Exclusionary Rule
Judge made doctrine that prohibits the introduction, at criminal trial, of evidence obtained in violation of defendant's fourth, fifth, or sixth amendment rights.
Purpose: deters the government from violating a person's constitutional rights by excluding
Fruit of the Poisonous Tree
Not only must illegally obtained evidence be excluded, but also all evidence obtained or derived from the exploitation of that evidence.
The court deems such evidence the tainted fruit of the poisonous tree.
Limitation: Fruits Derived from Miranda Violations
The fruits derived from statements obtained in violation of Miranda may be admissible despite the exclusionary rule.
Exclusionary Rule: Balancing Test
When applying the exclusionary rule, courts must balance the rule's purpose against its costs.
Exclusion of tainted evidence is not automatic. Rather, whether exclusion is warranted in a particular case depends on "the culpability of the police and the po
Independent Source
Evidence is admissible if the prosecution can show that it was obtained from a source independent of its original illegality, thus removing any taint.
Intervening Act of Free Will ("Attenuation")
An intervening act of free will by the defendant will break the causal chain between the evidence and the original illegality and thus remove the taint.
Inevitable Discovery
If the prosecution can show that the police would have discovered the evidence whether or not they had acted unconstitutionally, the evidence will be admissible.
Good Faith Exception to the Exclusionary Rule
The exclusionary rule does not apply when the police arrest or search someone erroneously but in good faith, thinking that they are acting pursuant to a valid arrest warrant, search warrant, or law.
Rationale: the purpose of the exclusionary rule is to de
Exceptions to the Good Faith Exception to the Exclusionary Rule
A police officer cannot rely on a defective search warrant in good faith if:
1. The affidavit underlying the warrant is so lacking in probable cause that no reasonable police officer would have relied on it;
2. The warrant is defective on its face;
3. The
Use of Excluded Evidence for Impeachment Purposes
Some illegally obtained evidence that is inadmissible for the state's case in chief may be used to impeach the defendant's credibility if he takes the stand at trial.
1. Voluntary confessions in violation of Miranda are admissible for impeachment purposes
Knock and Announce
Exclusion is not a remedy for violations of the knock and announce rule pertaining to the execution of a warrant.
Motion to Suppress
The defendant is entitled to have the admissibility of evidence or a confession decided as a matter of law by a judge out of the hearing of the jury.
The government bears to burden of establishing admissibility by a preponderance of the evidence.
The defe
Fourth Amendment
People should be free in their persons from unreasonable searches and seizures.
Search
Governmental intrusion into an area where a person has a reasonable and justifiable expectation of privacy.
Seizure
Exercise of control by the government over a person or thing.
Seizure of Person
Seizure of a person occurs only when, under the totality of the circumstances, a reasonable person would feel that he was not free to decline the officer's requests or otherwise terminate the encounter.
There must be physical application of force by the o
Arrests
Police take a person into custody against her will for the purposes of criminal prosecution or interrogation.
Probable Cause
Officer has within her knowledge reasonably trustworthy facts and circumstances sufficient to warrant a reasonably prudent person to believe that the suspect has committed or is committing a crime.
Mistaken Offense
An arrest is not invalid merely because the grounds stated for the arrest at the time it was made are erroneous, as long as the officers had other grounds on which there was probable cause for the arrest.
Arrests in Public
Generally, no warrant needed.
Felony: a police officer may arrest a person without a warrant when she has reasonable grounds to believe that a felony has been committed and that the person before her committed it.
Misdemeanor: an officer may make a warran
Home Arrests
The police MUST have a warrant to effect a nonemergency arrest of an individual in her own home.
Effect of Invalid Arrest
An unlawful arrest, by itself, has no impact on a subsequent criminal prosecution.
An invalid arrest is not a defense to the offense charged.
Evidence that is fruit of the unlawful arrest may not be used against the defendant at trial because of the exclu
Investigatory Detentions (Stop and Frisk)
Police have the authority to briefly detain a person for investigative purposes even if they lack probable cause to arrest. (Terry Stop)
Police must have a reasonable suspicion supported by articulable facts of criminal activity or involvement in a comple
Reasonable Suspicion
Something more than a vague suspicion. Judged under the totality of the circumstances.
