4th Amendment

- 4th amendment:

o prohibits unreasonable searches and seizures; seeks to protect the person, the
person’s home, or the person’s possessions and effects
o Every person has the right of reasonable expectation of privacy, when there is an
intrusion upon a reasonable expectation of privacy or taking of the property of a
person then it is 4th amendment violation

- A reasonable search and seizure require an arrest warrant or search warrant + probable
cause.
o Reasonableness is determined and satisfied from a neutral and detached
magistrate who determines facts stated in the affidavit to determine or conclude
that it is more probable than not that a crime is being committed or there is
contraband located at a specific place.

- Probable Cause

o Probable cause is defined as anything above a 50% chance that from a given fact
one can reach a specific conclusion by the reasonable person – person
disconnected to the situation.
 Reasonable person
 A person who has knowledge on what they’re reporting.

o Probable cause is necessary to support the issuance of a search warrant or arrest

warrant

o Probable cause consists of and is based on:

 Facts and/or circumstances that would cause the reasonable person to
conclude that it is more probable than not that a contraband will be
found in a particular place ( in case of a search warrant) or a crime has
occurred and the perpetrator is identified ( in case of a arrest warrant)

 Probable cause CANNOT be based on speculation

o 2 issues of Probable Cause:

 Probable cause to search—time sensitive
 Must provide information that it is more probable than not that
contraband was seen in a particular place and is still at that place
– information CANNOT be stale, MUST be recent information
  The object of the search must be specifically identified
o “what are we going in to search for?”

 Probable cause to seize/arrest – NOT time sensitive

 Probable cause is present when the reasonable person can
conclude from the facts and circumstances which were presented
that it is more probable than not that a crime has occurred AND
the named individual committed the offense.

- Informants + Probable Cause

o Informants must be vouched for by the officer that provides information to the
magistrate.

o Credibility of an informant is determined by:

 Officer knowing who the informant is AND
 That that informant has provided useful information in the past

o Hearsay information from a confidential informant can establish probable cause

– must apply to all informants ( Aguillar-Spinelli Test)
 1) officers are required to demonstrate that s/he has good reason to
believe that the informant’s information is accurate

 2) officer must indicate how the informants obtained knowledge of the

criminal activity – verifying that the informant is credible or that the
information is reliable

o Illinois v. Gates Test

 Totality of the Circumstances – decisions are based on all available
information rather than bright-line rules.
 Future actions:
o Includes suspects future actions and actions that are
corroborated by law enforcement

 Type of information:
o Consistent with law enforcement knowledge

 Corroboration
o Confidence in the accuracy of information was bolstered
by the fact that police corroborated a number of details.
 - Arrest Warrant

o Magistrate who issues arrest warrant must have evidence of specified criminal
offense AND identified offender AND probable cause.

o Officers are privileged to forcibly enter a person’s home if the officer has a valid
arrest warrant AND there is evidence the person is at home and is refusing to
open the door.

- Search Warrant

o Probable cause MUST exist and must be particularly described to guide officers
to search what they’re looking for.
 Must show contraband is located in a particular place AND likely that
contraband is still located in that place.

o Officers have authority to forcibly enter a person’s home to conduct a search if

the officer has a search warrant for the person’s home.

o Requirements for valid search warrant:

 1) must be issued by a neutral and detached magistrate

 2) there must be presented to the magistrate an adequate showing of

probable cause (either to search or arrest) supported by oath or
affirmation – typically in the form of an affidavit

 3) warrant must describe with particularity the place to be searched and

the items or persons to be seized.

** CONTENTS OF PROBABLE CAUSE WILL DIFFER BETWEEN SEARCH WARRANT AND ARREST
WARRANT**

Third-Party + Warrants
- Third-Party & Arrest Warrants

o Officers CANNOT enter or use force to enter a 3rd party’s home even though they
have a valid arrest warrant. – 3rd party has a reasonable expectation of privacy

- Third-Party & Search Warrants

 o Officers may enter a 3rd party’s home to execute a search warrant with force
ONLY IF the search warrant identifies the person who is the object of the search.
o Must show magistrate there is probable cause that the person is in the 3 rd party’s
home so that a search warrant can be issued to execute the search.

