* Criminal Procedure | Alicia Jie-Hye Lee

* Criminal Procedure *

** Exclusionary Rule
1. Definition: This rule is to exclude evidence from prosecution that are obtained by illegal search and/or coerced confession
2. Exceptions (i.e., Exclusionary Rule does not apply to the followings)
  1. Grand Jury Proceedings: A grand jury witness may be compelled to testify based on illegally seized evidence
  2. Civil cases
  3. Deportation cases or Parole revocation hearings **
  4. Impeaching the credibility of the D by looking into the testimony of the D
  5. Violation of State law or Local law
  6. Violation of Knock-and-Announce Rule (This rule exists to make sure the police officer executing a search warrant generally must not immediately force his or her way into a residence. Instead, the officer must first knock, identify himself or herself and his or her intent, and wait a reasonable amount of time for the occupants to let him or her into the residence)
    1. However, there are exceptions to the Knock-and-Announce Rule. In the execution of search warrants, if the police officer reasonably believes knock-and-announce would be (i) Futile (i.e., where there is a possibility the building occupants will flee when they hear the knock by the police officers), (ii) Dangerous (i.e., where there is a possibility the building occupants will have a gun and will shoot when they hear the knock by the police officers) , or (iii) Inhibit the investigation (i.e., where the building occupants will flush the drugs down the toilet when they hear the knock by the police officers). In these cases, the police officers could get in without waiting for a response from the person/people who are living in the residence. And also, in these cases, Exclusionary Rule will not apply **

2. Fruit of the Poisonous Tree

Definition: This rule is intended to deter police from using illegal means to obtain evidence, the evidence generally from exploitation of the unconstitutionally obtained evidence which will be inadmissible
Exceptions
1. Knock-and-Announce Rule (see above)
2. Inevitable discovery by the police
  1. Example) He or she calls 911 regarding a domestic issue. The officer arrives and he or she invites the police into his or her house. The officer decides to search the house for drugs. During the search, the police finds a bag of cocaine laying on the kitchen table in plain view. Yes, the search was illegal; however, the drugs would have easily been discovered without the illegal search because it was lying there in plain view of the officer. Thus, the evidence related to the drugs will not be excluded
3. Independent source of discovery
  1. Example) The D is selling a stolen car at a repair shop. A police officer illegally stops by and finds a stolen car. At that time, the police officer cannot do anything about it. Yet, if another police officer later gets a tip from an informant and gets a search warrant as to the repair shop, the police officer can do the search again, and that evidence related to the stolen car will not be excluded
4. Intervening acts of free will by the D
  1. Example) The D is illegally arrested. Next day, the D got out on bail. Three days later the D returns to the police station and confesses. Because these acts were made by the free will of the D, the evidence given by the D at the police station will not be excluded **
5. The taint of the evidence has been attenuated
  1. In order for the taint of the evidence to be attenuated, (i) the amount of time between the illegal action and the acquisition of the evidence; (ii) the presence of intervening circumstances; and (iii) the purpose and flagrancy of the official misconduct will be considered
  2. Example) A police officer made an illegal stop against the D and found a gun in the car of the D. The D began to assault the police officer. Because the stop was illegal, generally the gun will not be admissible. However, even if the stop was illegal, the illegality was attenuated when the D assaulted the police officer. As long as this situation fits into the three situations above (i) - (iii), and the gun was not seized at the point the assault took place, the police officers could arrest the D for the assault and seize the gun incidental to the arrest, thereby attenuating the taint of the illegal stop **
6. In-Court Identification
  1. A witness identifies the D in the courtroom or in the dock as being the perpetrator they saw at the scene of a crime
  2. This is generally held to be of little probative value, although still admissible

3. Arrest

Definition: When the police take a person into custody against their will for the purpose of criminal prosecution or interrogation
Arrest Warrant: A document issued by a judge or magistrate that authorizes the police to take someone accused of a crime into custody
1. An arrest warrant is issued by the competent authority upon a showing of probable cause (i.e., a reasonable person would believe the information given is sufficient to suggest criminal activities. For more detailed definition, see below)
Actual Arrest
1. Arrest in Public: Probable cause is needed, yet arrest warrant is not needed
2. Arrest at Home: Unless the situation is an emergency, in order to arrest a person at home, arrest warrant is needed **