Informant's Tips
Where the source of suspicion of criminal activity is an informant's tip, it must be accompanied by indicia of reliability, including predictive information, sufficient to make the officer's suspicion reasonable.
Duration and Scope of Stop
For a stop to be valid, the police must act in a diligent and reasonable manner in confirming or dispelling their suspicions.
Police may also require the detained person to identity himself.
A seizure or stop occurs only if a reasonable person would belie
Development of Probable Cause
If during the stop the officer develops probable cause, the detention becomes an arrest and the officer can proceed on that basis.
Automobile Stops
Generally, police may not stop a car unless they have at least reasonable suspicion to believe that a law has been violated.
Roadblocks
Special law enforcement needs.
To be valid, roadblocks must:
1. Stop cars on the basis of some neutral, articulable standard; and
2. Be designed to serve purposes closely related to a particular problem pertaining to automobiles and their mobility.
Seizure of Automobile Occupants
An automobile stop constitutes a seizure not only of the automobile's driver, but also any passengers as well.
Informational Roadblocks
If the police set up a roadblock for purposes other than to seek incriminating information about the drivers stopped, the roadblock likely will be constitutional.
Police may Order Occupants Out of Automobile
Officer may order the occupants to get out of the automobile.
If the officer reasonably believes that the detainee is armed and dangerous, she may conduct a frisk of the detainee. She may also search the passenger compartment of the vehicle to look for we
Pretextual Stops
If an officer has probable cause to believe that a traffic law has been violated, the officer may stop the suspect's automobile, even if the officer's ulterior motive is to investigate a crime for which the officer lacks sufficient cause to make a stop.
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Deadly Force
An officer may not use deadly force unless it is reasonable to do so under the circumstances.
General Searches and Seizures
1. Does the defendant have a Fourth Amendment right?
a. Was there governmental conduct?
b. Did the defendant have a reasonable expectation of privacy?
2. If so, did the police have a valid warrant?
3. If the police did not have a valid warrant, did they m
Governmental Conduct
Government agents include publicly paid police and those citizens acting at their direction or behest.
Things Held Out To The Public
A person does not have a reasonable expectation of privacy in objects held out to the public such as the sound of one's voice, one's handwriting, paint on the outside of a car, the smell of one's luggage or car, account records held by a bank, automobile
Squeezing Luggage
A person has a reasonable expectation of privacy in luggage against physically invasive inspection.
Dog Sniffs at Traffic Stops
As long as the police have lawfully stopped a car and do not extend the stop beyond the time necessary to issue a ticket and conduct ordinary inquiries incident to such a stop, a dog sniff of the car does not implicate the Fourth Amendment.
Open Fields Doctrine
Areas outside of the curtilage (dwelling house and outbuildings) are subject to police entry and search because these areas are held out to the public and not protected by the Fourth Amendment.
The court will consider the building's proximity to the dwell
Garbage
The Fourth Amendment does not prohibit the warrantless search and seizure of garbage left for collection outside the curtilage of a home.
Fly-Overs
The police may, within the Fourth Amendment, fly over a field or yard to serve with the naked eye things therein.
Technologically Enhanced Searches of Homes
The Supreme Court has held that because of the strong expectation of privacy within one's home, obtaining by sense enhancing technology any information regarding the interior of a home that could not otherwise have been obtained without physical intrusion
Vehicle Identification Numbers
A police officer may constitutionally reach into an automobile to move papers to observe the automobile's vehicle identification number.
Requirements of a Warrant
1. Issued by a neutral and detached magistrate;
2. Based on probable cause established from facts submitted to the magistrate by a government agent upon oath or affirmation; and
3. Particularly describe the place to be searched and the items to be seized.
Showing Probable Cause
Officers requesting the warrant must submit to the magistrate an affidavit containing sufficient facts and circumstances to enable the magistrate to make an independent evaluation of probable cause.
Warrants may anticipate the seizable material when issue
Invalidating a Search Warrant
1. A false statement was included in the affidavit by the affiant;
2. The affiant intentionally and recklessly included that false statement; and
3. The false statement was material to the finding of probable cause. The mere fact that an affiant intention
Evidence May Be Admissible Even Though Warrant is Not Supported by Probable Cause
Evidence obtained by police in reasonable reliance on a facially valid warrant may be used by the prosecution, despite an ultimate finding that the warrant was not supported by probable cause.