Search v. Seizure & The Reasonable Expectation of Privacy

- Search
o An intrusion upon or into a person’s reasonable expectation of privacy.

- Seizure
o An interference of a person’s freedom of movement or an interference with a
person’s possessory interest in their possession, property, and effects.

o A seizure is measured by the reasonable person standard

 Would a reasonable person in such a position conclude that they’re not

free to leave based off the actions of the law enforcement officer?

o Example:

 A seizure occurs when law enforcement officials or governmental action

interferes with one’s ability to walk always or leave.

Reasonable Expectation of Privacy

- A person’s home has the highest level of expectation of privacy

- A reasonable expectation of privacy is ALWAYS present when there is a SUBJECTIVE view

that a person wants to shield from the public’s view their property, person, or effects
and society deems that to be reasonable.

- 2 prong test:

o 1) what is the person intending to keep private?

o 2) does society recognize that expectation ( the thing the person intending to
keep private) as being reasonable?

Exclusionary Rule – Court made doctrine

 - The exclusionary rule is when there is a violation of a constitutional right and evidence is
seized as a result of that violation, upon the motion of that person, that evidence cannot
be used against that person in court.
o Cannot be used in court because it is illegal. Thus, introduction of that evidence
at trial can be suppressed.

Exclusionary Rule Exceptions

- Attenuation Doctrine
o Allows evidence to be admitted when the connection between unconstitutional
police practice is remote or has been interrupted by an intervening
circumstance.
 Ex: once a person is removed from the zone of danger created by
illegality, then the taint does not carry the same significance. Thus, it is
lessened. However, if the new information obtained was a follow up
information from the prior illegality, that evidence must be suppressed.

- Inevitable Discovery Rule

o Allows admission of evidence that was discovered in an unlawful search or
seizure if it would have been discovered in the same condition anyway, by an
independent line of investigation that was already being pursued when the
unlawful search or seizure occurred.

- Good Faith

o Applies only when there is a search warrant where the officer was acting
reasonable and in good faith compliance, relying on a valid search warrant which
is a court order that an officer is obligated to follow. (Herring v. U.S.)

- No Application of Good Faith Exception

o 1) officer misleads the Magistrate

 Officer knowingly and recklessly provided information that is not true to
obtain a search warrant

o 2) magistrate abandons the role as a neutral and detached arbiter

 Magistrate merely rubber stamps what the officer has established instead
of independently reviewing the facts of the affidavit and without double
checking the facts, signs the warrant.

o 3) the information in the warrant application is clear and there is a lack of

probable cause
  Details in the sworn affidavit filed by the officer is not enough to establish
probable cause

o 4) facial deficiency in warrant

 Where the officer can look at the warrant and does not know where and
what to search for.

- Fruit of the Poisonous Tree

o Fruit of the poisonous tree is a doctrine that holds that in addition to the
material uncovered during the illegal search being inadmissible, any evidence
that is later gathered as an indirect result of the illegal search will also be
excluded. (Wong Sun v. U.S.)

o !!DO NOT APPLY FRUIT OF THE POISONOUS TREE DOCTRINE TO MIRANDA

ISSUES!!

- Knock and Announce

o When executing a search warrant, officers are required to knock and announce
their presence and note that they have a search warrant.

o If a person does not open the door in a timely manner during an execution of a
search warrant, officers are authorized to kick the door in to conduct the search.

o If the officer does not comply with the knock and announce and they find
contraband, the exclusionary rule will not apply. Thus, evidence will be
admissible because even though there was a constitutional violation the officer
was authorized to search the premises anyways. Knocking and announcing only
causes a delay, not a prevention.