4. The 4th Amendment (Search & Seizure)

Definition of The 4th Amendment
1. The right of people to be secure from unreasonable searches and seizures (note that this right includes the right to be free from unreasonable arrests by the police)
  1. Note that search occurs when officer invaded an area where a person has a reasonable expectation of privacy
  2. Note that seizure occurs when an officer restricts the freedom of movement that D would not be free to leave. The court will take into account all of the circumstances, including the officer's language and tone. However, merely being in a physically confined area will not make the interaction of an officer with a person into a seizure. If the officer orders the individual to stop, the seizure does not occur until the person complies with the officer's instructions and his movement is actually restrained
General Approach
1. In order for the D to be protected under the 4th Amendment Right, there are several issues that need to be analyzed
  1. Governmental Conduct (= State Action): First, you must look at whether the conduct that was made against the D was made by a person related to the governmental conduct such as:
    1. Police officer (on or off duty)
    2. Any private individual acting at the direction of the public police
    3. Privately paid police are not governmental conduct unless they are deputized with the power to arrest you (e.g., private security, campus police) **
  2. Reasonable Expectation of Privacy
    1. Second, you must look at whether the D has a Reasonable Expectation of Privacy as to the places searched or the items seized by the Governmental Conduct. If the D has a Reasonable Expectation of Privacy as to the places searched or the items seized, then the evidence that was obtained at that time cannot be admitted and will be excluded
      1. As for the next three places, the D always have the Reasonable Expectation of Privacy:
        
        the premises the D own
        
        the premises the D live, whether the D own the place or not
        
        the D was an overnight guest at a premise **
      2. The D has Reasonable Expectation of Privacy at a place when the D is legitimately present when the search was taken place
      3. The D has Reasonable Expectation of Privacy when the D owns the property seized at the time it was seized
      4. No Reasonable Expectation of Privacy for places or items held out to the public every day. Namely, If the places searched and the items seized were already exposed to the public, there are no Reasonable Expectation of Privacy to be invaded. Followings are examples where the D will have no Reasonable Expectation of Privacy **
        
        Non-eavesdropping (i.e., recording of conversations that are clearly not private)
        
        Conversations that was made out loud in a public place
        
        Painting that is in plain view in a public place
        
        Accounts records held by a bank
        
        Monitoring the location of vehicles in a public place or in his or her driveway (i.e., electronic monitoring devices can be also used but cannot use monitoring devices at a private home)
        
        Fields and buildings that are open to public
        
        Garbage set out on the curb for collection
        
        Public airspace (i.e., the spaces observed during flyover using unaided vision) **
  3. Valid Search Warrant
    1. Even though the D did not have the Reasonable Expectation of Privacy of his or her place & his or her item, in order for the police to search the place and seize the item validly, the police must have a valid search warrant to conduct the search & seizure unless an imminent situation
    2. A valid search warrant requires (i) probable cause and (ii) particularity
      1. Probable Cause – Trustworthy facts/information or knowledge sufficient for a reasonable person to believe that the D has committed or is committing a crime
        
        Police can rely on hearsay (i.e., the report of another words of a person that is reported by a witness, which is usually disallowed as evidence in the courtroom) for the issuance of warrant **
        
        An affidavit (i.e., a written statement from an individual which is sworn to be true) based on the tip of an informant (i.e., informant can be anonymous) must meet the Totality of the Circumstances Test (i.e., a method of analysis where decisions are based on all available information and all the circumstances of a particular case, rather than one factor) in order for the valid search warrant to be executed
        
        Neutral and detached magistrate issued the warrant
        
        Magistrate must be given enough information to make a “commonsense evaluation”
        
        The search warrant will be invalid if the police officer (1) intentionally or recklessly included false statements in the warrant application, and (2) the false statement included was material in finding the probable cause
      2. Particularity
        