Warrant Must Be Precise on its Face
The warrant must describe with reasonable precision the place to be searched and the items to be seized.
Search of Third-Party Premises
The Fourth Amendment does not bar searches of premises belonging to persons not suspected of crime, as long as there is probable cause to believe evidence of someone's guilt will be found.
Execution of Warrant
A warrant must be executed by the police.
When executing a warrant in a home, the police may not be accompanied by a member of the media or any other third party unless the third party is there to aid in executing the warrant.
Execution of Warrant Without Unreasonable Delay
The warrant should be executed without unreasonable delay because probable cause may disappear.
Announcement Requirement
An officer executing a search warrant must knock and announce her authority and purpose and await admittance for a reasonable time or be refused admittance before using force to enter the place to be searched.
If drugs are involved, a 15-20 second delay i
No Knock Entry
Allowed if knocking and announcing would be dangerous or futile, or that it would inhibit the investigation.
Scope of Search
Limited to what is reasonably necessary to discover the items described in the warrant.
Seizure of Unspecified Property
While executing the warrant, police may generally seize any contraband or fruits or instrumentalities of crime that they discover, whether or not specified in the warrant.
Search of Persons Found on the Premises
A search warrant does not authorize police to search persons found on the premises who are not named in the warrant.
Detention of Occupants
A warrant for the search of contraband founded on probable cause implicitly carries with it the limited authority to detain occupants of the premises while a proper search is conducted.
Search Incident to Lawful Arrest
The police may conduct a warrantless search incident to an arrest as long as it was made on probable cause.
Arrest must be constitutionally valid in order to validate the search. A constitutionally valid arrest is one that is reasonable and based on proba
Geographic Scope of Search Incident to Arrest
Incident to a constitutional arrest, the police may search the person and areas into which he might reach to obtain weapons or destroy evidence (his "wingspan").
Geographic Scope of Search Incident to Arrest: Homes
If an arrestee is allowed to enter his home, the police may follow and search areas within the arrestee's wingspan in the home.
The police may also make a protective sweep of the area beyond the defendant's wingspans if they believe accomplices may be pre
Geographic Scope of Search Incident to Arrest: Automobiles
After arresting the occupant of an automobile, the police may search the interior of the auto incident to the arrest if at the time of the search:
1. the arrestee is unsecured and still may gain access to the interior of the vehicle; or
2. the police reas
Search Incident to Arrest: Contemporaneous Requirement
A search incident to arrest must be contemporaneous in time and place with the arrest.
For automobiles, if the police have reason to believe that an automobile contains evidence of the crime for which the arrest was made, they may search the interior of t
Search Incident to Incarceration or Impoundment: Inventory
The police may search an arrestee's personal belonging before incarcerating him after a valid arrest.
Similarly, the police may search an entire vehicle that has been impounded.
Automobile Exception
If the police have probable cause to believe that a vehicle such as an automobile contains contraband or fruits, instrumentalities, or evidence of a crime, they may search the vehicle without a warrant.
Scope of Search under Automobile Exception
If the police have full probable cause to search a vehicle, they can search the entire vehicle (including the trunk) and all containers within the vehicle that might contain the object for which they are searching.
The search may extend to the passenger's
Limited Probable Cause: Containers Placed in Vehicle
If the police only have probable cause to search a container (recently) placed in a vehicle, they may search that container, but the search may not extend to other parts of the car.
Motor Homes
The automobile exception extends to any vehicle that has the attributes of mobility and a lesser expectation of privacy similar to a car.
Automobile Exception: Contemporaneousness Not Required
If the police are justified in making a warrantless search of a vehicle under this exception at the time of the stop, they may tow the vehicle to a station and search it later.
Plain View
1. Police are legitimately on the premises;
2. Discovery of evidence, fruits, or instrumentalities of crime or contraband;
3. Such evidence is in plain view; and
4. Probable cause to believe that the item is evidence, contraband, or a fruit or instrumenta
Consent
Police may conduct a valid warrantless search if they have voluntary consent to do so.
Knowledge of the right to withhold consent, while a factor to be considered, is not a prerequisite to establishing voluntary consent.
