    • Martinez-Fuerte (US 1976) - permanent checkpoints. Ct said ok for suspicionless stop at parts removed from border, to check for illegal aliens

    • MI Cops v Sitz (US 1990) - temp checkpoints, seizure case. Under this program, all drivers passing checkpoint would be stopped & briefly checked for signs of intox. Us sup ct said this was ok - but MI Sup ct relied on state constit and said roadblock was unconst, need some level of suspicion to enforce crim law

    • ct has allowed search on less than prob cause in only 2 circum: 1) search for weapons and dangerous people, not evid, for purposes of self-prot (Terry); and 2) search for evid, where there are special needs beyond law enforc (Von Raab, Acton, ..)

    • search for evid of crim activity by law enforc has to be under prob cause

    Inventory Searches

    • unrelated to crim invest, cops just do this for cars and other things that are in their custody

    • designed as “caretaking function”

    • SD v Opperman (US 1976) - ct upheld warrrantless, suspicionless search of car impounded for parking violation (ct found 3 state interests behind inventory search: prot of cops from false prop claims, prot of prop interests of owner, and prot of cops and public from dangerous items)

    • CO v Bertine (US 1987) - ct held cops could inventory contents of van, including a closed backpack, and nylon bag & other containers in it. Ct said these were reas reg.

    • Fl v Wells (US 1990) - unanimous decison, ct held that opening of locked suitcase could not be justified as invent search where FL HWY Patrol had no policy on opening closed containers

    Border Searches

    • serve special need beyond crim law enfor- protecting America borders. Because it serves special needs, it’s evaluated under reas clause

    • these searches are usually reas even w/out a warrant or prob cause, and even w/out any suspicion

    • non-routine border searches have to be supported by some level of indiv suspicion

    • Montoya de Hernandez (US 1985) - detention of a traveler at border, beyond scope of routine customs search, is justified if customs agents reas suspect traveler is smuggling contraband in her ass. Poopy lady story.

    • Bottom line: routine border search can be done w/out suspicion, but non-routine search req reas suspicion

    Consent Searches

    • a search based on vol consent is reas even in absence of warrant or any suspicion

    • Schneckloth v Bustamonte (US 1973) - ct said D did not have to be told that he could refuse to give consent to cop to open trunk. Ct said quest of whether search is vol is based on totality of circum.

    • Can’t punish someone for refusing to consent, refusal is not evid of guilt

    • burden of proving vol consent is on govt

    • Frazier v Cupp (US 1969) - ct upheld search of D’s bag when his cousin, a jt user of bag, vol consented


    • remember actual & apparent authority

    • a search beyond scope of consent cannot be justified as consent search

    • FL v Jimeno (US 1991) - ct said the scope of consent is determined by objective standard

    • person could also withdraw consent, after giving it, but not after cop has found incriminating stuff

    Class Notes

    • roadblocks are suspicionless seizures, by def no prob cause

    • when can cops do roadblock?

    • They have to stop everyone (avoid discretion, pretext)

    • in area where there’s a problem

    • min intrusive (att gen said there should be a warning if you don’t want to go through it, and that shouldn’t be reason to go after someone)

    • Sitz - ct said this was a reas intrusion based on real problem. They balanced pub interest against right of indiv

    • MI is in minority - doesn’t allow roadblocks for random alcohol testing

    • inventory search has to be pursuant to an arrest. Cop makes inventory sheet, makes citizen initial it. Protect citizen, protect cop from false claim, find evid of crime

    • US sup ct says there has to be a juris police policy on this, if not, can’t have inventory search. Has to be done universally or too much discretion

    • can’t be used as excuse for warrantless search

    • don’t need any reason for border searches, less expect of privacy

    • non-routine border search, need some suspicion

    • warrant is only req in extreme circum

    • US sup ct decision said you can take race into consideration

    • consent searches

    • when you consent to searches, what do you do w/your 4th amend rights? You waive them, needs to be knowing & voluntary waiver

    • but this assumes you know your rights. This is in stark contrast to your 5th amend rights

    • for 4th amend, they look at totality of circum

    • prof cites Robinette again

    • there’s no req officer tell person they can say no or they’re free to go

    • if person says no to search, that can’t be used to estab reas suspc, prob cause to seach. But cops don’t have to tell you this, but they do in some form for 5th amend

    • if a person is in custody, consent is valid

    • if arrest is illegal, consent is not valid OR if arrested in home, w/out warrant, their stmt or consent is not valid

    • ex: A can’t consent for B - unless there’s a power to consent for 3rd party

    • state cts are split - on whether parent can consent to have of adult kid’s bedroom, most cases parent has no authority, some go other way

    • if person has power, that’s diff

    • ex: can hotel person consent to search by police? NO, it’s like your home. If hotel person sees something, they can tell cop, cop can get search warrant

    • scope of consent

    • ex: you can search my car, but not my trunk - this is valid consent. If judge believes you, and they find something in trunk, it’s suppressible

    • exercise of constit right can’t be used against you

    • ex: if you consent to search of car, and they open bag, that’s ok

    • most people consent, they don’t know they can say no

    • credibility call

    VI. Reach of 4th Amendment

    A. Searches by individuals not covered by 4th amend

    • Burdeau v McDowell (US 1921) - search was conducted by private citizens, and did not implicate 4th amend

    • 4th amend can apply to private indiv actin as agent for govt

    • US v Jacobsen (US 1984) - private search took place, and govt agents then did field test on that (fed express, package torn by fork lift). Ct said this field test was ok, did not compromise privacy interest. Bottom line: if initial intrusion is not covered by 4th amend, a later intrusion is also not

    • IL v Andreas (US 1983) - controlled deliveries, to follow where package is going (after being opened and finding drugs in it). Cops saw D take package into his apt, and he re-emerged w/it later, cops searched it w/out warrant. Ct said reopening of package was not search, because no legit expect of privacy existed in package at that time

    • ct have uniformly held that evid obtained by foreign police officials from searches conducted in their country is gen admissible regardless of whether search complied w/4th amend

    • US v Verdugo-Urquidez (US 1990) - ct said non-resident aliens lack sufficient connection w/US to be considered as part of people in 4th amend

    B. Eavesdropping, Wiretapping, undercover activity, & outer reaches of 4th amend

    • Silverman v US (US 1961) - ct condemned eavesdropping. Ct found constit violation with the placement of a foot long spike w/a microphone attached, under a baseboard to a wall - so that it made contact w/heating duct. Ct said technicality of trespass did not matter, this was intrusion into constit prot area.

    • Katz (US 1967) - ct said 4th amend would apply to electronic surveillance whenever it violated a person’s justifiable expectation of privacy

    • Lopez v US (US 1963) - agent received unsolicited bribe, wore a tap when he met Lopez. Ct found no 4th amend violation, said Lopez assumed the risk.

    • Katz test does not change holding from Hoffa or Osborn, because ct in those cases held that Ds had no reas expect of privacy from undercover activity, having assumed the risk that their friends or assoc would disclose their guilty secrets (look out for people being “invited”)

    Class Notes

    • when private co has state function, constit restraints are the same, privatization is not the answer

    • Jacobsen - once package is opened, privacy right is gone

    • wiretapping & eavesdropping, you have to inform person, at some point

    • 4th amend is a prot, not a sword, can’t use it offensively

    • prob cause + warrant = ok, but need to look at affidavit for warrant

    VII. Remedies for 4th amend violations

    • once 4th amend violation occurs, usual remedy is exclusion of evid gathered as result of that violation

    • Weeks v US (US 1914) created exclusionary rule for fed cts. 2 themes - exclu rule is only effective means of prot 4th amend rights and cts should not sanction illegal searches by admitting evid from them

    • Wolf v CO (US 1949) - unreas state searches & seizures were held to violate DP of 14th amend

    • Mapp v OH (US 1961) - all evid obtained by illegal searches & seizures are unconstit violation of 4th amend, and inadmissible in state ct

    • gen, a violation of state law that is not itself a violation of 4th amend will not result in exclusion of evid in fed ct. Whether exclusion will occur in state ct is matter of state law.

    • Whether or not state law should control fed officers, there’s an arg that fed cts should suppress evid seized by state officers if state courts would suppress, based on comity

    • procedure to return prop & motion to suppress

    • can make motion to return evid

    • can make motion to suppress

    • Franks v DE (US 1978) - ct held D has limited right to attack truthfulness of stmt in warrant applications. Ct said D must show there was deliberate falsity or reckless disregard for truth

    • remember: cop’s misstatement under Franks is not mat’l if there was prob cause anyway

    • when challenging warrantless search, once it’s estab that no warrant was obtained and motion to suppress for violation of constit, govt must justify the search. State must prove by prepond of evid that exception to warrant req was satisfied

    • at the hearing, D may testify in support of his claim for 4th amend violation

    • Simmons (US 1968) - when D testifies on quest of standing at suppression hearing, govt may not use his test against him on quest of innocence or guilt.

    • Ex: D can testify at suppression hearing that briefcase full of drugs was his, and this stmt can’t be used against him as admission of guilt at trial

    • gen rule, can’t be penalized for exercising constit right

    • however, test at suppression hearing could be used at trial to impeach D who changes his story once he takes stand

    • Rakas - 4th amend rights are personal to D, need legit expect of privacy

    • ownership of drugs is not enough to confer standing in case where D was w/girlfriend, and drugs were seized in her purse (no legit expect of privacy)

    • owner of car has standing to object to search

    • if person disassociates himself from prop, he loses standing to object to search of that prop

    • US v Padilla (US 1993) - there is no co-conspirator exception to the standing req in Rakas. Each person must have expect of privacy or legit possessory interest

    • exclusionary rule does not apply unless evid is seized as a result

    • Brown v IL (US 1975) - for causal chain between illegal arrest & stmt made to be broken, Wong Sun req stmt meet 5th amend req for voluntariness and that is it sufficiently an act of free will to purge the primary taint

    • NY v Harris (US 1990) - D confessed at station after cops made warrantless in home arrest in violation of Payton. Confession was made an hour later, after he got Miranda warnings. Ct said confession was not tainted, because D was not unlawfully in custody. Violation of Payton constitutes illegal search of home (which is excludable), not illegal arrest (not same here).

    • Indep source doctrine - allows introd of evid discovered initially during unlawful search if evid is discovered later through source that is untainted by initial illegality

    • Murray v US (US 1988) -

    • lower cts have taken view that a search procured in part on basis of illegaly obtained info will still support search if untainted info supporting warrant considered alone, is sufficient to estab prob cause

    • inevitable discovery exception - govt must show that illegally obtained evid would have been discovered through legit means indep of official misconduct

    • Nix v Williams (US 1984) - ct held that for govt to invoke inevit disc doc, govt must prove by prepond that evid would’ve been disc through indep legal means

    • cts are reluctant to suppress test from live witness which is alleged to be result of illegal search or arrest

    • excl rule applies to exclude evid at crim trial (maybe at forfe

    • Stone v Powell (US 1976) - ct held exclu rule could not be invoked in habeaus corpus proceed to challenge 4th amend violations

    • exclu rule gen not applicable to fed sentencing proceed

    • Walder v US (US 1954) - opened door on direct examination. D said he never had drugs in his life, ct held he was properly impeached w/evid of heroin that was illegally seized from his home in earlier, unrelated case

    • US v Havens (US 1980) - open door on cross. Guy denied sewing shirt into pocket w/coke in it, his test was impeached by introd of illegally seized shirt


    • James v IL (US 1990) - ct refused to extend impeach exception to allow impeach of Ds witnesses w/illegally obtained evid

    • US v Leon (US 1984) - good faith exception. issue was whether 4th amend exclu rule should be modified so that prosec’s case-in-chief evid obtained by cops acting in reas reliance on search warrant issued by magistrate, but later found to lack prob cause. Ct said this was ok. Ct also holds exclus rule is not constit req. Ct applied good faith rule (objective basis) here because cop relied on magistrate decision.

    • 3 types of errors after Leon:

    • reas mistakes not in violation of 4th amend, mistakes of fact

    • unreas mistakes which violate 4th amend, but at time of conduct reas minds could differ about whether cop was acting lawfully

    • unreas mistakes where cop violated clearly estab law, where no reas arg could be made that action was legal

    • AZ v Evans (US 1995) - computer error

    Class Notes

    • 4th amend is prot, not sword, can’t use it offensively

    • prob cause + warrant = ok, but need to look at affidavit for warrant

    • Leon - excl rule does not apply to cop who has warrant, and in good faith relies on that warrant

    • if info was new & inadeq as determined by magistrate, then cop went to another magistrate, who did not know about 1st magistrate, then Leon would not apply, it’s a good faith exception

    • you would have to show cop unreas relied on it, bad faith

    • right of privacy, core is person’s home

    • Defillipo (MI case) - could cop rely on ordinance?


