Duty of Confidentiality



Exclusionary Rule

Under this rule, not only illegally obtained evidence must be excluded at trial, but also all evidence obtained or derived from exploitation of such evidence taint amount to fruits of the poisonous tree and must be excluded.

- Exceptions 1: 1- if the taint is purged (dissipation of taint) or the evidence exploited is too attenuated and remote, or 2 -inevitable discovery (is very rare & narrow); 3) independent source; 4) intervening act of free will; 5) inevitable discovery; 6) evidence obtained in violation of knock, notice

- Exceptions 2: 1) Grand jury; 2) civil cases, 3) internal agency; 4) Parole Revocation; 5) impeachment purposes (illegally obtained evidence, even in violation of Mirnada, can be used for impeachment purposes if ( takes the stand – but coerced and truly involuntary confession can not be used for impeachment)

- Good Faith Reliance Exception: Exclusionary rule does not apply if the officer in good faith relied on a 1) warrant containing computer or clerical error, or 2) a statute or judicial opinion later chanted, 3) or a defective search warrant unless 1-the underlying affidavit was so lacking in probable cause that it could not reasonably be relied on (i.e., “good information (without more) is insufficient; it was conlusonary as PC) 2-the warrant was defective on its fact (i.e., failure to state w/ particularity the thing to be seized and place to be searched), 3-the affiant lied to or misled the magistrate, or 4-the magistrate has “wholly abandoned his judicial role”

Fourth Amendment

The Fourth Amendment provides that people should be free from unreasonable searches and seizures.

Arrest

An arrest requires probable cause while an investigatory detention can be based on reasonable suspicion.

- Seizure of person – Arrest: A seizure occurs when a reasonable person would believe that she is not free to leave or terminate an encounter with the government. This requires a physical application of force by the officer or a submission to the officer’s show of force

- Warrant: A warrant is generally not required before arresting someone in public places provided that there is Probable cause for the arrest. However, arresting someone in his home requires arrest warrant unless there are exigent circumstances justifying warrant-less arrest i.e., hot pursuit, ( would disappear, or there is O’s consent (in home of 3rd party, search warrant of that home needed)

Validity of Warranty (search/ seizure)

To be valid, a warrant must 1) be issued by a neutral and detached magistrate, and 2) the underlying affidavit must set forth sufficiently trustworthy facts to warrant a reasonable to believe that the suspect has committed or is committing a crime (existence of PC); 3) the warrant must describe w particularity the place to be searched and the item to be seized

- Sufficiency of declaration: Declaration is sufficient to warrant a reasonable person to believe that the suspect has committed or is committing a crime. The declaration must generally set forth sufficiently reliable and trustworthy information as to the essential facts constituting the offense. (hearsay declarant?)

- Probable Cause Requirement: An arrest must be based on a probable cause. Probable cause to arrest exists if at the time of arrest, there are sufficient trustworthy facts and circumstances to warrant a reasonable person to believe that the suspect has committed or is committing a crime.

- Hearsay informant: An issue arises as to whether the hearsay information provided by the informant is sufficiently reliable to warrant a finding of PC.

- in determine reliability of informant’s tip, under older view the basis of informant’s knowledge as shown by specificity of details provided shows that he has personal and first hand knowledge of (’s conduct – it is more of an insider source than a passerby. Also, info provided is a predictive info and which enables the police to test, verify and corroborate the reliability of the info – however the officer must observe something that verifies the criminal activity and not any general activity (use this when informer has no track record) – on the other hand, under prevailing rule, under the totality of circumstances because there are corroborating evidences by police to verify the accuracy of the tip, there is sufficiently trustworthy information for a reasonable person to believe that ( has committed or is committing the crime. Hence, there was PC.