Authority to Consent
Any person with an apparent equal right to use or occupy the property may consent to a search, and any evidence found may be used against the other owners or occupants.
The search is valid even if it turns out that the person consenting to the search did
Authority to Consent: Limitation
The police may not act on consent from the occupant if a co-occupant is present and objects to the search and the search is directed against the co-occupant.
Scope of Search
Limited by the scope of consent. Consent extends to all areas to which a reasonable person under the circumstances would believe it extends.
Stop and Frisk: Automobiles
If a vehicle has been properly stopped for a traffic violation, a police officer may order the driver out of the vehicle even without a suspicion of criminal activity.
If the officer reasonably believes that the driver or any passenger may be armed and da
Hot Pursuit, Evanescent Evidence, and Other Emergencies (Exigency)
Police officers in pursuit of a fleeing felon may make a warrantless search and seizure. The scope of the search may be as broad as is reasonably necessary to prevent the suspect from resisting or escaping.
Evanescent Evidence Exception
The police may seize without a warrant evidence likely to disappear before a warrant can be obtained, such as a blood sample containing alcohol.
Emergency Aid Exception
Emergencies that threaten health or safety if not immediately acted upon will justify a warrantless search.
Whether an emergency exists is determined objectively, from the officer's point of view.
Methods of Obtaining Evidence that Shock the Conscience
Due process of law requires that state criminal prosecutions be conducted in a manner that does not offend the "sense of justice" inherent in due process. Evidence obtained in a manner offending that sense is inadmissible.
Searches of the Body
The reasonableness of searches into the body depends on weighing society's need for evidence against the magnitude of the intrusion on the individual.
Taking a blood sample is a reasonable intrusion. By contrast, a surgical procedure under general anesthe
Confessions
For a confession to be admissible, the Due Process Clause of the 14th Amendment requires the confession to be voluntary.
Voluntariness is assessed by looking at the totality of the circumstances, including the suspect's age, education, and mental and phys
Confessions: Official Compulsion
Only official compulsion will render a confession involuntary for the purpose of the 14th Amendment.
An involuntary confession can not be used for impeachment.
Confessions: Harmless Error Test
If an involuntary confession was erroneously admitted into evidence, the conviction will not be overturned if the government can show there was overwhelming evidence of guilt.
Sixth Amendment Right to Counsel
Applies to all critical stages of a criminal prosecution after the start of formal proceedings. Right is limited to adversary judicial proceedings where formal charges have been filed.
The right is violated when the police deliberately elicit an incrimina
Right to Counsel: Offense Specific
If a defendant makes a Sixth Amendment request for counsel for one charge, he must make another request if he is subsequently charged with a separate, unrelated crime if he desires counsel for the second charge.
Similarly, even though the defendant's Sixt
Waiver of Right to Counsel
The Sixth Amendment right to counsel may be waived so long as the waiver is knowing, voluntary, and intelligent.
Failure to Provide Sixth Amendment Counsel
Automatic reversal of conviction.
Right to Counsel: Impeachment
A statement obtained in violation of a defendant's Sixth Amendment right to counsel, while not admissible in the prosecution's case in chief, may be used to impeach the defendant's contrary trial testimony.
Miranda Warning
The Miranda warnings and a valid waiver are prerequisites to the admissibility of any statement made by the accused during a custodial interrogation.
Prior to interrogation, a person in custody must be clearly informed:
1. He has the right to remain silen
Re-Warning After Break
There is generally no need to repeat the warnings merely because of a break in the interrogation, unless the time lapse has been so long that a failure to do so would seem like an attempt to take advantage of the suspect's ignorance of his rights.
Miranda Warning: Required
1. Government conduct
2. Custody
3. Interrogation
Government Conduct
Miranda applies to interrogations made by publicly paid police.
Custody Requirement
Whether a person is on custody depends on whether the person's freedom of action is limited in a significant way. The more a setting resembles a traditional arrest, the more likely the Court will consider it to be custody. If the detention is voluntary, i
Interrogation Requirement
Express questioning and any words or actions on the part of police that the police should know are reasonably likely to elicit an incriminating response from the suspect.
