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LAW SCHOOL ESSENTIALS – CRIMINAL PROCEDURE PROFESSOR LAURIE L. LEVENSON
LOYOLA LAW SCHOOL
CHAPTER 1: BASIC PRINCIPLES OF THE FOURTH AMENDMENT: SEARCHES AND SEIZURES
A. General Fourth Amendment Principles
Covers both ______________________________and _________________________________
Fourth Amendment rights are _______________________________________________ - the
individual challenging the action must have __________________________________________
in order to raise a challenge.
Example 1: You and your best friend go out and steal something. You leave it
in your best friend's house. The police come in without a warrant, search the
house, find the stolen goods, and link them to both of you. Your best friend can
bring a motion to suppress because there was no warrant for the search. But,
you cannot bring a motion to suppress because none of your Fourth
Amendment rights were violated.
What happens if there is a violation of the Fourth Amendment rights?
o The __________________________________________________________
How it works - If the police obtain evidence in an illegal way, that evidence cannot
initially be introduced by the prosecution in a trial.
There is an _____________________________________________________________ standard.
o _________________________________ will decide whether there was a violation of
constitutional rights.
The Fourth Amendment only applies to _____________________________________________.
States can have broader rights than are granted by the U.S. Constitution.
B. Arrests/Seizures
The Fourth Amendment provides that people should be free from unreasonable
______________________________________________.
When is a person seized?
o Objective test: when a reasonable person would not feel
______________________________________________.
o There has to be some actual submission.
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Example 2: If the officer says, "Stop, in the name of the law!" but the
defendant keeps on running and drops some cocaine out of his pocket, there
was no illegal seizure because the defendant was not actually seized.
o How do you determine whether there was a seizure?
Practical standard: ________________________________________________________
o The detention has to be ____________________________________.
o If an officer stops a car, the driver and all passengers are seized.
1. Three types of encounters with the police
1) _______________________________________________________________________
A reasonable person would feel free to leave.
No suspicion is needed.
2) _______________________________________________________________________
Also known as a "stop and frisk" or a Terry stop
The officer must have at least
_____________________________________________________.
The officer cannot do full search of person or person's belongings.
The officer can do a pat down to make sure they are safe and can ask questions to
see if crime is afoot.
3) ________________________________________________________________________
Police officers need to have _____________________________________________.
o This means a fair probability that a crime was committed and you committed
the crime.
Police officers will be able to do a _________________________________________
incident to that arrest.
2. Requirements for an arrest
o Ordinarily, they should have an _________________________________________________.
Must be issued by a _______________________________________________________
magistrate
Must be supported by ____________________________________________
This is a showing that based upon the totality of the circumstances there is evidence
that a crime has taken place.
o Arresting a suspect in a home
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Police can enter the suspect's ________________________________ with the arrest
warrant; they do not need a search warrant.
However, if police go into a third party's home to arrest that person, then they need a
search warrant for the third party's home.
3. Warrantless arrests
o When crimes occur in a __________________________________________
o If the crime is a __________________________________ and the officers have
__________________________________________________ that the felony has taken
place, the officers can make the warrantless arrest, even if they did not witness the crime.
_________________________________________________ - officers have to see the
violation.
4. Illegal arrests
o It does not mean the case gets thrown out.
o Any evidence that comes from the illegal arrest is going to be
_________________________________________________.
C. Defining "Search"
1. Katz standard – two-part standard:
1) Did the individual have a subjective, sincere belief and
____________________________________________________________________?
2) Was that expectation of privacy __________________________________________?
2. Jones standard
o The case involved a drug dealer and law enforcement placed a GPS device on his car to
follow him. Law enforcement followed him on the public streets for a month.
o The Supreme Court, however, stated that even though the movements were on public
streets, there was a search.
o Rule: If you have a _________________________________________________________by
the police on private property for the purpose of obtaining information, it may also
constitute a search.
o Dog Sniffs of Homes: Under the Supreme Court's recent Florida v. Jardines decision, a drug-
sniffing dog on a homeowner's porch constitutes a search because it is a trespass.
D. Areas Protected Against Government Searches
1. The home
o Police need a ____________________________________ or an
____________________________________________ to the warrant requirement.
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o The Supreme Court has expanded the right of privacy to
__________________________________________. In determining whether the area is
protected as curtilage, a four-factor test applies:
1) How close is the area to ___________________________________________?
2) Is it within an __________________________________ around your home?
3) What happens in that area; is it for private use?
4) What steps have been taken to _____________________________________ the area?
o There is no reasonable expectation of privacy in open fields.
o Houseguests: An __________________________________________________________ will
be able to argue an honest and reasonable expectation of privacy.
2. Motel rooms
o You can have a reasonable expectation of privacy in a motel room.
o The motel operator cannot give access to the police without
______________________________________________________ or some other exception
to the warrant rule.
3. Business premises
o Occupiers of business premises have Fourth Amendment rights
4. Jails or prisons
o Inmates do not have a reasonable expectation of privacy.
o Jail administrators may strip search all arrestees who go into general population even if
there is no reasonable suspicion that arrestee has a concealed weapon or contraband.
Florence v. Board of Chosen Freeholders (2012).
E. Objects Sought
1. Papers and effects
o The Fourth Amendment, by its terms, protects "papers and effects."
o Bond case – police went onto a bus and started groping the luggage. In that case, the police
were searching the effects.
o Smells: Dogs or officers smelling things are
_____________________________________________________ a search.
o Items found in another person's possession: If something of yours is found in another
person's bag, you cannot contest that. You do not have a reasonable expectation of privacy
in someone else's bag.
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2. Automobiles
a. In General
Automobiles are protected under the Fourth Amendment.
Police only need __________________________________________________________
to stop an automobile. That is, they have to be able to articulate
_______________________________________________________________ that made
them suspicious that there was some illegal behavior by the car.
b. Checkpoints
Checkpoints are permissible under the Fourth Amendment.
The primary purpose of the sobriety checkpoint is ______________________________
________________________________, not to do a law enforcement search.
Contrast with drug interdiction stops: If police are stopping cars to look inside to see if
there are drugs, that is an __________________________________________________.
