Criminal Procedure: 5th Amendment Privilege Against Selt Incrimination

5th Amendment Privilege Against Self-Incrimination

• Anyone can assert it in any kind of case
• Anyone asked in any case, under oath, a question, is entitled to assert the 5^th Amendment privilege.
• The privilege must be claimed in criminal proceedings to prevent it from being waived in later criminal prosecutions.
• Scope of protection:
• Does not bar the government from using our bodies in ways to incriminate.
• Protects us from compelled testimony.
• Gov’t cant compel us to take a lie detector, undergo custodial police interrogation.
• Unconstitutional for the prosecutor to make a negative comment on the D’s failure to testify, or his remaining silent on hearing Miranda warnings.
• Can be eliminated:
• 3 ways
• Grant of immunity – use and derivative use immunity
• We will not use immunized testimony or anything derived from it to convict you. We can prosecute you based on any evidence we had on you before the immunity was given.
• No possibility of incrimination
• Statute of Limitations has run on underlying crime
• Waiver
• A criminal D, by taking the witness stand, waives his 5^th Amendment privilege as to all legitimate subjects of cross examination.

Criminal Procedure: Guilty Pleas/Plea Bargaining

Guilty Pleas/Plea Bargaining

• SCOTUS will not disturb guilty pleas after sentence, and

• SCOTUS has adopted the contract theory of plea bargaining –
• Plea bargains are treated like contracts.
• Taking the plea
• If D pleads guilty, the judge must tell D on the record:
• The nature of the charge
• The max. authorized sentence and any mandatory min. sent.
• That D has a right to plead not guilty and ask for a trial
• If mistake in plea taking – D can withdraw and plead again.
• Good basis for withdrawing plea after sentence:
• Plea was involuntary
• The court that took the plea lacked the jurisdiction to do so
• IAC
• **Failure of the prosecution to keep an agreed upon plea bargain**

Criminal Procedure: Double Jeopardy

When jeopardy attaches:

• Criminal trials (jury) -- when jury is sworn
• Criminal trials (judge) -- when first witness is sworn
• Does NOT attach in civil cases (or criminal proceeding for tax fraud)
  

EXCEPTIONS permitting re-trial:

• Jury is unable to agree on a verdict
• Mistrials for manifest necessity (Midway through D's trial, he has to go to hospital. It is not reasonable to keep a jury impaneled)
• Retrial after successful appeal
• Breach of agreed upon plea bargain by D (If D breaches an agreed upon plea bargain, his plea and plea sentence can be withdrawn and the original charges can be reinstated)

Two crimes do not constitute the same offense if each requires proof of an additional element that the other does not.

Separate Sovereigns Doctrine: Double jeopardy prohibition does not prevent dual prosecution by separate sovereigns. D can be prosecuted for the same criminal conduct by a federal court, then a state court or by 2 separate state courts. State and the locality are the same sovereigns.

Lesser included offenses: Being put in jeopardy for the greater offense bars retrial for the lesser included offense. Being put in jeopardy for the lesser offense bars retrial for the greater offense. (EXCEPTION: Trial for battery. V dies. Murder trial is OK)

Criminal Procedure: Writ of Habeus Corpus

Habeus Corpus: Petition by a defendant to attack the lawfulness of a detention

Criminal Procedure: Death Penality

Know these things about the death penalty:

• A death penalty statute is unconstitutional if it does not give D a chance to present mitigating facts and circumstances
• There is no automatic imposition of the death penalty
• State may not, by statute, limit mitigating factors
• Only a jury may determine aggravating factors
  

Criminal Procedure: 8th Amendment Prohibition against cruel and unusual punishment

8th Amendment prohibition against cruel and unusual punishment:

Punishment which is inherently cruel and unusual or grossly disproportionate to the crime is prohibited.

Criminal Procedure: Right to compulsory process

Right to Compulsory Process:

• D has power to present his own witnesses and with a fair opportunity to present a defense free from intimidation or prejudicial exclusion of material evidence.
  

Criminal Procedure: 6th Amendment right of confrontation

6th Amendment right to confront witnesses against you:

• D forfeits or waives the right by bad behavior or failing to appear
  

Criminal Procedure: 6th Amendment right to Jury Trial

6th Amendment right to jury trial attaches:

• at any criminal proceeding where D faces a sentence of a term of imprisonment possibly more than 6 months.

• No constitutional right to a jury trial, if it is up to or includes 6 months.
• If the sum of sentences for criminal contempt exceeds 6 months, the alleged contender is entitled to jury trial.
• Number and unanimity of jurors
• Minimum = 6 (if 6, panel’s decision must be unanimous
• No federally protected constitutional right to a unanimous 12 person jury verdict. 10-2; 9-3 = OK
• Cross-sectional requirement
• Jury pool can reflect a fair cross section of community
• Peremptory challenge:
• Unconstitutional for P or D to exercise peremptory challenges to exclude from the jury pool, perspective jurors on account of their race or gender.