        In order to require a valid search warrant, the police officer must include;
        
        the place to be searched; and
        
        the items to be seized **
  4. Good Faith Defense by the police officer
    1. Definition: If the search warrant that was issued is defective due to the defects with the probable cause or particularity, look at whether the police officer had a good faith reliance exception
    2. Exceptions: If the police officer fits under any category below, the issued search warrant will be invalid
      1. The affidavit underlying the warrant is too lacking in probable cause that no reasonable police officer would have relied on it
      2. The affidavit underlying the warrant is too lacking in particularity that no reasonable police officer would have relied on it (e.g., fails to state particularity of place to be searched or things to be seized)
      3. The police officer or prosecutor lied to or mislead the magistrate when seeking the warrant
      4. When the magistrate is biased and therefore has wholly abandoned his neutrality **
  5. Valid Warrantless Search
    1. Definition: Unlike Good Faith Defense, Valid Warrantless Search is when there was no search warrant issued in the first place. Yet, still, a warrantless search is likely to be valid and permitted when probable cause to search exists and officers reasonably believe that contraband or other evidence may be destroyed or removed before a search warrant could be obtained. Thus, any evidence that was found during the valid warrantless search will be admissible as evidence at court
    2. Types of Valid Warrantless Search
      1. Search Incident to Lawful Arrest (i.e., search is made as soon as there was a lawful arrest) is valid even without a warrant. In order to fit into this category:
        
        arrest must be lawful (i.e., if the arrest is unlawful, then the search is unlawful too)
        
        arrest and search must be contemporaneous in time and place (e.g., the police officer cannot arrest a suspect at home, put them in the patrol car outside, and then re-enter and search the home) **
        
        search can be made in the wingspan (i.e., the area covered by the spread of the arms of the suspect, that is, the area from which the suspect might be able to obtain a weapon or destroy evidence) of the suspect
        
        Search Incidental to Law Arrest in Automobile
        
        The entire interior of the vehicle (e.g., any containers inside the car) is considered within the wingspan of the suspect except for the trunk
        
        Unlike in homes, the police may secure the suspect before searching the car
        
        Police may also search vehicles of recent occupants
        
        Police may seize a vehicle from a public place without a search warrant if they have a probable cause to believe that the automobile itself is a contraband **
        
        Police may conduct a pretextual stop of an automobile when the police had a probable cause to believe there was a legitimate traffic violation, which allows the officer to then investigate a separate and unrelated, suspected criminal offense
        
        Thus, any evidence that was found during the search above, the items may be seized even without a warrant, and will be admissible as evidence at trial against the D
      2. Inventory Search
        
        At the police station, before the incarceration of an arrestee, the police can search his or her personal belongings along with the impounded vehicle (i.e., vehicle that was seized and taken legal custody of due to an infringement of a law or regulation) even without a warrant
        
        Any evidence that was found during the inventory search, the items may be seized even without a warrant, and will be admissible as evidence at trial against the D **
      3. Protective Sweep
        
        Protective Sweep is a limited search that police are allowed to conduct when they arrest a person, even without a warrant. The purpose of a protective sweep is to allow officers to ensure their own safety and that of those on the scene, by searching for people, such as accomplices, who may pose a threat in the vicinity of the arrest
        
        Additionally, if police discover evidence of criminal activity that is seen plainly while conducting a protective sweep, the items may be seized even without a warrant, and will be admissible as evidence in court against the D **
        
        In order to fit into this "protective sweep" category:
        
        the police officer must be legitimately present on the premises,
        
        see, hear or smell such evidence in plain view, and
        
        have the probable cause (i.e., Trustworthy facts/information or knowledge sufficient for a reasonable person to believe that the D has committed or is committing a crime) to connect the item seized to a crime
        
        However, note that under Plain View, the police officer is not allowed to expand the scope of the search (e.g., even though the police sees a weed in window far away on entering a house, he or she cannot walk into the house to get the weed)
      4. Border Searches
        
        Searches at a border (i.e., point of entry or customs) do not require a warrant, probable cause, or even reasonable suspicion
        
        Searches away from the border are governed by the normal rules of "search and seizure"
        
        The items that are found during the border searches may be seized even without a warrant, and will be admissible as evidence in court against the D **
      5. Consent
        
