Crim Pro MBE Outline

7/25/2019 Crim Pro MBE Outline

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I. GeneralA. 4thAmendment protects people from unreasonable searches andseizures, and provides that no warrant shall issue unless there is probablecause supported by oath or armation and particularly describing the placeto be searched and the personsthings to be seized!. Applies to"

1. #earches and seizures of property$ and%. &o arrests of persons

'. #earchseizure must be e(ecuted by a government agent)if it wasn*t,then searchseizure is not challengeable

1. &ypes of government agents"a+ ublically paid police -on or o duty+$ andb+ rivate citizens)/02 if they are acting at the direction ofthe policec+ otential government agents

-1+ rivate security guards)only if they are deputizedw the power to arrest -i.e., campus security ocers atpublic universities+

-%+ ublic school administrators)i.e., principals andvice3principals

II. id a government agent conduct a search or seizure governed by 4thAmendment5

A. A searchsomething that violates your reasonable e(pectation ofprivacy!. 6as there a reasonable e(pectation of privacy -78/+ in the areasearched or items seized that was invaded by government agents5 - mustshow a legitimate e(pectation of privacy in the items seized or in thepremises searched+

1. 78/ is determined by a totality of the circumstances

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'. oes have standing51. &o challenge the search or seizure, the must have standing must have a reasonable e(pectation of privacy in the thing or placebeing searched%. 78/ of privacy alwayse(ists if either"

a+ /wns, has a right to possess, or lives in the premises to

be searched, orb+ Is an overnight guest of the premises to be searched

9. 78/ e(ists in rotected Areas, including"a+ erson*s bodyb+ :ouses -including hotel rooms+ and the curtilage -livingspace directly around your home+c+ apers -personal correspondence+d+ Aects -purses, wallets, bac;pac;s+e+ An overnight social guest has a 78/ in the home wherehe is staying -but owner may consent to a search, and thenyou*re shit out of luc;+

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i+ A passenger in an automobile has no 78/ in the searchof the vehicle -bc the vehicle isn*t theirs, they*re >ust apassenger+

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a+ 'redible informationb+ 7eliable informant$c+ olice corroboration$ andd+ eclaration against interest -if the information is ma;ingsome declaration against interest, ma;es it more credible+

9. 6as the agent*s reliance on a defective warrant in good faith5

a+ An ocer*s good faith overcomes constitutional de=cits inprobable cause and particularity, with 4 e(ceptions. canchallenge the adavit upon which the warrant was issued butmust prove one of the following by apreponderance of theevidence"

-1+ Adavit was so egregiously lac;ing in probablecause that no reasonable ocer would have relied on it-Cbare bonesD adavit+-%+ 6arrant is so facially de=cient in particularity thatno ocer could reasonably presume it to be valid-9+ Adavit relied on by magistrate contained ;nowingor rec;less false statements that are necessary to the

probable cause =nding-4+ agistrate who issued the warrant is biased infavor of the prosecution

**At this point, if 'ou (nd that police had either a valid $arrant ora defective $arrant saved &' the o)cers good faith, move on**

'. 0/)there was no search warrant

IE. 8(ecution of #earch 6arrantsA. &imingno unreasonable delay

1. olice must e(ecute warrant promptly, without unreasonabledelay after it is issued, while probable cause still e(ists

!. CBnoc; and AnnounceDpolice must C;noc; and announceD

themselves1. olice must ;noc; and announce their purpose, then wait areasonable time for admittance before entering on their ownaccordattempting a forcible entry

'. #cope of #earchthe person or place searchedseized was within thescope of the warrant

1. olice may only search those areasitems authorized by thelanguage of the warrant%. ersons unnamed in a warrant may not be searched merelybecause of their presence at the search location

a+ !ust cannot search them unless a validwarrantless search e(ception applies

9. olice 'A0, however, seize any evidence of criminal activity theydiscover, even if not included in the warrant -see plain view e(ception,below+