Searches for witnesses: Under the Lidster case, the Supreme Court has said the police
can also stop cars to see if they have a witness who maybe saw a recent accident or
know where a missing child is.
Immigration law enforcement: ________________________________________
customs border stop - law enforcement is permitted to do a
____________________________________________________________. No suspicion
is needed.
3. Abandoned property
o Abandoned property is not protected by the Fourth Amendment.
o There is no reasonable expectation of privacy in abandoned property, such as
_____________________________________.
F. Persons and Their Attributes
Individuals do not have a reasonable expectation of privacy in their physical characteristics,
including handwriting and voice samples.
Police may take a DNA sample from an arrestee as part of the routine booking procedure. It is
like fingerprinting or photographing. Maryland v. King (2012).
Government informants: An individual also does not have a reasonable expectation of privacy
in conversations with others.
o This issue commonly arises when someone speaks with a government informant or
undercover officer.
o The use of that conversation by police is not considered a search under the Fourth
Amendment.
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CHAPTER 2: SEARCH WARRANTS AND EXCEPTIONS TO THE WARRANT REQUIREMENT
A. Methods Used to Search
1. Fly-overs
o The Supreme Court has stated that an individual does not have a reasonable expectation of
privacy from _____________________________________________________or helicopters.
o This is not a search for purposes of the Fourth Amendment.
o However, drones that fly below the level of regular aviation may be a search.
2. Technological devices
o Kyllo case – police used a thermal imager to see what was going on inside a house.
Does that constitute a search? _________________.
Rule: If you have new type of technology being used on a home, and it is not in
______________________________________________ yet, that is considered a search.
o Canine sniffs: Not allowed if they are of the home and there is no warrant.
o Officer sniffs: Permitted; not like high-tech device.
3. Field test
o Determines whether a substance is contraband
o A field test ___________________________________________________a search.
B. Search Warrant Requirements
A valid search warrant must be:
1) Issued by a_________________________________ and
__________________________________________magistrate;
2) Based on a finding of probable cause;
3) Offered by an officer under oath or ______________________________________; and
4) Describes with particularity the _____________________________ to be searched and
what the officers are searching for.
The general rule is that you need a warrant but there are many exceptions.
1. Probable cause
o A ____________________________________________________________ standard applies
to information provided by an informant. Police need to corroborate this information.
o Facts supporting probable cause may come from any of the following sources:
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1) A police officer's ______________________________________________________;
2) Information from a ________________________________________, known informant,
or an unknown informant where you have been able to verify some of their information;
and
3) Evidence the officer has obtained from the initial
________________________________________________.
All information goes into an affidavit.
o How can a defendant attack any showing of probable cause in a warrant?
Franks v. Delaware: if the defendant can show that (1) not only is the statement false,
but it was made with ______________________________________________________
___________________________________disregard for the truth and (2) that particular
falsehood was __________________________________________________to a finding
of probable cause, then that might be grounds for striking it out of the warrant.
If there is enough left in the affidavit apart from that false statement or if the officer just
made a mistake, then that is not going to be enough to challenge the probable cause
under the warrant.
2. Particularity
o This is a reasonable standard.
o The Supreme Court has instructed courts to look at the overall language that is set forth.
Language, such as "other fruits, instrumentalities, and evidence of this crime, at this time
unknown," does not automatically make a warrant invalid.
o The warrant must list where law enforcement is going to search
o If they make small mistakes but it is still reasonable that the officer's description will get
them to the right place, the warrant will survive.
3. Anticipatory warrant
o Anticipatory warrants are valid so long as the officers can show by their recitation of facts
that there will be ______________________________________________________at that
point that there will be evidence of a crime.
4. Innocent third parties
o Can the police get a search warrant for a third-party's premises even though they cannot
show the third party was involved in anything illegal himself?
______________________________________________________________
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C. Execution of Warrants
1. Service
o A warrant can be served by officers.
o This may include other types of government officials, such as fire inspectors.
2. Timing
o The Constitution does not set a specific time limit – it is the reasonable standard.
o The Federal Rules of Criminal Procedure do have time limits, such as a 10-day limit for
search warrants.
3. Manner of execution
o The police are supposed to __________________________________________________.
o Exceptions: If the police can show exigent circumstances, that they have reason to believe
there are guns there or evidence will be destroyed, they do not necessarily have to knock
and announce.
o If the police do a search but do not knock and announce, the Supreme Court has stated it
will not apply the exclusionary rule.
4. The plain view doctrine
o Officers, if in a place that they are entitled to be, may seize
________________________________________________________ in plain view; police
cannot move or overturn objects to put things into plain view.
5. Detention of parties present at a search
o Officers can lawfully detain people that are on the premises when they are doing a search in
order to safely conduct the search.
o Persons detained must be in the "immediate vicinity" of the premises searched.
o If persons are within the vicinity, they may be detained in a reasonable manner, which may
include handcuffs, and may be questioned.
D. Exceptions to the Warrant Requirement
1. Search incident to a lawful arrest
o First determine whether there was a lawful arrest. If the arrest was illegal, the following
search is, as well.
o It must be an actual arrest, not just a
_______________________________________________.
o After the police have arrested someone, they have two concerns: (1) their
_________________________________________and (2)
______________________________________________.
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o The Chimel standard, also known as the "grab area" rule:
The police have the right to search anything within the ___________________________
of the suspect.
If someone is arrested in their home, the police can search the
_________________________________, bags that might be near them, as well as
closets and _________________________________________, that are in that same
room from which an attack could be launched; can search pockets and open containers
within pockets.
Police can do a ___________________________________________________________
to make sure no one is there. If they are making an arrest in a house and hear noises in
the house causing them to believe their safety is at stake, they can conduct a search. If
they see something in _________________________________________________, they
can seize it.
o Timing: The search must take place at about the same time as the arrest.
o Scope of the search:
Includes ______________________________________________________________
Can look inside ____________________________________________that might be in
the pockets
Anything that is immediately associated with the person (such as a shoulder bag or
purse), so long as the container could actually hold
_________________________________________________________.
2. Vehicle search incident to a lawful arrest
o Old rule (Belton): whenever there was a lawful arrest involving an automobile, the police
could automatically search the entire ___________________________________________.
o The Supreme Court's Gant decision changed this rule:
Now, if a search is incident to a lawful arrest involving an automobile, whether police
can search the entire passenger compartment depends on whether:
The suspect is still inside the car or outside of the car on the curb nearby and
therefore he might able to rush back into the car; or
o But if the suspect has been placed in
_________________________________________________in the back of the
patrol car, police cannot search the entire passenger compartment UNLESS
It is reasonable that __________________________________________________of
the arrest might be found in the vehicle.
o Look at the reason for the arrest.