Miranda does not apply to spontaneous statements not made in response to interrogati
Right to Waive Rights or Terminate Interrogation
1. Do nothing
2. Waive rights
3. Right to remain silent
4. Right to counsel
Do Nothing
If the detainee does not respond at all to Miranda warnings, the Court will not presume a waiver, but neither will the Court presume that the detainee has asserted a right to remain silent or to consult with an attorney.
Waive Rights
A detainee may waive his rights under Miranda. To be valid, the government must show by a preponderance of the evidence that the waiver was knowing and voluntary. The Court will look to the totality of the circumstances to determine whether this standard
Right to Remain Silent
At any time prior to or during the interrogation, the detainee may indicate that he wishes to remain silent. Such indication must be explicit, unambiguous, and unequivocal.
If the detainee so indicates, all questioning related to that particular crime mus
Police May Resume Questioning if they Scrupulously Honor Detainee's Request to Remain Silent
The police may reinitiate questioning after the detainee has invoked the right to remain silent, as long as they "scrupulously honor" the detainee's request. This means, at the very least, the police may not badger the detainee into talking and must wait
Right to Counsel
At any time prior to or during interrogating, the detainee may also invoke a Miranda right to counsel. This request must be unambiguous and specific.
If the detainee invokes this right, all questioning must cease until the detainee is provided with an att
Counsel Presence at Interrogation
Once the detainee invokes his right to counsel, the police cannot resume questioning the detainee in the absence of counsel.
Duration of Prohibition After Requesting Counsel
The prohibition against questioning a detainee after he requests an attorney lasts the entire time that the detainee is in custody for interrogation purposes, plus 14 more days after the detainee returns to his normal life.
After that point, the detainee
Statements in Violation of Miranda and Impeachment
If the police initiate further questioning after the detainee invokes his right to counsel, the detainee's statements cannot be used by the prosecution in its case in chief. However, such statements can be used to impeach the detainee's trial testimony, a
Effect of Miranda Violation
Generally, evidence obtained in violation of Miranda is inadmissible at trial.
Use of Confession for Impeachment
A confession obtained in violation of the defendant's Miranda rights, but otherwise voluntary, may be used to impeach the defendant's testimony if he takes the stand at trial, even though such a confession is inadmissible in the state's case in chief as e
Use of Silence for Impeachment
The prosecutor may not use the defendant's silence after receiving Miranda warnings to counter the defendant's insanity defense.
A single question by the prosecutor about the defendant's silence may constitute harmless error when followed by an objection
Miranda Warnings After Questioning and Confession
If the police obtain a confession from a detainee without giving him Miranda warnings and then give the detainee Miranda warnings and obtain a subsequent confession, the subsequent confession will be inadmissible if the "question first, warn later" nature
Nontestimonial Fruits of an Unwarned Confession
If the police fail to give Miranda warnings and during the interrogation a detainee gives the police information that leads to non testimonial evidence, the evidence will be suppressed if the failure was purposeful, but if the failure was not purposeful,
Public Safety Exception to Miranda
If police interrogation is reasonably prompted by concern for public safety, responses to the questions may be used in court, even though the suspect is in custody and Miranda warnings are not given.
Pretrial Identification
Ensures that when a witness identifies a person at trial, she is identifying the person who committed the crime and not merely the person whom she has previously seen at the police station.
Due Process Stnadard = cannot be unnecessarily suggestive and cre
Sixth Amendment Right to Counsel During Identification
A suspect has a right to the presence of an attorney at any post-charge lineup or show up.
Line Up
Witness is asked to pick the perpetrator of the crime from a group of persons.
Show Up
One-to-one confrontation between the witness and the suspect for the purpose of identification.
Role of Counsel at Lineup
Attorney's presence at the line up is so that he can observe any suggestive aspects of the lineup and bring them out on cross examination of the witness.
Photo Identification
The accused does not have the right to counsel at photo identifications.
Physical Evidence
The accused does not have a right to counsel when the police take physical evidence such as handwriting exemplars or fingerprints.
Due Process Standard for Identifications
A defendant can attack an identification as denying due process when the identification is (i) unnecessarily suggestive and there is (ii) substantial likelihood of misidentification.
Anything that causes a suspect to stand out against others in the line u
Remedy for Unconstitutional Identification
Exclusion of the in-court identification.