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E. Is the warrantlessH search through which criminal evidence was gathered fallunder a valid e(ception to the warrant re@uirement5 A warrantless search is unconstitutional unless it falls under a valid e(ception to

the search warrant re@uirement. E+EP-IO"" /EAPI-0A. EIG80&'I7'


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9. Inventory searcha+ olice may ma;e an inventory search of an arrestee*sbelongings, i.e., they can ta;e items to the police station to besearched

4. Automobile #earch Incident to a 'ustodial Arresta+ olice can only search the arrestee*s vehicle /02 if he

has reason to believe the vehicle may contain evidence relatingto the crime for which the arrest was madeb+ If arrestee is in an automobile, police may search thepassenger compartment, including the glove bo($ can alsosearched closed containersc+ olice 'A00/& search the trun; woprobable causeorconsentd+ olice 'A00/& search the passenger compartment ifarrestee is secured, away from the vehicle

F. Lusti=cationocer safety an the need to preserve evidence'. /0#80&with valid consent, police may search anything

1. 7e@uirements for valid consent"

a+ Eoluntarily and intelligently made-1+ olice can*t lie or deceive to obtain consent-%+ olice have no obligation to inform suspects thatthey have a right to refuse consent

b+ erson giving consent has authority to consent-1+ ust be reasonably apparent that the consentingparty has the authority to consent

%. #cope of consenta+ 'an be limited by the consenting partyb+ Eiolation of the allowed scope renders the entire searchnon3consenting

9. 9rdparty consent

a+ Allowed if there is authority to consentb+ 6here multiple people have rights to property -viaownership, authorized use or occupancy+, any single one canconsent to the search of any area where they have authority toconsent

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c+ A resident*s right to consent trumps a non3resident -e.g.,if both a tenant and landlord are present, the tenant*s refusaltrumps the landlord*s consent+d+ #cope of consent is dictated by the person present w thehighest authority to consent

-1+ 'onsent to search e(tends to all areas for which a

reasonable ocer would believe permission to search wasgranted -within authority of individual granting consent+

e+ 7efusal trumps consent)no consent if % persons w e@ualright to possession disagree on consentf+ Apparent authorityif police oce obtains consent tosearch from someone who lac;s actual authority to grant it,consent EAI under 4thAmendment, provided the ocerreasonably believedthat the consenting party had actualauthority

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c+ lain smellsincluded within plain view-1+ If police smell something giving rise to probablecause from a place where they are legitimately present,they can search that item

O. I0E80&/72#8A7':

1. /ccurs in % conte(ts"a+ Arresteeswhen they are boo;ed into >ail$ andb+ Eehicleswhen they are impounded

%. Inventory searches are constitutional, provided"a+ &he regulations governing them are reasonable in scope$b+ &he search itself must comply w those regulations$ andc+ #earch is conducted in good faith -it is motivated solely bythe need to safeguard the owner*s possession*s andor ensureocer safety

G. 8'IA088#special needs of law enforcement, governmentemployers and school ocials beyond a general interest in law enforcement

1. Administrative #earchesa+ Government agencies may conduct routine searches orinspections -e(" building code inspections, food safetyinspections, searches of businesses in high3regulated industries,airline passenger searches, parolee searches, etc.+b+ 6arrant is re@uired for inspections of private residencesor commercial buildings

-1+ 7e@uires less particularity than standard warrants-%+ A general and neutral enforcement plan for thesearches will suce to validate the warrant

%. 7andom rug &esting? warrantless, random drugs testing iso;ay in the following conte(ts"

a+ 6arrantless searches are permitted for drugs tests ofpublic school students who wish to participate in e(tracurricularactivitiesb+ 7ailroad employees following an impact accident

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c+ 'ustoms agents who are responsible for drug interdiction9. !order #earches P Immigration

a+ At the border, ocials may conduct routine searches ofpersons and their eects -including vehicles+ wo a warrant,probable cause, or reasonable suspicion