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Example 3: A person was arrested in their car on suspicion of possessing
drugs. If the suspect was arrested in his car, the search of the passenger
compartment is valid. If the suspect is put in the back of the police car, the
police could search the passenger compartment for drugs. If the individual was
stopped for driving with a suspended license and then put in the back of a squad
car, Gant wouldn't allow a search of the passenger compartment, as there
wouldn't be any evidence of the crime found there. (Note, though, that another
exception might apply.)
o Scope of searches incident to arrest
Only includes the passenger compartment
Does not include a ______________________________________________________.
This requires a separate exception - __________________________________________,
which only applies when you have probable cause that there is contraband in the car.
o Inventory search
Individual is arrested, brought to the station – the individual's car is taken down to an
impound station and inventoried.
So long as there is a routine policy that allows the police to take this inventory, police
are permitted to do this even if the car is locked or without the owner's consent.
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CHAPTER 3: EXCEPTIONS TO THE WARRANT REQUIREMENT, CONT'D
A. Exceptions to the Warrant Requirement, cont'd
1. Exigent Circumstances
o Police need to have the right to seize evidence or it will be
_____________________________________________, someone will get hurt, or someone
will ____________________________during a hot pursuit.
o When are exigent circumstances present? ________________________________________
__________________________________________test.
o The police are NOT permitted to create their own exigency.
1) _____________________________________________ - This is when police are chasing
after somebody who just committed a crime.
2) Other emergency situations: If the police have reason to believe that somebody is in
immediate threat of serious harm, injury, or death, they are allowed to enter a house
under exigent circumstances.
3) In drunk driving cases, police can take a warrantless blood test but only when they show
that they did not have time to get a warrant. The reasonableness of the warrantless
blood test is determined on a case-by-case basis.
2. Stop and Frisk – "Terry stops"
o Police need ____________________________________________________ - individualized,
articulable facts that crime is afoot.
o Only a brief detention, and not a full search
o ________________________________________________________________ - in addition
to their experience, there could be a police bulletin, there could be an informant, etc.
Example 4: Police are in a high-crime area, person standing on the corner,
person takes off when police drive up, police have other reason to believe there
might be a weapon or other criminal activity – is this enough to constitute
reasonable suspicion? _______________________________________.
o If the police have reasonable suspicion, what can they do?
They can do a frisk, otherwise known as a _____________________________________.
The purpose is to see if there are weapons that can be used against the officers.
They cannot go into ___________________________________________________.
If police are patting someone down and it is very clear just by the
_____________________________________________ that the item is contraband,
usually a weapon, they can seize it.
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BUT if they feel something and it feels squishy, could be baby powder or drugs, the
police are NOT allowed to reach in there and take it.
o There can be Terry stops of cars.
Law enforcement may stop cars if there is a reasonable belief that (1) there is a
dangerous suspect or (2) if they are involved in criminal activity.
Police can look around in the passenger area for any hidden weapons.
Officers can order individuals out of the car, including the passengers, and frisk them.
Subjective intent of the officer in making the stop does not matter.
Pretext stops are ok if there are objectively reasonable reasons to stop
The stop must be _____________________________________________.
3. Automobile exception
o Police need to have _______________________________________________ to believe
that the vehicle contains ______________________________________________.
o If they have this probable cause, they can look in all parts of the car that could hold that
contraband.
They can look in the passenger compartment, the ___________________________, and
also _______________________________________________________ in the trunk.
o Pre-textual stops
The Supreme Court has set a standard that does not really look at the
__________________________________________________________ of officers.
The focus is whether it was _________________________________________________
to do the search – the Whren case.
4. "Plain-view" doctrine
o Items in public view can be seized without a warrant.
o What about objects in a private area?
Plain view as long as the officers had a _____________________________________
_______________________________to be there.
Police can take anything that is __________________________________________by its
nature and they can see.
5. Consent searches
o Officers obtain consent from individuals to search their cars, objects, etc.
o Officers do not have to inform the individual of their right to say no.
o The standard is whether it is a voluntary consent.
o No suspicion is required.
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How do we know whether it is voluntary? Look at the totality of the circumstances.
o Consent from third parties: A third party can give consent to search your house or your
items in two situations:
The third party has _______________________________________________________.
The third party has _______________________________________________________ -
the officer has reason to believe that the third party did have permission on your behalf
to give consent.
A landlord may have actual authority, but police should confirm.
o Jointly controlled property
People who share a premises (a co-owner) generally can give permission
Exception: When the other co-owner is also there and refuses to give permission for the
search.
Exception does not apply when co-owner denies permission but is later lawfully
removed from the premises by the police. [Georgia v. Randolph]
o A search is limited to the reasonable scope of the consent.
o The burden of proof is on the prosecution to show it was a valid, voluntary consent.
6. Administrative searches
a. Generally
These are health and safety inspections.
They can involve either residential or commercial property.
There is a probable cause standard but not the same as that for a criminal investigation.
A legislative scheme that directs how often or under what circumstances these
inspections can be made is sufficient to justify the inspections.
Examples of administrative searches:
____________________________________________________________________,
Highly regulated industries, such as _______________________________________,
gun shops, and _______________________________________________________.
b. Public officials in ________________________________________________.
Students have less constitutional protection than adults.
In a school, ______________________________________________________________
might be enough to search. It depends on what the officers are searching for and the
level of intrusion.
You can also have _____________________________________ searches, such as
random drug testing of students, because of the need for safety.
