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CRIMINAL PROCEDURE

CRIMINAL PROCEDURE. Class Six. Today’s Topics: Fourth Amendment. Standing Derivative Evidence Independent Source Inevitable Discovery Good Faith Alternatives. Today’s Topics: Fifth Amendment. Privilege Against Self Incrimination Policies Scope Compulsion Holder

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CRIMINAL PROCEDURE

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  1. CRIMINAL PROCEDURE Class Six

  2. Today’s Topics: Fourth Amendment • Standing • Derivative Evidence • Independent Source • Inevitable Discovery • Good Faith • Alternatives

  3. Today’s Topics: Fifth Amendment • Privilege Against Self Incrimination • Policies • Scope • Compulsion • Holder • Non-Testimonial Evidence • Records & Required Documents

  4. STANDING • Issue: Who can claim 4th Amd violation?

  5. STANDING • Challenging party’s relationship to search conducted or thing seized • Current Supreme Court view more limited than past • Personal rights • No vicarious assertion

  6. Target Standing • Defendant does NOT have standing to raise 4th Amendment claim merely because he was target of search that netted evidence gov’t now wants to introduce against him at trial • Rakas v. Illinois

  7. Standing Principles • D must have reasonable or legitimate expectation of privacy in area searched • D’s interest does NOT have to reach level or recognized property interest

  8. Ownership & Standing • Possible to have possessory interest in property seized while failing reasonable expectation of privacy requirement

  9. Co-Conspirators & Standing • No co-conspirator exception to standing requirements of Rakas

  10. EXCLUSIONARY RULE

  11. Theories of Admissibility • Derivative Evidence & Attenuation • Independent Source • Inevitable Discovery • Use in Non-Criminal Proceeding • Use for Impeachment • Good Faith Exception

  12. Derivative Evidence • Fruit of the Poisonous Tree • Evidence “derived from” particular illegal search or seizure

  13. Attenuation • Concept: What is the connection between the illegal search and the proffered evidence • Query: Has the causal chain been broken?

  14. Application in Confession Cases • Brown v. Illinois: Was confession fruit of illegal arrest or was taint attenuated by Miranda warnings? • Dunaway v. New York

  15. Application in Confession Cases • Taylor v. Alabama • Rawlings v. Kentucky [statements “spontaneous reaction” to discovery of evidence] • New York v. Harris [custody not unlawful]

  16. Independent Source • Concept: Allows evidence discovered during unlawful search if that evidence is discovered later through an untainted source • Hint: Imagine parallel lines of investigation that never intersect

  17. Relation to “Rediscovered” Evidence • Murray v. United States • Restrictions • Decision to seek warrant not prompted by what saw during initial entry • Information obtained during illegal entry cannot form any material part of basis for search warrant

  18. Inevitable Discovery • “Hypothetical independent source” • Prosecution must show illegally obtained evidence would have been discovered through legitimate means that were independent of official misconduct

  19. Example • Nix v. Williams • Critical feature: Gov’t obtained no benefit from constitutional violation

  20. Inevitable Discovery, cont. • Is doctrine limited to situations where officers acting in good faith? • Who has burden of proof? • What is the standard?

  21. “Other Uses” & E/R • Concept: Exclusionary rule generally will operate to prevent introduction of illegally obtained evidence during the gov’t case in chief • Exceptions exist: Inevitable discovery, independent source, good faith • Issue: Is evidence “excludable” in scenarios other than prosecution’s case in chief?

  22. Use in Non-Criminal Proceedings • Grand Jury • Civil Tax • Civil Deportation • Habeas Actions • Sentencing

  23. Use in Criminal Trial • Issue: Although illegally obtained evidence cannot be used to establish essential element of offense, can it be used for other purposes in a criminal trial?