- Scope of search? (if there is a warrant, watch that PO does not exceed the scope of search)

- Good Faith Reliance Exception (raise it if the warrant was invalid)

Investigatory Detention – Stop & Frisk

Generally, police have the authority to briefly detain a person for investigatory purposes if the police have a reasonable suspicion supported by articulable facts (i.e., not merely a hunch) of criminal activity or involvement in a completed crime. If the police also have reasonable suspicion that the detainee is armed and dangerous, they may conduct a carefully limited search of the outer clothing i.e., frisk for weapons. However, (duration & Scope) the detention must be no longer than necessary to conduct a limited investigation to verify the suspicion. If during the detention probable cause arises (i.e., seeing criminal evidence in plain sight) the detention becomes an arrest.

- Duration and Scope of Detention To be valid, the investigatory stop must be relatively brief and no longer than is necessary to conduct a limited investigation to verify the officer’s suspicion (typically 5 to 10 min max). Development of PC: if during an investigatory detention, the officer develops PC i.e., sees criminal evidence within his plain view, the detention becomes an arrest, and the officer can proceed on that basis. i.e., he can conduct a full search incident to that arrest

- Exception: Roadblocks: However, if special law enforcement needs are involved, the court allows police to set up roadblocks to stop cars without individualized suspicion that the driver violated some law. To be valid, the roadblock must: 1-stop cars on the basis of some neutral, articulable standard (i.e., every car or every third car), 2-be designed to serve purposes closely related to a particular problem related to automobile and their mobility (roadblocks for DUI also qualifies as “public policy exception” and balancing the degree of intrusiveness (which is minimal) vs state’s compelling interest in safety –but road blocks for drugs is invalid (only DUI roadblocks may be valid)

Search:

4th amendment prohibits unreasonable search and seizure. This amend is made applicable to the state and local gov through the incorporation of Due Process clause of the 14th amend.

- First inquiry is whether ( has standing to challenge a 4th amend violation. To have standing, ( must have LEPAS: legitimate expectation of privacy in area srchd

- Overnight guests do have standing; Passengers in the car that do not claim to own the car or the stuff taken out of the car DO NOT have standing to object just b/c they were present when search took place. A drug dealer briefly on the premises of someone else, solely for the business purpose of selling drugs, does NOT have standing to object to the search of those premises.

- Second inquiry is whether there was “a” search. Search occurs when there is a 1) governmental intrusion into an area where ( has 2) REP and it is one which society recognizes it as reasonable

- Gov Conduct Required: this is state action requirement. Gov agents include only the publicly paid police and those citizens acting at their direction. Private security guards are not gov agents unless deputized w power to arrest

- There is no such a thing as off duty police officer: they are always acting for gov even PO is on vacation

- NO EP in: One does not have a reasonable expectation of privacy in objects held out to the public, such as: Sound of one’s voice; One’s handwriting; paint on the outside of car; account & bank records; monitoring location of a car on public street or driveway; anything that can be seen across the open fields; anything that can be seen from flying over public navigable airspace; the odors emanating form one’s luggage – canine sniffs; one’s garbage left for collection – abandoned property; false friends, misplaced confidence; telephone numbers dialed, pen..

Open Fields Doctrine

Under this doctrine, areas outside the curtilage are generally “held out to the public” and thus one cannot have a R & J EP in such areas. However, court will also consider 1.building’s proximity to the dwelling, 2. whether it is within the same enclosure that surrounds the house such as fence, 3.the purpose for which the place is used (activities of the home or other), and 4.steps taken to protect the area form view from outside 5. Degree of intrusiveness by gov – argue them

Warrant-less search

A warrant-less search is per se unreasonable unless it falls within one of the well-delineated exception to warrant requirement.

Search Incident to Lawful Arrest – SILA

Under this exception, pursuant to a lawful arrest, the police may search 1-the arrestee and 2-areas within his immediate control in which he might reach to obtain weapon or destroy evidence i.e., wingspan. (Police need not be fearful) (+ protective sweep if…)

- Arrest must be lawful If the arrest is unlawful, any search incident to that arrest is also unlawful

- Geographic Scope – Wingspan Wingspan of a person depends on his physical and factual condition (i.e., a senior citizen’s wingspan is much smaller than a husky 25 year old athlete)

- Arrestee’s wingspan follows him as he moves i.e. if the arrestee is allowed to enter his home, police may follow and search areas within his wingspan in that room, but cannot go beyond arrestee’s wingspan and search other rooms (unless protective sweep applies: RS to believe accomplices might be present).