        Consent must be voluntary and intelligent
        
        Third party Consent
        
        Where two or more people have, or are reasonably believed to have equal right to use a piece of property, then any one can consent to a warrantless search
        
        If both people are present and one consents to the search and the other does not consent, then the one who does not consent controls
        
        The items that are found under the consent of the party may be seized even without a warrant, and will be admissible as evidence in court against the D **
      6. Plain View
        
        Police officer may seize objects not described in a warrant when executing a lawful search or seizure if he or she observes the object in plain view and has probable cause to believe that it is connected with criminal activities even without a warrant, and the seized objects will be admissible as evidence in court against the D
        
        In order to fit into this category:
        
        the police officer must be legitimately present on the premises,
        
        see, hear or smell such evidence in plain view, and
        
        have the probable cause to connect the item seized to a crime
        
        However, note that under the Plain View, the police officer is not allowed to expand the scope of the search (e.g., even though the police sees a weed in window far away on entering a house, he or she cannot walk into the house to get the weed) **
      7. Terry Stop ( = Stop & Frisk)
        
        Definition: A brief non-intrusive police stop & frisk of a suspect
        
        Phases
        
        Phase 1: In order for a police to stop the suspect briefly, there needs to be a reasonable suspicion (i.e., a legal standard that applies in different criminal-law contexts, often where searches and seizures are involved. It requires that officers have an objectively reasonable basis for suspecting criminal activity before detaining a person)
        
        Phase 2: After the police found a reasonable suspicion, the police may briefly detain the suspect, require them to state their name and may frisk (i.e., a limited search for weapons) the suspect (here, note that the police may frisk the suspect only if the police reasonably believed that the person may be armed and presently dangerous)
        
        The scope of frisk: Generally, the frisk made be done on the outer clothing. Yet, frisk may be done on those areas which may be within the control of the suspect, pose a danger to the police, and a particular area of the clothing where police received a specific information that a weapon is hidden in that particular area of the clothing
        
        Plain feel: During the frisk, based on the "plain feel", the police may reach into the suspect clothing and seize any item that the officer reasonable believes is a weapon or a contraband.
        
        These weapon or a contraband may be seized even without the warrant, and will be admissible as evidence in court against the D **
      8. Evanescent Evidence
        
        Definition: Evidence that might disappear quickly if the police took the time to get a warrant
        
        Example) Drugs may be destroyed for the D might flush the drugs down the toilet; blood samples that could evaporate; DNA, hair or skin samples; e-mails, text messages that can be deleted quickly
        
        The items that are found above may be seized even without a warrant, and will be admissible as evidence in court against the D
      9. Hot Pursuit
        
        Definition: Urgent and direct pursuit of a suspect by police
        
        Rule: During the hot pursuit by the police of a fleeing suspect, the police may make a warrantless search and seizure, and pursue the suspect into a private dwelling of a non-suspect
        
        Hot pursuit are generally used in conjunction with the Plain View (see above) exception
        
        Example) Police in hot pursuit of a suspect may seize incriminating items that is in his or her plain view during the chase
        
        The items that are found under hot pursuit may be searched and seized even without a warrant, and will be admissible as evidence in court against the D **
      10. Wiretapping and Eavesdropping
        
        All wiretapping and eaves dropping require a warrant
        
        Exceptions
        
        Third party rat (i.e., the speaker assumes the risk that the person to whom he or she is talking is unreliable and may consent to monitoring or may be wired)
        
        Pen-register (i.e., A device or process that traces outgoing signals from a specific phone or computer to their destination. This is often used by law enforcement officers as the advanced counterpart of an outgoing call log. A pen register produces a list of the phone numbers or Internet addresses contacted)
      11. Body Intrusions
        
        The Due Process Clause under the Constitution (i.e., it states that no person shall be deprived of life, liberty, or property without due process of law) requires searches within a body of a person to be reasonable which involve balancing the need against the magnitude of the intrusion **
        