-1+ !order? any place where one can arrive in the


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b+ engthdetention must be no longer than necessary toverify the suspicionc+ !ut police may develop probable cause to arrest based onanything occurring or discovered during the stop andor fris;

9. #top? re@uires reasonable suspicionof wrongdoinga+ 6here a police ocer observes unusual conduct which

leads him to reasonably conclude that criminal activity is afoot,he may brieJy detain the sustain in order to ma;e [email protected]+ robable cause is not re@uired$ easonable suspicion,based on objective facts, that the individual is involved incriminal activity, will sucec+ #top based on Informant*s &ip"

-1+ #top may be >usti=ed not only based on ocer*sown observations, but also based on an informant*s tip.All that is re@uired is reasonable suspicion

d+ Olight as a cause for suspicion-1+ &he fact that an individual has attempted to Jeewhen seen by police will normally raise the police*s

suspicion and may even without more >ustify the police inma;ing a stop

4. rotective Oris;? a pat down. 7e@uires belief that the is armedand dangerousan the ocer may seize any item that he reasonablybelievesis a weapon

a+ 6hen police perform a fris; after ma;ing a stop, the fris;must be limited to a search for weapons or other sources ofdanger)the purpose of the fris; may not be to search forcontraband or other incriminating evidence O 85E" E+A-:7ARE PO:IE A::O8ED -O EAR5 -5E PERO" =OD7>OR O"-RA=A"D3b+ /nce the ocer conducts a stop as described above, the

assuming nothing in the initial encounter dispels his reasonablefear for hisothers* safety, the ocer may conduct a carefullylimited searchof the outer clothingof the suspect in attempt todiscover weaponsc+ If police have a reasonable belief during the fris; thatwhat they feel is a weapon or contraband, they may seize thesuspected item

-1+ /cers cannot manipulate the item to developreasonable belief)it must be plain touch only-%+ If, instead ocer feels something she immediatelyrecognizes as contraband wo manipulating the ob>ect,she can seize it bc it is in plain view -Cplain3feelD+-9+ 8vidence validly seized is admissible

F. If ocer has properly stopped a car, police are entitled to do afris; of any passenger)even if the police have no reason to suspectthe passenger of wrongdoing)as long as the police have a reasonablesuspicion that passenger may be armed and dangerous

a+ If suspect has been removed from car, police can thensearch for weapons in the passenger compartment so long as"

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-1+ /cer reasonably believes the driver is dangerousand may gain control of weapons that may be in the car$and-%+ &hey loo; only in those parts of the passengercompartment where weapons might be placedhidden

EI. 8lectronic #urveillance, 6iretapping, P 8avesdroppingA. 8lectronic surveillance -i.e., wiretapping or eavesdropping+ is aCsearchD under the 4thAmendment and re@uires a warrant!. 6iretapping? the use of an electronic surveillance device wo thesuspect*s ;nowledge or consent. Any form of electronic surveillance violates a*s 78/ and therefore a warrant must be issued'. 4 re@uirements for valid electronic surveillance warrant Ccreen-elephone alls arefullyDH"

1. uspected ersonswarrant must name the suspects sub>ect tosurveillance$robable cause%. -imesurveillance is limited to short periods of time P wiretapterminates when the desired information is obtained$

9. 'rimethere must beprobable causethat a crime has been oris being committed$4. onversations6arrant describes w particularity the sub>ect ofconversations that can be listened to

. 8avesdropping1. All spea;ers assume the ris; that the person to whom they arespea;ing is wired andor tape recording the conversation andoreavesdropping)so in these case, you do not have a 4 thamendmentclaim

a+ &herefore, police do not need a warrant if they getsomeone to wear a wire and tal; to the suspect bc the personconsented to wearing the wire

b+ olice / need a warrant to tap the suspect*s phoneI. Is *s statementconfession admissible5

