CJ227

1. CJ227 Unit 4 Seminar

2. Expectations for the Week • Read chapters 7 and 8 • Complete the Unit 4 Essay • Follow the Web Field trips and/or web resource links • Post to the discussion board • Take the Unit 4 quiz

3. Analysis and Application Essay • Read the case study • In essay format, answer the 5 questions • Paper must include cover page and list of references in APA format • Internal citations must be included • Pages should be double spaced and in 12 point font

4. Midterm Week • During unit 5 you will not participate in a a discussion forum, nor will you attend seminar • You will complete the midterm exam • The exam is timed at 2 hours • There are 50 objective questions based on material covered in the first half of the course

5. Seminar Topic In this week’s seminar we will discuss the three amendments to the constitution that specifically deal with defendant’s rights. Those amendments include the 4th, 5th and 6th amendments. We will focus specifically on the 5th and 6th amendment rights afforded to defendants.

6. 4th amendment protection • Freedom from unreasonable searches and seizures, including searches of persons and property • Searches can occur with a warrant based on probable cause and narrowly tailored to the specific items to be located and the place to be searched • Searches can also occur without a warrant if exigent circumstances exist (ex. motor vehicle search, hot pursuit, search incident to arrest, etc.)

7. Exclusionary Rule Also known as the “fruit of the poisonous tree” doctrine Evidence seized in violation of the 4th amendment can be excluded at trial.

8. Fifth Amendment “No person shall…be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without due process of law…” United States Constitution, Amendment 5

9. Miranda Warnings • Right to remain silent • Anything you say can be used against you in court • Right to an attorney to be present during questioning • If you cannot afford an attorney, one will be appointed to you • You may terminate the interview at will

10. Miranda v. Arizona Landmark case: • Miranda was arrested an taken to police station for questioning • young and uneducated • confessed after 2 hours of questioning • confession was used as evidence during trial and Miranda was convicted Issue: Whether the police should inform a suspect who is in custody and under interrogation of his/her constitutional right to be free from self incrimination and the right to counsel prior to questioning.

11. Miranda Holding The court ruled that “when an individual is taken into custody or otherwise deprived of his freedom by the authorities and is subject to questioning, the privilege against self incrimination is jeopardized. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has a right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation.” Miranda v. Arizona, 384 U.S. 436 (1966).

12. Custody A suspect is in custody when s/he is under arrest or somehow deprived of his/her freedom. This is determined based on the totality of the circumstances. Would a reasonable person feel that s/he is unable to leave?

13. Interrogation • When the police specifically ask questions that may incriminate the suspect. • When the police create the functional equivalent of an interrogation. “A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation…” Rhode Island v. Innis, 446 U.S. 291 (1980) In the Innis case, the court ruled that there was not interrogation. Two officers were speaking to each other in the presence of a suspect. They talked about how it would be terrible if one of the handicapped students from the school near the crime scene would find a gun and get hurt. The suspect then told of the location of the gun.

14. Brewer v. Williams This is the case of the famous “Christian burial speech”. Here the officers did not specifically question the suspect, but spoke to the suspect about how the parents of the missing girl should have the ability to give their child a proper Christian burial. As a result the suspect showed the officers where the body could be found. Brewer v. Williams, 430 U.S. 387 (1977).

15. Innis case Officers talk to each other Suspect interrupted and gave confession Not considered the functional equivalent of interrogation Brewer case Officers talk to suspect Appeal to suspect’s religious beliefs Police behavior was the functional equivalent of interrogation Comparison of Innis and Brewer

16. Waiver of Miranda • Waiver must be an intelligent and voluntary waiver • Suspect must know what s/he is doing and understand consequences • Must be competent to make the decision • Can not be coerced into waiving rights • Prosecutor must prove that the defendant made a voluntary and intelligent waiver

17. Miranda not needed if…. • Officer does not ask questions. No interrogation…no Miranda • General questions are asked to investigate but not incriminate • Suspect volunteers information before police ask questions • Line up or photo array (not testimonial evidence) • There is a threat to public safety New York v. Quarles, 467U.S. 649 (1984) The suspect ran out of the store after the victim just informed police that he had entered with a gun. Officers see suspect and when they notice an empty holster ask, “Where’s the gun?”. Court ruled that there was an immediate danger to the public.

18. 6th Amendment Rights • Right to fair trial with impartial jury • Right to counsel • Right to be protected from double jeopardy • Right to confront and cross examine witnesses • Right to speedy trial

19. Right to Trial by Jury • 6th amendment does not require jury to be made up of 12 member. Minimum number allowed is 6. • In federal criminal cases a unanimous verdict is required, but this is not required in all states • Right to jury trial is limited to “serious” offenses or those for which more than 6 months imprisonment may be imposed • Defendant can waive the right to jury trial • Accused has the right to a fair trial by am impartial jury (issues of pretrial publicity, change of venue, sequestering of the jury)

20. Right to Counsel According to the 6th amendment to the constitution...“in all criminal prosecutions the accuse enjoy the right…to have the assistance of counsel for his defense”. This right applies during every critical stage of the proceeding, and has been made applicable to the states since the landmark case of Gideon v. Wainwright, 372 U.S. 335 (1963).

21. Critical Stage of Proceeding Proceedings in which the right to counsel has been afforded include: • during a line up if formal charges have been filed (otherwise no right exists) • arraignment • trial • sentencing • appeal

22. Court Appointed Counsel Applies when: 1. The crime is a serious offense (as discussed under Gideon) or 2. If the crime is a misdemeanor but there is a possible jail sentence.

23. Ineffective assistance of counsel Defendant must show: 1. Deficient performance on counsel and 2. There is a reasonable probability that the proceeding would have turned out differently but for the deficiency in counsel’s performance. Strickland v. Washington, 466 U.S. 668 (1984)

24. Fifth Amendment Protects right against self incrimination Applies only during custodial interrogation Right is given by police Sixth Amendment Provided to defendant for protection during critical stages of proceeding Applies both before, during or after trial Judge may assign attorney if defendant is indigent 5th v. 6th amendment right to counsel

25. Double Jeopardy • Defendant can not be tried twice for the same crime • If one case is civil and the other is criminal, it is not double jeopardy • Ok to be tried for same offense indifferent jurisdictions (ex. state and federal) • Does not apply in mistrial or when defendant asks for new trial or appeal

26. Right to Confront Witnesses • Applies to all criminal prosecutions, but not investigative proceedings (ex. grand jury) • Includes right of defendant to be present in the courtroom during trial • Defendant has the right to cross examine those witnesses against him/her

27. Right to Speedy Trial Based on: • Length of the delay • Reason for the delay • Whether the defendant asserts the right • Whether the delay could be prejudicial to the defendant Barker v. Wingo, 407 U.S. 514 (1972) All of the above factors are taken into consideration

28. Questions? Erego@kaplan.edu 508-728-6043 Office hours: Sundays 6:00 -8:00 p.m. EST