  24. Impeachment • D opens door [e.g., “I’ve never, ever been arrested before.”] • Rationale: E/R should not be used as license for perjury • Cross-examination of D raises issue • Limitation:Cross-examination of defense witnesses

  25. Good Faith • Exception to general rule that illegally obtained evidence cannot be used during prosecution’s case in chief • Usually encountered when search warrants are found defective, but Supreme Court has extended further

  26. Good Faith Reliance on Defective Warrant • Issue: What goal of exclusionary rule is furthered by prohibiting evidence obtained by officers relying on search warrant ultimately found not to be supported by probable cause? • United States v. Leon

  27. Exceptions to the Exception • Magistrate misled by information affiant knew or should have known was false • Issuing magistrate wholly abandoned judicial role of neutral and detached • Affidavit so lacking indicia of probable cause that unreasonable for officer to rely on it • Profoundly facially deficient

  28. Justifying Good Faith Exception • E/R designed to deter police misconduct, not punish judge error • No evidence suggests judges & magistrates inclined to ignore 4th Amd • No basis to believe exclusion will have significant deterrent effect on issuing magistrate

  29. Application to Warrantless Searches • Issue: Can there be “good faith” objectively reasonable warrantless searches? • Illinois v. Krull (statute) • Arizona v. Evans (clerical error)

  30. Alternatives to E/R • Tort recovery • Criminal • Administrative

  31. Exercise: Evaluating Proposed Solutions • Describe your understanding of each alternative [tort recovery, criminal prosecution, administrative action] and be prepared to give a definition or example of each • Identify a minimum of 3 problems with each of the 3 proposed alternatives

  32. Chapter Three: CONFESSIONS Self-Incrimination and Confessions

  33. Privilege Against Compelled Self Incrimination • Seen in variety of contexts: • traditional confessions to police • trial testimony • subpoenas • production of records

  34. The Debate: Con • Inconsistent with values we teach and prize in most of our relationships • Impedes assessment of truth • Stands in the way of convictions • Can prevent restitution to crime victims • Frequently protects the guilty

  35. The Debate: Pro • Cruel trilemma • [self-accusation, contempt, perjury] • Protect the innocent • Unreliability of coerced statements • US preference for accusatorial system • [cf inquisitorial systems] • Deter improper police practices • Fair balance between State & individual

  36. Scope of Privilege • Fifth Amendment • Nor shall [any person] be compelled in any criminal case to be a witness against himself • Fundamental Questions • What is criminal • Where [in what forum] can privilege be asserted

  37. Fifth Amendment Privilege: A Quiz When Where How

  38. Quiz: In which forum can D successfully assert? • Forfeiture Proceeding • Grand Jury • Civil Trial • Criminal Trial • Bankruptcy Action • Administrative License Revocation

  39. Quiz: “Criminal” under Privilege? • Probation Revocation? • Juvenile Adjudication of Delinquent Conduct? • Divorce? • Foreign Prosecution? • Forfeiture Proceeding? • Civil Commitment (sexual violent predator)? • Wrongful Death Action following Vehicular Homicide?

  40. Quiz: Sufficient Compulsion? • You receive subpoena • You are threatened with contempt for refusing to testify • You refused to testify and are offered immunity

  41. Quiz: Sufficient Compulsion? • State law requires you to give information as condition of maintaining current contract and securing future contracts • You are required to file annual IRS return

  42. Quiz: Sufficient Compulsion? • Prosecution secures your journal, which you have written in faithfully since college • Your uncle is incarcerated as a sex offender for a crime he did not commit. He is offered “incentives” to participate in sex offender program

  43. Scope: “Criminal Proceedings” • Boyd • Hitchcock • In re Gault

  44. “Non-Criminal Proceeding” • Murphy • Piedmont • L.O. Ward • Allen

  45. Forum of Invocation • Judicial? • Administrative? • Legislative?

  46. Basis of Invocation • To protect against use of incriminating statements in subsequent criminal prosecutions

  47. Foreign Prosecution • Issue: Does 5th Amd protect against the risk of foreign prosecution? • Scenario: X is asked questions in deportation hearing. X fears that truthful answers will provide evidence that could be used against him by other nations

  48. Potential Use in Foreign Prosecution, con’t • Balsys • 5th Amd does not provide personal testimonial inviolability • “Conditional” protection [e.g. impact of immunity] • When might be applicable -- stalking horse

  49. COMPULSION • 5th Amd protection against self incrimination only triggered when self incrimination is compelled by government • Issue: How is compulsion shown?

  50. Examples • Contempt • Other state-imposed sanctions • Contrast Lefkowitz v. Turley with McKune v. Lile

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