- Contemporaneous time and place: A search incident to an arrest must be contemporaneous in time and place with the arrest

- Occupant of automobile: search incident to a lawful custodial arrest of occupant of an automobile extends the entire passenger compartment, including closed containers, but not trunk.

- Protective Sweep Exception **

The police may make a protective sweep of areas beyond the (’s wingspan if there is reasonable suspicion to believe that accomplices may be present (i.e., police can go beyond (’s wingspan and search adjoining room and even entire house as incident to lawful arrest if they have RS of presence of an armed accomplice)

Inventory Search – & inventory search following lawful impounding

Provided there are standard police procedures, an officer is permitted to inventory all effects lawfully in police possession. 1. The police may search an arrestee’s personal belongings even days after he has been arrested & while still is in jail. 2. The police may search entire vehicle, including closed containers within vehicle that has been impended. Even days after!

Automobile Exception

If the police have probable cause to believe that a vehicle contains contraband, fruits, instrumentalities, or evidence of a crime, they may search the entire vehicle, including trunk and all containers within the vehicle that is large enough to contain the item for which they have probable cause to search. Additionally, if the police have probable cause to believe that the car itself is contraband, it may be seized from a public without a warrant.

- * Rationale: inherent mobility of the vehicle creates exigency & people have a lesser expectation of privacy in their vehicle than their home

- The PC can arise after ( is stopped, but has to arise before the police search anything or anybody, i.e., officer stops ( to give him a traffic ticket, sees child pornography on passenger side. Based on that evidence, police has PC to search entire car, including trunk & containers large enough to hold photos

Plain View

Under plain view doctrine, the police may make a warrant-less seizure of property when they 1) are legitimately on the premises & 2) see evidence in plain view 3) which give the officer PC to believe that the item is evidence, contraband, fruits or instrumentality of crime

- Moving an item For Plain view exception to apply, the evidence must (really) be in plain view. If the officer has to move something to see the evidence in plain view, such movement constituted an invalid search because of the lack of probable cause and thus, plain view exception will not apply.

- P/V includes touch, smell, hearing Plan view includes anything that officer can see, smell, hear, or touch so long as the incriminating nature of the evidence is immediately apparent to the officer who is legitimately on the premises.

Consent

A warrantless search is valid if the police have a voluntary and intelligent consent. Scope of the search is limited by the scope of consent (however, it may extend to areas to which a reasonable person under the circumstances would believe it extends)

- 3rd Party Consent authority: when two or more people have apparent equal right to use or occupy (co-occupant) the premises, any one of them can consent to the search and any evidence obtained may be used against the other. However consent applies to common areas, and not to private, reserved areas where the non-consenting party has exclusive control.

- Apparent authority

So long as the police reasonably believed that the person had authority to consent, the search is valid even if it turns out that the person consenting did not actually have authority to consent. i.e., apparent authority

Stop and Frisk

A police officer may stop a person without probable cause for arrest if she has an articulable and reasonable suspicion of criminal activity. If the officer also has reasonable believe that the person may be armed and dangerous, she may conduct a protective frisk (pat down) of the outer clothing for concealed weapon (only weapon & presently dangerous)

Exigency, Hot Pursuit, Evanescent

Exigency

There is no general emergency exception to warrant requirement, however under certain circumstances exigency may justify warrantless search. i.e., Police may seize without warrant evidences that is likely to disappear before a warrant can be obtained or it would be too late to save a life etc ..

Hot Pursuit

Police officers in hot pursuit of a fleeing felon may make a warrantless search and seizure and may even pursue the suspect into a private dwelling.

Evanescent

Police may seize without warrant evidence likely to disappear before a warrant can be obtained i.e., blood test is valid under this.