A. 4 federal constitutional challenges that can be brought to e(clude aconfession will be inadmissible under theseH"

1. Fth14thAmendment ue rocess 'lause%. KthAmendment 7ight to 'ounsel9. FthAmendment iranda -rivilege against self3incrimination+4. 4thAmendment 8(clusionary 7ule

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4 =AE -O E+:?DE -A-E6E"- A"D O">EIO"APPROA5 O"-I-?-IO"A: =AI

;oluntariness Approachto beadmissible, a statement must be

voluntarily made based on the totality of

the circumstances this is a *s protectionagainst coerced statementsH

ue rocess 'lause of theFthand 14thAmendments

Right to ounsel Approach#tatements made during any CcriticalstageD of a criminal proceeding areinadmissible unless the defendant is

aorded the right to counsel right to havea lawyer help you trough the criminal

process$ lawyer has to be there through allcritical stages. !


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!. If *s statement was voluntary? then statement is admissibleQ'. % re@uirements for confessions for it to be admissible against personwho made confession"

1. Eoluntaryconfession was voluntary i.e., not the product ofcoercion by the police$ and

a+ Eoluntary confession will be admissible regardless ofwhether iranda warnings were given

%. !iranda warningsconfession must have been obtain inconformity with iranda

a+ 6hen a suspect is @uestioned in custody by the police, hisconfession will be admissible against him only if he has receivedthe iranda warnings

II. 8(cluding #tatements


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a+ 6here the is retried for the same e(act crime for whichhe has previously been tried

-1+ ouble Leopardy precludes such trial, but the@uestion is whether the is reallybeing tried twice forthe same crime

b+ 6hen the is tried for % or more dierent crimes, but the

crimes are suciently similar to be considered the sameoense, precluding separate trial and convictions for bothcrimes

!. 6hen does >eopardy attach51. Lury trial

a+ Attaches when the >ury is empanelled and sworn in%. !ench trial

a+ Attaches when the 1stwitness is sworn in and the courtbegins to hear evidence

9. 'ivil triala+ Leopardy is not applicable

4. Luvenile proceedings

a+ &he commencement of a >uvenile proceeding bars asubse@uent criminal trial for the same oense

'. #ame /ense1. /enses are dierent if conviction for each oense re@uiresproof of an element not included in the other oense%. ierent oensee.g., where oense U1 re@uires proof of A P!, but oense U% re@uires proof of A, ', and 9. #ame oensee.g., where oense U1 re@uires proof of A,!, and'$ oense U% re@uires proof of A P !

a+ 8(" a cannot be charged w larceny after his trial beginsfor robbery from the same incident

. /ne 'rime - is being tried for 1 crime+

1. 7uleonce >eopardy attaches for the trial on the crime, the cannot thereafter be tried again for the crime -with some e(ceptions+

8. ore than /ne 'rime - is being tried for % or more dierent crimes+1. Issuecan the be tried, convicted and sentenced for bothcrimes5%. esser Included /enses

a+ 6hen all elements of 1 crime V an additional element isanother crime, then the former is a lesser included oense ofthe latterb+ #eparate trial are not allowed, >eopardy attaches for bothif either is tried

-1+ 8(ceptionretrial for murder is permitted if thevictim dies after attachment of >eopardy for battery

9. Loint bail is allowed but the can only be convicted andsentenced on 1 crime

O. #eparate /enses1. !loc;burger testeach crime has at least 1 element not sharedw another crime)% trials and sentences are allowed

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G. 8(ceptions ermitting 7etrial)once >eopardy has attached, when isretrial still allowed5

1. Generallya+ 0ew evidence for the greater oense has becomeavailableb+ can be tried for battery and subse@uently tried for

homicide if the victim later dies from the battery%. :ung Lury

a+ 7etrial is allowed if the =rst trial ended in an inability ofthe >ury to reach a verdict