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o Administrative searches also include inventory searches, routine international border
searches, vehicle checkpoints and roadblocks, and factory searches.
c. Government employees
If there is a reasonable expectation of privacy, they might only need reasonable
suspicion that some type of work-related misconduct is at play to search the employees'
desks.
d. Other
Detention of a traveler whom authorities have reasonable suspicion is smuggling
contraband in his stomach.
Parolees and probationers
Parolees - ________________ suspicion is required to search
Probationers - ______________________________________________ suspicion is
required to search
B. Wiretapping
Difference between wiretapping and consensual monitoring:
o Consensual monitoring: when an undercover law enforcement officer or informant is wired
and engages in a conversation with the suspect.
NOT a search
No reasonable expectation of privacy
Note 1: One party to a conversation recording the conversation without the other party's knowledge is not illegal under the Fourth Amendment.
o Wiretapping: when you are having a private conversation - neither party to the call knows
that it is being tapped into.
Need _________________________________________________________
Must get special wiretap warrant
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CHAPTER 4: THE EXCLUSIONARY RULE AND THE FIFTH AMENDMENT
A. Exclusionary Rule
1. Generally
o The exclusionary rule applies to violations of the _________________________Amendment,
________________________ Amendment, and _________________________Amendment.
o If the police illegally obtain the evidence, it should not be used initially in the case in chief
against the defendant to prove guilt.
o The _________________________________________________________________doctrine
Not only the evidence that the police immediately obtained from their illegal behavior,
but anything it led to, the derivative evidence, should also be excluded.
2. Exceptions to the exclusionary rule:
o Remember that only the person whose constitutional rights have been violated have
standing to raise the exclusionary rule.
1) The _______________________________________________________________rule
The police illegally obtain evidence but they were going to find it anyway.
Example 5: The police illegally obtain a statement that tells them where they
might find a little girl who has gone missing. At exactly the same time, the
police are conducting a full blown search for the child and within a matter of
hours, they would have found her. The Supreme Court has said that it will not
throw out that evidence. Inevitable discovery would apply.
2) The _____________________________________________________________doctrine
As long as there is an independent, lawful source, it does not matter that there was
other illegal activity.
3) The ___________________________________________________ principle
Officers are not perfect and they can "____________________________" the taint.
Example 6: Officers illegally obtain a statement from a suspect. The suspect
then comes back to the station and says, "Let me tell you what really
happened." The defendant might argue that he never would have done that if
the officers had not been talking to him illegally in the first place. The Supreme
Court would state that the taint is too attenuated and this is not a situation
where the exclusionary rule will be used.
4) The ____________________________________________________ exception
If you have a warrant that is _____________________________________________
and it is not unreasonable to believe it is a good warrant, and it was not obtained by
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fraud, and it is not improperly executed, then even though it turns out not to be a
good warrant, the exclusionary rule will not be used.
Herring:
o Warrantless use of the good-faith exception. Herring was arrested based on a
warrant from a computer check – police found contraband during a search
incident to arrest. Computer records were wrong – there was not a valid
warrant for Herring. The officers claimed good faith, relying on the computer
records.
o The Supreme Court allowed the good-faith exception to apply. The exclusionary
rule will not be applied unless there has been __________________________or
__________________________________________misconduct, or systemic
__________________________________________.
5) The "knock and announce" rule
6) In-court ________________________________________
3. Suppression hearings
o When do suppression hearings take place? How do you get evidence suppressed?
Defendant must make a motion before the trial, outside the presence of the jury.
Defendant has the right to testify.
If there was a warrant, the burden is on the ____________________________________
to show that ____________________________________________________________.
If there was no warrant, the burden is on the ___________________________________
____________________________________________.
o Obtaining evidence by questionable methods
Police do something that __________________________________________________.
Example 7: The police perform surgery to obtain evidence. However, cheek
swabs for DNA samples do not shock the conscience.
FINAL NOTE
o Fourth Amendment only applies if it is a search of the defendant's property; if property is
taken from third-party, like bank or phone records, it is not a search.
B. The Fifth Amendment
The Fifth Amendment provides that no person shall be compelled in any
_________________________________________________ to be a witness
_________________________________________________.
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Only applies to ___________________________________________, not artificial entities, like
corporations or partnerships.
The Fifth Amendment only includes _______________________________________________
evidence.
o Testimonial statements can be written or oral, but they are NOT
_______________________________________________ evidence.
Breathalyzer test, handwriting exemplars, physical characteristics, urine sample – not
protected by the Fifth Amendment.
NOT ____________________________________________
Business papers are not protected by the Fifth Amendment.
However, a person can refuse to comply with a requirement to register or pay a tax if it
is directed at a select group of "inherently suspect criminal activities," such as an
occupational tax on bookies.
The testimonial evidence must also be ______________________________________________.
Personal diaries: the government may not compel production of a diary but diaries can come in
if obtained pursuant to a search warrant.
When do you have a Fifth Amendment privilege against self-incrimination? In
________________________________________________.
Assertion of that right cannot be used against you in a
__________________________________________________________________________.
The defendant has the privilege not to testify and the prosecution cannot comment on the
defendant's refusal to testify.
A defendant can waive the Fifth Amendment privilege by
______________________________________________________________________. Then the
prosecution can cross-examine.
Government can get around the Fifth Amendment by giving ____________________________.
If given immunity, the Fifth Amendment protection no longer applies.
C. The Fifth Amendment in a Police Interrogation Context
1. General Rule
o Miranda rights advise a suspect of his rights before being interrogated or making a
statement.
o Fifth Amendment applies to any statements, not just full confessions; it also applies even
though defendant intended statement to be exculpatory
o Only apply to custodial interrogations.
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Example 8: The police have arrested an individual. That individual, without
being questioned, begins to give a confession. That is not a Miranda violation
because the person was ____________________________________________.
Example 9: A police officer walking down the street asks an individual a
question and the individual gives incriminating information. That person is not
in custody so the Miranda rights do not apply.
2. Custody
o It does not have to be at the police station, in the interrogation room.
It can be at the scene of the crime or someone's house.
o The standard is whether a ____________________________________________________
would feel ___________________________________________________.
Generally, this is a completely objective test.