    Chapter 3 - Self Incrimination and Confessions

    A. The Policies of the Privilege against compelled self-incrimination

    • 5th amend provides - no person shall be compelled in any crim case to be a witness against himself

    • list of common justifications for priv against self incrim

    • protection of innocent (US SUP Ct has disclaimed this rationale - no proof that it protects the innocent)

    • cruel trilemma (self accusation, perjury, contempt) - some say this is not good rationale either

    • deter perjury (but perjury happens with or w/out the privilege)

    • unreliability of coerced stmts

    • preference for accusatorial system (not inquisitorial system)

    • deter improper police practices (torture, but this is unacceptable today anyway)

    • fair state-indiv balance

    • preservation of official morality

    • privacy rationale

    • first amend rationale

    B. Scope of the privilege

    • US SUP CT has given it a broad interpretation, to apply anytime indiv is involuntarily called as witness against himself in crim prosecution, but also in any other proceed (civil or crim) where person’s answers might incriminate him

    • Boyd v US (US 1886) - ct found that “forfeiture” case was a crim case and that subpoenaing of business records was = to compelling person to be witness against himself

    • Malloy v Hogan (US 1964) - right to be free from compelled self-incrim is incorp into 14th amend to apply to states

    • Note: use of compelled testimony other than a crim case does not implicate 5th amend

    • Allen v IL (US 1986) - ct held that proceedings under the IL Sexually Dangerous Persons Act were not crim for self incrim purposes. Therefore, the state ct properly relied on stmts made by Allen to psychiatrists who examined him to determine whether he should be committed for treatment under the act (ct relied heavily on statutory construction, IL had in statute that it was civil)

    C. What is Compulsion?

    • 5th amend protects against self incrim only if it is compelled by the govt

    • use of contempt power is classic form of compulsion, or setting of custodial interrogation

    • Lefkowitz v Turley (US 1973) - public contractors case. Ct held a waiver secured under threat of sub econ sanction cannot be deemed voluntary. Govt is involved here because Turley had contract w/govt

    • Spevack v Klein (US 1967) - forbids disbarment of lawyer for invoking privilege during bar investigation, where stmts could have been used against him in subsequent

    • Selective Service v Minnesota Public Interest (US 1984) - students wanted $ for college, but they didn’t register for draft. Ct observed that the state was not compelling the students to admit their draft status by way of applying for financial aid

    • Griffin v CA (US 1965) - ct held that adverse comment to the jury, by either judge or prosec, on D’s decision not to testify constitutes punishment for invocation of silence, and = compulsion, and violates 5th amend

    • watch out for indirect references to D’s failure to testify (some cts say stmt that evid was “uncontradicted” is ok, but 6th cir case said that stmt violates Griffin where D is the only person who could rebut the victim’s assertion)

    Class Notes

    • 5th amend - no one shall be compelled, in any crim case, to be a witness against himself

    • Miranda is a 5th amend case, right to counsel is necessary to advise someone of their 5th amend right

    • note differnce: cops don’t have to tell you about your 4th amend right against search/seizure

    • history - torture people get them to tell truth

    • in crim cases, govt by def can’t put accused on stand & force them to talk. Exception is immunity - reverse waiver, state waives its right to prosecute someone, so you have to testify, if you don’t, you’re held in contempt

    • you can also plead 5th at grand jury proceeding. You can choose to answer some questions, not all, at investigatory stage, as long as you tell them you’re not waiving it

    • you can use 5th amend right in juvenile ct

    • modern means of compulsion is contempt, can be civil or crim. Contemptor has keys to jail cell in their pocket, whenver they talk, they’re out. This is big power for judge, should be used rarely

    • immunity req ct order, prosecutor has to seek it

    • if you get immunity, you have choices:

    • go back to grand jury, answer quest, knowing your info won’t be used against you. This is called use immunity, should get it in writing

    • civil contempt in grand jury situation, if person chooses not to testify because they’re frightened, the limit on time they can be kept in jail is the term of the grand jury because purpose is to coerce testimony in front of grand jury. Once this is gone, keys to jailhouse are gone

    • civil contempt is very easy, no jury trial. Just a show cause hearing, method of coercion


    D. To whom does the privilege belong

    • it’s personal, belongs only to one who is incriminated by his/her own testimony

    • Fisher v US (US 1976) - taxpayers were in trouble w/IRS, so they got their doc from their accountants, gave them to their lawyers, who in turn refused to comply w/IRS on 5th amend grounds. Ct held that by getting doc from lawyers, taxpayers’ rights would not be violated under 5th amend

    E. What is protected?

    • Priv only protects person from being compelled to be witness against himself

    • Schmerber v CA (US 1966) - nontestimonial evid. Guy was caught driving drunk, taken to hospital, arrested, and they took blood sample from him. Report of test was admitted in evid at trial. Ct held that the priv protects an accused only from being compelled to testify against himself, or otherwise provide state w/evid of testimonial or communicative nature, the withdrawal of blood does not involve compulsion.

    • US v Wade (US 1967) - req suspect to stand in cop lineup, not violation of 5th amend

    • Penn v Muniz (US 1990) - testimonial evid & cruel trilemma. Ct held that the line between testimonial and nontestimonial evid must be determined by whether witness faces the cruel trilemma in disclosing evid. Guy was drunk, cops asked him when his 6th birthday was, he didn’t know, his answers were slurred, all of his answers and mannerisms were introd at trial as evid that he was drunk. Ct said the evid of his slurred speech was not testimonial under Schmerber. On birthday quest, 5 members of ct said it was testimonial.

    • To be testimonial, the communication must be an express or implied assertion of fact which can be true or false: otherwise there’s no risk of perjury, and no cruel trilemma

    • Estelle v Smith (US 1981) - holds that a D who is interviewed by govt psychiatrist who will testify at sentencing (this was death penalty case) has a right to be warned that what he says may be used against him in sentencing proceed.

    • If suspect refuses to participate in line up or give physical evid, ct can find him in contempt - this would be compulsion, but it’s ok because the D has no constit right to refuse production of non-testimonial evid

    • Fisher v US (US 1976) - case about taxpayer having to give up accountant’s papers. Ct said even if papers incriminate taxpayer, the priv protects only against being compelled by his own compelled testimonoy. Ct held that subpoenaing papers involves no incriminating testimony w/in 5th amend.

    F. Procedural aspects of self-incrim. Claims

    • when crim D invokes priv - ct already knows this is ok

    • but when priv is invoked by person on stand in a proceeding, trial judge must decide whether priv is properly invoked

    • Hoffman v US (US 1951) - test: it needs to be evident from implications, in setting it’s asked, that it might incriminate person

    • Immunity

    • if witness is guaranteed that no crim prosecution having to do w/his stmts will happen, then there’s no possibility of incrimination, no right to refuse to testify because of the privilege

    • a broad guarantee against future prosecution is called transactional immunity (no trans which a witness testifies about can be subject of future prosec against witness)

    • Fed Immunity Statute 18 USC 6002 provides for use immunity (more limited)

    • Kastigar v US (US 1972) - ct upheld fed statute, said use immunity was constit. (Ct said after immunity is granted, & witness is compelled to talk, burden is on govt to show that evid it wants to use is derived from legit source wholly indep of compelled test.

    • US v Gallo (2nd Cir 1988) - D’s immunized test was used w/other info to get wiretap on another person’s phone. Conversations were intercepted, they incriminated D, were used against him at trial. Ct held Kastigar was not violated because of indep source, inevitable discovery. No violation of use immunity if they would’ve found it anyway.

    • Once use immunity is granted, test that is extracted from immunized witness is coerced & cannot be used as evid against witness in subsequent case against witness, even for impeachment. BUT, Ct has held that grand jury test of a witness who was given use immunity before testifying could be used against him in subsequent perjury prosec.


    • US v Doe (US 1984) - ct held that sole proprietor could rely on priv in 5th amend & decline to produce records as long as act of prod might incriminate.

    • But watch out - in Braswell v US (US 1988) ct said business entities are not entitled to 5th amend prot, if the official records of company are held by an agent of company in rep rather than indiv capacity, priv cannot apply. Collective entity rule.

    • Waiver of the privilege

    • on direct, D can control what he says, but not on cross

    • anytime a person is compelled by govt to answer quest that might tend to incriminate that person in subsequent crim case, person can refuse to answer & rely on 5th amend.

    • However, if person does answer, priv is waived and answer can be used as evid

    • Class Notes

    • can’t lose job or contract for invoking privilege

    • if someone pleads 5th at time of police quest or during trial? What can govt do? Can’t comment on it

    • what does jury know about D? He’s not testifying

    • hot issue between state ct and 6th cir - whether prosec can say testimony is uncontested? 6th cir grants relief for prosec who makes this comment

    • in MI, D has choice under Campton, as to whether judge should instruct jury that D does not have to testify

    • from ethics point of view, in MI, gen rule is a party cannot refer to matters they know will not be in evid, can’t call witness that they know will plead 5th (because jury will speculate)

    • Fisher - govt can ask for business records, and unless the person, by giving records is committing crime, they can’t challenge a request for the info

    • Schmberber - ct gives narrow def to word “witness” in 5th amend. Dissent said it was very reliable, but this is minority view.

    • also, fingerprinting, photos, writing sample, voice exemplars - 5th amend is not implicated

    • what about cop who arrests someone for drunk driving? Cops force person to walk line - this is physical, it’s ok. How about reciting abc’s? Ct said ok too, Muniz

    • if there’s an insanity defense, the D implicitly waives his right to remain silent, if state is entitled to indep psycho review

    • Fisher - papers have to be turned over

    • if govt really wants someone’s test, they can give them immunity

    A. Confessions and Due Process

    • US Sup ct relies on 3 constit prov in determining admissibility of confessions:

    • DP clauses of 14th and 5th amend

    • 6th amend right to counsel

    • 5th amend priv against self-incrim has been applied to stmts made during custodial interrogation, waiver analysis has prevailed, priv must be shown to have been effectively waived before confession is admissible

    B. Due Process Cases

    • Brown v Miss (US 1936) - invol. test. Ct held that severe whippings used to get professions from helpless D’s, made conf invol, violated dp. Ct emphasized unreliability of conf.

    • Ct used case-by-case analysis, hard for lower ct, no stand, no bright line

    • ct looks at physical deprivation & mistreatment, no food, sleep, psycho influence

    • Spano v NY (US 1959) - guy shot someone in bar fight. D called cop who was his friend. Ds attorney told him not to anwer any quest, he listened. But cops moved him to anther station, and he still refused, asked for his attorney, and they said no. They brought in his cop friend to get info from him, but this didn’t work. D asked for attorney again, they said no. After 4th time, d confessed. Ct found this violated 14th amend, and that his confession was invol.

    • 6th amend does not apply until suspect has been formally charged

    • miranda only applies during police custodial interrogation

    • US v Murphy (6th cir 1985) - sending attack dog to apprehend suspect is not custodial interrog, but confession made while dog attacked held invol)

    • NOTE: miranda rights can be waived. Ct has held that violation of miranda is not itself a violation of constit, so a miranda defective confession can be used for impeachment, the fruits of this conf are admissible, and conf can be admitted if obtained under emergency circum.

    • Even with all this, a confession can still be excluded under DP clause if obtained through police coercion

    • AZ v Fulminante (US 1991) - a confession made by one prisoner to another was coerced and invol under 5th and 14th amend. Basically, paid informant by cop = same as cop. Ct looks at totality of circum.

    • CO v Connelly (US 1986) - dp focus is on police misconduct and not on suspect’s state of mind. Here, connelly walked up to cop and confessed murder, even after cop warned him he had certain rights, did not have to talk. Later, d said voices made him talk about it, but ct said this conf was not coerced, therefore no deterrence to cop in suppressing it.

    Special Federal Standard for Confessions

    • McNabb (US 1943) - ct looked at time aspect. Ct held a prompt prelim hearing was req by fed law. Ct has power to exclude confessions where there’s unreas delay, w/out cause in presenting suspects for prelim hearing.

    • Mallory (US 1957) - ct affirmed McNabb. Ct found that a confession of a rape suspect was inadmissible because it violated fed rule against unreas delay.

    • Hot topic in us sup ct now: 18 USC 3501 - cong enacted this in response to above decisions, it gives a max 6hr period before bringing suspect

    • US v Alvarez-Sanchez (US 1994) - ct held that prov of statute above do not apply when suspect is being held by state authorities.

    Fifth Amendment Limitations on Confessions

    A. Miranda v AZ (US 1966) - the court held:

    • prosecution may not use stmts,whether inculpatory or exculpatory, stemming from custodial interrogation of the D unless it is demonstrated that they used proced safeguards to secure priv against self-incrim.

    • Custodial interrog means questioning intitated by cops after a person has been taken into custody or otherwise deprived of their liberty

    • prior to questioning, person must be warned that he has right to remiain silent, any stmt he makes may be used against him, and he has right to attorney, either retained or appointed.

    • D may waive these rights, provided the waiver is vol, knowing, intelligent

    • d can choose to answer some quest, and not all

    • physical and psycho interrogation is considered

    • if questioning continues w/out presence of attorney and a stmt is taken, a heavy burden rests on govt to demonstrate D knowingly and intelligently waived priv against self-incrim and right to retain counsel

    • silence does not mean waiver

    • ct says the req of warning and waiver is fund right to 5th amend

    • one purpose of Miranda is to give hard fast rule for ct: if warnings aren’t given, confession is tainted

    • idea that they should know their rights, or conf is invol

    B. The non-constit status of Miranda

    • Note: in a bunch of cases, the ct has held that a stmt obtained in violation of miranda is not necessarily constit defective

    • Harris v NY (US 1971) - ct held miranda safeguards are not req by constit, and therefore his miranda defective stmt could be admitted for purposes of impeaching his credibility

    • Mincey v AZ (US 1978) - ct held if a conf is invol, as opposed to just miranda defective, it can’t be admitted even for impeachment. Dp clause prohibits use of invol conf for any purpose

    • Doyle v OH (US 1976) - d was given miranda warnings at time of his arrest, chose to remain silent. Ct held that after miranda warnings are given, dp prohibits govt from using d’s silence against him

    • Jenkins v Anderson (US 1980) - impeachment by use of prearrest silence does not violate 14th amend

    • MI v Tucker (US 1974) - D was given miranda, except they didn’t tell him he could have lawyer if he was indigent. Ct found that failure to give D full miranda warnings req exclusion of tucker’s conf but not Henderson’s testimony

    • OR v Elstad (US 1985) - ct extended tucker. D gave a miranda defective conf, he received warnings, signed a waiver, made a formal conf. Only 2nd conf was admitted at trial.