9. istrial due to manifest necessitya+ *s original trial is aborted for some reason, e.g., is tooill to continue

4. 7etrial after a successful appeal by a+ can be retried unless the basis for reversal wasinsucient evidence to support a guilty verdict

F. breaches a plea bargain agreementK. #eparate #overeigns

a+ can be tried for the same crime in dierent statesb+ can be tried for the same crime in federal and statecourtc+ 'A00/& be tried for the same crime in a municipalityand a state

E. 8(cluding #tatements


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!. 6hen a suspect is @uestioned in custody by the police, his confessionwill be admissible against him only if he has received the iranda warnings

II. 6hen does iranda apply5A. Oor iranda to apply, 9 re@uirements must be satis=ed"

1. 'ustodyiranda warnings are necessary /02 when the

suspect is ta;en into custodya+ #o iranda is not triggered if suspected is onlystoppeddetained on the streetb+ 'ustody? accused is not free to leave

%. WuestioningInterrogationiranda only applies where theconfession comes as the result of @uestioning

a+ Any statements by police li;ely to elicit an incriminatingresponse -i.e. any conduct police ;now or should ;now will get adamaging response from the accused+b+ 7outine @uestioning e.g., during boo;ing or a probationinterview, is 0/& considered interrogationc+ ublic safety e(ceptionpolice may interrogate suspects

wo giving iranda warnings if necessary due to concerns forpublic safety -e.g., has info about a bomb that could go o inpublic+

9. Authoritiesiranda only applies where both the @uestioningand the custody are by thepoliceor other law enforcement authorities

III. 4 iranda 6arningsA. /nce you determine iranda /8# apply, 4 warnings are re@uired tobe given to the suspect"

1. :e has the right to remain silent$%. Anything he says can be used against him in a court of law$9. :e has the right to the presence of an attorney$

4. If he cannot aord an attorney, one will be appointed for himprior to any @uestioning if he desires

!. #ubstantial compliance in reading warnings is sucient'. #uspect may e(ercise his right to remain silent or have an attorneypresent at A02 time during the @uestioning. As soon as suspect e(ercises hisright, interrogation must cease

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. Any statement obtained in violation of iranda rules will beI0AI##I!8 as prosecution evidence, even if the statement is in a senseCvoluntaryD

1. Oailure to give warnings only implicates FthAmendment, not KthAmendment%. !ut statement could still be used for impeachment purposes

IE. Invo;ing the 7ight to 7emain #ilentA. After the accused invo;es this right, police must immediately cease all@uestions!. olice may later @uestion the accused regarding unrelated crimes)I-5I -R?E3'. 6hen may the police initiate a new interrogation after the suspect hasinvo;ed his right to silence5

1. 'ourt applies Cscrupulously honoredD standardpolice mustsatisfy 4 re@uirements in order to be deemed to have scrupulouslyhonored the suspect*s invocation of his right to remain silent"

a+ olice must have immediately ceased the interrogation

once the suspect invo;ed his right$b+ &he gap between the cessation of @uestioning and theinitiation of the new session must represent a signi=cantpassage of time -a Ccooling o"#period+$ andc+ rior to the second interrogation, the police must give asecond set of iranda warnings

. XXRemem&er" If invo;ed /02 the right to remain silent and thepolice continued @uestioning, the confession is inadmissible unless"

1. &here was a brea; in @uestioning,%. was given the iranda warnings again, and9. &he @uestioning was about a dierent crimeo -his is so &c if the accused indicates that he $ishes to

remain silent, all %uestioning related to the particular crimemust stop

E. Invo;ing the FthAmendment 7ight to 'ounselA. Applies /02 where @uestioning occurs!. Includes the right to consult a lawyer prior to @uestioning as well as theright to have a lawyer present while the @uestioning occurs

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'. All @uestions must cease on any topic until counsel is provided anpresent