However, the Supreme Court has recently said that you can take into account the
suspect's ______________________.
o Traffic stops are not considered to be custodial.
o Just because a person is in prison, it does not mean that he or she is "in custody" for
Miranda purposes. Courts will look at totality of circumstances.
3. Interrogation
o It can be any words or action that the police knew or should know are likely to elicit an
incriminating response.
o A statement must be voluntary to be used.
o Involuntary statements are __________________________________________________.
Example: beating a suspect until he confesses or threatening force.
Sometimes, using a great deal of deceit or fraud could cause a statement to be deemed
involuntary.
_________________________________________ to a suspect does not necessarily
make a confession _______________________________________________.
Look at all of the factors to see if it was unduly coercive.
4. Compliance with Miranda
o Officers must advise an individual of his procedural protections and suspect must voluntarily
waive those rights.
o If officers do not comply with Miranda, then the exclusionary rule
_______________________________________ and the person's statement cannot be used
against them.
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However, if _______________________________________________ is found from that
statement, it is ____________________________________________________ as fruit
of the poisonous tree of that statement.
o Officers must generally cover all four bases of the Miranda rights:
1) The right to ___________________________________________________
2) Any statement made can be used __________________________________
3) The right to consult with an attorney and have the attorney present for the
interrogation
4) If the defendant cannot ________________________________ an attorney, one will be
__________________________________________
o These rights must be given _________________________________the interrogation begins.
If it is a lengthy interrogation, the warnings might have to be given again.
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CHAPTER 5: THE FIFTH AMENDMENT, CONT'D, THE SIXTH AMENDMENT, AND PRETRIAL PROCEDURES
A. The Fifth Amendment in a Police Interrogation Context, cont'd
1. Invoking Miranda Rights
a. Right to counsel
o What if the suspect says, "I want my lawyer"? The interrogation must
____________________________.
However, "Maybe I should have a lawyer" is not enough
Under the Fifth Amendment right to ____________________________________, a
person must be very clear that they want their lawyer.
The person must make a specific, unambiguous statement asserting his desire to have
counsel present, then all interrogation must stop. [Edwards Rule]
Interrogation must stop, but police may still use spontaneous blurt outs by suspect
Also, if there is a 14-day or more break in custody, officers may return, re-Mirandize
suspect and try to interrogate again. This includes when an inmate is returned to
general population. [Maryland v. Shatzer]
b. Right to remain silent
o What if the suspect says, "I don't feel like talking to you"?
Invoking the right to remain silent
The police must "____________________________________________________" your
request but they can give you some time off, come back, give the Miranda rights again,
and ask if you feel like talking at that point.
Merely remaining silent does not invoke 5th Amendment right to remain silent
Invocation must be unambiguous
2. Exceptions to the Miranda requirement
o _________________________________________________________
o _________________________________________________________- putting someone
through booking, asking them, "What is your name?" "What is your height?" etc.
o Undercover officer or informant - Miranda was designed to deal with
___________________________________ questioning. It is not going to be coercive if the
suspect is not aware that the person questioning him is law enforcement. [Illinois v. Perkins]
3. Waiver of Miranda rights
o The prosecution must show that the defendant knowingly, voluntarily, and intelligently
waived their rights.
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o It does not need to be a __________________________________ waiver or even an explicit
waiver; it can be an implied waiver.
4. No Miranda warnings given
o What if the police fail to give a suspect his Miranda rights and after the suspect confesses,
the police then advise the suspect of his Miranda rights – can the police question the
suspect again?
Siebert: The Supreme Court said if the failure to give Miranda rights was made in
_______________________________________, the police may not be able to question
the suspect again.
o Statements taken in violation of Miranda
If it is an involuntary statement, it cannot be used for any purpose.
If it is a statement in violation of Miranda, they cannot initially use it in their case in
chief but they can use it for _____________________________________________.
o Fruits of a tainted confession
______________________________________________ that comes from an illegal
confession can still be admitted.
Second confessions are not automatically suppressed.
Elstad: Suspect given Miranda rights but not properly. Confession that was given
was not proper. The police came back, correctly Mirandized the suspect, and got a
confession. The Supreme Court allowed the confession.
Siebert: The police had a strategy to give bad Miranda warnings or no warnings to
see if the suspect would confess and then come back and reaffirm the confession
after giving Miranda warnings. The Supreme Court suppressed the confession.
B. The Fifth Amendment in the Trial Context
Immunity can be given before there are charges or to other witnesses.
Different types of immunity:
o _________________________________________ immunity - no prosecution for the crime.
o Use and ______________________________________________ immunity - any statement
made or evidence it leads to won't be used against you (though you could still be
prosecuted).
If the state authorities give immunity, it will bind the federal courts as well.
Prosecutors cannot comment on a defendant's assertion of her Fifth Amendment right.
C. The Sixth Amendment
The defendant has the right to:
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o A public trial;
o Confront witnesses against him;
o Cross-examine witnesses;
o Be present at his own trial; and
o Assistance of counsel for his defense.
The Sixth Amendment right to counsel applies in all _______________________________ cases.
o Also in any ___________________________________________case in which the suspect is
sentenced to incarceration, even if that sentence is suspended
The Sixth Amendment right to counsel applies at all ____________________________________
of a prosecution.
o Attaches at the initiation of the prosecution when you are formally charged, and continues
through the sentencing stage.
o The right to counsel attaches at the following critical stages:
Post-indictment ______________________ and ________________________________;
Post-indictment police interrogations;
Editor's Note 1: The Sixth Amendment applies to all post-indictment interrogations, whether custodial or not.
__________________________________________________ and preliminary hearings;
Plea bargaining
Guilty pleas and sentencing; and
Appeals _____________________________________________.
An individual does not have the Sixth Amendment right to counsel when it is not really an
adversarial proceeding.
o Examples: Photo identifications, taking fingerprints, handwriting exemplars,
_____________________________________________ , discretionary appeals, and post-
conviction proceedings. Not even for an in-person lineup if there have been
________________________________________________________________________.
A defendant can voluntarily and intelligently ________________________________the right to
counsel – Faretta.
o The court has the right to say a person is not competent to waive counsel.
o A defendant who has been formally charged may waive the right to counsel at post-charges
interrogation. [Montejo v. Louisiana]
o The Sixth Amendment right to counsel is offense-specific.