Criminal Procedure: 6th Amendment right to counsel

6th Amendment Right to Counsel:

• D has a 6th Amendment right to counsel where imprisonment may be imposed.
• The 6th A. right to counsel applies at:
• Custodial interrogation
• Post indictment lineups
• Preliminary hearings
• arraignment
• felony trials
• A D may waive his 6th A. right to counsel when she does so knowingly and intentionally.
  

Criminal Procedure: 6th Amendment right to a Speedy Trial

6th Amendment Right to a Speedy Trial:

• guarantees D right to a speedy trial
• Attaches once charges have been filed or he has been arrested.
  

Criminal Procedure: 5th Amendment Right to Counsel

5th Amendment Right to Counsel:

• Once D asserts rights to terminate the interrogation and requests counsel, re-initiation of the interrogation by police, without counsel present, violates D's 5th Amendment right to counsel.
• SCOTUS says: when someone after hearing Miranda warnings says, "I want a lawyer." When D asserts his need for help from an attorney with the process of custodial police interrogation, police may not re-initiate interrogation on any topic without D's attorney present.
• The 5th Amendment right to counsel is not offense specific.
• All other times that D gets a lawyer invokes the 6th Amendment right to counsel -- which is offense specific; the attorney would only have to be present at the interrogation if D were being questioned about the attorney's case.
  

Criminal Procedure: Identifications

If Identification is both subjective and unnecessary, it is admissible still, if based on a totality of the circumstances.

• opportunity for witness to view the criminal scene
• witness's degree of attention
• accuracy of description
• degree of certainty of witness
• time interval between crime and identification
  

Criminal Procedure: Miranda

Miranda Rule:

• If adequate warnings are not given prior to a custodial interrogation, incriminating statements made by accused are inadmissible in the prosecution's case in chief.

• HOWEVER, voluntary confessions obtained without Miranda may be used to impeach D's trial testimony.

Miranda Warnings:

• You have the right to remain silent. Anything you say can and will be used against you in court. You have the right to counsel. If you cannot afford one, one will be appointed for you. You have the right to terminate the interrogation at any time.

Custody = you are in custody, if, at the time of interrogation, you are not free to leave.

• Probation interviews and routine traffic stops are non-custodial, thus Miranda warnings are not needed.

Interrogation = Any conduct where the police knew or should have known that they might get a damaging statement.

• Warnings are NOT required prior to the admissibility of a spontaneous statement.

Valid waiver of Miranda

• must be voluntary and intelligent
• no waivers by silence or shoulder shrugging

Public Safety Exception to Miranda:

• Evidence derived from custodial interrogation is admissible, even in absence of prior Miranda warnings if (1) it was voluntarily given and (2) a risk to public safety existed at the time of questioning.

Interrogation muse cease when either D requests an attorney or states that he wishes to remain silent.

Criminal Procedure: Search & Seizure: Wiretapping/Eavesdropping

Wiretapping/Eavesdropping

• All wiretapping/eavesdropping requires a warrant
• EXCEPTION: the unreliable ear: Everyone in society assumes the risk that the person to whom he is speaking will consent to the government monitoring the conversation or will be wired.

Wiretapping is permissible:

• after the issuance of a warrant
• Probable cause shown that a crime has been or is being committed
• Warrant must name target and describe the conversation
• Warrant must be valid for only a brief moment
  

Criminal Procedure: Search & Seizure: Third Party Consent

Third Party Consent

A third party may consent to a search of the premises if they have joint control or use of the premises.

This applies to common areas, but not private or reserved areas

Criminal Procedure: Search & Seizure: Protective Sweep

Protective Sweep

• okay when a lawful arrest has taken place and police conduct cursory sweep of adjoining rooms, or if they have a reasonable belief that an accomplice is present who poses a danger
  

Criminal Procedure: Search & Seizure: Warrant based on informant's tip

A warrant may be based on an informant's tip:

• Probable cause is established under a totality of the circumstances
• Credible information
• Reliable informant
• police corroborator
  
• declaration against interest
• Informant's identity need not be revealed
  

Criminal Procedure: Search & Seizure: Inventory Exception

Inventory Exception

• when validly arrested individual is formally booked, the police may make a full inventory of his person and clothes
  

Criminal Procedure: Search & Seizure: SW Exceptions: Hot pursuit and evanescent evidence

Hot pursuit and evanescent evidence:

• Evidence that might go away if we took the time to get a warrant
• Evanescent evidence = scraping under D's fingernails without a warrant
• Hot pursuit of a feeling felon. Must be HOT
• Police can enter anyone's home if in hot pursuit