- Exception to Knock and Announce – reasonable suspicion standard

o Officers are not required to knock and announce when the magistrate issues a
no knock warrant because it would be dangerous for police to knock.

o No need to knock and announce if the officer reasonably believes that evidence
will be destroyed if they knock and announce.

o Officers do not need to knock and announce when they’re engaged in a hot
pursuit (obviously because they’re chasing the defendant)
Scope of Search

- The scope of the search is defined by the object the officers are looking for. Object of
the search defines the limits or scope of the search on where the officers can look.
o Example:
 If officers are looking for a person who may be hiding, they cannot look in
a drawer or container.

- Reasonable Mistake

o A search made under a valid warrant, where the police acted reasonable, but
there was a reasonable mistake made by officers when executing the actual
warrant does not violate the 4th amendment. A reasonable mistake will still allow
the evidence to be admissible.

- No Reasonable Expectation of privacy – Garbage

o There is no reasonable expectation of privacy in items that have been

abandoned
 Leaving the garbage out on the curb
 Losing your property OR just simply leaving it behind (no reasonable
expectation of privacy because you have not guarded your reasonable
expectation of privacy)

- No Reasonable Expectation of Privacy – Mail Carrier

o Once a person has entrusted a mail carrier to their package, they have given up
their reasonable expectation of privacy. Thus, no search warrant is needed, and
the mail carrier is authorized to open the package.

o Anticipatory search warrant

 is a search warrant that is activated once the package containing
contraband is delivered and accepted to the addressed residence.

- Misplaced Expectation of Trust/Misplaced Confidences

o The 4th amendment does not protect people from their misplaced expectations
of trust. Thus, there is no 4th amendment search and seizure violation when the
person the defendant is speaking with is secretly a government agent or an
informant wearing a wire and recording what is being said.

- Detection device – Sniffing dogs; Curtilage; Open Fields; Tracking Device

o Curtilage
  Curtilage that immediately surrounds the house becomes part of the
house – 4th amendment purposes: the house extends to the curtilage. If
police finds themselves in the curtilage area (where they do not have a
valid warrant), then there is a violation of the 4th amendment.

 Enhancing devices used to look into the curtilage area does not violate
one’s reasonable expectation of privacy.

 Driveway, lawn, and grass is not part of the curtilage  this is open field

- Plain View Doctrine & Open Field

o The contraband must be immediately apparent that there is probable cause to

believe the item is contraband or evidence of crime, without the need for further
testing, touching, handling, manipulation, or examination of any kind AND law
enforcement officers must be lawfully in a position to see and obtain the item.

o Criminal activity or contraband that is seen in an open field does NOT constitute
a search because there is no reasonable expectation of privacy on something
that can be seen.

 Use of drones, airplanes, and the like to search for things in an open field
are not in violation of the 4th amendment.
- Tracking Device
o Vehicles
 It is a violation of the 4th amendment to place a GPS tracking device on an
individual’s car without a warrant to track the person’s movements on
public streets because it is an intrusion upon a property right.

o Listening Devices
 It is a violation of the 4th amendment when a container carrying a
listening device is moved from the open field to inside the house and the
police continue to monitor the device. – violation because the home
enjoys the highest level of privacy.

o Containers
 When there is a tracking device that is attached to a container by the
seller and the defendant purchases the container with the installed
tracking device, there is NO 4th amendment violation because the
container didn’t originally belong to the defendant.

- Sniffing Dogs
Exigent Circumstances

- A warrantless arrest is permitted if there is probable cause to believe an identified

person has committed a crime. The person is arrested by an officer because an exigent
circumstance is created immediately.
- Exigent circumstances CANNOT be created by the police.
- If an exigent circumstance is created by officers and it is utilized to enter someone’s
home, evidence that is obtained is inadmissible because officers are seeking to benefit
from the creating the exigent circumstance.

Blood Draw – Exigent Circumstance

- Police may almost always obtain warrantless blood tests of an unconscious suspect of
drunk driving – NOT a violation of the 4th amendment.

- BAC is effervescent evidence – evidence that dissipates from the body.

- Exigent circumstances are created when alcohol is involved because it is necessary for
officers to gauge how much alcohol is in the body system. Thus, breathalyzers must be
conducted in a timely manner.

- Refusal of breathalyzer results in an suspension of driver’s license.