Only applies to the specific charge you face
How do you know when you have the same charges? The Supreme Court uses the
Blockburger test: look at the ________________________________________________.
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Note 2: Compare this to Miranda – you have Miranda rights whenever you are in custody and subject to interrogation.
The Sixth Amendment right to counsel applies, even if the interrogation is non-custodial.
Example 10: Defendant Dave has been charged with burglary and is out on
bail awaiting trial. The police also suspect Dave in an unrelated arson case, and
they bring him to the police station to question him about the arson. Dave is
given the Miranda warnings and waives his right to remain silent, but he asks to
see his attorney. The police do not call Dave's attorney but continue to
interrogate Dave until he confesses to the arson. While the police did violate
Dave's Fifth Amendment right to have an attorney present during questioning,
they did not violate his Sixth Amendment right to counsel, as the arson was
unrelated to the burglary.
D. Remedies for the Denial of Counsel under the Sixth Amendment
Can get an automatic _______________________________________of a conviction.
A bad plea can be __________________________________________.
Undercover informants
o Person is in custody and has been formally charged.
o Miranda still does not apply.
o But the person has a Sixth Amendment right – if the individual working for the government
starts questioning the person, it can be a violation of the Sixth Amendment right.
o Jailhouse informants may serve as listening posts, but cannot induce statements
Exclusionary rule under the Sixth Amendment
o The "fruit of the poisonous tree" doctrine is applicable to violations of the right to counsel.
o If the police initiate a conversation with an accused individual who has requested counsel,
any statement made to police in violation of this right can still be used for
_____________________________________________ purposes.
E. Ineffective Assistance of Counsel
The Supreme Court has set a pretty low bar under the Strickland standard.
Two requirements must be shown to reverse a conviction on the ground of ineffective counsel:
1) Counsel's representation fell below an objective standard of reasonableness (show
___________________________________________________); and
2) Counsel's deficient performance prejudiced the defendant, resulting in an unreliable or
fundamentally unfair outcome in the proceeding (i.e., must be
___________________________________________________).
One of the things that may impair counsel is a ________________________________________.
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Example 11: The attorney represents both defendants, one of whom wants to
cooperate with the government against the other.
o The court, under Federal Rule of Criminal Procedure 44(c), has the responsibility to see if
there are any conflicts and it can actually disqualify a lawyer, even if the defendant does not
want the court to do so.
Right to effective assistance extends to plea bargaining stage
o Counsel must communicate plea offers and give adequate advice regarding accepting offer
[Missouri v. Frye; Lafler v. Cooper]
F. Eyewitness Identifications
Two rights to consider: (1) Right to counsel (post-formal charges only); (2) due process
1. Right to Counsel
o A distinction is made between __________________________________________________
identifications and _______________________________________________identifications.
o There is a Sixth Amendment right to counsel at a post-indictment,
________________________________________________________ .
o The right to counsel does not apply if (1) the witness is only looking at the suspect's pictures
or (2) it is a pre-indictment, pre-formal charge lineup identification.
But even then, there are ___________________________________________________.
2. Due Process
For any type of identification, there is always due process.
o Due process is violated when it was an ___________________________________________
identification _________________________________________________.
o It applies to both pre-formal charge and post-formal charge.
o The standard has two prongs:
1) The defendant must prove that the identification procedure was impermissibly
____________________________________; and
2) The court must determine whether the testimony was nonetheless
_____________________________________.
The burden may be on the prosecution to show that it might have been suggestive,
but the witness:
o Had an ________________________________________to view the defendant,
o Gave it a lot of attention,
o Gave an _________________________________________________________,
o Was really sure of it, and
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o The length of time between the crime and identification was relatively short.
o If the court finds the procedure was impermissibly suggestive, it is going to keep out the
out-of-court identification.
This does not mean that the in-court identification is automatically excluded.
G. Preliminary Proceedings
1. Gerstein hearing
o Court determines whether there is probable cause to detain
o Not required if there is an arrest warrant
o Not an adversarial procedure
2. Initial appearance
o Opportunity to argue _______________________________
o Appointed counsel
3. Arraignment
o Defendant is informed of _________________________________________.
4. Detention hearing
o _________________________ hearing
o Court considers two factors: (1) ______________________________________________
and (2) danger to community
5. Grand jury
o Only applies to _______________________________________ prosecutions, unless state
chooses to have grand jury
This right has not been incorporated to states.
6. Preliminary hearing
o Mini-trial but no ______________________
o Both sides are present
o Judge will decide if there is _____________________________________________ to bind
the defendant over for trial.
H. Right to Bail
Right under the __________________________ Amendment
No absolute right to bail
If a defendant is entitled to bail, it cannot be
___________________________________________________.
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There is a ____________________________________________in favor of bail.
o Whether the defendant is a _____________________________________ or danger to the
community are reasons to deny bail.
I. Competency
Different from ________________________________
Insanity asks what the defendant's state of mind was at the time of
____________________________________.
Competency asks what the defendant's mental ability is at the time of
____________________________________.
A defendant must be competent to stand trial.
o Dusky standard:
Whether the defendant understands the __________________________________of
the proceedings; and
Whether the defendant has the ability to _________________________________with
his lawyer.
If deemed incompetent, the defendant goes to a prison hospital where he can be medicated to
be made competent for trial.
J. Grand Juries
Composed of ______________people
Run by the prosecutors
Hear the evidence, listen to the witness, and decide whether there is probable cause for the
charges
Can issue ____________________________________ - lawful orders for evidence or witnesses
to be brought before the grand jury
Supposed to be secret
A wide range of witnesses can be called, and they can rely on hearsay.
Witnesses have ______________________________________________– have the Fifth
Amendment right to remain silent, but do not have right to have counsel present.
Defendant does not have the right to testify before the grand jury, to presentation of
exculpatory evidence, or to only have admissible evidence.
___________________________________________________ does not apply
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CHAPTER 6: PRETRIAL PROCEDURES, CONT'D AND JURY TRIALS
A. Discovery / Exculpatory Evidence [Brady duties]
Evidence that goes to show the defendant is _______________________________________.