1. 0/&8this is dierent than the KthAmendment right to counsel,which is oense3speci=c and does not attach until charges have been=led

. If accused initiates the communication, interrogation is allowed. /nly

the accused can re3initiate dialogue8. 6aiver After Invocation of 7ight to 'ounsel"

1. 'ourt has made it very dicult for prosecution to establish thatthis demand has been subse@uently waived%. General ruleafter suspect invo;es his right to counsel, he isCnot sub>ect to further interrogation by the authorities until counsel hasbeen made available to him, unless the accused himself initiatesfurther communication, e(changes or conversations with the policeD9. 7esponse to @uestioning

a+ 6aiver will not be established by the mere fact that thesuspect responded to later police3initiated interrogation

4. CInitiating the 'onversationD test

a+ /nce a suspect indicates a desire to have a lawyer, anysubse@uent waiver of that right will not be measured by theusual C;nowingvoluntaryintelligentlyD standardb+ Instead, the only way a suspect may waive a previously3asserted desire to have a lawyer present at the interrogation isby initiating the conversation with police

F. !rea; In 'ustodya+ /nce the suspect has been out of custody for at least 14days, the police may initiate @uestioning even though theynever furnished counsel in response to the suspect*s initialre@uest for it

O. **Remem&er@If re@uested counsel, a confession in response tofurther @uestioning wo counsel is inadmissible unless the re3initiated the@uestioning

EI. 6aiver of iranda 7ightsA. &o be eective waiver must be made"

1. Bnowingly%. Eoluntarily)must be a clear verbal waiver9. Intelligently made

!. #uspect*s silence may 0/& be ta;en as a waiver

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'. !ut waiver need not be e(press to be valid. !urden is on rosecution to prove the waiver was valid)must prove byapreponderance of the evidence

EII. /ther iranda IssuesA. Grand Lury 6itnesses

1. A witness who is subpoenaed to appear before a grand >uryprobably does not have to be given iranda warnings

!. Impeachment1. A confession obtained in violation of iranda may not beintroduced as part of the prosecution*s case3in3chief, but they may usesuch statements to impeach *s testimony at trial%. 8(ception for coercion"

a+ Although a statement obtained in violation of irandamay be admissible for impeachment purposes, it may 0/& beused even for this limited purpose if it was the product ofcoercion or was involuntary for some other reason

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!. 7ight to an Impartial Lury'. 7ight to be Informed of the 'ause of Action and 'onfrontation of6itnesses. 7ight to 'ompulsory rocess for /btaining 6itnesses8. 7ight to the Assistance of 'ounsel

II. GeneralA. /nce the KthAmendment right to counsel attaches, police may notdeliberately elicit incriminating statements outside the presence of *scounsel!. Application

1. 7ight attaches once charges have been =led%. Applies to all subse@uent stages of the >udicial proceeding

'. #cope1. &he right is oense3speci=c%. olice can @uestion about any other crime without violating*s KthAmendment rights

III. Inadmissible #tatements" #tatements ade in Eiolation of KthAmendment7ight to 'ounsel

A. A statement is inadmissible if it is in violation of the KthAmendmentright to counsel under the !assiahrule!.


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G. A police agent*s secret recording of a suspect*s conversations while outof bail violates his right to counsel:. &he right e(tends not only to noncustodial settings, but also to thebeginning of the adversarial court process. &he initial appearance in a courtwill trigger this right bc it signals the government*s intent to prosecuteI. Although police cannot ;nowingly or intentionally create an

opportunity to confront the accused wo counsel absent a waiver, passivelistening by a cellmate informant does 0/& violate the right to counsel

1. must demonstrate that the police and their informant too;some action, merely beyond listening, that was designed todeliberately elicit incriminating remar;s

IE. ierence !etween Fthvs. KthAmendment 7ight to 'ounselA. FthAmendment 7ight to 'ounsel

