How to Ace FYLSE/Criminal Procedure Outline

Selective Incorporation

First eight Amendments to the U.S. Constitution are applicable to the states through the Due Process Clause of the Fourteenth Amendment. The two exceptions are right to indictment by a grand jury and right to reasonable bail.

Fourth Amendment - Search and Seizure

Government Action

To make a Fourth Amendment claim, there must first be a government action.

Paula, another police officer, found D on the street, arrested him for assault and battery and searched him...

—F06Q6

The (police) officer approached D with his service revolver drawn but pointed at the ground. He explained the reason for his approach, handcuffed D, and opened the briefcase.

—F04Q1

Standing - Reasonable Expectation of Privacy

A defendant must have standing to challenge government action, which occurs if the defendant has a reasonable expectation of privacy in the item to seized or place to be searched.

(A police officer) searched him, finding cocaine in his pocket.

—F06Q6

Probable Cause and a Valid Warrant

A search is unreasonable unless the officer has probable cause to conduct the search, and the search is supported by a valid warrant.

Exceptions

Search incident to a Lawful Arrest

An officer may search a suspect as a consequence of a lawful custodial arrest.

(D battered O the police officer) The next day, as a result of O’s precise description of D, P, another police officer, found D on the street, arrested him for assault and battery (valid arrest with a warrant with a probable cause) and searched him...

—F06Q6

The (police) officer approached D with his service revolver drawn but pointed at the ground. He explained the reason for his approach, handcuffed D, and opened the briefcase. The briefcase contained only the marked currency taken in the bank robbery.

—F04Q1

Consent

(A police officer) asked their drivers to exit briefly before going on their way. The police officer explained the procedure and asked, “Would you please exit the vehicle?” Believing he had no choice, Dan said, “Okay.” After Dan got out of his car(.)

—J12Q6

Automobile Search

The next day, as he was driving, Dan was stopped by a police officer at a sobriety checkpoint at which officers stopped all cars and asked their drivers to exit briefly before going on their way. The police officer explained the procedure and asked, “Would you please exit the vehicle?” Believing he had no choice, Dan said, “Okay.” After Dan got out of his car,

—J12Q6

Booking Search

A booking search is valid as long as it is conducted as a result of and in accordance with the regular practice of the police office. The Supreme Court has held that administrative searches such as routine booking searches performed for safety and to ensure that suspects' personal items are not lost, are not subject to the Fourth Amendment. If so, the search does not require probable cause, nor does it require reasonable suspicion.

Officer Ottis arrested Don for possession of stolen property, i.e., the gun. During a booking search, another officer found cocaine in Don's pocket.

—J10Q5

Stop and Frisk

A Terry stop and frisk allows a officer to pat down a suspect when the officer has a reasonable suspicion that the suspect may be armed and dangerous. Reasonable suspicion requires more than a lunch, but instead a set of articulable facts that give rise to the notion that criminal activity is afoot.

Office Otis patted down Don's clothing, found the gun, confiscated it, and released Don.

—J10Q5

Checkpoint

The general rule is that for a checkpoint to be outside the scope of Fourth Amendment protection, and must be for purposes other than the police investigation of criminal activity. A nondiscriminatory checkpoint generally checks every person who passes through or some other equal rule, such as every third person that passes through.

While walking home, Don had to pass through a police checkpoint for contraband.

—J10Q5

The next day, as he was driving, Dan was stopped by a police officer at a sobriety checkpoint at which officers stopped all cars and asked their drivers to exit briefly before going on their way.

—J12Q6

Fifth Amendment Privilege Against Self-Incrimination

A defendant has a 5th Amendment privilege against self-incrimination, which includes the right to counsel if the defendant does not waive his right to such counsel. This right attaches whenever there is custodial police interrogation.

Self-Incrimination

The right against self-incrimination applies only during criminal cases, the Supreme Court has ruled that it may be asserted during civil, administrative, and legislative proceedings as well. The right applies during nearly every phase of legal proceedings, including Grand Jury hearings, preliminary investigations, pretrial motions, discovery, and the trials themselves.

State law makes it a felony to either promote a dogfight or knowingly attend a dogfight whereadmission is charged. Ruth, a reporter for the Dispatch, City's only newspaper, observed a stageddogfight by posing as a patron and paying the admission fee. She took over 30 photographs of theevent with a concealed camera. Later, she wrote an article about the event in the Dispatch that didnot identify anyone else present, but which was accompanied by one of her photographs showing twodogs in bloody mortal combat. The City police then asked Ruth if she knew the names of any persons at the illegal dogfight andrequested all of her unpublished photographs in order to try to identify the fight promoters andattendees. With the backing of the Dispatch, Ruth flatly refused the police requests.

—J00Q4

Under Custody

A defendant is in custody when a reasonable person would believe he was not free to leave.

(Police officer Paula arrested Deft for assault and battery.)

—F06Q6

He explained the reason for his approach, handcuffed Dave, and opened the briefcase. The briefcase contained only the marked currency taken in the bank robbery. The officer said to Dave: “I know you’re the one who robbed the bank. Where’s the shotgun?” Dave then pointed to a nearby trash container in which he had concealed the shotgun, saying: “I knew all along that I’d be caught.”

—F04Q1

Interrogation

Interrogation occurs whenever the police make a statement that is likely to elicit an incriminating response.

Paula did not interrogate him(defendant). However, before an attorney could be appointed to represent Deft, Paula placed him in a lineup.

—F06Q6

He explained the reason for his approach, handcuffed Dave, and opened the briefcase. The briefcase contained only the marked currency taken in the bank robbery. The officer said to Dave: “I know you’re the one who robbed the bank. Where’s the shotgun?” Dave then pointed to a nearby trash container in which he had concealed the shotgun, saying: “I knew all along that I’d be caught.”

