Criminal Procedure Outline

I. Confessions
A. State cannot coerce a confession under the 14th amendment due process (Line to be
drawn on what is/isn’t coercing is constantly fluctuating). (Brown v Mississippi)
i. This only applies to a STATE action, NOT private individual. However, if a
private individual is acting in a state function, cannot coerce confession.
ii. Look at the totality of the circumstances to determine whether the will of the
defendant to confess was overborne. If it was overborne, than it was a
compelled confession.
iii. This 5th amendment right only applies to oral confessions. If you wrote
something down, the police cannot force you to communicate that orally,
however, they can force you to hand over the documents – not compelled to
communicate, no violation. (Anderson v Maryland).
In order to compel you to turn over a document, prosecution must already
know:
1. That the documents exist
2. That you are in possession of them
3. That they are authentic
This doesn’t apply to documents that you turn over to your lawyer,

B. Right to Counsel
i. You have the right to have council present if you are being confronted by
authorities after you have been indicted. (Massiah)
Requires:
1. Commencement of adversial proceedings against defendant
2. Deliberate eliciting of information by government.
ii. You CAN waive your right to counsel, but it must be knowingly, intelligently,
and voluntarily.
iii. Can use statements you make that indict a 3rd party without counsel.
iv. In Michigan v. Jackson, the court said that when you are appointed a counsel, a
waiver of that right later will be presumed to be invalid. HOWEVER, THIS WAS
REVERSED IN MONTEJO.
a. They ruled that the rights in Miranda (see below provided enough
protection).

C. This all eventually led to MIRANDA RIGHTS

a. When do they set in?
i. At the outset of custody. When the defendant is deprived of his liberty in
any specific way.
Custody – whether there is a degree of restraint of movement
associated with a formal arrest.
1. In US v Morales, custody started when the police told the
defendant to sit on the couch and not move while they are going
through his apartment. This is custody.
 ii. When the police try to elicit information from you. You must be asked a
question
b. What is the right?
Get the following warnings:
i. Right to remain silent
ii. If you don’t, it will be used against you
iii. You have a right to have a counsel present
iv. If you cant afford one, it will be provided for you.
c. How does it operate
i. You have a right to counsel in the room when you are interrogated. If
you don’t get the warnings, you can move to have your statements
suppressed. If this occurs, burden is on the prosecution to prove that the
Miranda warnings were given, but they were knowingly and intelligently
waived, may not be able to happen if your drunk.
ii. Even after you waive your rights, you still cannot have your will
overborne
iii. Even if you waive the right, you can unwaive it (police don’t need to
tell you this though).
iv. Only applies to incriminating statements about yourself. Wont suppress
statements made about others, even if violating Miranda.

D. After Miranda
a. Massiah rule is still alive – after proceedings have begun (arraignment,
indictment, file of information) you are entitled to counsel. Rule requires police
misconduct.
b. When is a confession allowed?
i. when it is a product of the defendant’s rational intellect and free will.
This requires police misconduct to state that the confession isn’t of
rational intellect and free will (Colorado v Connelly – confessed while
hallucinating, but he appeared sane. If he didn’t appear sane (reasonable
officer) then it would be misconduct to hear the confession. SC used shock
the conscious balancing test (need for evidence v shock the conscious, and
determined the need for evidence won out).
c. Evidence that is derived from a Miranda violation is permitted in the case in
chief. The physical evidence is allowed in.

E. What can Police do?

a. Police don’t need to tell you anything more than your Miranda rights.
b. What is eliciting?
i. Whenever a person in custody is subjected to either express questioning
or its functional equivalent. Extends to any words or actions on the part of
the police, other than those normally attendant to arrest and custody) that
police should know are reasonably likely to elicit an incriminating
response from the suspect. Ministerial questions (in the technique of
booking) are allowed – what is your name/address. Even though some of
 this may end up being incriminating, it cant be said the officers reasonably
know it will result in a incriminating answer
c. Test for Custody in Miranda
i. From the point of view of the arrestee, would a reasonable person
believe that he was not free to go. If so, they are deemed to be in custody.
ii. Miranda doesn’t apply to undercover cops because it fails the custody
part.