The prosecution has the ____________________________________________________ this
evidence, whether or not the defense asks for it.
o Prosecution must turn over evidence that either exculpates the defendant or impeaches
government witnesses.
Formal rule: Prosecution has due process duty to disclose any material evidence favorable to the
defendant and relevant to the prosecution's case in chief that would negate guilt or diminish
culpability or punishment – Brady v. Maryland.
1) Must be favorable to the ___________________________________________ (e.g., it
shows the crime wasn't committed, the defendant didn't do it);
2) It can go to either guilt or sentencing;
3) It must be _______________________________________________.
Must cause prejudice to the defendant
NOT really a violation unless it would have provided a different outcome
If all the other evidence would have been sufficient, there is no Brady violation
Has nothing to do with the good faith or bad faith of the prosecutor.
B. Jury
1. Background
o Guaranteed by the Sixth Amendment
o Only applies to charges that carry a ______________________________________sentence
of more than six months
o Defendant can waive the right to a jury trial (must be a knowing, voluntary, written waiver)
o Defendant does not have absolute right to bench trial
2. Size of the jury
o Only needs to be six people
o Does not need to be __________________________________________
Editor's Note 2: If the jury is composed of only six members, the verdict must be unanimous; otherwise, there is no specific requirement.
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3. Composition of the jury
a. Jury venire
Look for a cross-section of the community
Cannot __________________________________________________________ people
without a basis (i.e., on race, religion, background)
Any defendant can argue that there has been a violation of the Sixth Amendment right
to a cross-section. To succeed, the defendant must show:
____________________________________________________ has been excluded;
The group was not ________________________________________________ in the
venire; and
There was a systemic exclusion for no good reason.
b. Jury selection
The individual jury that actually hears a case is called the petit jury
Voir dire--Judge asks questions of the potential jurors
Challenges for cause – you can see from the juror's answer that the juror will not be
unbiased.
___________________________________________ challenges – disqualify
potential jurors without the need to show cause.
o Limited amount of these depending on the case
o Neither side can use these challenges to ________________________________.
o Batson test:
(i) Moving party establishes a prima facie case of discrimination
(ii) Party who exercised the challenges can state a race-neutral reason for
the challenges
(iii) Court can decide whether the race-neutral reason was merely pretext.
Both sides are subject to the Batson rule.
C. Jury Trials
1. Right to an impartial jury
o A judge must perform questioning regarding the potential jurors' views on race whenever
race is "______________________________________________________________" in the
case.
o Death penalty - if a potential juror is opposed to the death penalty, he or she is not qualified
to sit on a death penalty case.
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2. Sentencing
o Apprendi – Due Process states that a defendant cannot be sentenced for more than what he
has been convicted of.
o When enhancements are going to be imposed, there must be a jury finding that supports
the enhancements.
o That requirement does not apply to a judge's determination of concurrent versus
consecutive sentences.
3. Inconsistent verdicts
o An inconsistent verdict will not, by itself, invalidate the verdict.
D. Guilty Pleas
1. In general
o It is a __________________________________of all the rights the defendant would have
received if he had gone to trial.
o It is also an ______________________________ or ________________________________.
o Must be _______________________________ and ______________________________.
The judge must inform the defendant of:
The nature of ________________________________________;
Essential ____________________________________________;
____________________________________________________ of the plea,
including minimum and maximum sentences; and
The _____________________________ they are waiving.
o Factual basis: The defendant or the prosecutor lays out what happened.
o Bad guilty plea – it is ____________________________________ and the defendant faces a
trial or another plea.
o There is a right to counsel.
2. Plea bargains
o There is no constitutional right to a plea bargain.
o Prosecutors can put pressure on a defendant to take a plea bargain, such as threatening to
bring additional charges that are supported by probable cause.
o A plea bargain is a _____________________________________ between the prosecution
and the defendant.
In interpreting plea bargains, the judge evaluates what was in the agreement.
If either side does not perform, the judge applies contract remedies – such as specific
performance.
o The right to effective counsel in plea bargaining
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The Supreme Court stated: while there might not be a constitutional right to plea
bargaining, there is a right to effective assistance of counsel at the time of plea
bargaining.
Two Supreme Court cases in 2012:
Missouri v. Frye – defendant was offered a plea bargain but his lawyer did not tell
him about it. Defendant ended up getting a much more serious sentence.
Lafler v. Cooper – defendant knew about plea offer but his lawyer gave bad advice
as to whether to accept or reject it. Defendant rejected it.
o The burden is on the _________________________________________.
E. Speedy Trials
Constitution guarantees the right to enjoy a speedy trial
Two relevant time periods:
o Between the crime and charging
Governed by ________________________________________________
Constitutional right is Due Process
Look to whether there was bad faith in not bringing the charges
o Between charging and trial
Speedy trial right applies to this time period
Courts use the Barker test to determine whether there was a violation of the right to speedy
trial.
o Barker Balancing test looks at:
_______________________________________________________________;
_______________________________________________________________;
Whether the defendant asserted the right to a speedy trial; and
___________________________________________________ to the defendant.
Remedy for violation is _______________________________________________________.
F. Public Trial
A defendant can ___________________________ this right.
First Amendment guarantees access to trials.
Courts must balance the defendant's Sixth Amendment right to a fair trial with the First
Amendment right to access.
o Must find there is a ____________________________________________________ to close
the proceeding and take the least restrictive alternative.
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The right to access also includes jury selection, preliminary hearings, etc.
A trial must be public unless there is a _______________________________________________
of prejudice to the defendant.
G. Fair Trial
Must have an ______________________________________________
Fair prosecutor
o Examples of prosecutorial misconduct: lying, misstating the facts or the law, eliciting
information outside of the record, personally vouching for the case, making improper
remarks, commenting on the defendant's failure to testify, failing to disclose exculpatory
evidence, etc.
H. Right to Confrontation
Defendant has the right to confront witnesses.
This includes the right to see the witnesses and
_____________________________________________________________ them.
Face-to-face confrontation is not an absolute right.
o Child witnesses – courts can take steps to protect them from the trauma of testifying
directly face-to-face with the defendant.