- GENERAL RULE: officers typically need a search warrant to conduct a blood alcohol draw
(WHY? – because there is a reasonable expectation of privacy since a needle is inserted
into the body to draw blood out)
o Exception
 Officers may obtain a blood alcohol draw WARRANTLESSLY when the
person is unable to consent or deny. – MUST be done by one who has
medical credentials authorized to draw blood (directed by the officer)

 When voluntary consent is given.

Automobile Exception – Exigent Circumstance

- Not a search incident to arrest, but a separate justification which allows for a seizure
and a search without a warrant
o Differs from search incident to arrest involving a car.

- Under the automobile exception, when an officer has probable cause to believe there is
contraband inside a car, the officer is authorized to stop the car and search the entire
car without a warrant
 o Everything in the car can be searched – includes interior of the car, trunk,
engine, under the car, and other compartments.

- The automobile exception is an exigent circumstance because of the mobility of car that
can occur while the officer is attempting to obtain the warrant.

Search Incident to Arrest – Exigent Circumstance

- When a person is arrested, an officer is authorized to search the person because it is a

search incident to the arrest.
- Search must occur immediately after the arrest is made.
- Purpose of search incident to arrest:
o Prevent injury to officer
o Prevent destruction of evidence
- Search incident to arrest allows for full search of the person, including the immediate
surrounding of the individual.
o Arm-Span Rule
 Police officers can perform a full search of the arrested person and
anything that is in the room where there person can reach within a step
or two would constitute the scope of the search incident to the arrest.

Search Incident to Arrest EXCEPTION: Arizona v. Gant 2 Prong Test (CAR) –TRUNK IS OFF
LIMITS!!:

- Police may search the passenger compartment of a vehicle incident to an arrest without
a warrant only if:
o 1) it is reasonable to believe the arrestee might access the vehicle at the time of
the search AND
o 2) that the vehicle contains evidence of the offense of arrest.

- This exception does NOT apply when the person is immobilized/taken away from the car
and there was no evidence in the car dealing with the reason why the person was
arrested. Thus, the car cannot be searched.

Protective Sweep – Exigent Circumstance

- Protective sweep consists of officers looking through other parts of the house/premise
to determine if another person is present.
- Protective sweep only occurs when there is evidence during a legal arrest that someone
is hiding or occupying another part of the premise or might cause the officers harm.
Probable Cause + Exigent Circumstance

- Police officers may enter a person’s home without a warrant when there is probable
cause that criminal activity is underway; evidence is in the process of being destroyed;
there is criminal activity going on, or is it necessary to enter the person’s home to halt
the commission of a crime.

- Absent harm or if harm has abated, then the exigent circumstance no longer exists.

Seizure and Search of Premises

- Unless an exception to the 4th amendment’s warrant requirement applies, officers must
obtain a search warrant or arrest warrant to enter a suspect’s home in order to arrest
the suspect. Having probable cause is not sufficient.

Stop and Frisk – Terry Stop (Terry v. Ohio)

- Reasonable Suspicion

o Reasonable suspicion is based on a subjective analysis of the specific

investigating officer
 The subjective analysis is dependent on the specific officer’s experience,
background, and training – differs from officer to officer.

o Reasonable suspicion results from the officer’s experience of what they’ve

encountered and observed in situations similar to a particular situation to the
criminal activity that has already occurred OR seeing a present pattern that has
occurred before that results in a likely event
 Looks at the person’s conduct that the officer is observing that creates a
reasonable suspicion

o Reasonable suspicion differs from speculation or a hunch; there is basis for the
conclusion the officer is reading.

- Terry v. Ohio: STOP & FRISK

o GR:
 Officers are authorized to conduct a brief investigative stop to see if their
reasonable suspicion is valid. If the officer has reasonable suspicion the
person is armed, the officer may conduct a frisk on the outer garments of
the person to determine if the person is in fact armed.