    • NY v Quarles (US 1984) - concur argued that physical evid obtained as fruit of miranda defective conf should not be excluded. Most cts say all evid fruits of miranda defective conf are admissible. Ct created public safety exception (so cops had to act fast to protect public, it’s ok if they don’t give miranda here)


    Class Notes

    • what kind of conf are not admissible into evid? Coerced (violate sense of fairness, even if they’re reliable). Civilized society can’t be based on these

    • where conf is not vol, can’t be used (mushy line in middle)

    • us sup ct req counsel to be provided, only after charges are brought

    • under us constit, there’s no right to counsel prior to commencement of adversarial system

    • in MI, 1996, mi sup ct said cop had to tell a suspect in custody that an attorney was there for them, Vakher

    • this is all about fairness

    • why do we suppress invol conf? Unreliable, can’t be allowed in civ society

    • McNabb-Mallory rule - cops can’t hold someone w/out presenting them for arraignment, for purpose of getting arraignment, remember Riverside 48 hrs

    • Cong statute, sec 3501, 4th cir case ruled it took precedent over miranda, us sup ct will hear case in april

    • Exam: first quest you ask when there’s a confession:

    • if conf vol? This is a dp right, 5th amend right, more prot than Miranda

    • ex: Harris

    • stmt made after giving miranda rights is not necessarily vol

    • if someone is in custody & interogg & not given miranda, it’s auto not admissible

    • you can stop talking even if you start

    • how does miranda help cops? Easy to know rule. Courts? Bright line rule. Citizens? Educate them about their rights

    • not necessarily an anti-police rule

    • people who support statute argue exclusion is not a necessary remedy for miranda violation, not in constit anywhere, not constit req

    • what are warnings in miranda meant to do, in terms of informing d of what? Sup ct said right to counsel is part of 5th amend right to remain silent, so, before person can waive it, should have opportunity to consult w/attorney

    • miranda is to protect 5th amend right to remain silent

    • contrast w/4th amend (Robinette) where cops don’t have to tell you you can refuse to consent (that’s why there’s a high consent rate)

    • when do miranda warnings have to be given? When there’s custody & interrogation

    • if you never interrogate someone, you don’t have to give miranda


    • if you interrogate them, and you don’t plan to use it against them, don’t have to use miranda

    • often, if there’s custody, there’s an arrest & vice versa

    • know rule on pre-arrest silence

    • Tucker - limits what is to be suppressed

    • Elstad - 2nd conf was allowed, exclusionary rule didn’t apply

    • Robinson (MI case) - mental intimidation can make stmt invol. Can’t use fruits of that


    C. Open questions after miranda

    • what is custody? In miranda, ct held cops must give accused warnings before commencing custodial interrogation. If d is not in custody, miranda does not apply, and the test is whether conf was vol under totality of circum

    • custody is when person is deprived of freedom of action in significant way

    • w/out custody, there is no coercive atmosphere to trigger need for miranda warnings

    • in 2 us sup ct cases, they have held that an indiv at police station is not necessarily in custody and that a suspect was not in custody when he agreed to accompany cops to station for questioning

    • Berkemer (US 1984) - ct held that terry stops are not custodial for purposes of miranda. Ct said terry stops are typically brief, limited questioning, person does not have to respond, and unless probable cause arises in short time, the detainee must be released.

    • What is interrogation? Cops must interrogate before miranda applies

    • Innis (US 1980) - guy was arrested for shooting. D got miranda warnings like 4 times, wanted to talk to lawyer. Cops were taking him to station, when they started talking to him trying to get info out of him indirectly (saying, oh we’d hate it if some kids found that gun, etc.) so, d ends up showing them where gun was. Ct said interrogation under miranda refers to express questioning and any words or actions on part of cops that cops should know are reasonably likely to elicit incriminating response. But ct said cops can’t be held responsible for the unforeseeable results of their words or actions, so the interrogation can only extend to words or actions that cops should have known were reas likely to elicit incrim response. Ct found d was not interrogated here

    • Mauro (US 1987) - ct held that stmt made by suspect to his wife in presence of cop who recorded stmts was not interrogated.

    • Edwards v AZ (US 1981) - ct found that edwards was interrogated when cops played for him a tape recorded stmt of his associate, that implicated ed in a crime

    • officers can ask quest attendant to custody w/out miranda warnings, and if suspect’s answer is incriminating, it can be admitted at trial

    • Muniz (US 1990) - d was stopped for drunk driving, taken to booking center to answer basic quest (name, adress, height, etc). D stumbled over answers, his responses were admitted at his trial as evid of drunkeness. Plurality said the answers to these quest were routine booking quest, just bio data

    • if quest becomes interrog, have to give miranda warnings

    • after muniz, fingerprinting, transp, inventorying will prob not be considered interrog even though d might make incrim stmts - because these kinds of quest usually don’t call for incriminating response

    • miranda does not apply to undercover activity, miranda is concerned w/pressures on a suspect in a police-dominated atmosphere

    • miranda does not depend on offense - can be felony or misd

    • ct has held cops don’t have to give exact warnings - just basic gist


    D. Waiver of Miranda rights

    • Waiver and role of counsel - miranda stated that an accused may waive rights to silence & counsel, but only if, under all circum, rights are waived vol, know, intell. Validity of waiver is quest of fact

    • valid waiver will not be assumed from silence of accused after getting warnings, nor from fact that conf was eventually obtained

    • Moran v Burbine (US 1986) - held that 2 req must be met before suspect will be found to have waived miranda rights:

    • relinquishment of right must be vol, product of free & deliberate choice, rather than coercion

    • waiver must be made w/full awareness of both nature of right being abandonded and consequences

    • Note: even after miranda warnings are given, conf can still be coerced, maybe by overbearing cop pressure

    • CT v Barrett (US 1987) -

    • also in Moran, ct found that burbine’s waiver was valid despite the fact that he was not informed that his lawyer wanted to talk to him. Ct found that fact cops acted on purpose to deprive burbine of this info did not affect validity of waiver. Ct also held that there is no req to inform suspect of counsel’s efforts to contact him under miranda

    • suspect can invoke 2 rights in response to miranda warnings - right to silence and right to counsel

    • MI v Mosley (US 1975) - ct held that the only sensible reading of miranda’s lang on right to silence must be read as: a suspect’s right to cut off questioning must be scrupulously honored. Ct said here, cops acted properly when they immed stopped asking quest, waited a while, and started asking fresh quest to crime that was not subject of earlier interrog

    • Edwards - ct said additional safeguards are necessary when accused asks for counsel. Ct held that when accused asks for counsel during custodial interrog, a valid waiver cannot be estab by only showing he responded to further police questioning, even if he’s been advised of his rights. This case req that suspect inititate further communiction before waiver can be found

    • Bradshaw (US 1983) - plurality. 2 step analysis to determine whether suspect waives rights after invoking right to counsel: bright line safeguard of initial req and totality of circum of knowing, vol waiver.

    • Exam? Davis v US (US 1994) - ct held that suspect must clearly & unequivocally invoke right to counsel to trigger prot of edwards

    • McNeil (US 1991) - ct held that accused who is arraigned and asks for counsel is invoking 6th amend right, not miranda right, and that there’s a difference. Diff is that 6th amend right is offense specific, therefore cops can initiate quest on crimes other than crime w/which d was charged

    • Massiah (US 1964) - ct used 6th amend to exclude confession

    • Brewer (US 1977) - YMCA case, little girl and sicko. Ct excluded confession, said that once adversary proceed is commenced against indiv, he has legal right to rep when govt interrogates him. Govt could not show waiver.


    E. Waiver of 6th amend protections


    • MI v Jackson (US 1986) -


    F. 6th amend exclusionary rule


    Class Notes

    • what is custody? Need to be in custody for Miranda to apply, there’s intimidation, no choice

    • what about when you’re stopped for traffic violation? Berkemer - terry stop is brief, limited quest, once it goes past terry stop, that’s different

    • what is interrogation? Any quest they ask you after you’re in custody. So all you need to ask is whether quest were asked

    • Innis - reas, objective test rule. If it’s clear that purpose of quest is to elicit a response from person in custody, you need to give miranda. But ct said this was ok here, not interrogation. Prof agrees w/J.Marshall here in dissent

    • ex: guys in jail or prison say, x said he told me he committed this crime, i’ll testify if you give me a break. Miranda does not apply

    • waiver - does not have to be written, but cops have them anyway because it’s harder to dispute them

    • if person hasn’t been given miranda, and just talks, is this ok? YES, implied waiver

    • Burbine - mi sup ct - opposite result

    • what happens after person says I want to remain silent - can cops ask them more quest? What can cops do?

    • Exam: maybe someone would be ambiguous about raising their rights

    • diff between edwards (gives broader prot than 6th amend right to counsel) asking for counsel, it’s not crime specific


    Chapter 4 - Identifying Suspects

    A. Identif and right to counsel

    • Wade-Gilbert (US 1967) - ct said d’s post indictment lineup was critical stage, where he was entitled to counsel. Bottom line: lineup was held improper because of absence of counsel, substitute counsel, or waiver of counsel

    • Gilbert v CA (US 1967) -

    • Kirby v IL (US 1972) - persons 6th & 14th right to counsel attaches only at or after time adversary proceed has been intitated against him. It also attaches at time of arraignment and prelim hearing. Ct refused to extend wade per se exclusionary rule to id testimony based on police station lineup that took place before d was charged w/crime

    • Ash (US 1973) - ct restricted wade rule, held that a d has no right to counsel at a photo id, whether conducted before or after formal charge or indictment



    B. DP limitations on id evid

    • Stovall v Denno (US 1967) - dp test (to protect against cop proced that are so suggestive as to give rise to sub liklihood of irreparable misidentif

    • Biggers (US 1972) - reliability is the key in determining admissibility of post stovall confrontations. Factors to use are: opportunity to view; degree of attention; accuracy of description; witness level of certainty; time between crime & confrontation.


    Chapter 5 - Right to Counsel

    • 6th amendment - in all crim prosec, the accused shall enjoy right to have assistance of counsel for his defense

    • Powell v AL (1932) - ct found d’s were denied right to counsel, rape case black boys, white girls - failure of trial ct to make effective appt of counsel was a denial of dp under 14th amend

    • Giddeon v Wainwright (US 1963) - ct req appt counsel for indigents (someone financially unable to obtain adequate rep) in felony cases (overruled Betts)

    • Argersinger (US 1972) - ct held absent a knowing, intelligent waiver, no person may be imprisoned for any offense, petty, misd, or felony, unless he’s rep by counsel at trial

    • bottom line: the 6th & 14th amen req only that no indigent crim d may be sentenced to imprisonment unless state affords him counsel

    • Nichols (US 1994) - ct held an uncounseled misd conviciton, valid under scott because no prison term was imposed, is also valid when used to enhance punishment at subsequent conviction

    • US v Wade (US 1967) - def of critical stage - ct will look at any pretrial confrontation of accused to determine whether presence of his counsel is necessary to preserve the d’s basic right to fair trial as affected by his right to meaningfully cross ex witnesses against him and to have effective assistance of counsel at trial


    • ct has found that prelim hearing can be critical stage, where it determined whether there was sufficient evid against accused to present case to g.jury and to fix bail

    • right to counsel has not been extended to all pretrial phases of crim invest. Remember Kirby and Ash

    • Mempa (US 1967) -

    • ct has held that indigent d has right to counsel for first appeal of right in crim prosec. But ct has also held there’s no right to counsel for disretionary appeal

    • d has no absolute right to counsel at parole or probation revocation hearings

    • ct has held that an indigent d has right to appt expert - but only when d will be deprived of fair opportunity to present his defense w/out expert assistance

    Class Notes

    • ex: prof decided x was denied counsel because x cold not talk to his d in private, jail guard would not leave. Under powell, auto grounds for new trial

    • rape can’t be capital case

    • powell - what was basis for sup ct review? Dp in captial case

    • both betts and gideon were not capital cases

    • 4th - mapp, 5th - miranda, 6th - gideon = all have been incorp into 14th amend, all considered fund rights

    • no fund right to grand jury review before indictment

    • if you have right to counsel, and u can’t afford one, one will be appt. This is a req under ep and 6th amend

    • person is accused w/crime - how does he get attorney? Assignments

    • know flowchart - first appearance of d in ct is arraignment on warrant. D is told of right to counsel, given questionaire to complete, then counsel is assigned to d if d is indigent, most cts will assign counsel

    • right to counsel in all felony cases after gideon

    • argersinger - right to counsel applies in misd cases, case involved someone who actually went to jail

    • so, what happens if someone doesn’t go to jail? No right to attorney, but this causes problems. Judge in misd cases has to decide what outcome is beforehand

    • scott rule: only where actual incarceration is imosed, that’s when you get attorney

    • quest: what happens if you get a misd conviction, not sent to jail, not offered counsel, and later you get convicted of felony, where you have counsel - may ct use misd conviction to enhance sentence in felony case? Look at nichols

    • gideon has been held retroactive by every ct, including mi ct app, mi sup ct, fund right

    • when do you have right to counsel? At all critical stages in proceed, certain pretrial proceed. For fed ct, has to be post-indictment. In mi, anytime (lineup). Police interrog process not included, arraignemtn on warrant not critical stage

    • pretrial points where you need counsel: prelim exam (ct determine prob cause here, cross examine witnesses - discovery device); evid hearing; guilty plea; bond hearing

    • defense practice: make sure person who write pre-sentence report has all info good about your client BEFORE presentence report is done

    • to be effective at any stage of proceed, have to be prepared

    • no constit right to appeal - every juris has statute. Based on ep, you have right to counsel on appeal

    • us sup ct - habeaus review, granting leave, no right to counsel on both

    • ake - defense att must ask for it. Do not have to ask prosec w/motion


    Chapter 6 - The Screening and Charging Process

    • once cops have made arrest, suspect’s fate lies mainly in hands of the prosecutor, who has broad discretion on deciding whether to prosecute

    • full enforcement is too costly

    • cops also have discretion, they don’t always give out ticket, etc.

    • Factors the prosecutor considers in deciding whether to charge: suspect is guilty, evid is sufficient to secure conviction, it is in community’s best interest to prosecute the suspect

    • prosecutor’s decision not to prosecute is gen not subject to judicial review

    • no fed prosec can lawfully sign an indictment not approved by a grand jury, but it looks like prosec can decline to sign off on charges which the grand jury wishes to prefer

    • large # of cases are brought against career criminals

    • difficult to estab selective prosecution

    • Hurtado (US 1884) - ct held right to grand jury is not incorp into 14th amend

    • Costello v US (US 1956) - D complained because prosec only gave grand jury hearsay evid, when they indicted him, then he was convicted. Ct said there are no constit rules about what kind of evid can be presented to grand jury. Ct said grand juries are not governed by same evid rules as regular juries.