Exception to the Exclusion Remedy: Independent Source
A witness may make an in-court identification despite the existence of an unconstitutional pretrial identification if the in-court identification has an independent source.
Factors:
1. Opportunity to observe the defendant at the time of the crime;
2. Ease
Identification Suppression Hearing
The admissibility of identification evidence should be determined at a suppression hearing in the absence of a jury.
The exclusion of the jury is not constitutionally required.
The government bears the burden of proof as to the presence of counsel or a wa
No Right to Line-Up: Defendant
The defendant is not entitled to any particular kind of identification procedure.
Speedy Trial: Factors
1. Length of delay;
2. Reason for the delay;
3. Whether the defendant asserted his right; and
4. Prejudice to the defendant
Prosecutor's Duty to Disclose Exculpatory Evidence
The government has a duty to disclose material, exculpatory evidence to the defendant. Failure to disclose such evidence-whether willful or inadvertent-violates the Due Process Clause and is grounds for reversing a conviction if the defendant can prove:
1
Trial in Prison Clothing
It is unconstitutional for the state to compel the defendant to stand trial in prison clothing.
If the defendant does not wish to be tried in prison clothing, he must make a timely objection.
Similarly, the Due Process Clause prohibits the use of visible
Right to Impartial Jury: Right to Questioning on Racial Bias
A defendant is entitled to questioning on voir dire specifically directed to racial prejudice whenever race is inextricably bound up in the case.
A capital defendant accused of an interracial crime is entitled to have prospective jurors informed of the vi
Sentence Enhancement
If substantive law provides that a sentence may be increased beyond the statutory maximum for a crime if additional facts are proved, proof of the facts must be submitted to the jury and proved beyond a reasonable doubt.
The defendant's right to jury tria
Waiver of Right to Counsel at Trial and Right to Defend Oneself
A defendant has a right to represent himself at trial as long as his waiver is knowing and intelligent and he is competent to proceed pro se.
Defendant must have a rational and factual understanding of the proceeding against him.
Effective Assistance of Counsel
The Sixth Amendment right to counsel includes the right to effective counsel.
Effective assistance of counsel is presumed unless the adversarial process is so undermined by counsel's conduct that the trial cannot be relied upon to have produced a just res
Circumstances Constituting Ineffective Assistance
1. Deficient performance by counsel; and
2. But for such deficiency, the result of the proceeding would have been different.
Right to Confront Witnesses
The Sixth Amendment grants to the defendant in a criminal prosecution the right to confront adverse witnesses. The ensures:
1. the fact finder and the defendant observe the demeanor of the testifying witness; and
2. the defendant has the opportunity to cr
Introduction of Co-Defendant's Confession: Prohibition
Bruton: If two persons are tried together and one has given a confession that implicates the other, the right of confrontation prohibits the use of that statement, even with instructions to the jury to consider it only as going to the guilt of the "confes
Exceptions to Prohibition on Co-Defendant's Confession
1. All portions referring to the other defendant can be eliminated;
2. The confessing defendant takes the stand and subjects himself to cross-examination with respect to the truth or falsity of what the statement asserts;
3. The confession of the non test
Prior Testimonial Statement of Unavailable Witness
Under the Confrontation Clause, prior testimonial evidence may not be admitted unless:
1. the declarant is unavailable;
2. the defendant had an opportunity to cross-examine the declarant at the time the statement was made.
Testimonial Statements Defined
Statements are testimonial when there is no ongoing emergency and the primary purpose of the interrogation is to establish or prove past acts.
Statements are non-testimonial when made under circumstances indicating that the primary purpose of the interrog
Forfeiture by Wrongdoing
A defendant can be held to have forfeited a Confrontation Clause claim by wrongdoing.
Court will not find forfeiture by wrongdoing unless the wrongdoing was intended to keep the witness from testifying.
In Giles v. California, SCOTUS held: absent a findin
Burden of Proof
Beyond a reasonable doubt.
Presumption of Innocence
All defendants are presumed innocent until proven guilty.
Guilty Plea and Jury Trial
A guilty plea waives the right to a jury trial.
Defendant Taking the Plea
The judge must determine that the plea is voluntary and intelligent. This must be done by addressing the defendant personally in open court on the record.