 2 Prong Test:
  STOP: 1) officers are authorized to conduct a brief investigative
stop/seize an individual to further investigate the reasonable
belief that criminal activity is in effect (reasonable suspicion to
stop does not alone create a reasonable suspicion to frisk)

 FRISK: 2) officers are authorized to pat a person down to

determine if they possess a weapon if there is a reasonable
suspicion the person is armed. (reasonable suspicion to frisk will
support a reasonable suspicion to stop)
o Officer must feel something and it must be immediately
apparent to the officer that it is a weapon for the officer to
reach in and seize the item.
o Sole purpose of a frisk is to determine if the person has a
weapon. A frisk is NOT designed to make any other
determinations OR to look for evidence – looking for
evidence constitutes a search.


Cell Phones and the 4th Amendment

- Officers cannot force one to open his/her cell phone to obtain information that is
contained inside the device
- Officers cannot obtain assistance from IT people to expose contents within the phone –
protected under the 4th amendment.
- Information that is displayed on the screen that is in plain view has no 4 th amendment
protections. Thus, officers can obtain that information. – no intrusion on reasonable
expectation of privacy.

Consent

- Determine whether the consent was voluntarily given; consent cannot be compelled,
coerced, or forced.

- There is NO requirement that people have to be informed that they have the right to say
no.

- When consent is given, it operates as a waiver of the constitutional protection.

- Consent can be given by the person who has the right to give it.
o One with superior possessory interest can consent to a search.
 Example:
  A person who has the superior possessory interest of a home can
consent to the search of the home OR any party of the premise
one can enter even if a roommate has said to not enter their
room. If there is the ability to enter, officers can enter.
o EXCEPTION:
 If the room is locked, there is a manifestation that
the person who occupies that locked room does
not want anyone entering. Thus, officers CANNOT
enter the room because the manifestation (from
the locked room) shows that they do not want
anyone going into the room.

- Consent can be limited and officers MUST comply with the limits that are placed on that
given consent.

- Consent can be withdrawn and officers MUST honor the revocation.

Consent + 3rd Parties

- a person cannot abandon or waive the constitutional right of anyone else except if it is a
child under that person’s direction.

- A 3rd party typically cannot waive ones right to any constitutional protections.

- No tenant can override the refusal of the other tenant to search their jointly held
property when both tenants are present at the property at that time.

- If only one tenant is on the property, they can consent or deny the search even though
they know the other tenant would object or has objected. Since the other tenant is not
present they cannot object, thus the consenting tenant can allow officers to search.

5th Amendment

5th amendment:

- Protects every individual against being compelled by a state agent to provide

statements which incriminates that person. Compelled self-incrimination involves a
state agent’s use of force, the threat of force or any other conduct which is designed to
overcome that person’s resistance to providing incriminating statements. Every person
can waive the protection against compelled self-incrimination by voluntarily providing a
waiver of that right. That right is waived if the person answers questions without being
physically forced to do so.
Coerced Confessions & the 5th Amendment

- Statements obtained through coercion must be suppressed.

NOTE: It is not coercion if the state’s agent obtains a confession from the defendant if the
confession was obtained through a friendly conversation without any force or compulsion. This
would be an example of misplaced confidences.

Miranda Rights – prophylactic rule

- Officers are required to read a person their Miranda rights when the person is in
custody and while that person is in custody they are subjected to interrogation.
- The Miranda doctrine states that officers must inform the suspect of their right to
remain silent AND their right to counsel regardless of the background of the suspect.

NOTE: officers do not need to use any particular language of the Miranda warning, so long
as the meaning is conveyed to the suspect it’s all that matters

- All questions must cease when the suspect exercises either: 1) their right to remain
silent OR 2) their right to counsel.

- Routine booking questions are NOT a violation of Miranda.

- To VALIDLY exercise Miranda, the suspect MUST verbally or in writing say that they
exercise their Miranda rights. Failing to specifically assert the right does not avail
themselves the protections provided by Miranda. Thus, if there is no assertion, officers
can lawfully continue to question/badger the defendant.

Miranda Rights + How It Applies to Someone in Jail

Custodial Interrogation

- Interrogation that occurs after a person has been placed in custody or has been
arrested.