    • To some extent, even illegally obtained evid can be presented to grand jury, and be basis of indictment - unless cong statute allows a witness to raise claim that evid is being improperly used

    • scope of subpoena power of fed grand jury is nationwide

    • no prob cause req to issue grand jury subpoenas

    • indictment cuts off right to prelim hearing - because prob cause is held to be validly estab by indictment itself

    Class Notes

    • prosecutor is elected, not supposed to try and get highest convictions, they have alot of discretion


    Chapter 7 - Bail and Pretrial Detention

    • 8th amendment - prevents excessive bail, but it does not explicitly grant a right to bail

    • private bondsman - when bail is set, the d can pay a non-refundable premium, usually 10% to a private bondsman

    • a bond can be forfeited if the terms of the release are violated (if can happen even if d appears for trial, because bond has lots of other oblig too)

    • Fed Bail Reform Act 1984- made explicit recognition that potential dangerous to community may be considered in pretrial release decisions - and prohibition on setting bail too high where d can’t afford to post it. Factors to be considered:

    • nature & circum of offense charged, including whether it involves violence or narcotics

    • weight of evid against person

    • history & characteristics of person, including:

    • character, mental condition, family ties, employment, $, past conduct, alcohol or drug abuse, crim history

    • whether at time of arrest, person was on probation, parole, or other pending situation

    • nature & seriousness of danger as threat to person or community

    • constit issue w/preventive detention - is there’s a conflict w/presumption of innocence

    • govt is supposed to show by clear & convincing evid, that no condition or combination of conditions of release, would ensure the safety of the comm or any person

    • US v Salerno (US 1987) - d argues bail reform act is unconstit, considers it punishment before trial. Ct disagrees - says act is regulatory, looks at cong intent.

    • No constit right to bail pending appeal from conviction

    Class Notes

    • when may ct not set bond? When person is dangerous

    • how do you know if person is dangerous? Look at history, current crime

    • how do you know if bond is excessive? Look at person’s ability to pay

    • primary purpose of bond is to ensure person is there

    • 2 main kinds of bonds: personal (bond to come back for trial) and surety (go through bondsman)

    • bondsman is not pro bono person, their fees are set by statute. Bondsman can’t lose - if person shows up every time, bonds person keeps 10% and releases security in asset. Ex: 50K bond, bondsman keeps 5k and releases 45k

    • bail reform acts - ct got into bond business. Ex: $5000 bond. D could pay ct, if they showed up, ct would keep 10%, person gets rest back, ct would give back $4500

    • 4 types of bonds: 1st preference is personal bond, 2nd is ct bond, 3rd is surety bond, 4th is cash bond (person has to pay full amount to ct clerk, just make sure it’s an interest bearing acct)

    • ex: you’re a magistrate, you have person to arraign, you have to set bond, don’t know what to do, what does magistrate look at:

    • ties to community

    • educ, living, married or single

    • offense, prior crim record

    • still undecided, what does ct rule tell you? There’s a stated policy in favor of granting bond. But now you’re not comfortable because of negative factors, you could make it a conditional bond. Types of condition: tether, can vary, most of them have set conditions on bond (ex: can’t use drugs, stay out past midnight, etc)

    • why has ct approved bond before trial? Jail space, presumption of innocence

    • preventitive detention & bond - what’s the difference? Preventitive detention is putting person in jail to prevent person from committing other crimes; bond is also to prevent fleeing

    • salerno - reasonable bail means some bail. Can’t penalize someone until they’ve been proven guilty beyond reas doubt

    • 1987 - not unconstit to deny bond in non-cap case, when that’s authorized by cong or legis

    • why is it important whether d is in jail or not for ultimate disposition of trial? How do you give people that time back? No bank for them

    • what else do you need to know about bonds?





    Chapter 8 - Discovery

    I. Crim Discovery: Unlike Civil Discovery

    • in theory, civil discovery means that one side rarely has monopoly over the facts

    • in contrast, crim discovery is decidely limited

    • most of rules here for crim discovery involve nonconstit questions, because US SUP CT has said there is no gen constit right to discovery in crim case

    II. Basic Issues

    • arg against crim discovery focus on implications of d’s access to prosecutorial info (prosec already has high burden, will enable d to prepare perjured defense, danger to witnesses)

    • arg for liberal discovery hold that gravity of liberty & reputation interests at stake in crim case req liberalized discovery

    III. Discovery on Behalf of the Defendant

    • in most juris, discovery remains strictly governed by statute or ct action

    • fed rule crim pro 16 - basic rule for discovery in fed crim case, has 5 categories of info that d has right to from govt, once d requests it

    • ds own relevant stmts

    • ds prior record

    • doc or tangible objects which govt will use in case in chief if they belong to the d

    • reports of exams tests which are material to d or will be used by govt in case in chief

    • summary of test of expert witnesses who govt will call during case in chief

    • Jencks v US (US 1957) - ct exercised its supervisory power to req disclosure during the trial of the prior stmts of govt witnesses. (Ct did not provide for advance notification, neither does the Jencks Act)

    IV. The Prosecutor’s Constit Duty to Disclose

    • Mooney (US 1935) - ct held the dp clause is violated if the govt engages in deliberate deception of ct & jury by presentation of testimony known to be perjured.


    • Brady Rule - us sup ct held that prosec must make mandatory disclosure of materially exculpatory evidence. Facts were that brady and boblit were charged w/1st degree murder, a capital offense. Brady was tried first, admitted participation in crime, but said boblit did actual killing. Before trial, brady’s lawyer asked prosecutor to allow him to see boblit’s stmts. Several were shown to him, but not the one where boblit admitted to the murder. D didn’t find out about it until after conviction at trial. (Only resulted in resentencing). Had to do w/specific request

    • Giglio (US 1972) - knowledge attributable to prosecutor. Ct found violation of dp when a key witness testified that he had not been given a deal for testifying for the govt

    • Agurs (US 1976) - no specific request

    • Bagley (US 1985) - ct set forth test for materiality applicable to nondisclosed exculpatory evid. Ct said evid is material only if there is reas prob that, had the evid been disclosed, the result of the proceed would be different. Ct said the more specific the request, the more likely suppression is material

    • Kyles (US 1995) - ct reversed conviction and death sentence. Govt did not give d many pieces of evid. Ct said the cumulative effect of the suppressed evid satisfied the materiality stand under brady,agurs, bradley.

    V. Discovery by the Prosecution

    • Williams v FL (US 1970) - ct found fl rule that req a d, on written demand prosec, to give advance notice if d intends to claim an alibi and furnish prosec w/info as to place, names of alibi he intends to use, valid.

    • Wardius v OR (US 1973) - ct struck down notice of alibi prov that was not reciprocal - that did not req prosec to disclose in advance its rebuttal evid

    • MI v Lucas (US 1991) - held that 6th amend does not prohibit the sanction of exclusion when crim ds violate legit discovery req

    Class Notes

    • reason why prosec is reluctant to give discovery - they already have high burden of proof, threaten witnesses

    • so, why do most county prosec in MI have almost an open discovery policy? To elicit pleas, it’s better to give it

    • rule 11 plea negotiations, judge has nothing to do w/this

    • in mi, crim disc is encouraged to be liberal

    • importance of fairness should not be ignored, today crim disc is alot more like civil disc

    • jenks act

    • in most juris, the us att will give the stmt well before trial

    • know brady rule

    • cts have consistently held that govt must disclose exculpatory info, or ct req new trial

    • ex: what do you do if you’re defense lawyer and you have complicated case w/15 witnesses, room full of exhibits, and you’re assigned counsel, and you find out client is not pleading guilty and is going to trial?

    • Ask prosec what doc they’re using for trial

    • make arrangements to get paid

    • ask ct for paralegal, investigator

    • giglio - imputed knowledge. All 1 govt even though 2 diff prosec offices

    • ex: i’m a prosecutor, and I find out that my main witness has lied, and i’m in plea negotiation, and defense att calls, says we accept plea offer - what do you do? Inform the defendant

    • ex: what if you’re witness died, it’s the only witness, and d doesn’t know?

    • Ex: what about drunk driving charge? If you’re defense att:

    • you want to see police report

    • reliab of equip, expertise of equip operator

    • want to find out if there’s sample of blood test left (but note, there’s no req for govt to save it)

    • does d have any duty to prosecutor? NO, 5th amend, nature of relationship. Need to give notice of insanity, looks at time of crime. Notice of alibi, similar conduct (ex: crim sex conduct case). Incompetence is looked at at time of trial

    • before you can req d to provide any info, there has to be reciprosity. In mi, mi sup ct has provided for reciprocal disc. Res gestae, eyewitnesses, need to list names of witnesses

    • Lucas - rape shield stat req notice. Us sup ct said stat was constit. As long as it’s in juris where prosec has to disclose witnesses

    • ex: habeas corpus, d was charged w/robbing someone at a rest stop. He was prosec by special prosec because his d att had gone to prosec office. There was a co-d (she was prosec by reg prosec). Co-d plead guilty, she testifed against d. D att did not know that this witness had plead guilty. D att did not do basic research necessary to find out about co-d’s case. State ct aff’d conviction, fed ct issue was whether this violated brady, not to disclose to d att that co-d got very good deal, compared w/D? Prosecutor acknowledged error at constit level. Goes back to state ct, which grants new trial.


    Chapter 9 - Guilty Pleas and Bargaining

    A. The Plea Bargaining System

    • def: d’s agreement to plead guilty to a crim charge w/the reas expect of receiving some consideration from the state

    • issue of whether sentencing should be reduced when d pleads guilty

    • Us Sentencing guidelines actually incorporate a 2-level reduction in guideline range that will be applied to d who pleads guilty

    • today, these guidelines supply parameters of plea bargaining (not judge determined sentences)

    B. Req for valid plea - req of some kind of record

    • Boykin (US 1969) - ct made it clear that because a d who pleads guilty gives up several constit rights, a valid guilty plea requires an intentional relinquishment or abandonment of a known right or privilege.

    • Therefore, judge must ask d quest to find out if d knows what he’s giving up, specifically the priv against self-incrim, trial by jury, and confrontation

    • Parke (US 1992) - guilty pleas used for enhancement of sentence

    • Custis (US 1994) - ct held that custis had no stat or constit right to collaterally attack a prior state conviction at his fed sentencing hearing, unless the prior conviction was obtained in complete absence of counsel in violation of Gideon.

    C. Voluntary and intelligent pleas and the advantages of a complete record

    • to be valid, guilty plea must be voluntary (can’t be product of threatened physical torture or mental coercion, overbearing will of d)

    • Henderson (US 1976) - ct held that guilty plea is not valid unless d knows nature of offense to which he pleads. Notice of charge does not req desription of every element of defense, but intent is a critical element

    • d should also know penalty

    • d must also be competent to make guilty plea (knowing & intelligent waiver)

    D. Regulating Guilty Pleas under Fed Rule 11

    • under Rule 11, ct must:

    • address d personally in open ct and inform d of nature of charge to which plea is offered, the mandatory min penalty, if any, the max penalty.

    • Also anything about special sentencing guideline, like parole, restitution

    • inform d of rights he’s giving up by pleading guilty, as well as other consequences

    • rule also req ct to assure plea is vol, knowing, and intelligent

    • ct must look into factual basis for plea (can be in stmts by d, info in indictment, info from prosec file)

    • rule 11 also allows the judge to reject plea agreement reached between the prosec and defense

    • rule 11 contains 3 kinds of agreements prosec can make w/d

    • rule 11 prohibits judge from taking part in plea negotiations

    E. The Finality of Guilty Pleas

    • fed rule allows motion to withdraw after sentence only when necessary to correct manifest justice (hard standard)

    • plea agreement between govt and d is treated like a contract, and is enforceable under contract terms

    • gen rule is that vol & intelligent guilty plea is a waiver of all claims the pleader has. Us sup ct has promoted this approach

    • gen rule is that a guilty plea represents acceptance by a d of his conviction and that the conviction was valid unless d was not adeq rep by counsel

    • only narrow # of cases where guilty plea cannot bar subsequent collateral attack

    • rule 11 allows deal to enter conditional plea

    Class Notes

    • know proced for plea in court

    • need to swear person in

    • ask questions, see if person is competent

    • ask if person is on any mind altering substance (medication, alocohol, drugs)

    • has to be knowing, voluntary, intelligent (goal of the process)

    • to achieve goal, need to explain what rights they are giving up, guilty plea is ultimate waiver of rights

    • ask if they’re on probation or parole, guilty plea is automatic violation here

    • tell them what constit rights they’re giving up

    • know rule 11

    • in mi, practice is not to take felony plea w/out attorney, telling them about right to counsel at trial

    • waiver of rights, tell D:

    • he has right to a jury trial, ask them if they know what it is

    • tell them elements of crime - Boykin rights

    • tell them beyond reas doubt rule

    • right to confront witnesses (face to face)

    • right to cross examine, ask quest of witnesses

    • right to have witnesses called on behalf of d, if they can’t afford witnesss fees, govt will provide service of process, if witness doesn’t show, ct will issue bench warrant

    • right to remain silent

    • explain all of this to d

    • if d pleads 5th at any point of plea in ct, it’s all over

    • old rule - promises on record were automatically invol

    • new rule - all promises are to be put on record, rule 11

    • fed ct - don’t waive their right to appeal in Eastern Dist, not true for state ct

    • factual basis, rule 11. Make sure person is giving you facts that amount to crime

    • prosecutor, d-att, judge is supposed to make sure elements are complete

    • diff between b-plea and c-plea

    • if person withdraws guilty plea, all orig charges are reinstated (even in multi count charge)

    • info during plea negotiations can’t be used against d in trial

    • mi does not allow Alfert plea

    • incentive in fed system to plead guilty, in sentencing guideline, it’s considered taking responsibility

    • in mi, tension between who has power over pleas, prosec or ct

    • oakland cty prosec, had policy of not accepting reduced plea

    • can’t waive jury trial w/out prosec consent

    • now, guidelines in both fed & state ct give prosec lots of power

    • abuses w/guilty pleas - prosec discretion

    • why offer lesser plea? Why would prosec accept guilty plea? Easier, certainty, d is really guilty (avoid embarassment), minimize their sentence, accept responsibility, don’t have to pay lawyer