- Watch out the manner the Gov conducts its search; if it socks the conscious of the court, the search is invalid (see below)

Administrative Search

- Administrative searches by inspectors pursuant to health and safety code or statute of private residence or commercial building requires warrant for searches, but the PC required to obtain a warrant is more lenient than for other searches. A showing of a general and neutral enforcement plan will justify issuance of a warrant

- Contaminated food or spoiled : Administrative searches for seizure of spoiled or contaminated food do not require search warrant.

- Highly regulated industries: Administrative searches of a business within a highly regulated industry does not require search warrant. (Liquor & narcotic; Guns; Strip mining; Junkyards (but not car rentals, leasing car or manufacturing it)

- Airport Search & detention: Police do not need to have P/C to make a warrantless administrative search of airline passenger. However, the resulting detention must be brief under the circumstances to verify officer’s suspicion. (Airport search does not need P/C, or R/S, or warrant)

- Public School (school/child): A public school official can reasonably search a student and her effects, provided there is a reasonable belief that the student is violating a school rule or criminal law.

- Drug testing of public school student: Under public school exception, public school authorities can require students participating in an extracurricular activity to submit to random drug test (b/c of the special need & interest schools have in the safety of their students)

- Probationer’s Home & Parolees A warrant or P/C is not required to search a probationer or parolee’s home since consent is implied as part of release.

- Gov Employee’s Desks and Files: A warrantless search of a gov employee’s desk and file cabinet is permissible under the 4th amend where the scope is reasonable and there is a work-related need or reasonable suspicion of work-related misconduct.

- Drug Testing: Although government-required drug testing constitutes a search, the court may uphold such testing without a warrant, probable cause, or even individualized suspicion if it is justified by “special needs” (i.e., job held connected to drug interdiction)

Boarder Search

- Boarder search of individual: No warrant is necessary for border searches. Neither citizens nor non-citizens have any 4th amend right at the border.

- Search after passing boarder: Boarder officials may stop an automobile at a fixed (permanent) checkpoint for questioning without cause, but to conduct a search, they must have P/C or consent. On the other hand, roving patrols may stop a vehicle for question if officer have reasonable suspicion of illegality i.e., that the vehicle contains illegal aliens (mere apparent Mexican ancestry of occupants alone cannot create reasonable suspicion), but to conduct a search, they must have P/C.

Wiretapping- need big warrant

Wiretapping or any other form of electronic surveillance that violates a reasonable expectation of privacy constitutes a search under 4th amend. Such a search is permitted only after a warrant is issued. A valid warrant authorizing a wiretap (or electronic surveillance) requires: (stricter standard than ordinary warrant)

1) showing of PC; 2) the warrant must name the suspect as well as describe the particular conversation be overheard; 3) the wiretap must be limited to short period of time , usually 30 days, although may be extended upon adequate showing 4) Wiretapping must be terminated upon obtaining desired information 5) Police must return to court showing what conversation were recorded

Exceptions:

Eavesdropper – uninvited ears

A speaker has no 4th amend claim if he makes not attempt to keep a conversation private i.e., REP.

i.e., there is no expectation of privacy talking in streets of Manhattan at 2 pm; passersby hear it. i.e., there is no privacy talking in public places at all, there is no privacy talking on cell phone…. I.e., Katz had REP

( When ( voluntary expose it to public, there is no EP and thus there is no search, hence eavesdropper overhearing does not amount to search

Misplaced confidence - unreliable ear – Jimmy Hoffa

A speaker assumes the risk that the person to whom he or she is speaking is a gov informer wired for taping or transmitting the conversation. There is no constitutional protection for misplaced confidences and thus a ( has no 4th amend basis to object to the transmitting or recording of the conversation as a warrantless search. (You do not have EP to what you say others!)

Method of Obtaining Evidence that SHOCKS THE CONSCIENCE

Evidence obtained in a manner offending a “sense of justice” is inadmissible under Due Process clause.