        Elements that must be satisfied in this case
        
        offers an adequate chance of finding evidence of wrongdoing,
        
        the measures adopted for carrying out the search are reasonably related to the search, and
        
        the search is not excessively intrusive
        
        Examples) Drug Tests are allowed to:
        
        persons seeking employment from a public employee
        
        railroad employees involved in an accident
        
        public school students who participated in extracurricular activities **

5. Confession

The 14th Amendment Voluntariness
1. Due process under the Constitution prohibits involuntary confessions or coerced confessions that shock the conscience **
  1. Note that determining voluntariness relies on the totality of the circumstances (i.e., a method of analysis where decisions are based on all available information and all the circumstances of a particular case, rather than one factor)
  2. Note that if the police officers violate the Due Process under the Constitution, any statements made by the D will be suppressed under the Exclusionary Rule (see above) **
The 5th Amendment of Miranda Rights
1. Definition of Miranda Rights: The constitutional requirement that once an individual is detained by the police officer, there are certain warnings a police officer is required to give to a detainee
  1. Brief statement of Miranda Warnings: ‘You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford a lawyer one will be appointed for you.’
2. Factors of Miranda Rights
  1. There are two factors that trigger the need for Miranda Warnings
    1. The D must be in custody (i.e., not free to leave, in a police care or in jail)
    2. There must be an interrogation by the police officer **
      1. Interrogation is any conduct where police knew or should have known would elicit an incriminating statement by the D
3. Waiver of Miranda Rights by the D
  1. The D will be presumed to have waived (i.e., voluntarily relinquish a right) its Miranda Rights if he or she does not knowingly, voluntarily and intelligently ask for his or her rights (e.g., the D needs to clearly state, “I will remain silent until my lawyer comes”) **
4. Exception to Miranda Rights
  1. Public Safety Exception
    1. Police officers need not give Miranda Warnings in a situation posing a threat to people for public safety reason
  2. Right to Terminate Interrogation
    1. Right to remain silent: Under the right to remain silent, even if the D has the right to remain silent once he or she has invoked his or her right, the police officer could later interrogate an unrelated crime
      1. Right to an attorney: However, under the right to an attorney, if the D invokes this right, police officers cannot resume interrogating the D until his or her attorney has been made available to the D even if the interrogation relates to an unrelated crime **
        
        Note that while the statement by the D, that was achieved by the police officer by violating Miranda Rights of the D, are barred under exclusionary rule (see above), it is not barred under the fruit of the poisonous tree (see above). However, the statement could be used to impeach the inconsistent testimony of the D
5. Effect of Miranda Violation
  1. The statements (i.e., by the D that was achieved by the police officer by violating Miranda Rights of the D) are barred under exclusionary rule(see above) (i.e., yet, the statements are not excluded under the ‘fruit of the poisonous tree (see above)’)
  2. However, the statements could be used to impeachthe testimony of the D

6. Right to Counsel

Types of Right to Counsel
1. The 5th Amendment Right to Counsel
  1. Definition: As soon as the D asserts his or her right to terminate the interrogation and requests an attorney, re-initiation of the interrogation by the police officer without his or her attorney present violates the Right to Counsel **
    1. Note that this Right to Counsel will be invoked when a D on hearing the miranda warnings by the police officer says “I want a lawyer” until the formal charges have been filed against the D
  2. Rule
    1. This right is not offense specific: This means the police officer may not inquire as to unrelated, uncharged offenses of the D to the D until the formal charges have been filed agains the D **
2. The 6th Amendment Right to Counsel
  1. Definition: As soon as the D asserts his or her right to terminate the interrogation and requests an attorney, re-initiation of the interrogation by the police officer without his or her attorney present violates the right to counsel
    1. Note that this right to counsel will be invoked after the judicial proceedings have commenced (i.e., formal charges have been filed) against the D. Namely, after the D is formally charged, the police officers cannot interrogate a D unless an attorney is present with the D
  2. Rule
    1. This right to counsel attaches at all critical stages of prosecution after formal charges have been filed. Thus, after formal charges have been filed, the police officer cannot interrogate the D without his or her attorney present
    2. This right is offense specific: This means after the D is formally charged, the police officer may inquire as to unrelated, uncharged offenses of the D to the D even if without his or her attorney present **
  3. Waiver of Right to Counsel by the D
    1. D may waive (i.e., voluntarily relinquish a right) his or her Right to Counsel
  4. Right to Counsel during Pre-Trial Identification Procedure
    1. Definition of Pre-Trial Identification Procedure
      1. The procedures like mug shots, lineup (i.e., a line of persons assembled for possible identification of a suspect by a witness), showup (i.e., a presentation of a criminal D or arrestee individually to a witness for identification), and photograph arrays (i.e., a collection of photographs that are shown to a witness to determine if the witness can recognize a person involved in the crime)
        