    • why do cts accept guilty pleas? Move docket

    • judge has no role in plea bargaining (other than what used to be called Cobb’s plea - could ask judge what their sentence would be if d plead guilty


    • fed ct rule 11 is the guide here


    Chapter 10 - Trial and Trial-Related Rights

    I. The Right to a Speedy Trial

    • 6th amend provides - in all crim prosec, the accused shall enjoy the right to a speedy & public trial

    • Klopfer (US 1967) - ct held that right to speedy trial is fund right

    • 3 interests prot by right to speedy trial: interest of person to avoid prolonged detention before trial, interest of accused in avoiding prolonged anxiety concerning the charges made & public suspicion while charges are pending, the accused’s interest in litigating a case before evid disappears & memories fade

    • us sup ct has held that right to speedy trial extends to people imprisoned for other offenses

    • Marion (US 1971) - issue was whether dismissal of fed indictment was constit req because 3 yrs passed between the alleged crim act and the filing of the indictment. Ds claimed their rights to speedy trial was violated. Ct said right to speedy trial attaches only when D becomes the “accused” under 6th amend. Ct declined to extend the reach of the amend to period before arrest. Need proof of prejudice for dp claim, reasons for delay, and prejudice to the accused

    • Us sup ct has held that time between dropping of charges and a later indictment does not count toward the speedy trial determination

    • Lovasco (US 1977) - ct held that to prosecute a d after investigative delay does not deprive him of dp, even if his defense might have been somewhat prejudiced by the lapse of time

    • it’s hard for d’s to estab a successful dp claim based on pre-accusation delay

    • to make successful dp claim based on pre-accusation delay, d must show: the govt delayed bringing the indictment in order to gain a tactical advantage and that the delay caused him actual & sub prejudice

    • Barker (US 1972) - 4 factors that courts should assess in determining whether certain D has been deprived of his right to speedy trial: length of delay, reason for delay, d’s assertion of his right, and prejudice to d. Balancing test

    • to trigger a Barker inquiry, d must show that delay was presumptively prejud

    • if govt has good reason for post charge delay, d’s burden of showing prejud is sub increased

    • ct has held that interlocutory appeal by govt usually is valid reason for delay

    • d also needs to be diligent when asserting his speedy trial right

    • ct has also said that at some point, delay attributable to the govt will be so extended that prejud will be presumed (i.e. d will not have to show specifically how he was prejudiced)

    • us sup ct has said that remedy for speedy trial violation is dismissal (under Barker)

    • Speedy Trial Act - fed stat, provides definite times for bringing an accused to trial. Act also provides for a bunch of excludible delays (ex: time to determine competency of d, delay from interlocutory appeals, etc). If this act is not adhered to, charges against d will be dismissed either with or w/out prejud

    II. Joinder and Severance

    • us sup ct says joint trials are vital to crim justice system

    • dangers w/joinder are that ds will suffer prejudice from jury’s possible tendency to merge ds & charges into one big guilty verdict. Fed rules of crim pro try to strike balance w/3 rules:

    • rule 8 provides that charges against a single d can be joined if the offenses are of the same or similar character or are based on the same act or transaction or on two or more acts or trans connected together or constit parts of common scheme or plan. Ds can be joined if they participate in same act or trans

    • rule 13 permits ct to consolidate separate trials if they could have been joined under rule 8

    • rule 14 gives ct discretion to sever or provide other relief if prejudice would result from joinder

    • US v Holloway (5th cir 1993) - d was id as culprit in 2 armed bank robberies. When he was arrested for these robberies, he was found to be carrying a gun. D had prev been convicted of felony. The govt joined the bank robbery counts w/an additional count for felon firearm possession. Govt did not argue that the gun found when he was arrested was same gun used for robberies. D requested severance of felon firearm poss count from the other counts, but lower ct denied it. Ct of app found that the firearm count was improp joined under rule 8. Govt was trying to do this to get evid in that they would not be able to get in under fed rules.

    • Gen rule - persons who are indicted together, should be tried together

    • exculpatory test from co-d - where one d might be able to offer testimony that would exculpate the d who complains about joinder. To trigger severance on this ground, d must estab a bona fide need for co-d’s testimony, substance of the test, exculp nature and effect of test and co-d will testify.

    • Another limited exception to joinder rule is disparity in evid. D would have to show that disparity in evid is so great that jury will not be able to follow limiting instruc

    • Zafiro (US 1993) - 4 d’s were tried for drug conspiracy. All ds started pointing fingers at each other. Ct held that all d’s were properly tried together. Ds wanted to get case severed because they had mutually antagonistic defenses. Ct said severance might be req in only certain circum. Ct said mutually antagonistic defenses are not prejud per se.

    • Megatrials are a problem (ex is trying 38 ds under Rico statute for 28 differnt crimes over 28 yr period)

    • Lane (US 1986) - ct held that misjoinder of counts under rule 8 does not automatically req reveral of convictions (no constit error here)

    • Bruton v US (US 1968) - ct found constit error when bruton’s co-d made a post-custodial confession which was offered at joint trial. Confession was admissible against co-d as party admission, but it was inadmissible hearsay as to bruton. Trial judge gave limiting instr that the stmt could only be used against co-d, but us sup ct held that becaus the confession was so incriminating, the instruction was insufficient to protect bruton’s constit right to confront his accuser.

    • Ct suggested use of separate trials. the ct has allowed redaction of a confession to exclude all ref to ds existence, as a permissible sub for severance

    • 6th cir case - held that bruton is inapplicable to bench trial of joined ds

    III. Constitutionally Based Proof Requirements

    • Winship (US 1970) - proof beyond reas doubt is constit req in crim cases. Ct held that the dp clause protects accused from conviction except on proof beyond reas doubt of every fact (all elements) necessary to constitute crime charged.

    • Presumed innocent instructions

    • Taylor v KY (US 1978) - ct reversed conviction where judge refused to give requested instr that d was presumed innocent

    • however, the ct has held that a presump of innocence instr was not constit req in every case

    • reasonable doubt instructions

    • ct has defined them as one creating grave certainty, an actual substantitive doubt. moral certainty is kind of tricky one (ct doesn’t condone this one, says that fed rules don’t mention it)

    • ct has held that constit defective reas doubt instr is not harmless error - it deprives d of 6th amend right to jury verdict of guilt beyond reas doubt

    • Mullaney (US 1975) - Maine req d charged w/murder to prove that he acted in heat of passion w/sudden provocation to reduce the homicide to manslaughter. Ct held that dp clause req that prosec prove beyond reas doubt the absence of heat of passion or sudden prov when the issue is properly presented.

    • But note, the ct has upheld the placement upon d of burden of persuasion beyond reas doubt on issue of insanity

    • Patterson v NY (US 1977) - case about defining elements of crime. Ct upheld a ny scheme which placed burden on d to prove extreme emotional disturbance by prepond of evid after prosec proved intent homicide beyond reas doubt to reduce 2nd degree murder to mansl. Ct refused to adopt rule that a state must prove beyond reas doubt every fact constituting all affirm defenses related to culpabilty of accused

    • Martin v OH (US 1987) - ct upheld OH rule that placed burden of persuasion of self-defense on d

    • McMillan (US 1986) - ct upheld statute that provided anyone convicted of certain enumerated felonies is subject to mand min sentence of 5 yrs imprisonment if the sentencing judge finds by prepond that d visibly poss a firearm during comm of offense

    • Schad v AZ (US 1991) - ct found that it was constit permissible to define 1st degree murder in such a way that it could be committed by alternative means, so long as such means reasonably reflect notions of equivalent blameworthiness or culpability (in this case, d was charged w/1st degree murder, but prosec advanced that and felony murder against d, and he was convicted, said that govt was relieved of proving all elements beyond reas doubt)

    • Allen (US 1979) - case involved ny stat that said firearm in car is presumptive evid of its illegal poss by all people in the car. Ct upheld this staute and said presumption of poss is rational (d would have had to show presumption was not rational as applied to him)

    • us sup ct found that a jury instr which stated “the law presumes a person intends the ordinary conseq of his vol acts” violated constit, removed some of prosec work from proving beyond reas doubt

    IV. Trial by Jury

    • Duncan v LA (US 1968) - ct held right to jury is fundamental, and therefore incorporated into 14th amend to apply to the states. But ct said petty offenses are not req to be tried by jury (have to look at severity of penalty)

    • elements of crimes are tried to juries and must be proved beyond reas doubt (they decide quest of fact)

    • ct has held that juries don’t have to be made up of 12 people, 6 is ok

    • Ballew (US 1978) - 5 person jury is no good, raises sub doubt about approp rep of panel of less than 6

    • Apodaca (US 1972) - in this case, d was convicted by 10 out 12 jurors, so there was no unanimity. Plurality opinion. Ct said unanimity was not req

    • however, federal cts and most state cts req unanimity - quest becomes what do they have to be unanimous about, look at Schad again

    • Burch (US 1979) - ct held that conviction by nonunanimous, 6 person jury in state crim trial for nonpetty offense deprived d of his constit right to trial by jury


    Class Notes

    • role of grand jury (indep role), but prosec can be persuasive, very powerful

    • prof said rule 11 is good outline for 2nd half of book

    • burden of proof in crim case - beyond reas doubt

    • why this standard? Comes from dp clause, govt is taking someone’s liberty, so they have to have very high burden

    • what has to be proven beyond reas doubt? All elements of crime, look at rule 11

    • state legis and congress determine elements of crime, if they don’t say what elements are, through statute, ct must do it

    • d has to prove insanity, it’s an affirmative defense. Remember notice req - d has to tell govt if d’s raising insanity as defense)

    • limitations on what legis can do. Ex: if crime req specific intent, legis can’t say it’s not an element

    • where are cts asked to draw line? To interpret legis (look at Jones in supplement)

    • different ways to prove same crime. Quest: is it an element or not? You would need reas doubt to prove this. Is it a sentencing enhancement? You would need preponderance to prove this.

    • In MI, you have to prove lack of diminished capacity beyond reas doubt

    • presumed innocent instr - also in rule 11. Why give it? Remind jury (and it’s a constit req, also part of 5th amend right to remain silent). It’s constit mandated

    • burden of proof is constit mandated

    • know what elements are

    • distinction is between elements and sentence enhancement

    • need reas doubt for elements

    • need prepond for sentence enhan

    • ex: first time use of firearm in felony, and armed robbery. Which is the lesser included offense?

    • Whether it’s an enhancement is a quest of law (ct would have to interpret statute)

    • Watson v Jago (6th cir) - violation of dp to change charges in middle of trial

    • at sentencing, question comes up: what happens if d is charged w/2 counts of possession of drugs, different amounts, and d is convicted of count 1 and acquitted of count 2. Guidelines vary depending on amount of drugs

    • pre-sentence report is very important, it says D had 4 kilos of drugs, but he was acquitted of 3 couts. Prosecutor can say, 3 kilos is evid of conduct, lower standard of prepond, and this can be considered, this is like an enhancement

    • know allen rule and dissent

    Book Notes

    • 6th amend also says that d has right to impartial jury of state and district where crime was committed

    • jury pool/panel

    • must be unbiased and indiscriminate

    • must rep cross section of community

    • the fair cross section req is applicable to the JURY POOL, not to the ultimate petit jury that hears the d’s case. Holland (US 1990) - ct held that 6th amend did not protect d who was white, from prosec discriminatory use of peremptory challenges to exclude blacks from petit jury (note, the ep clause could be used to restrict peremptories from being used this way)

    • fair cross section is part of fund right of 6th amend

    • us sup ct has held to estab a prima facie violation of fair cross sec req, d must show 3 things:

    • group excluded is distinctive w/in community (like race, sex, etc)

    • rep of group from where jurors are picked is not fair & reas in relation to the # of such persons in the community

    • this underrep is result of systematic exclusion of group in jury selection process

    • jury pools can come from driver’s license lists, voter lists (these are ok)

    • voir dire - 2 kinds of challenges: unlimited for cause and limited for peremptory

    • voir dire rests alot of discretion in trial judge

    • us sup ct has held that voir dire questioning directed to racial prejudice is not constit req, but the ct has held that there may be situations where the threat to fair trial is posed by a trial court’s refusalto ask such quest

    • us sup ct has held there was no reversible error in dist ct’s refusal to voir dire perspective jurors on their racial prejudices (divided opinion)

    • Turner v Murray (US 1986) - ct held that a capital D accused of an interracial crime is entitled to have prospective jurors informed of the race of the victim and questioned on issue of racial bias

    • Mu’Min (US 1991) - ct held that state trial judge is not req to question prosepctive jurors indiv about contents of pretrial publicity they may have been exposed to. There was lots of press on this case, but judge asked jurors if they knew anything about the case. The ones who said they heard something were examined in groups of four and asked if they could be fair.

    • Morgan (US 1992) - death penalty case, d wanted to know juror’s feelings on death penalty, judge refused to ask specific quest because he gave general instructions. Ct held this was insufficient

    • regulation of voir dire in fed ct is more rigorous than state cts and constit. Generally, indiv voir dire has been req in 3 situations in fed cts, but judges still have alot of discretion:

    • where case has racial overtones

    • where case involves matters which local comm is known to harbor strong feelings that may affect trial (narcotics, child abuse)

    • where test from law enfor is imp and likely to be overvalued

    • challenges for cause

    • specific biases to challenge for cause are outlined in statute, but some of them are: unsound mind, related to a party, unwilling to hear case impartially

    • Witherspoon (US 1968) - narrow holding. Ct held state can’t exclude juror for cause if they express reservations about the death penalty, where the juror could be impartial. To exclude for cause, state must show juror belief’s about capital punish would lead him to violate his oath or ignore law, not just that they would be affected by the possibility of death penalty

    • ct has not found that a jury who is “death qualified” is biased. Some people say these jurors are more prone to find guilt

    • us sup ct estab a per se rule req invalidation of death sentence imposed by jury from which potential juror was improperly excluded as a result of a Witherspoon violation

    • Ross (US 1988) - juror stated he would auto vote for capital punish, so he should’ve been excused for cause, but the D used a peremptory challenge. D said he should have had extra peremptory to get rid of another juror. Ct said ross had not been denied impartial jury because the juror was removed, just like he would have been for cause, also d did not claim that any jurors who convicted him were impartial.