- Custody
o Custody occurs when a person is placed under arrest
o Custody is a more severe form of a seizure
o Factors determining a suspect is in custody:
 The location and duration of the questioning
 Statements made during the questioning
  Whether the suspect is physically restrained
 EX: putting suspect in handcuffs, putting suspect in the back of the
police car.
 Whether the suspect is free to leave at the end of the interview
 For an adult (someone 18+), use the reasonable person standard.
o “would a reasonable person in the suspect’s position think
they’re free to conclude the questioning and leave at any
time?”
 For a teenager (someone under 18), use the reasonable teenager
standard.
o What a reasonable teenager concludes controls the
situation.
 Ex: if a reasonable teenager believes s/he cannot
leave even though they could have, the teenager
would have been considered to be in custody.
- Interrogation

o Defined as questioning
 Direct questioning OR functional equivalent of questioning
 Functional equivalent of questioning
o Involves situations where there are other things that are
presented and are presented for the purpose of obtaining
an incriminating response.
Miranda’s Right to Counsel

- Attaches when one is in custody and subject to interrogation.

Miranda Waiver

- Waiver
o A waiver is when someone forgoes their rights, given by the defendant to
indicate that they do not wish to assert protections under Miranda: the right to
remain silent or the right to counsel.

- Once a person has waived their Miranda rights, they can be questioned on anything.
The scope of questioning is wide open until the person limits the questioning.

- Miranda protections can be reasserted even after they have been waived.

- Test for Waiver

o The waiver must be given voluntarily, knowingly, and intelligently.

  Voluntarily
 Given without compulsion, not compelled, and not forced.
 The person on their own makes the decision to waive.

 Knowingly
 Only requires that the person is informed of the rights and
protections they have at that given moment.
 When a person is read the Miranda warning, then the person is
informed of what their rights are.

 Intelligently
 Only requires that the person is aware of what their rights are and
that they had an opportunity to think of their options and exercise
their rights – either to rely on the protections provided by
Miranda OR to forgo those protections.
Miranda Exceptions

- Public safety exception

o Police may question a suspect without first reading the suspect their Miranda
warnings when there is a real and present danger to the public. In situations
where there is a threat to public safety, the need to protect the public outweighs
the 5th amendment’s privilege against self-incrimination. (N.Y. v. Quarles)

6th Amendment

6th Amendment Right to Counsel

 ADD 6th amendment right to counsel is violated when informant is placed in jail to
deliberately elicit incriminating statements about the crime defendant was indicted
for. (KUHLMAN v. WILSON)

- Right to counsel under 6th amendment is offense specific – meaning it relates to the
offense the person is being charged for at the time of the appointment.

- Triggered once criminal proceedings have begun against an individual.

o Criminal proceedings are initiated through a formal charge, preliminary hearing,
indictment, or arraignment.

- Suspect is entitled to have their attorney present at all critical stages of the case,
interrogations and proceedings involving the specific offense, but police may question
the suspect on unrelated matters outside the presence of their attorney.

o Critical stages include

  Custodial interrogations
 Preliminary hearings
 Lineups
 Showups
 Plea negotiations
 Arraignments

- States must provide counsel when:

o The crime is a felony
o The crime is a misdemeanor and jail time is imposed
o The crime is a misdemeanor with a suspended sentence

- Faretta Right

o The Faretta right is the right of self-representation.

 Courts must allow a defendant to represent themselves when the
defendant can understand the charges AND the defendant can follow the
rules of the court.

o When exercising the right to self-representation, the defendant cannot claim

ineffective assistance of counsel.

o Standby Counsel

 Court can appoint a standby counsel, when a person exercises their right
to represent themselves, that will shadow the defendant in the trial
process in the event that the defendant decides in the middles of the
process it is more than they can handle, the attorney can come in and
take control of the case.
 Standby counsel cannot interfere with the defendant’s presentation of
evidence unless the defendant relinquishes their desire to represent
themselves.