F. Exceptions to Miranda
a. Statements obtained in violation of Miranda are excluded from the case in
chief, BUT they can be used to impeach the defendants credibility. (Harris v NY).
i. If statements were compelled (will overborne) they cannot be used for
any reason. But if just violation of Miranda, can be used to impeach and
the physical evidence derived from those statements are allowed in the
case in chief.
Three Categories of Admissions
1. Absolutely Clean, doesn’t violate Miranda and not coerced
Can be used in case in chief.
2. Not compelled, but does violate Miranda
Cant be used in case in chief. Only to impeach credibility
3. Compelled – will overborne
Out for ALL purposes.
b. Can violate Edwards v Arizona rule – requires questioning to stop immediately
when an attorney is summoned – and still use that evidence to impeach credibility.
c. Test – Court made rule violated, then it CAN be used to impeach
For a constitutional violation – TEST - Whether the violation occurs during trial
or before trial. If it occurs outside trial, then it CAN be used to impeach. If it
occurs in trial it CANNOT be used to impeach
i. 4th amendment – illegal searches – outside of trial – can use to impeach
ii. 5th amendment – self incrimination – in trial – CANT be used
iii. 6th amendment – right to counsel – outside of trial (controversial, but
court says the violation occurs at the time of the uncounseled solicitation)-
can impeach
d. Public Saftey Exception – NY v Quarels
i. CAN be admitted to case in chief. In Quarrels – officer felt an empty
gun holster, immediately asked where the gun was without giving his
Miranda rights and defendant told him. Allowed because of the public
safety exception – if questioning prompted by an immediate need for
public safety (harm a bystander/fall into accomplice hands)
e. “Cat out of the bag” – Oregon v Elstad
i. If a defendant confesses before he receives his Miranda rights, that
confession cannot be used in the case in chief. However, if he is later
given his rights, he can then confess again and have that be admitted as
evidence in the case. However, you need a break in the questioning (done
through changing locations, etc).
 a. this does NOT apply if he has been indicted because that would
then be a violation of his 6th amendment right to counsel NOT
Miranda
f. Can use a statement made in violation of Miranda as probable cause for a lawful
arrest.
g. An undercover agent/informant in jail can hear information as long as he
doesn’t illicit the information. If he illicit the information, then it is not allowed.
h. it is irrelevant if you have an attorney appointed for you, but you don’t know.
Your confession should still be admitted because he knew he had a right to an
attorney.

G. Immunity
a. Use Immunity – If you testify to a particular crime, you can still be prosecuted
for that crime, but they cant use your statements to convict you.
b. Transactional Immunity – Cannot be prosecuted for the crime if you talk about
it.
c. What does Immunity apply to?
i. 18 USC § 6002 – only applies to true statements. It does NOT apply to
perjured statements. Can use the prior statements, made under immunity to
convict you of perjury.

H. Right to Remain Silent

a. Malloy v Hogan
1. Defendant has the right to not answer incriminating questions
2. If you are compelled, cannot be used for ANY purposes (impeach and
case)
3. Cannot be penalized for taking 5th amendment right
MISSED CLASS HERE, FILL IN FROM NATHAN (After Lakeside v Oregon).

I. Grand Jury Indictment

a. You do have the right to 5th amendment – never a moment in your life that you
don’t.
b. However, before a grand jury, you DON’T have the right to remain silent, only
not answer questions that incriminate you. If it incriminates others, but not you,
then you have to speak.
c. No right to counsel before a grand jury
d. If you commit perjury, your statements made without Miranda can be used
against you at trial for perjury. 5th amendment gives you right not to
speak/incriminate yourself. It does not give you the right to lie.

II. Unreasonable Searches and Seizures

A search is reasonable if it doesn’t violate an expectation of privacy – Katz Test
1. Subjective—did the person exhibit an actual subjective expectation of privacy? 2.Objective
—was the expectation one that society is prepared to recognize as “reasonable”?

A. Arrests in a car:
 a. Two basis for when police can search a car:
1. Can search the interior of a car when the arrestee is within reaching distance of
the vehicle.
Pretty much, can search when there is a threat that the evidence is going to
be destroyed. (Either by the person arrested or if someone else is in the car
who isn’t arrested, but may destroy it).
2. There is reasonable belief that there is evidence of the arrest in the car
Doesn’t apply to a traffic stop because there can be no evidence of a traffic
stop in the car
Can only admit evidence that is incident to the arrest.