    • Us sup ct has held that d has a dp right to have a prospective juror excused for cause, when juror would impose death penalty regardless of mitigating circumstances

    • use of peremptory challenges

    • challenge exercised w/out a stated reason, not subject to court’s control

    • no constit right to peremptory challenges

    • in felony cases, ds get 10, in capital cases - 20

    • equal prot clause limits choice somewhat on who to exclude (but it’s very hard for d to prove, example is racial discrim)

    • Batson v Kentucky (US 1986) - facts were that prosecutor used his peremptory challenges to strike all black jurors from jury. A black d alleging that memebers of his race have been impermissibly excluded may make out a prima facie case of purposeful discrim by showing that the totality of relevant facts gives rise to an inference of discrim purpose. Once d makes requisite showing, burden shifts to state to explain adequately the racial exclusion (govt must come up w/neutral explanation). Ct said d may do this by focusing on what prosec did w/peremptory. Ct said to estab case, d must show:

    • he is member of a cognizable racial group and that prosec exercised perempt challenges to remove members of d’s race.

    • D can rely on nature of peremptory challenge

    • d must show these facts raise an inference that the prosec used the practice to exclude them from jury on account of race

    • us sup ct has allowed white D to assert Batson violation (where prosec excluded all black jurors), ct said he had 3rd party standing to bring ep violation

    • this type of discrim is harmful to whole system, community,etc

    • Edmonson (US 1991) - civil case, ct held that private litigant may not use peremptory to exclude jurors based on race

    • in crim case, ct has also held that criminal d can’t use peremptory to discrim based on race, and gave prosec 3rd party standing to assert violation of their rights

    • ct has expanded this to Hispanics and gender

    • bottom line: peremptory challenge used to be used w/out having to give reason, now ct has subject the use of peremptory to ep scrutiny

    • if one group strikes all members of another group, this is usually enough for prima facie discrim (one or two is not enough)

    • Hernandez v NY (US 1991) -

    • usually, names of jurors are made known to counsel and d during voir dire

    • can have anonymous jury, but it’s rare, need good reason (threat to safety of jurors, etc)

    • judge has to be careful about answering jury quest when they are deliberating

    • Allen v US (US 1896) - EXAM - this is known as Allen Charge or Dynamite Charge. The concern w/Allen Charge is that it will coerce minority into agreeing w/majority just to reach a verdict. Judge will usually give this to break Deadlock. (Page 981 in book is a copy of the charge)

    • To limit possibility of coercion, cts gen req Allen charge to reflect following things, which then makes it a modified Allen charge because it goes beyond what orig Allen charge requires:

    • recognition that majority of jurors may favor acquittal

    • reminder that govt has proof beyond reas doubt

    • both minority & majority should re-examine their views

    • no juror should abandon his or her conscientously held view

    • jury is free to deliberate as long as necessary

    • some courts have found reversible error where trial judge gives multiple allen charges. Ex: one allen charge is given, jury comes back deadlocked, and judge gives another allen charge

    • jurors must remain impartial. If they learn of highly inflammatory info, that will not be brought out in evid, they may be disqualified

    • juror must remain able to peform duty

    • sequestration - judge has discretion to do this, rarely happens. Usually in response to lots of publicity

    • once deliberation begins, sequestration is req

    • there are evid limitations on proof of jury misconduct, fed rule evid 606(b) gen prohibits inquiry into jury deliberations (remember case about giggly, drunk and sleeping jurors). Post conviction review of juror conduct is usually frowned upon, ct wants you to take care of it during voir dire


    • judge must not take any action that invades the indep of the jury

    • fed judges are nominated by President and confirmed by Senate

    • state judges usually have to run in elections

    • judges can be challenged peremptorily (as matter of right) or for cause

    • if judge is biased, he is subject to challenge for cause, and if bias is not discovered until after verdict, verdict is subject to reversal

    • 6th cir has said that judge does not have to recuse himself just because he rep D in the past

    • trial judge may not direct a verdict of guilty in a crim case, even if d admits every material element of offense - the directed verdict would deprive d of right to jury trial

    • jury nullification

    • because trial judge cannot direct verdict against d, the jury is essentially given the power to nullify the application of the law to the facts of the case by refusing to convict

    • some say jury should not be told they can do this

    • most states will not allow judge to comment on weight of the evid or on credibility of witnesses (some let judge sum up evid by both sides)

    • Note: the more active the judge is, the greater threat to indep of jury

    • jury verdict is usually in writing, returned by jury in open court, might have to request jury to be polled

    • inconsistent verdicts do not invalidate convictions. Ex: us sup ct has said that a d convicted of one count and acquitted on another can’t attack verdict as being inconsistent

    • us sup ct has said that d can assert inconsistent defenses

    • jury can find d guilty of crime charged or any lesser included offense

    • Schmuck (US 1989) - ct adopted elements test - to determine whether trial ct must give lesser included offense instr under fed rule crim pro 31. Ct said lesser included offense is one in which each statutory element is also present in the more serious offense

    • us sup ct has held that d may waive jury trial only w/approval of ct and consent of the govt

    V. The Impartiality of the Tribunal and the Influence of the Press

    • us sup ct has overturned convictions because of the effect of pretrial publicity

    • us sup ct overturned another conviction because d was interviewed by sherrif on tv, was shown on 3 broadcasts, and some jurors said they saw it. Ct said it was denial of dp to refuse request for change of venue when that community had been repeatedly exposed to d confessing on tv

    • if trial starts years after publicity, less of chance to get conviction overturned, doesn’t matter if people remember it, what matters is whether they have such fixed opinions that they can’t be impartial

    • Tv in court is an issue

    • Estes (US 1965) - ct held that d was denied fair trial due to pervasive and disruptive media presence in courtroom. Ct held that 1st amend did not extend a right to the news media to televise from the court

    • Chandler v FL (US 1981) - ct upheld FL rule that allowed electronic media in courtroom, over d’s objection. Ct said d must show that broadcast coverage of his case had an adverse impact on the trial participants, sufficient to constitute denial of dp

    • Sheppard (US 1966) - circus atmosphere, old version of OJ case. Ct held that trial judge’s failure to control media coverage of jud proceed deprived d of his right to fair trial

    • cts sometimes issue gag orders, 1st amend problem

    • Richmond Newspapers (US 1980) - us sup ct has held that 1st amend gives public and press a limited right of access to criminal trials (this right might give way to overriding govt interests)

    • us sup ct invalidated state stat that req exclusion of press from ct during testimony of sex offense victim under 18. Ct said govt must show compelling interest and narrowly tailored, and that cts could do this case by case, didn’t need statute

    • Nebraska Press Assoc v Stuart (US 1976) - deals w/prior restraint on publication, ct struck down it down

    • for transfer of venue, most courts usually require a showing of actual and sub prejudice (not just liklihood)

    VI. The Defendant’s Right to Participate in the Trial

    • IL v Allen (US 1970) - issue was whether d could claim benefit of constit right to remain in ctroom while he was acting disorderly. Ct said d lost his right to remain in ctroom because he was acting like such a fuckface.

    • There is a req of competency to stand trial, d is supposed to be able to participate in his defense. Us sup ct has held that the dp clause prohibits the crim prosec of a d who is not competent to stand trial.

    • Us sup ct has held that standard for competence to stand trial is whether the d has sufficient present ability to consult w/his lawyer w/a reasonable degree of rational understanding and has a rational as well as factual understanding of the proceedings against him

    • crim prosec must be delayed during time that d is incompetent and a verdict rendered against an incompetent d is voidable

    • Riggins v Nevada (US 1992) - d moved to terminate use of medication, he wanted to argue insanity at trial and said the jury would not be able to see his true side if he was forced to take the drug. Trial ct denied d’s motion, and d testifed while under medication, jury sentenced him to death. ct reversed and said person has a liberty interest in being free from unwanted medication. She said state could compel medication in some circum, but the ct here did not make any findings about the need for this or about any reas alternatives.

    • Us sup ct held that dp clause permits state to allocate to d the burden of proving that he is not competent to stand trial

    • fed rule crim pro 43 says that d shall be present at all stages of the proceedings

    • us sup ct has held that d was not denied his right to confrontation when he was barred from an in chambers hearing to determine the competency of 2 minors, who were witnesses, whom he allegedly sodomized

    • us sup ct held that rule 43 provides that a d loses his right to be present by disruptive conduct or by voluntarily absenting himself AFTER the trial starts

    VII. The Right to Effective Assistance of Counsel

    • Strickland v WA (US 1984) - 2 pronged test d must meet to justify reversal of conviction for ineffective assistance of counsel (this was a capital case). An accused is entitled to assistance of attorney to ensure trial is fair. D has right to reasonably effective assistance of counsel.

    • D must show counsel’s perf was deficient. This req showing that counsel made errors so serious that counsel was not functioning as counsel guaranteed by 6th amend

    • D must show that the deficient perf prejudiced the defense. This req showing that counsel’s errors were so serious as to deprive d of a fair trial, a trial whose result is reliable

    • this is a kind of “but for” test or like an outcome determinative test

    • no distinction for retained or appointed lawyers, all must render reas effective assistance

    • us sup ct has held that crim ds have the right to effective assistance of counsel on their first appeal as of right

    • Anders v CA (US 1967) - determined how lawyer should act if she thinks appeal lacks merit. Ct held that if after conscientous examination of the case, counsel finds an appeal to be wholly frivolous counsel should advise ct and request permission to withdraw. The request must be accompanied by a brief, called an Anders brief, referring to anything in record that might arguably support the appeal. If ct thinks it’s not friv, it will appoint counsel to bring appeal. NOTE THIS ONLY EXTENDS TO FIRST APPEAL AS OF RIGHT

    • no right to counsel at later stages (like collateral attack), then it follows that there’s no right to effective assistance of counsel

    • Strickland indicated that the perf prong will be satisfied if, using approp deference, counsel’s actions fall w/in the realm of sound trial strategy (if attorney does not know law or doesn’t object when she clearly should have, this is considered ineffective ass of counsel)

    • according to Strickland, pre trial investigation is one part of effective ass (need this to make strategic decisions)

    • us sup ct has made clear that prejudice under strickland is not always found simply because effective ass of counsel would’ve changed outcome

    • it is also possible for defense counsel to peform ineffectively at guilty plea stage (like giving d wrong advice, telling d that by accepting plea, he’ll be eligible for work release or parole when he clearly will not)

    • us sup ct has rejected a per se rule of reversal

    • right to effective assist of counsel may be denied because defense counsel has a conflict of interest and cannot or does not protect her client’s interests (ex: when rep multiple ds)

    • us sup ct has made it clear that req or permitting a single attorney to represent co-ds is not per se a violation to effective assist of counsel. However, under some circum, jt rep can deny d this right. (Ex: when one piece of evid favors one d and not other, in making plea bargains)

    • Cuyler v Sullivan (US 1980) - ct held that a state prisoner could seek federal habeas relief by claiming that his retained attorney rep conflicting interests and was ineffective. D who objects to multiple rep must have opport to show potential conflicts impermissibly imperil his right to fair trial. Ct also said a d who raises no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s perf.

    • Us sup ct did not reverse conviction in case where 2ds were rep by 2 partners from same firm, and one got death sentence. They had separate trials

    • judges don’t like multiple rep, there’s a risk of coercion and that some ds don’t understand the risks, but because of att-client priv, ct can’t inquire really into what ds have been told

    • d can waive his right to conflict free counsel, it must be knowing and vol. Ct must make sure d understands the consequences

    • govt or prosec also can’t deprive d of effective assist of counsel

    • state rule can’t req d to testify first or not at all - ct held this violates ds right to remain silent and effective assist of counsel because it doesn’t allow them to plan defense strategy

    • statute that gives judge power to deny absolutely a defense att from making closing arg is unconstit


    • d was prohibited from consulting w/counsel during a 17 hour recess between direct & cross exam. Ct recognized problem of coached witnesses, but said this was unconstit.

    • Weatherford (US 1977) - d claimed 6th amend violation when an undercover agent and informant attended 2 meetings between d and counsel, the undercover was really a co-d. Ct said despite this, d received effective assist of counsel, the meetings resulted in no tainted evid, no commun of defense strategy to govt (Dissent said when prosec acquires info about defense, fairness of adversary system is impaired)

    • Nix v Whiteside (US 1986) - perjury problem, when d is going to commit perjury and attorney tells him if he does she’s going to inform the court and withdraw. Lower ct granted d habeas relief, but us sup ct reversed, in unanimous opinion and said no D had a right to commit perjury, and no d has right to rely on counsel to help him develop false test. Ct cited Strickland test and said d had to prove prejudice (which he couldn’t here) and that her performance was ineffective, but ct said she was w/in the ethical rules of what she was supposed to do.

    • Us sup ct has upheld sentence guideline that req an enhancement if judge finds by prepond that d committed perjury

    • under Model rules, the attorney’s duty to report perjury of client supercedes the att-client priv.

    • Ineffectiveness and systems of appointed counsel

    • inadequate funding can be problem of unfairness

    • overwork can be problem

    • appt counsel in capital cases - unqualified. Cong has some rules, like an attorney appt to rep capital ds in federal habeas proceed must have 5 yrs experience litigating and 3 yrs felony experience. Most states don’t have standards for this, underfunding is problem too.

    • There is no absolute right to choose particular counsel. Ct has held that so long as indigent person gets effective rep, he has no right to choose counsel.