Cross-examination of witnesses
o Defendant can bring out any __________________________________ of the witness or any
problems in the witness's perception or memory.
o Crawford doctrine – right of confrontation applies to out-of-court
____________________________________________________ statements.
If an out-of-court statement is made to help law enforcement with an ongoing
emergency, it is ________________________________________________ and can be
admitted.
If the statement is just creating evidence for the prosecution to use at trial, the
admission of the statement would violate the Sixth Amendment, unless the defendant
was able to cross-examine the declarant.
o If the defendant kills a witness in order to make that witness unavailable for trial, the right
of confrontation is waived.
Bruton / Co-defendant rule
o A co-defendant has confessed and the confession implicates the other co-defendant.
o Admission of the confession can be a violation of confrontation rights, unless the prosecutor
redacts from the confession references to the defendant who could not cross-examine
about the confession.
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CHAPTER 7: DUE PROCESS CONSIDERATIONS, CRUEL AND UNUSUAL PUNISHMENT, AND DOUBLE JEOPARDY
A. Due Process
Covers the right to testify
There is a presumption of ____________________________________________.
Can have ___________________________________ presumptions but not
_____________________________________ presumptions
Prosecution has the burden of proving every element of a case beyond a reasonable doubt.
The defense has the burden of proving affirmative defenses.
o Example: self-defense or entrapment
B. Cruel and Unusual Punishment
Prohibits ____________________________________________________ and
________________________________________________________________, including fines.
1. Non-death penalty cases
o _____________________________________________________ of incarceration
If there is proof that the prison officials actually knew of the unconstitutional conditions
and did nothing, it is a constitutional violation.
o Physical force: It is a constitutional violation to torture and beat inmates.
o Sentence proportionality
Courts will look at the sentence the defendant has received and determine if it is too
harsh.
Courts look to three factors:
1) __________________________________________________ of the offense
2) Courts will compare the sentence the defendant received for that crime with sentences
for ____________________________________________________________________
3) How ______________________________________________________punish the crime
2. Capital punishment
o The death penalty is not per se _________________________________________________.
o Must have procedures to ensure that it is a fair penalty.
o Two parts of the proceeding in death penalty case:
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1) The jury determines if the defendant was guilty of the death qualifying offense; and
2) Sentencing
Prosecution will present ________________________________________________
factors.
The defense can present ____________________________________________
factors.
o If ____________________________________________, accomplice must have the intent to
kill
o If the defendant is _______________________________, cannot impose the death penalty.
o If the defendant is __________________________________________________________,
cannot impose the death penalty.
IQ of roughly 70, with other factors.
o The death penalty is unconstitutional as imposed on defendants who were under the age of
18 when the crime was committed – Roper v. Simmons.
o Life without the possibility of parole for __________________________________________
violates the Eighth Amendment – Graham v. Florida.
o _______________________________________________________________ without
possibility of parole for juvenile homicide offenses violates Eighth Amendment -- Miller v.
Alabama.
o If ___________________________case, even of child victim, cannot impose death penalty
o Lethal injection – constitutional so long as prison officials have been appropriately trained.
3. Inmate medical care
o Inmates have a right to adequate medical care.
o Only violates the Eighth Amendment if there is
__________________________________________________________________________.
C. Double Jeopardy
Fifth Amendment prohibition
Three things are protected by the prohibition against double jeopardy:
1) Second prosecution for the "same offense" after _______________________________;
Must be final verdict for acquittal
Acquittal on error of law is still an acquittal for double jeopardy purposes
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2) Second prosecution for the "same offense" after
___________________________________________;
3) Multiple _______________________________________________for the same offense.
Example 12: A defendant robs a store and shoots and kills the store clerk. The
state prosecutes the defendant for premeditated murder. The defendant is
acquitted. The state then brings charges against the defendant for robbery.
The protection against double jeopardy does not apply because robbery and
murder each require the proof of an element that the other does not. Robbery
requires, among other elements, the proof that the defendant took the victim's
personal property; murder requires, among other elements, the death of the
victim.
Example 13: A defendant robs a store and shoots and kills the store clerk. The
state prosecutes the defendant for felony murder based on the robbery. The
defendant is acquitted. The state then brings charges against the defendant for
robbery. The protection against double jeopardy applies because the state, in
order to prove felony murder in the first trial, had to prove that the defendant
committed a robbery.
Note 3: "Same offense" means that the crimes require proof of the same elements. [Blockburger test]
Lesser-included offenses generally cannot be tried separately.
A conspiracy is considered different than the substantive crime.
When does jeopardy attach?
o Jury trial - when the ___________________________________________
o Court trial - when the _____________________________________________________
1. Dual sovereignty doctrine
Each sovereign (federal government and the states) is considered separate and can prosecute
for the same crime.
2. Subsequent civil suits
No double jeopardy violation if there is a subsequent civil suit.
3. Mistrial
o No double jeopardy violation
o There is ___________________________________________________________
o In cases of a hung jury, the case can be retried – does not violate double jeopardy.
4. Appeals
o The prosecution can appeal if jeopardy has not yet attached.
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Example 14: An order dismissing an indictment or suppressing evidence
o Defendants can appeal – generally entitled to retrial with the fair procedures that they
claimed were denied in the first trial.
5. Collateral estoppel
Example 15: Several victims were robbed at the same time. The defendant is
initially tried for the crime with respect to only one of the victims. The sole
contested issue at the trial is whether the defendant was a perpetrator of the
crime. The defendant is acquitted of the crime. The acquittal prevents the
defendant's prosecution for the robbery with respect to any other victim. The
fact that the jury determined that the defendant was not a perpetrator of a
robbery estops the government from trying the defendant for robbery of any of
the other victims.
D. Writ of Habeas Corpus
Proceeding is civil in nature.
Defendant is attacking the conviction by challenging the lawfulness of their detention.
o Cannot be brought on Fourth Amendment Grounds
o Can be brought for ineffective assistance of counsel, Brady violations, prosecutorial
misconduct
Defendant can be in custody, or out on parole, probation, or bail.
No right to counsel
[END OF HANDOUT]