B. Exclusionary Rule
Evidence seized in violation of the 4th amendment
a. Only applies to evidence illegally seized by state actors
b. Doesn’t matter if evidence is illegally seized by state or federal officers, it cannot be
used in either court.
c. Illegally seized evidence can be used to impeach credibility, in sentencing, and in
grand jury (however, the grand jury cant illegally seize/compel evidence themselves).
d. EXCEPTIONS
a. Violation of the 4th Amendment “knock and announce rule” does not require
suppression of evidence. (the seizure of the evidence doesn’t have anything to do
with you not knocking).
b. GOOD FAITH EXCEPTION – (Leon) If the officer is acting in reasonably
good faith, it does not require suppression.
i. Applies also to good faith in acquiring a warrant
a. in order to not allow the warrant, must show
That there was no possible way any officer would believe
that this evidence wasn’t sufficient. (Even if this officer
who presents the evidence to the judge knows it isn’t
sufficient, not enough. Must prove that no reasonable
officer would believe that the evidence is sufficient).
c. INEVITABLE DISCOVERY RULE
i. Burden on the state to show by a preponderance of the evidence that the
illegally seized evidence would have been discovered anyway. If so, it is
allowed in the case in chief.
ii. Can use a coerced confession if it would’ve inevitably been discovered
iii. Don’t need to show good faith – if it would’ve been discovered, it
doesn’t matter what the police do.
C. Search Warrants
Probable Cause = Enough particularized facts that lead a common sense person
of reasonable causation to believe that there is a fair probability of criminal
activity.
a. Must prove 3 Things
1. A seizable item is in a specifically designated location
2. If the basis for this is a tip, you must show why the tipster is entitled to be
believed (usually that he has come through in the past)
 3. How did the informant come to know of this?
(Don’t need definite knowledge of all 3 – can be inferred – look to totality
of circumstances.)

D. Arrest Warrant
a. Must prove 4 things
1. Probable cause that a specific crime has been committed
2. More likely than not it was committed by the specific defendant
3. If from a tip, why should that person be believed?
4. How does the informant know?
Then you can do a cursory sweep of the places around him within his immediate reach.

E. Expectation of Privacy
a. Katz Test
i. Do you have a reasonable expectation of privacy – objective belief
a. You have more of an expectation of privacy when you have a legitimate
property interest in the place you are. (Extends to places you are sleeping,
but not just visiting for a dinner). Rackas case – they didn’t own the car, so
they didn’t have an expectation of privacy. It would’ve been different if
they owned the vehicle.
b. Does not extend to theifs (they have a property interest, but its not
legitimate)
b. Exceptions
If the police are going to arrest an individual in his home, and they have probable
cause, they must get a search warrant to arrest you in your home UNLESS
1. probable cause to believe that waiting long enough to get the warrant
would be a danger to the police or to others.
2. Probable cause to believe the individual will escape
3. Probable cause to believe there is an imminent danger of destruction of
evidence
4. if the police are in hot pursuit.
H. Stop and Frisk
a. Basics
i. Reasonable suspicion is suspicion that you can give a reason. Then you can stop
Once you stop you can then frisk.
If it doesn’t feel like a weapon during a frisk, then you cant take it.
b. Definition of a Seizure
i. Whenever a police officer accosts an individual and restrains his freedom to
walk away, he has 'seized' that person.
c. Definition of a Stop
i. When a police officer comes up to you and starts asking you questions. You are
not free to go, but you are not under arrest. How does a stop differ from an
arrest???
a. It is brief – matter of minutes
b. That it is public
d. Definition of a Frisk
 i. Plain Feel Test – You can only frisk and have a “pat down” and nothing more.
You can search for anything on the person, only if it feels like the object you are
patting down for.
e. What can you seize?
1. Contraband
2. Instrumentalities of a crime
3. Weapons
4. Fruits of a crime.

I. Lineups
a. What must be proven?
i. Prosecution has begun (lineup always is)
ii. A lineup occurred
iii. Counsel wasn’t present
b.. What then happens?
i. The lineup identification is automatically excluded.
ii. The in court identification is excluded UNLESS
a. Prosecution can prove by a clear and convincing evidence that the
witness has been purged of the taint of the unconstitutional lineup
c. Role of Attorney
i. Just go and observe.
ii. In practice, the lawyer wont actually go himself to the lineup, but he will
instead send someone else to go (usually his partner). Why? Because the attorney
cant be used as a witness in the trial if a violation does occur, but the partner who
witnessed it can.
Test
• Multiple Choice
o Every question will have a fact situation
o Question will deal with if it is ok to use evidence
• Running story about def to whom things happen
o Stop interrogated questioned identified
o Rule on motion to exclude certain evidence
 Be concise and clear and deal with every possible issue and subissue
that it may raise
• Need to go deep and be a good lawyer
• Dobbyn@comcast.net