    • If d can afford to choose, there’s a qualified right to retain counsel of choice. In Wheat (US 1988) - ct upheld lower ct ruling to disqualify d’s counsel of choice, they cited to conflicts of interest, unfairness situation w/multiple ds

    • Caplin & Drysdale (US 1989) - the court rendered a d unable to pay for counsel of his choice. The issue was whether the drug forfeiture statute includes an exemption for assets that a d wishes to use to pay attorney of his choice. Ct said no exemption exists, and the statute is consistent w/the 5th and 6th amend

    • forfeiture hearings - arg can be made that where assets are restrained prior to trial, d should get at minimum notice & opport to be heard against the restraining order

    VIII. Self-Representation

    • Faretta v CA (US 1975) - ct held that d in state crim trial has constit right to proceed pro se. For d to do this, he must knowingly & intelligently forego benefits of having attorney

    • right of self-rep has been prot in fed ct by statute

    • remember - a d can’t be tried unless he is competent to stand trial. It follows that a d can’t validly waive his right to counsel and proceed pro se unless he is competent to do so. The competency stand for standing trial is :

    • whether d is able to consult w/his lawyer w/a reas degree of rational understanding AND

    • has a rational as well as factual understanding of proceed against him

    • us sup ct held that this rational understanding test also applies to competency to waive counsel and proceed to trial

    • to exercise indep right of self-rep, a d must not only be competent, but he must know and understand the consequences of waving assistance of counsel

    • a copy of what fed district judges use for ds who wish to proceed pro se is on p 1119-1120

    • failure to conduct a waiver inquiry at least similar to one above has been held to be reversible error (6th cir)

    • waiver must be unequivocal

    • remedy for Faretta violation - ct has held that denial of right to proceed pro se is violation of ds right to personal autonomy, ct held the right is either respected or denied (this would req reversal, like in Gideon)

    • limits of the right - ct in Faretta said right to self-rep is not absolute

    • timeliness - if d waits until trial or just before it to invoke the right - trial ct has discretion to deny it

    • disruption of the court - some cts have said ds had slurred speech, couldn’t respect court decorum, poorly formulated motions

    • protection of witnesses (they would have to be cross examined by person who victimized them)

    • but us sup ct has made exception for child sexual abuse victims, where kid would be traumatized, ct said d’s right to face to face confrontation could be restricted

    • standby counsel - ct in Faretta said state can appt standby counsel even over d’s objection, to help d or to be available

    • us sup ct has held there is no right to hybrid self rep, where d acts as co-counsel

    • it is gen understood that d has no constit right to non lawyer rep

    Class Notes

    • right to trial by jury

    • Duncan - right to trial by jury in crim case, fund constit right, applies as limit on states

    • core right, not subject to harmless error

    • it’s a safeguard from overzealous prosec and it’s also to bring community standards to bear

    • do you have this right in all crimes? No, not for some petty offenses

    • unanimity - apodoca, not required but MI req unanimous verdict

    • at a certain point unanimity is req, # of jurors matters

    • Schad - unanimity. Watson makes this confusing, 6th cir notice case

    • look at People v Gilbert (mi ct app)

    • unanimous verdicts - in MI, cts req it, fed & state cts, even though it’s not req by us sup ct

    • when it gets down to 6 jurors, need unanimity

    • juries - where do they come from? Voter lists, driver license lists

    • jury of peers? Same geographic area, everybody has to be eligible

    • when do you raise objection based on impropriety of jury pool? Before jury is picked (pre trial). D or govt can object to pool (ex: not enough blacks)

    • fair cross sec req is fundamental, selection process has to be random

    • what’s the purpose of voir dire? Fair & impartial jury, but attorneys use it to get jurors slanted in their favor

    • dismissal for cause - unlimited, as facts permit, better be sure it should be granted

    • peremptory challenge - limited, how do you use them? Based on your reaction to person

    • judge asks jurors - can you be fair?

    • Batson - EP case, includes 3rd party standing & fair cross sec, race & gender are prot group

    • Witherspoon

    • traditional way is to take turns for peremptory

    • look at ct rule to see how many peremptory you get, don’t have to use them all

    • interpreters is Hot Topic, important for them to do word for word translation (Hernandez)

    • In MI, stat req interpreters for language and deaf

    • what is jury’s role in jury trial? Fact finder. So why is it important to hae them? They bring common sense judgment, they don’t come in w/political agenda. They avoid placing all power w/judge, bias. Judge has pressures that anonymous jurors do not

    • jurors are allowed to ask quest in some juris during trial, take notes, these are some things to help them in fact finding

    • how can judge consciously or unconsciously influence jury? Judge can ask jury quest, but he has to be careful there’s no signal either way

    • if jury is deadlocked, judge can give Allen charge, have to be non coercive. Have to be careful what you say to them, can’t say anything that will lead them to compromise their views. Judge can’t ask “how’s the vote coming?”

    • judge can ask them to reconsider their position

    • watch out for multiple Allen charges - prof says it doesn’t make sense to give same instr twice, when they didn’t understand it first time

    • imp for jurors to know they have privacy and gen their deliberations are not subject to review, unless you can prove they lied (this is enough to disqualify them)

    • role of judge - “proactive” different times, judge acts differently. Judge should have control of ctroom

    • selection of judges, fed ones are appt by pres, recommended by senate, picked from pool of 3 people, look for ability to listen, no way to know every area of law

    • how does jury know law to apply to case? From judge jury instructions

    • judge should tell jurors why they are there, part of voir dire, then give them instr as to their role, and criteria to determine credibility (body language). Should tell them what crime is (maybe not all elements) - do this early on. Should get elements and defenses from jury instr.

    • In crim cases, in Mi, gen entitled to instr on lesser included offense, esp in 1st deg murder case, judge has to instruct on 2nd deg murder - even if there’s an alibi defense

    • 1st amend - freedom of press vs Ds right to fair trial

    • when may ct tell parties not to comment on pending case? Goal is to prevent case from being tried in press

    • when there’s too much controversy, att can motion for change of venue. Most juris will try to select jurors in regular way, to see how many people knew about the case, then see whether they can be fair

    • 6th cir case, en banc, 1st amend right - may have resulted in d being denied right to fair trial through impartial jury. Ct aff’d conviction even though newspapers & tv commented on ds confession and other info

    • judge must have appearance of fairness and unbiased

    • TV in ctroom is hot issue

    • Sheppard - DP case

    • focus point of trial is finding truth, applying law to facts

    • NOTE: if you have anything that’s a major distraction, it’s going to be unfair to d

    • alot of this mat’l has to do w/balancing 1st amend right to press w/d’s 5th amend rights

    • note: one can rarely close the court, maybe w/case involving atomic secrets or banking system

    • all this info is public, right to know. Censorship issue, can’t prevent press from printing X. But you can control parties - att can consent

    Class Notes

    • right to counsel on first appeal (and at crucial stages)

    • is it duty of lawyer to raise all possible non frivolous issues or just main ones? Us sup has said just the main ones - Barnes. It’s a matter of strategy, put best issue first.

    • Rifle Theory - Burger opinion in Barnes - just req to raise main issues

    • shotgun theory - raise all issues that are non frivolous. Idea is that it’s the court’s function to say this issue doesn’t merit relief. Lawyer function is to advocate


    • under both these theories, possible ineffective assistance of counsel if attorney misses issue. 8th & 10th cir have great standard for determining ineffct assist of counsel - if issue not raised is winner, it’s ineffect assist of counsel

    • key is you can’t raise issue where law is against you, w/out telling ct the law is against you, then you can make your argument. Watch out if it’s an intermed ct, who has no authority to overrule another ct

    • Prof feels - you should raise all issues, lawyer shouldn’t eliminate issues, he likes shot gun theory

    • cost should not be a factor in crim case, ct can take care of this. Someone’s liberty is at stake

    • Hot topic: do you object in front of jury or do you wait until jury is gone? All depends on judge and whether you are sure you’re right

    • if you ask for mistrial, you waive double jeopardy issue

    • Quest on ineffect assist of counsel:

    • Procedurally, how do you raise ineffct assist of counsel, if you’re the appellate lawyer in reviewing ct? File motion for new trial or at the appellate court. It all depends on judge and whether issues are new. If they’re new, do it in trial ct

    • have to decide whether errors are errors of record, to determine where to go? Ex: failure to call witness, there’s no record of what witness would have said. Trial ct can look at whether this witness should have been called and ask whether this brings into doubt the verdict. If it did, d is entitled to new trial.

    • MI has system of unitary appeal, so app ct has complete record to evalute those issues

    • People v Ginther (MI case) - Ginther hearing, don’t need evid hearing

    • failure to object - already on record, don’t need evid hearing

    • show attorney fell asleep, absence of lawyer, all in record

    • should put everything in record, even sidebars

    • can go to ct of app directly on these issues, don’t need evid hearing

    • some kinds of ineffect assist of counsel that aren’t att fault. Ex: where ct fails to provide investigative support or where d can’t put on adequate defense

    • what do you do if you’ve done your best as assigned defense counsel and you get letter from client before trial saying you’re a poor attorney and I don’t want you, I HATE YOU - what do you do?

    • Make motion to withdraw

    • who do you serve motion on? The court, they can serve it on prosec

    • need to show breakdown in att/client communications. Don’t bad mouth your client. Don’t divulge anything, ethical violation

    • problem for judge is when d wants 3rd, 4th attorney, trying to postpone system

    • self-rep, you have constit right, as estab by us sup ct

    • have to be competent (same as competency to stand trial)

    • has to be voluntary, need to be informed of the right

    • Faretta factors

    • MI cts have policy of appt standby counsel

    • ct should also make sure d has access to legal books, if he’s in jail

    • advantage to self-rep: it’s cheaper, may get some sympathy from jury

    • gen cts discourage it, but if someone insists, ct will provide standby counsel

    • part of right to counsel includes confidentiality. Confid given by client to att survives death of client. So you have to meet w/client in confid area

    • do not have right to non attorney rep

    • have right to counsel and right to self-rep

    • Quest: what do you do if someone asks you to analyze a claim for ineffect assist of counsel? (This is in order)

    • First: look for error - how do you determine whether it’s an error? Whether a reas experienced attorney in the area would have done that.

    • Look for whether it’s correctible. Ex: an unsigned warrant

    • something that’s not correctible - warrant not supported by probable cause.

    • Second: reviewing ct would look to prejudice to D. Then look at merits of the 4th amend claim. (It would be on record if att didn’t object).

    • Ct will look at what would’ve happened if att objected

    • where do you raise these things? It depends (whether it’s a matter of record, if you think trial judge will go along w/you, etc)


    Chapter 12 - Double Jeopardy

    I. Intro

    • 5th amend - double jeopardy clause - nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb

    • clause provides 3 basic protections:

    • it protects against a 2nd prosec for same offense after acquittal

    • it protects against 2nd prosec for same offense after conviction

    • it protects against multiple punishments for same offense

    • made applicable to states in Benton

    II. The Effect of an Acquittal

    • gen, govt can’t initiate 2nd prosec on theory acquittal was mistaken. Govt also hasn’t been able to appeal from acquittal or legal rulings that produced acquittal, even if rulings underlying acquittal were erroneous

    • if jury acquits a d, trial judge can’t grant govt 2nd trial, even if he believes jury erred badly

    • govt can’t appeal from acquittal even if it has reas claim that jury would have convicted but for errors of trial judge - because of d’s interest in finality is held to preclude retrial

    • Scott (US 1978) - (page 1250) this cases focuses on whether there has been some determination by judge or jury relating to factual guilt or innocence - but do we need to know about this case? What’s the rule?

    • what is an acquittal?

    • If a trial judge enters a judgment of acquittal, before the jury reaches a verdict, that determination is final

    • us sup ct has held that an acquittal would be found where judge assessed evid as a matter of credibility and found it insufficient and also where judge determined evid was insufficient “as matter of law”

    III. The Convicted Defendant Appeals

    • US v Ball (US 1896) - ct held that a retrial following a reversal of a conviction is permissible

    • Burks (US 1978) - deals w/insufficient evid to convict. Issue was whether d may be subjected to 2nd trial when conviction in prior trial was reversed by app ct solely for lack of sufficient evid to sustain the jury’s verdict. Ct distinguished Ball, said it was correct in allowing new trial to rectify trial error. Ct said holding in Ball had nothing to do w/guilt or innocence of D. Ct held in this case that the double jeopardy clause precludes a 2nd trial once the reviewing ct has found the evid legally insufficient, the only just remedy for the court is to direct judgment of acquittal. (This is a finding that the govt failed to prove its case, can’t get 2nd bite of apple)

    • us sup ct has held that d charged w/wrong crime can be retried (because this is a defect in the charging instrument, not insufficiency of evid)

    • Hudson (US 1981) - ct held that Burks was violated when a 2nd trial was held after the trial judge at the 1st trial granted a motion for a new trial on the ground that the evid was insufficient to support the jury’s verdict

    • Tibbs (US 1982) - ct held that d could be retried after an app ct overturned an initial conviction on the ground that it was against the great weight of the evid

    • Summary on dismissals, reversals, double jeopardy

    • a jury decision that d is not guilty cannot be set aside by any judge

    • a trial judge’s decision in a bench trial that d is not guilty cannot be set aside by higher ct

    • BUT - once a judge or jury finds the d guilty and the trial judge attempts to eradicate the verdict on some legal ground, review is possible if govt requests it

    • if a judg of guilty is challenged by d and the app ct holds that no reas trier of fact could have convicted, then the app ct will reverse the conviction and treat the case as if the error was remedied (by barring a new trial because d is treated as matter of law to be not guilty)

    • if d’s conviction is reversed because of a trial error not amounting to a misestimation of the sufficiency of the evid, the govt can try again because neither it nor the d has a final judg on the merits

    IV. The Convicted Defendant is Tried Again

    • double jeopardy bars retrial of a d who is acquitted and reprosecution of a d who is convicted

    • so, after a valid conviction, the same offense can’t be prosecuted again

    • Blockburger (US 1932) - test is whether each statutory provision contains an element which the other does not (it is important that each provision must require an element that the other does not for there to be separate offenses)

    • Morris (US 1986) - d pleaded guilty to aggravated robbery of bank. Later, he was charged w/ and convicted of aggravated murder, which was defined in way to link it w/robbery offense. State app ct said double jeop clause barred conviction for aggravated murder, but the ct held the jury had properly found d guilty of murder, so they reduced his sentence. The us sup ct said this was an adequate remedy here.