1. 0/& automatic)the accused must invo;e the right byre@uesdting the presence of counsel

a+ 7e@uest must be unambiguousb+ Applies to any custodial interrogation

%. 0/& oense3speci=c)once invo;ed, police must stop@uestioning on all sub>ect

a+ olice can re3initiate @uestioning after a brea; and mustre3invo;e the right by again re@uesting an attorney)I -5IRI5-3

!. KthAmendment 7ight to 'ounsel1. Automatic)attaches once charges have been =led%. /ense3speci=c)police can @uestion about any other crime

I. N 'ritical #tages when 7ight to 'ounsel Attaches"A. re3&rial

1. 'ustodial interrogation -!irandawarnings+

%. Accusatory stage9. ost3indictment line3up

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4. reliminary hearing!. &rial #tage

1. All felony trials%. isdemeanor trial -where actual imprisonment is imposed+

'. ost3&rial1. #entencing

%. Oirst appeals granted as a matter of right

II. K 0on3'ritical #tages 6here &here is 0/ 7ight to 'ounsel"A. re3indictment line3up!. 0on3advertised CGersteinD hearing to determine probable cause'. Grand >ury proceeding. iscretionary appeal8. arole and probation revocation proceedings -unless re3sentencing isinvolved+O. &a;ing of handwriting or voice e(emplars and blood

I80&IOI'A&I/0#" % !A#8# &/ A&&A'B I80&IOI'A&I/0# /O &:8 8O80A0& -


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'. hoto Iarrayswitness is as;ed to pic; out the perpetrator from aseries of photos

IE. 'onstitutional /b>ectionsA. 4 plausible constitutional ob>ections that may be able to ma;e to theuse of these procedures against him"

1. &hat it violates *s privilege against self3incrimination$%. &hat it constituted an unreasonable search or seizure in violationof the 4thAmendment$9. &hat if did not have a lawyer present, the use of the procedureviolated his Kth Amendment right to counsel$ and4. &hat the procedure was so suggestive that it violated *s Fth14th

right to due process!. /b>ections most li;ely to succeed -in order of successfulness+"

1. &he use of 1 of these procedures -esp. a lineup or showup+ wo*s lawyer present violated his right to counsel%. &he procedure was so suggestive that it violated due process-most li;ely to wor; where the procedure was a lineup, showup, orphoto I+9. #elf3incrimination argument almost 08E87 wor;s4. #earchseizure argument only wor;s if police lac;ed a warrantandor probable cause

E. re3Indictment Identi=cations" &he ue rocess #tandardA. 7uleany lineup, showup, or photo I is inadmissible as violative ofdue process when the identi=cation is unnecessarily suggestive and li;ely toproduce an irreparable mista;en identi=cation!. must show that when viewed by the Ctotality of the circumstancesDthe procedure was so unnecessarily suggestion as to be unfair to

'. inor e(ception

suggestive procedures are allowed if they arereliable1. An identi=cation procedure is not violative of due process if thecourt =nds that it is reliable-i.e., not li;ely to cause error+, even if it issomewhat suggestive

EI. ost3Indictmentre3&rial ineups" &he 7ight to 'ounsel

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A. General 7uleafter formal criminal proceedings have commenced, asuspect has an absolutely right to have counsel present at any pre3trialconfrontation procedure

1. Includes any in3person lineup or showup%. 7ule does 0/& apply to non3live identi=cation procedure, suchas photo lineups or =ngerprinting+

!. 7emedy for Eiolation1. may move to suppress any subse@uent in3trial identi=cationsby the witness

a+ If confrontation is conducted in violation of the right tocounsel, the prosecution will not only be barred from introducedat trial the fact that was pic;ed out of the lineup, but mayeven be barred from having the witness who made theidenti=cation testify in courtthat the person sitting on the doc;is the person observed by the witness at the scene of the crimeb+ /nce the lineup is shown to have been improper, theprosecution will have to come up with clear and convincingevidence that the in3court identi=cation is not the Cfruit of the

poisonous treeD-1+ 0oteremedy for a violation is rare bcgovernment can often prove the identifying witness hasan independent source of identi=cation to overcome thee(clusionary rule