- Blood tests: taking a blood sample (e.g., from a person suspected of drunk driving) by standard medical procedures involves virtually no risk, trauma, or pain and is thus a reasonable intrusion. Thus it is not a violation of 4th amend.

- Surgery – (unreasonable) A surgical procedure under a general anesthetic to remove a bullet needed as evidence or to pump suspect’s evidence to get the evidence involves significant risk to health and a severe instruction on privacy, and thus is unreasonable

- Shocking Inducement: If a crime is induced by official actions that themselves shock the conscience, any conviction therefrom offends Due Process

Confessions, Statements, ID

14th, 4th, 5th, 6th amendment

14th Amendment – Voluntariness

For a self-incriminating statement to be admissible under the Due Process clause, it must be voluntary, as determined by the totality of circumstances. For a statement to be involuntary, there must be some official compulsion. (i.e., suspect’s age, education, mental & physical condition, duration & manner of interrogation & was there compulsion?)

6th amendment Right to Counsel

The six amendment guarantees the right to the assistance of counsel in all criminal proceeding, which include all critical stage of a prosecution after judicial proceeding have begun (e.g., formal charges have been filed). This means that 6th amend prohibits the police from eliciting an incriminating statement from a ( outside present of counsel after ( has been charged unless has waived his right to counsel

- There are really 2 right to counsel: one is 6th amend right of counsel (which attaches to all critical stage of prosecution after ( is charged), and another is right to counsel under 5th amend pursuit to Miranda. You must analyze them separately

- The 6th amend right to counsel IS offense specific. The attorney will only have to be present when the police interrogate the ( about that crime for which the ( is charged. Thus police can ask ( about his other crimes

- 6th am right to counsel attaches only after charges have been filed

5th Amendment (Miranda)

the 5th amend, applicable to states through the incorporation of Due Process clause of the 14th amend, provides that no person shall be compelled to be a witness against himself. For incriminatory statements to be admissible, Miranda v. Arizona requires that a person subject to custodial interrogation must be informed of his or her Miranda rights, and that the ( must have knowingly, voluntary and intelligently waive them.

- Applies only to 1-compelled, 2-only testimonial, 3-against himself

Approach:

Miranda warning must be given if ( is 1) in custody and 2) under interrogation and knows that he/she is being interrogated by a gov agent

- Custody: A person is in custody if his freedom of action is denied in a significant way (based on objective circumstance; neither (’s nor PO’s view counts)

- NO custody: Probation interviews and routine traffic Terry stops are NOT custodial, thus police can ask questions w/o giving Miranda warning & the statement is admissible (the court has held that road side investigatory stops do not constitute custodial interrogation)

- Interrogation: Interrogation is any questioning or conduct where the police knew or should have known that it is likely to elicit incriminating response.

- Interrogation includes more than asking questions. It includes: questionings designed to elicit incriminatory statement and conduct which PO should’ve known would elicit incriminatory statements

- Blurts: However, Miranda does not apply to spontaneous statements i.e., blurts not made in response to interrogation. (But officers must give the warnings before any follow-up questioning of the spontaneous statements); also Routine booking questions do not need warning

( must know its gov questioning

Generally, Miranda warnings are necessary only if the ( knows that he is being interrogated by gov agent (if ( does not know that the questioning person is a gov agent, there is no coercive atmosphere to offset, and thus there is no need for Miranda warring

Waiver

A suspect can waive his Miranda rights, but the government must prove by preponderance of the evidence that the waiver was knowingly, voluntary and intelligent. Court looks at the totality of circumstances.

- Right to remain silent: If the accused indicates that he wishes to remain silent, the police must scrupulously honor this request by not badgering the accused. However, even if ( asserts his Miranda rights to remain silent as to this crime, the police may later attempt to question ( about other unrelated crimes.