    • Constit limitation on multiple prosec does not apply if the d is responsible for the multiplicity

    • if a trial judge accepts a guilty plea to a lesser offense over the objection of the govt who seeks to convict on greater offense, the fact that the trial judge dismisses the greater charges does not bar reprosec on those charges

    • Garrett (US 1985) - ct held that d who pleaded guilty to importing weed could subsequently be prosec and punished for engaging in a continuing crim enterprise, even though the weed importation to which d pleaded was used as evid of the enterprise

    • Diaz (US 1912) - d was convicted of assault & battery. Then his victim died. D was later tried for homicide and moved to dismiss based on double jeop - but ct said the homicide prosec was ok because the govt could not have brought homicide charges in the orig case

    • double jeop cl prohibits multiple punish for same crime (ex: if statute says fine or imprisonment - can’t give d both)

    • Halper (US 1989) - ct held that in rare cases where d has already sustained a crim penalty and the govt wants to add a civil penalty which bears no rational relationship to compensating for loss, imposing the 2nd penalty might constitute double punish, which is prohibit by double jeop cl

    • a tax on illegal activity could be considered double punishment

    • Whalen (US 1980) - ct held that d was improperly sentenced when he was given one sentence for felony (1st degree murder) and another for the underlying felony (rape). Ct had found cong did not authorize multiple sentences for these crimes

    • Blockburger has been held to be test for statutory construction, which can be overcome by a clear showing that the legis intended multiple punish


    • Witte (US 1995) - in this case, d plead guilty to fed weed charge, a presentence report calculated the base offense level under sentencing guidelines by adding total quantity of drugs involved in d’s offense he was convicted of and also in uncharged cocaine transactions which he was engaged w/co-conspirators. Under sentencing guidelines, govt can use all relevant conduct - not just conduct under charged offense. Ct held that the double jeop clause would not prevent punish for d for the later charged cocaine offenses because he had not been punished for them previously

    V. Collateral Estoppel

    • separate offenses gen may be tried separately, but even here, double jeop cl may come into play

    • another issue is the collateral estoppel bar to relitigation of any ultimate fact determined in favor of the d in a prior prosecution

    • Ashe (US 1970) - ct said collateral estoppel means that when an issue of ultimate fact has once been determined by a valid & final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. In this case, ct held that once jury determined that d was not one of the robbers, state could not constit hale him to new jury to litigate that issue again (already determined he wasn’t there)

    • watch out - defense of collateral estoppel may not be available because several issues might have been basis for the acquittal

    • for collateral estoppel to apply, it depends on an actual and certain determination of an issue of fact. The party seeking preclusion has duty to estab that the factfinder did this in the initial proceeding

    • only a party to the prior crim proceed may take advantage of collateral estopp rule

    • us sup ct has held that a d accused of aiding & abetting in comm of fed offense may be convicted after the principal was acquitted of same offense

    • non parties cannot be bound by prior adjudication of fact

    • most cts have held that govt may not use collat estopp against d

    VI. Dual Sovereigns

    • double jeop clause only prohibits successive prosec by the same sovereign

    • so, a fed prosec does not bar a subsequent state prosec of same person for the same acts, and a state prosec does not bar fed one

    • these are two indep sovereigns

    • one narrow exception is when one sovereign is acting as tool of other

    • note, the dual sovereignty idea also means that 2 diff states can prosecute d for same conduct

    • remember it doesn’t matter if d is acquitted by one sovereign, the idea is that one is not bound by the other

    • Petite Policy - justice dept estab policy of not prosecuting an indiv after a state prosec for the same act unless there are compelling interests of fed law enfor at stake - us att must obtain approval from assist att gen before instituting 2nd prosec

    • Waller (US 1970) - ct said municipality is not a separate sovereign of state

    • even though fed & state work together alot in drug cases, this cooperation has not resulted in any limit on each being able to prosecute ds for same thing

    VII. Aborted Proceedings

    • d has right to a determination from first jury impaneled, jury attaches here. This is because it would not be fair to allow prosec to terminate trial before the verdict and start over

    • this rule only comes into play when jeopardy attaches

    • Somerville (US 1973) - issue was whether a ct granting prosec motion for mistrial, over d’s objection, because the indictment was insufficient to charge a crime, necessarily prevents a state from later trying the d under a valid indictment? Ct held the mistrial met the “manifest necessity” req - and that the double jeop cl did not bar retrial on a valid indictment

    • NOTE: where the trial is termianted over the objection of the d, the classical test for lifting double jeop to a 2nd trial is the manifest necessity standard

    • manifest necessity standard is inapplicable to d who moves for a mistrial

    • AZ v WA (US 1978) - manifest necessity test. Prosecutor must demonstrate manifest necessity for any mistrial declared over the objection of the D. Ct req high degree (necessity) before concluding mistrial is appropriate. ???

    • Goading test - ct can see if d was goaded into getting mistrial

    VIII. Controls on Judicial and Prosecutorial Vindictiveness

    • Pearce (US 1969) - judicial vindictiveness. Ct makes clear that guarantee against double jeop imposes no restrictions upon length of sentence imposed upon reconviction. Problem in this case was imposition of more severe punishment after conviction for same offense on retrial. Other issue was whether credit had to be given for time served - and ct said yes. Ultimately, ct held:

    • that double jeop cl and ep cl do not impose an absolute bar to more severe sentence upon reconviction. But ct said to make sure judge is not being vindictive, whenever a judge imposes a more severe sentence on d after a new trial:

    • the reasons why must be clear and based on objective info concerning identifiable conduct on part of d occuring after the time of the orig sentencing proceeding, factual data upon which the increased sentence is based must be made part of record, so that it can be reviewed on appeal

    • Pearce was a DP case

    • us sup ct has held that Pearce does not apply when a 2nd sentence was handed down by higher ct in 2-tiered trial system

    • ct has also held that dp does not require extension of pearce to jury sentencing

    • us sup ct has also held that the Pearce presumption of vindictiveness does not apply when a sentence imposed after a trial is greater than that previously imposed after a guilty plea

    • Blackledge (US 1974) - prosecutor’s vindictiveness. Ct found that where prosec brings more serious charges after a trial has been completed, a presumption of vindictiveness arises. Dp req rule of Pearce to apply here too. Ct noted that presumpt of vindict could be overcome if state could show that it was impossible to proceed on the more serious charge from the start

    • Goodwin (US 1982) - ct refused to apply presumpt of vindict to a prosec decisions in pretrial setting

    IX. Double Jeopardy and Review of Sentencing

    • DiFrancesco (US 1980) - deals w/govt seeking harsher sentence. Ct upheld the govt right to appeal sentence of dangerous special offender. Ct said app rev of sentencing does not req 2nd trial - d is supposed to know that initial sentence is not final (ct said d is not subjected to multiple sentence when he is resentenced on appeal)

    • Review in capital cases - idea that death is different

    • Bullington (US 1981) - ct held that it would violate double jeop to impose death penalty at 2nd trial when jury in first trial returned verdict of life impr, in which prosec had burden in separate sentencing proceed of proving certain elements beyond reas doubt. Ct noted that the capital sent proced was like trial on guilt or innocence and that the prior jury determination was like an acquittal on death sentence

    • Rumsey (US 1984) -

    • Poland (US 1986) -

    • ct has held that initital sentencing proceeding cannot constitute a successive prosec for purpose of double jeop cl

    Class Notes

    • Double jeopardy - can’t be TRIED or CONVICTED of same offense

    • remedies - this is one of few areas you can bring appeal before trial to the court of appeals (interlocutory appeal, it’s discretionary)

    • 5th amend is fundamental right - applies to states through 14th amend

    • when does jeopardy attach? After acquittal or conviction

    • when does trial start for double jeop purposes? When first witness is sworn in bench trial

    • ex: prof gave example of case where the defense attorney called defendant as first witness in order to make sure double jeop attached later. Prosecutor was trying to get case dismissed w/out prejud, but judge did not go along w/it, knew that prosec was acting unfairly.

    • When does it attach in a jury trial? When the jurors are impaneled for the 2nd time (otherwise there’s no way for D to be found guilty)

    • what constitutes the same crime? 1st thing you look at is the indictment, to compare charges. 2nd, you can look at jury instr to get elements, see if they are the same.

    • NOTE: if there’s a hung jury, there’s going to be a 2nd trial and the D is entitled to a transcript of the 1st trial. This is important for cross-exam. If the D is indigent, the state will provide it

    • Gen Rule: if someone is acquitted of lesser offense, they can’t be convicted of higher offense

    • ex: People v McPherson (MI CT APP case) - D was charged w/1st degree murder, had a jury trial and was convicted of 2nd degree murder. The ct of app reversed the conviction because of some improper trial ct ruling. Prosecutor reinstates orig 1st deg murder charge, and the D is convicted again of 2nd deg murder. Issue at the ct of app: were the Ds rights violated when he was charged w/1st degree murder the 2nd time?

    • Defense argument: YES, because by definition he was innocent of higher offense, he was acquitted of higher offense

    • Prosecutor argument: NO, because it was harmless error. D was convicted of 2nd deg murder, not 1st (maybe just charged w/wrong crime the first time)

    • if reversal is based on insufficient evidence, case is over (the govt had its chance) BUT if prosecution gets conviction, there are 2 reasons they can bring an appeal:

    • implied consent from D for retrial - when they raise issue on appeal or motion for new trial

    • app ct is reluctant to grant new trials if they know the effect is to let person go immed

    • ex: violation of speedy trial right - case is over

    • 3 times these issues come up:

    • motion for mistrial (because of error in trial ct)

    • motion for new trial, after trial is over

    • request new trial on appeal

    • prosecutor cannot appeal a finding of fact, can’t appeal after an acquittal

    • prosecutor can appeal sentences (if the statute allows them to)

    • rare situation where trial judge will grant motion for directed verdict after jury verdict

    • Professor Example

    • D was charged w/felony murder w/co-defendant and w/premeditated murder

    • Ds go to rob party store, only person on duty is girl that one of the Ds liked (but she rejected his advances). According to one of the Ds, D used the robbery as an excuse to kill girl

    • defense at trial from one of Ds was “I was involved in robbery but not the homicide”. Jury found him guilty of both.


    • Trial judge, after verdict & sentencing granted motion for deduction of sentence, based on insufficient evid on murder charge

    • 2 appeals followed, state ct of app agreed w/the prosec that trial judge was wrong, and since there was jury verdict already, they just reinstated it (which was not a violation of double jeop)

    • new defense attorney raised ineffect assist of counsel on ground that old defense att did not make motion for directed verdict (that it was an easy argument, and judge even told him he should have made it)

    • unfortunately that judge had died, new judge adopted prosec arg. New judge basically said if trial ct granted motion for directed verdict, it would have been error because ct of app said there was sufficient evid, so leave to appeal was denied

    • it went to fed ct on the ineffect assist of counsel, no strategic reason not to raise it, there was prejudice to D

    • fed ct says if state doesn’t remove 1st deg murder charge, D doesn’t go free, he still has to serve robbery sentence

    • prof said this is to illustrate the diff between making a motion for directed verdict (asking jury to come back w/acquittal) and ?????

    • NOTE: a court may not direct a verdict of guilty, this would deprive D of his right to trial by jury

    • criticsm of harmless error finding by app ct: they don’t know what the jury would have decided

    • Burks - implied consent case

    • almost never see a reversal on weight of evid. This is not an acquittal, d can be retried. Judges don’t like to say they disagree w/jury

    • it’s not uncommon in multi-count indictment for judge to grant motion to dismiss charge for lack of evidence

    • on sufficiency of evid, this is an acquittal, d can’t be retried

    • if someone has a case dismissed at preliminary exam, double jeop does not attach

    • old exam quest on where someone is shot and d is charged and convicted of assault w/intent to do harm, but person dies. D can also be charged w/murder, the 1st charge is just merged

    • old exam quest - what happens if while person is lingering, d pleads to assault w/intent to harm, then the guy dies? What can d be charged with? Manslaughter (because there’s no malice here)

    • know separate sovereign idea

    • MI, as a matter of state policy would not allow 2nd prosecution

    • if fed system has prosec this person and fed law protects the same interest, MI doesn’t have enough resources to do the 2nd prosec

    • the same transaction test is not constit required (Ashe)

    • Ashe - there were 2 issues. Ct held prosec does not have to bring all charges at one time (MI has adopted this in some cases). Ct held that collateral estoppel applied here because it was already found at lower ct that D was not there, therefore there was a disposition as to an ultimate fact of case

    • People v White (MI case) - it’s a violation of our public policy, we are going to have a higher standard than that req by us sup ct

    • watch out for 2 punishments for same act (can be in the form of penalty, fines, imprisonment) Montana

    • just because state calls it civil penalty, it might be severe enough for double jeop to attach

    • ex: felony murder (underlying felony is robbery) - can’t impose one sentence for robbery and one for murder

    • quest is what is a lesser offense

    • RULE: the us sup ct has held there’s no double jeop problem by adding 2 yrs to conviction (example is fed law about committing felony while armed) because this is considered a new element. Ct said it’s legis intent to have extra 2 yrs for this

    • what happens if D is convicted of manslaughter and gets 5-15 yrs, appeal successfully on basis of trial ct error (so, it’s ok to retry him on manslaughter) and judge imposes a sentence of 5-15 yrs. This is ok as long as judge is not being vindictive. Way to not be vindictive is to rely on new factors up to trial, post conviction conduct, getting in trouble while in prison

    • conduct after acquittal can be used as sentence enhancement

    • ex: d is charged w/ 2 counts of drug possession, one for an ounce, other for a kilo. D is convicted of small charge, acquitted of big charge. Ct says you can use acquittal info here (prosec only needs to show this by prepond at sentencing hearing). Prosec can introduce any relevant conduct here (charged or not)

    • situation where trial ct can grant mistrial and then do another trial is where there is manifest necessity

    • if prosec deliberately injects error into trial, can’t retry D. This is very rare





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