        Note that any lineup, show-up, or photo identification will be inadmissible as violative of due process where the identification is “unnecessarily suggestiveand conducive to irreparable mistaken identification”. Where an identification is both suggestive and unnecessary, it can still be admissible if it is reliable based on a “totality of the circumstances”
        
        Note that the difference between 'lineup' and 'showup' is that a lineup requires the witness to identify the suspect from a group of people while a showup is a one on one identification
    2. Rule
      1. The D is entitled to Right to Counsel at lineup and showup, however, there is no Right to Counsel in mug shots and photograph arrays **
        
        Note that certain pre-trial identification techniques could be very unnecessarily suggestive (i.e., flawed) and likely to produce a misidentification which is in violation under the due process. The remedy in this case is to exclude the pre-trial identification

7. Privilege against Self-Incrimination

Definition of Self-Incrimination: To be forced or coerced to testify against oneself **
1. Definition of Privilege against Self-Incrimination
  1. A privilege that bans a compelled testimony (i.e., a D to be compelled to give testimony or take a lie detector test) that involves self-incrimination in both civil and criminal court
Rule
1. If a D answers any incriminating questions during the civil proceeding, the D cannot later bar that answered statement from being used against him or her in a criminal proceeding
2. It is unconstitutional for a prosecutor to make a negative comment on the failure to testify by the D, or the D remaining silent on hearing a miranda warning **
3. The privilege must be claimed in civil proceedings to prevent the privilege from being waived for a later criminal prosecution
4. The privilege may be eliminated if:
  1. there was a grant of immunity (i.e., If a D refuses to answer or to produce evidence based on a claim of the privilege against self-incrimination, a judge may grant immunity. That is, if the prosecutor or petitioner makes a written or verbal request on the record to the court that the judge grant immunity and order a D to answer or produce evidence, the D will need to answer or produce evidence) **
  2. there is no possibility that the D will be self-incriminating oneself by answering or producing evidence
    1. This could happen when:
      1. the statute of limitations (i.e., deadline to take action against a person) has passed as to the crime at issue, for which the D is asked to give information, thus D cannot be prosecuted in court and therefore there is no possibility the D will be self-incriminating oneself
      2. the D has already been convicted or acquitted for the crime, for which he or she is asked to give information, thus the D cannot be retried for the crime and therefore there is no possibility the D will be self-incriminating oneself
  3. the D has waived his or her privilege against self-idiscrimination**

8. Right to Confront Witness

Definition of Right to Confront Witness
1. Right in criminal case to confront an adverse witness (i.e., a witness whose relationship to the party is adverse and hostile because the testimony the witness will give will prejudice the party)
Rule
1. The right to confront witness applies:
  1. when introducing a statement of a co-D implicating the other, unless:
    1. the portion that states the D can be redacted (i.e., edited),
    2. the confessing D takes the stand and subjects himself or herself to cross-examination, or
    3. to refute the claim of the D that his or her confession was acquired coercively
2. Confrontation Clause
  1. Definition
    1. Confrontation Clause provides that ‘in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him or her.’ This procedural guarantee applies to both federal and state prosecutions
  2. Rule
    1. Confrontation Clause & Testimonial Hearsay Statements
      1. Testimonial hearsay statements made to the police may be used at trial only if (a) the declarant (i.e., the person who has stated the statement) has become unavailable, and (b) the D has had a prior opportunity to cross-examine the accuser who is against the D
        
        Note that if a statement is not hearsay at all, Confrontation Clause will not apply
      2. Definition of Testimonial Hearsay Statements
        