—F04Q1

Testimonial in Nature

The content of his speech is not testimonial in nature because he is not asserting this own thoughts, opinions, observations, or knowledge, which are things that a witness would do.

He has, however, moved to be allowed to read aloud a newspaper article, to be selected by the judge,

—F04Q1

The officer said to Dave: “I know you’re the one who robbed the bank. Where’s the shotgun?” Dave then pointed to a nearby trash container in which he had concealed the shotgun, saying: “I knew all along that I’d be caught.”

—F04Q1

Non Testimonial

Dave was charged with robbery. He has chosen not to testify at trial. He has, however, moved to be allowed to read aloud a newspaper article, to be selected by the judge, without being sworn as a witness or subjected to cross-examination, in order to demonstrate that he has no accent.

—F04Q1

Waiver of Fifth Amendment right to counsel

A waiver of Miranda rights is valid if the defendant knowingly, voluntarily, and intelligently waived his right.

The next day Paula gave Deft, who was without counsel, proper Miranda warnings, obtained a waiver, and interrogated him. He admitted striking Oscar.

—F06Q6

Miranda

The 5th Amendment protection demands that Miranda warnings be provided to persons that are in the custody of government officials prior to any interrogation. The Miranda rights to remain silent and to counsel must be waived before any statement used against the person in court is obtained. Miranda is not offense-specific. A person is in custody if they reasonably believe they are not free to leave. Interrogation is defined as conduct or statements likely to elicit an incriminating response.

Miranda

Miranda protects against coerced confession.

Public Safe Exception to Miranda

Courts however allow an officer to question a suspect about the location of the weapon without giving Miranda warnings if it is necessary because of exigent circumstances.

The officer said to Dave: “I know you’re the one who robbed the bank. Where’s the shotgun?” Dave then pointed to a nearby trash container in which he had concealed the shotgun, saying: “I knew all along that I’d be caught.”

—F06Q6

Sixth Amendment Right to Counsel

A defendant also has a Sixth Amendment right to counsel, which attaches once the defendant has been charged with a crime. A defendant's Sixth Amendment right to counsel applies to all post-charge proceedings.

Deft was then charged with assault and battery of a police officer and possession of cocaine. Thereafter, he was arraigned.

—F06Q6

Don was arraigned on a charge of first-degree murder(.)

—F03Q3

Line Up

Defendants have a right to counsel at all critical stages of litigation following indictment/arraignment. While courts have ruled that identification lineups are 'critical stages' under the Sixth Amendment, this right counsel does not extend to photographic identifications which are not considered adversarial proceedings.

However, before an attorney could be appointed to represent Deft, Paula placed him in a lineup. Oscar identified Deft as his assailant. Deft was then charged with assault and battery of a police officer and possession of cocaine.

—F06Q6

As Wes walked into the courthouse with one of the officers, he encountered Don and his lawyer. Without any request by the officer, Wes told the officer he recognized Don as the killer. Don’s attorney was advised of Wes’s statement to the officer, of the circumstances in which it was made, and of the officer’s expected testimony at trial that Wes had identified Don in this manner.

—F03Q3

Sixth Amendment Right to Speedy Trial

The 6th Amendment provides each defendant the right to a speedy trial. The 6th Amendment is applied to states through its incorporation into the due process clause of the 14th Amendment. The right to a speedy trial attaches post charge. Whether the defendant has been given a speedy trial depends on the analysis of the totality of the circumstances.

On January 3, 2003, the court granted, over Dan’s objection, the prosecutor’s request to continue the trial to September 1, 2003, because the prosecutor had scheduled a vacation cruise, a statewide meeting of prosecuting attorneys, and several legal education courses. On September 2, 2003, Dan moved to dismiss the charges for violation of his right to a speedy trial under the United States Constitution.

—J04Q1

Exclusionary Rule

This rule prohibits introduction of evidence obtained in violation of a defendant's 4th, 5th and/or 6th Amendment rights. The evidence obtained in violation of this rule is inadmissible at trial but may be used for impeachment.

Fruits of the Poisonous Tree

All evidence obtained by exploiting illegally obtained evidence are also inadmissible at trial (Wong Sun v. U.S.) The courts have not readily applied the fruits of the poisonous tree doctrine to evidence resulting from Miranda violations.

Exceptions

Independent Source

The independent source doctrine makes evidence admissible because the police had an alternative, constitutional, avenue toward its discovery.

Inevitable discovery

The inevitable discovery doctrine makes evidence admissible because the police authorities would have eventually discovered the evidence through their investigation anyway.

Intervening Act of Free Will by the Defendant

If the police show that there had been some intervening act of free will by Don that led to the discovery of the cocaine that could lead to its admissibility as well.

Attenuating of Taint Doctrine

The attenuation of taint doctrine will admit improperly seized evidence if the police can show factors that have led to the attenuation of the taint.

Guilty Plea

A defendant's plea of guilty must be knowing and voluntary. The formalities for guilty plea are the judge must inform the defendant: (1) the maximum possible sentence; (2) the mandatory minimum sentence; (3) that he has a right to a jury trial, and; (4) that he has a right to plead not guilty.

While in jail, Don drank some homemade wine. As a result, when he appeared in court with counsel, he was slurring his words. The court advised Don that if he waived his right to a trial, it would take his guilty plea and let him go on his way. Don agreed and pleaded guilty. Subsequently he made a motion to withdraw his guilty plea, but the court denied the motion.

—J10Q5