'. 6aiver1. &he right to have counsel present at the pre3trial confrontationproceeding may be waived, but waiver must be an intelligent one

. 8(ceptions to 7ight to 'ounsel -where there is no right to counsel+1. !efore formal proceedings have been brought against %. hoto I -see above+9. #cienti=c I procedures -such as =ngerprints, blood samples,

clothing, hair, voice, handwriting samples, etc.+

I. re3&rial -reliminary+ :earings P !ailA. retrial hearingre@uires to determine if there is probable cause todetain the suspect

1. 7e@uired if"a+ Arrestee is incarcerated, andb+ &here has not been a grand >ury or other >udicialdetermination of probable cause

%. retrial hearing


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!. !ail1. !ail? used to ma;e sure shows up at trial. is re@uired topost an amount of money ;nown as a Cbail bondD$ if he does not showup for trial, he forfeits this amount%. ust be set no higher than necessary to ensure will appear attrial

9. etention wo bail isconstitutional, !


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A. KthAmendment guarantees the right to a speedy trial!. General

1. rotects from unreasonable delay between the time chargesare =led and the beginning of trial%. 7ight attaches once has been arrested or charged

'. Eiolations

1. etermined by the totality of the circumstances%. 'ourts can loo; at the following factors"

a+ ength of delayb+ 7eason for delay)did contribute to the delay5c+ 6hether asserted his right to a speedy triald+ 6hether the delay has pre>udiced

9. 7emedy for violation? dismissal of case with pre>udice

IE. 7ight to a Lury &rial P Lury 7e@uirementsA. KthAmendment provides the right to a >ury trial for all CseriousoensesD!. #erious /enses

1. &hose that authorize a sentence of imprisonment for more thanK months%. /enses authorizing probation for up to F years may be triedwithout a >ury, unless revocation of probation would result inimprisonment greater than K months

'. Lury #ize and #election 7e@uirements1. Lury size and unanimity

a+ Lury must contain at least K >urors

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b+ &here is no constitutional right to a unanimous verdict-1+ !ury verdict ury verdicts have been upheld%. Luror composition re@uirements

a+ &hejury poolmust be a representative cross3section ofthe community

b+ &he actual>ury does not have to be representative9. 7ight to an impartial >ury

a+ can @uestion potential >urors on possible pre>udices ifrelevant to the case -e.g., racial biases, feelings on the deathpenalty+b+ can challenge for cause based on pre>udices and hasunlimited challenges for cause if relevant to the case

4. eremptory challengesa+ 'annot be used to e(clude >urors on account of race orgender -violates e@ual protection+

E. 7ight to 'onfront 6itnesses

A. KthAmendment gives s the right to confront adverse witnesses!. 'onfrontation

1. has a right to have adverse witnesses testify in3person andsub>ect to cross3e(amination$ not an absolute right%. In3person testimony is not re@uired if"

a+ 8(clusion is necessary for public policy, andb+ 7eliability of the testimony is otherwise assured

9. can be removed from court for disruptive behavior'. 'o3efendant 'onfessions

1. &he confession of a non3testifying co3 against at a >oint trialviolates the KthAmendment%. &his does 0/& apply to bench trials

9. 8(ceptionsthe confession of a non3testifying co3 isadmissible if"

a+ s have separate trialsb+ &he confession is edited so that all portions referred to theco3 are eliminatedc+ &he confession is used to rebut *s claim that hisconfession was obtained coercively

. :earsay

1. rior testimonial statements of unavailable witnesses are /02admissible if had the opportunity to cross3e(amine the declarantwhen the statement was made

Crim Pro MBE Outline

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