The judge must make sure the defendant knows and understands:
1. The nature of the charge to which t
Right to Counsel at Sentencing
Sentencing is usually a "critical stage" of a criminal proceeding, thus requiring the assistance of counsel, as substantial rights of the defendant may be affected.
Sentencing: Right to Confrontation and Cross Examination
The usual sentence may be based on hearsay and uncross-examined reports.
Criminal Penalties Constituting Cruel and Unusual Punishment
The Eighth Amendment prohibition against cruel and unusual punishment places several limitations upon criminal punishments.
Punishment Grossly Disproportionate to Offense
A penalty that is grossly disproportionate to the seriousness of the offense committed is cruel and unusual.
Falsifying public records and sentencing of 20 years at hard labor is grossly disproportionate and cruel and unusual punishment.
Contrast, a manda
Proportionality: No Right to Comparison of Penalties in Similar Cases
The Eighth Amendment does not require state appellate courts to compare the death sentence imposed in a case under appeal with other penalties imposed in similar cases.
Death Penalty: Murder
The death penalty is not inherently cruel and unusual punishment, but the Eighth Amendment requires that it be imposed only under a statutory scheme that gives the judge or jury reasonable discretion, full information concerning defendants, and guidance i
Victim Impact Statements
A victim impact statement may be considered during the sentencing phase of a capital case.
Statutory Guidance on Death Penalty
A statute providing for the death penalty may not be vague.
Death Penalty as Cruel and Unusual Punishment Under the Eighth Amendment
The death penalty is not allowed for rape.
The death penalty is not allowed for a felony murder where the defendant, as an accomplice, did not take or attempt or intend to take life, or intend that lethal force be employed.
However, the death penalty may
No Right to Appeal
There is apparently no federal constitutional right to an appeal.
Several Supreme Court opinions suggest that all appeals could constitutionally be abolished.
First Appeal
If an avenue of post-conviction review is provided, conditions that make the review less accessible to the poor than to the rich violate equal protection.
Right to Appointed Counsel for First Appeal
Indigents must be given counsel at state expense during a first appeal granted to all as a matter of right.
Attorney Withdrawal on Appeal
An appellate court can permit withdrawal of counsel who concludes that appeal would be frivolous. However, before doing so, the state must take steps to ensure that the defendant's right to counsel is not being denied.
Anders Brief
Counsel's brief referring to anything in the record that might arguably support an appeal when counsel believes an appeal would otherwise be frivolous.
Discretionary Appeals
In a jurisdiction using a two-tier system of appellate courts with discretionary review by the highest court, an indigent defendant need not be provided with counsel during the second, discretionary appeal.
Representation also need not be provided for an
Appeal: No Right to Self Representation
On appeal, a defendant has no right to represent himself.
Retroactivity
If the Court announces a new rule of criminal procedure in a case on direct review, the rule must be applied to all other cases on direct review.
Double Jeopardy
The Fifth Amendment Right to be free of double jeopardy for the same offense has been incorporated into the Fourteenth Amendment.
The general rule is once jeopardy attaches, the defendant may not be retried for the same offense.
Jeopardy: Jury Trials
Jeopardy attaches in a jury trial at the empaneling and swearing of the jury.
Jeopardy: Bench Trials
In bench trials, jeopardy attaches when the first witness is sworn.
Jeopardy: Juvenile Proceedings
The commencement of an adjudicatory juvenile proceeding bars a subsequent criminal trial for the same offense.
Exceptions Permitting Retrial When Jeopardy has Attached: Hung Jury
The state may retry a defendant whose first trial ends in a hung jury.
Exceptions Permitting Retrial When Jeopardy has Attached: Mistrial for Manifest Necessity
A trial may be discontinued and the defendant re-prosecuted for the same offense when there is a manifest necessity to abort the original trial or when the termination occurs at the behest of the defendant on any grounds not constituting an acquittal on t
Exceptions Permitting Retrial When Jeopardy has Attached: Retrial After Successful Appeal
The state may retry a defendant who has successfully appealed a conviction, unless the ground for the reversal was insufficient evidence to support the guilty verdict.