3 methods to Establish Violation of Right to Counsel – Strickland v. Washington

- 1) Ineffective Assistance of Counsel

o 2 principles:
 Deficient Performance:
 Occurs where the attorney’s representation falls below the
acceptable standard of representation within that community.
 Occurs when the attorney relinquishes the role as an advocate for
the defendant and allows the state’s case to go unchallenged.
  Prejudice because of the deficient performance
 the deficient performance was highly probable the cause of the
negative outcome. A high probability that but for that deficient
performance the outcome would have been different.
- 2) State’s Interference
o Ineffective assistance of counsel occurs when the state has interfered with a
defendant’s access to counsel or defendant’s ability to utilize service of counsel.
o
- 3) Conflict of Interest

Pre-trial Identification & 14th amendment Due Process

- 3 ways pre-trial identification is made

o Line up
o Show up
o Photographic array

- Factors for Reliability of Identification (Mason v. Braithwaite)

o The opportunity to view
 Was the viewing of the suspect clear?
o The degree of attention
 Was the witness distracted or engaged in other activities?
o The accuracy of the description
o The witness’ level of certainty
 Positive assurance that the person is indeed the suspect
o The time lapsed between the initial viewing of the person and the identification
of the person.

- Due Process – both prongs must be met for defendant to win; identification must be
shown to have been extremely suggestive
o A defendant can attack an identification as denying due process when the
identification is:
 Unnecessarily suggestive AND
 There is a substantial likelihood of misidentification.
Immunity

- 2 types of immunity

o Transactional immunity
 Protects the witness from prosecution for the offense or offenses
involves that is the subject of the proceeding

o Use immunity
  Protects the witness against the government’s use of the witness’s
testimony in a prosecution of the witness
 The witness cannot be charged for the crime in the testimony
they’re describing UNLESS if they’re lying. If so, they can be
prosecuted for perjury.

Plea Negotiations – contractual based.

- Where there is an offer for a lesser offense, the defense attorney is obligated to present
that to the defendant. The defense attorney cannot reject the offer before consulting
with the defendant because only the defendant has the ability to accept or reject the
offer.

- Defendants can withdraw from a guilty plea before it is accepted. The state CANNOT
withdraw from a plea bargain.

- Instances where a plea agreement can be vacated after acceptance

o Where there is ineffective assistance of counsel
o Other constitutional basis to support defendant’s view/claim that they have
entered.

- For a judge to accept a valid plea, the judge must find that the plea was made:

o Voluntarily
 Given without compulsion, not compelled, and not forced.
 The person on their own makes the decision to waive.

o Knowingly
 Only requires that the person is informed of the rights and protections
they have at that given moment.

o Intelligently
 Only requires that the person is aware of what their rights are and that
they had an opportunity to think of their options and exercise their rights

- 3 Options for Pleading Guilty

o Guilty
 Where a defendant admits that they committed the offense.

o Alford Plea
 Where a defendant pleads not guilty but enters a guilty plea because
there is sufficient evidence that a jury will find the defendant guilty.
 o Nolo Contendre Plea (No Contest)
 where a defendant in a criminal prosecution accepts the conviction as
though a guilty plea has been entered but does not admit guilt.

Right to Trial by Jury

- 6th amendment right to trial by jury applies to the states through the doctrine of
incorporation pursuant to the 14th amendment.
- There is only a constitutional right to jury for serious offenses. Thus, no constitutional
right to jury trial for petty offenses.

o Serious Offense
 A serious offense is if the defendant is subject to imprisonment for more
than 6 months

- Waiving a Jury Trial

o To waive a jury trial in state court, the defendant must have approval of the trial
judge

o In a federal system, a defendant can waive their right to a jury trial. However,
they must have agreement of the judge AND prosecutor.

- Prosecutorial Misconduct
o The prosecution violates due process by withholding evidence favorable to the
defense if the evidence is material to a determination of the defendant’s guilt or
sentence.

o 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) the evidence at issue is favorable to the defendant because it

impeaches or is exculpatory; and

 2) prejudice has resulted

Jury Selection

- Fair Cross-Section – every defendant is entitled to a jury that entails a fair cross-
section of people from that community.
 o A fair cross-section of the community must include minorities and women, and
possibly other distinct and significant groups. – achieved through random
selection

o A state cannot exclude women from jury duty or automatically exempt them
upon request.

o A fair cross-section is generally combined from 3 lists: registered voters; driver’s

license; and people who appear on the property tax list.

o Every person has an obligation when selected to appear and serve, if chosen, for
jury service.