        A testimonial statement is one that looks like the kind of testimony that would be offered at trial in aid of prosecution: it identifies the D, accuses the D of wrongdoing, describes the circumstances of the crime, and establishes elements of the offense the D might have committed
        
        Example of Testimonial Hearsay Statements
        
        Hearsay statements by victims and witness describing the conduct of the D, made to police after the emergency situation has past and the investigation has begun, are testimonial; Depositions, affidavits, transcripts of prior testimony, and other formalized statements are testimonial if it is done after the emergency situation has past and the investigation has begun; Police investigative records, such as lab reports of drug tests, are testimonial if it is made after the emergency situation has past and the investigation has begun
        
        Note that emergency 911 calls, which are made to seek help during an emergency situation, are usually not testimonial; and statements to police about the identity, type of vehicle, and state of mind of the D that will assist the police in resolving a current emergency situation where the D is still at large are not testimonial **

9. Laws of Trial

Jury Trial
1. Rule
  1. If a D is charged with offense where the authorized sentence exceeds six months, the D has a constitutional right to jury trial
  2. Challenges for cause are made when voir dire (i.e., a preliminary examination to determine the competency of a witness or juror) reveals that a juror is not qualified, able, or fit to serve in a particular case. Lawyers generally have an unlimited number of for cause challenges available to exclude the jury
  3. It is unconstitutional for the prosecution or the defense to exercise peremptory challenges (i.e., the right of the plaintiff and the defendant in a jury trial to have a juror dismissed before trial without stating a reason) to exclude the jury on account of race or gender
  4. If a number of juries during trial is six people, the verdict must be unanimous, however, when the number of juries are twelve people, the verdict need not be unanimous
Plea & Plea Bargaining
1. Definition: An arrangement between a prosecutor and a D whereby the D pleads guilty to a lesser charge in the expectation of leniency
  1. Rule
    1. In a guilty plea the judge must advise D directly and on the record as to the:
      1. nature of charge
      2. description of penalty
      3. the constitutional rights the D is giving up by pleading guilty
      4. right to plead not guilty and demand a trial
  2. Remedy
    1. D may withdraw his plea and plead again
    2. Note that the Supreme Court will not disturb guilty pleas after sentencing, except when:
      1. plea was involuntary done by the D (i.e., a force was included by authority)
      2. lack of jurisdiction
      3. ineffective assistance of counsel
      4. failure to keep the plea bargain
Ineffective Assistance of Counsel
1. Rule
  1. Without the deficiency performance by the counsel, there is a reasonable probability the result of the proceeding would have been different (i.e., the D would not have been convicted, or sentence would have been shorter)
  2. In order to have his or her conviction to be reversed, or his or her sentence to be shortened, the D must point out the deficiencies (i.e., counsel did not challenge the physical evidence of prosecution, did not investigate the witnesses of the prosecution, did not conduct a DNA testing, did not report a conflict of interest, not to object to improper testimony, and did not address concerns about potential prosecutorial misconducts or jury misconduct)
2. Remedy
  1. There are remedies if a court finds that a counsel was ineffective. Depending on when the ineffectiveness occurs in a case, a court may:
    1. appoint a new defense counsel (i.e., this applies in criminal cases not civil cases),
    2. if a trial is concluded, reverse any guilty verdict and order a new trial, or
    3. vacate a sentence and re-sentence the D
Speedy Trial
1. Definition
  1. D in a criminal case has a right to a speedy trial under the Constitution, and the right does not attach until the D has been arrested or charged
  2. While the Constitution does not define a speedy trial, the federal Speedy Trial Act and state laws provide some guidance on when the right may be violated
  3. Generally, violation of the speedy trial rule means that any conviction/sentence must be deleted, and the charges must be dismissed if the case has not reached trial
  4. An important reason for the right to a speedy trial is to prevent a D from being held in custody for a long time, only to eventually be found innocent. If the D is denied bail or cannot pay the bail amount, they will remain in jail until their trial date. An innocent citizen should not be required to spend a long time incarcerated. Also, the right to a speedy trial allows the defense to gather and present evidence while it is still new (i.e., a witness may struggle to recall the events leading to the charges if a long period of time passes before trial) **

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