Retrial is permitted when reversal is based on the weight, rather than the sufficiency
Charges on Retrial
The Double Jeopardy Clause prohibits retrying a defendant whose conviction has been reversed on appeal for any offense more serious than that for which she was convicted at the first trial.
The right is violated by retrial for the more serious offense, ev
When Two Crimes Do Not Constitute the Same Offense
Two crimes do not constitute the same offense if each crime requires proof of an additional element that the other crime does not require, even though some of the same facts may be necessary to prove both crimes. Blockburger v. United States.
Under Blockb
Retrial for Lesser Included Offenses Barred
Attachment of jeopardy for the greater offense bars retrial for the lesser included offenses.
Retrial for Greater Offense
Attachment of jeopardy for a lesser included offense bars retrial for the greater offense, except that retrial for murder is permitted if the victim dies after attachment for jeopardy for battery.
Separate Sovereigns and Jeopardy
The constitutional prohibition against double jeopardy does not apply to trials by separate sovereigns.
Thus, a person may be tried for the same conduct by both a state and the federal government, but not by the state and its municipalities.
Privilege Against Compelled Self-Incriminaition
The Fifth Amendment prohibits the government from compelling self-incriminating testimony.
Only natural persons may assert the privilege.
A person may refuse to answer a question whenever his response might furnish a link in the chain of evidence needed t
Privilege Not a Defense to Civil Records Requirements
The government may not require that certain records be kept and reported on where the records are relevant to an administrative purpose, unrelated to enforcement of criminal laws. Such records acquire a public aspect and are not protected by the Fifth Ame
Criminal Enforcement Purpose
If the registration requirement is directed not at the general public but at a select group inherently suspect of criminal activities and the inquiry is in an area permeated with criminal statutes, the person may assert the privilege to avoid prosecution
Method for Invoking the Privilege: Defendant
A criminal defendant has a right not to take the witness stand at trial and not to be asked to do so. It is even impermissible to call the jury's attention to the fact that he has chosen not to testify.
Method for Invoking the Privilege: Witness
The privilege does not permit a person to avoid being sworn as a witness or being asked questions. Rather, the person must listen to the questions and specifically invoke the privilege rather than answer the questions.
Scope of Privilege: Testimonial but Not Physical Evidence
The Fifth Amendment privilege protects only testimonial or communicative evidence and not real or physical evidence. Thus, the state may require a person to produce blood samples, handwriting exemplars, or voice samples without violating the Fifth Amendme
Compulsory Production of Documents
A person served with a subpoena requiring the production of documents tending to incriminate him generally has no basis in the privilege to refuse to comply because the act of producing documents does not involve testimonial self-incrimination.
Violation of Self-Incrimination Clause
Occurs when a person's compelled statements are used against him in a criminal case.
Right to Advice Concerning Privilege
A lawyer may not be held in contempt of court for her good faith advice to her client to invoke the privilege and refuse to produce materials demanded by a court order.
Penalties for Failure to Testify Prohibited
The state may not chill the exercise of the Fifth Amendment privilege against compelled self-incrimination by imposing penalties for the failure to testify or cooperate with authorities.
Elimination of the Privilege: Grant of Immunity
A witness may be compelled to answer questions if granted adequate immunity from prosecution.
Use and Derivative Use Immunity
Guarantees that the testimony obtained and evidence located by means of the testimony will not be used against the witness.
This is not as broad as transactional immunity because the witness may still be prosecuted if the prosecutor can show that her evid
Use of Testimony by Another Sovereign Prohibited
Federal prosecutors may not use evidence obtained as a result of a state grant of immunity and vice versa.
Search of Automobile Incidental to Arrest
an have a search incidental to the arrest. Under Gant v. Arizona the 4th Amendment requires actual and continuing threat to officer safety posed by arrestee or need to preserve evidence related to the crime of the arrest in order to justify warrantless se
Detention to Obtain a Warrant
Detention to obtain warrant = may be able to prohibit someone form entering their home for reasonable time unaccompanied so that they can obtain a warrant
� Reason to believe that the evidence was in the home and could be hidden if accused or mother were
Employee Workplace
Although an office is seldom a private enclave fee from entry by supervisors, other employee and invitees there is an expectation of privacy as to offices, desks and work files not freely open to the public at large (probably not ok if locked locker for i