 Statutory requirements of a juror:

 Juror must live within the county the trial is taking place/where
the offense occurred.
 Juror must be 18+
 Juror has not been convicted of a felony
 Juror is mentally stable
 Juror is able to understand and comprehend English

- Voir Dire

o A preliminary examination to determine the competency of a witness or juror.

 Jurors
 Voir dire is used to determine suitability for jury service
 Witnesses
 Voir dire is used to determine the witness’s competency to testify

o Peremptory Challenges

 Each attorney has the right to excuse 7 people from the jury box without
providing a reason.

 In capital cases, each side will have 14 peremptory challenges. Once a

person has been struck, that person is replaced by someone from the jury
pool.

 Peremptory challenges are limited

 There is a requirement that peremptory challenges to not be used in a

manner that excludes jurors from particular trial based on their race,
gender, or national origin. – Batson v. Kentucky
 o Dismiss for Cause
 a request for a prospective juror to be dismissed because there is reason
to believe that the person cannot be fair or unbiased.
 Dismiss for cause does not affect peremptory challenges.
 Unlimited dismissal for causes

o Death Qualification

 A jury that is death qualified means that the individuals chose are able to
impose the death penalty – prosecutors are allowed to ask prospective
jurors if they’re capable of returning a death sentence.

 Death qualification of the jury applies to capital cases, where the person
is exposed to a life-or-death sentence.

 In capital cases where there is a death qualifying jury, there is a

bifurcated jury process.
 2 step jury process:
o 1) jury determines the defendant’s guilt or innocence
o 2) if defendant is found guilty, the jury is reconvened, and
the jury separately makes a decision as to whether the
person is sentenced to life or death.

Right to Impartial Judge

- Every defendant has a right to an impartial judge.

- Judge’s role is to make decisions as to which evidence is admissible or not and to

manage the trial process.

- If a judge appears to be biased or unfair, the attorney has an obligation to file a motion
for the judge to recuse themselves from the trial. (Williams v. Pennsylvania)

6th Amendment Right to be Present

- Defendant has a right to be present in court in every criminal case.

- A trial cannot begin without the defendant being present in court.

- Defendant can lose the right to remain in the trial by:

o Skipping or not showing up
o Acting unruly
  HOWEVER, judge can give defendant a chance to correct their behavior
and allow them to return to court. If unruly behavior persists, the
defendant can be removed again.

6th Amendment Right to Cross-Examination/ Confrontation Clause

- Crawford Rule

o In every criminal proceeding, a person has the right to examine the witness that
provides a testimonial statement. Thus, testimonial statements by witnesses
who are not subject to cross-examination a trial may not be admitted unless the
witness is unavailable and there has been a prior opportunity for cross-
examination.
 Testimonial evidence
 Testimonial evidence is testimony given by a person who reports
on what happened during the criminal incident. The witness is
reciting to jurors what had already occurred.

 Forensic evidence is also testimonial evidence. A person

responsible for testing/presenting/ or developing the evidence
must be present to testify or that evidence is inadmissible
because a surrogate cannot testify on behalf of the person who is
conducting that test or who gathered evidence at the scene.

 Non-testimonial evidence
 Non-testimonial evidence refers to statements received by law
enforcement by a person who is describing an event while the act
is occurring.

- Bruton Rule
o Bruton rule applies in joint trials, where one of the defendants has made an out
of court incriminating statement about the other defendants in the case.

o If a prosecutor wishes to introduce that incriminating statement to the jury, the

prosecutor has 3 options:
 1) try the defendant separately in a different trial
 2) don’t use the incriminating statement at trial
 3) redact the statement that the person has made
 Remove any reference to the incriminating evidence about the co-
defendant