- If ( asserts this one, it means I don’t want to speak to you about this one; thus PO can come back for questioning for another crime

- ( must unambiguously raise it

- Right to Counsel: if the accused unambiguously indicates that he wishes to speak to counsel, all questioning must cease until counsel has been provided unless the accused then waives his right to counsel (e.g., by reinitiating questioning).

- If ( asserts this one, it stops the police from questioning about any crime even unrelated stuff. “I need a counsel” means that I need help with the process of police questioning, and thus PO cannot question about anything (ceases)

Pre-trial Identification

(Purpose is to have a check to make sure the W is identifying the ( from the crime and not some other proceedings (i.e., line-up, grand jury, etc).

– 2 attacks

Denial of 6th am right to counsel

A suspect has a right to the presence of an attorney at any post-charge lineup or show-up

- Only post charge, showing of corporeal ((’s body i.e., in person) requires atty’s presence

- Photo: No; handwriting: No

- Attaches after Arraignment or incitement

Denial of Due Process

A ( can attack an identification as denying Due Process when the identification is unnecessarily suggestive and there is a substantial likelihood of misidentification

- There might be exigent circumstances justifying the id

Remedy

The remedy for unconstitutional identification (either b/c it violates (’s 6th or it violates (’s Due Process as it is unduly suggestive) is exclusion of the pre-trial identification.

- Exception: a Witness may make an in-court identification despite the existence of an unconstitutional pre-trial identification if there is an adequate independent source for the in court identification. The burden is on Gov to establish this by clear and convincing to show Vic has sufficient opportunity to observe ( at the time of the crime

Bail

Although the 8th amend has not been incorporated to apply to states, most state constitution contain similar provision providing for a right to be released on bail unless the charge is a capital one. The sole purpose of bail is to guarantee (’s appearance at court day. Generally, bail can be set no higher than is necessary to assure the (’s appearance at trial. Refusal to grant bail or setting of excessive bail can be appealed immediately. However, the SC has held that preventive detention (being held without bail) are constitutional when the detainee pose a danger or would fail to appear at trial. (Determining dangerousness for refusal of bail is by clear & convincing standard)

Grand Jury

The 5th amend right to indictment by grand jury has not been incorporated into the 14th amend. (right to grand jury indictment applies only to federal system; state do not have to use it as a part of their charging process)

Speedy Trial

6th amend provides that a criminal ( shall be afforded a speedy trial. The determination of whether (’s 6th amend right to a speedy trial has been violated is evaluated based on totality of circumstances. Factors considered are the length of delay, reason for delay, whether ( asserted his right, and prejudice to (. The remedy for violation of right to speedy trial is dismissal with prejudice

- When the right attaches: the right to speedy trial does not attach until ( has been arrested or charged. If ( is charged and is incarcerated in another jurisdiction, reasonable efforts must be used to obtain the presence of (. Also it is a violation of the right to speedy trial to permit the prosecution to identify suspend charges.

Prosecution’s Duty to Disclose Exculpatory Information & Notice of Defense

The gov has a duty to disclose material, exculpatory evidence to the (. Failure to disclose such evidence, whether willful or inadvertent, violates the Due Process clause and is grounds for reversing a conviction if the ( can prove that: 1) the evidence is favorable to him because it either impeaches or is exculpatory; and 2) prejudice has resulted (i.e., there is a reasonable probability that the result of the case would have been different if undisclosed evidence had been presented at trial)

Competency to Stand Trial

Incompetencey to stand trial is no defense to the crime charged, but rather is a bar to trial. It is based on the (’s mental condition at the time of trial. if ( later regains his competency, he can be trial and convicted. TEST: A ( is incompetent to stand trial if he either: 1) lacks a rational as well as factual understanding of the charges and proceedings, or 2) lacks sufficient present ability to consult with his lawyer with a reasonable degree of understanding

Right to Public Trial

The 6th and 14th amends guarantee the right to a public trial. However, trial may be closed to public if 1) there is the an overriding interest likely to be prejudiced if is no closure, and that 2) there is no reasonable alternative besides closure

Burden of proof and sufficiency of evidence

The Due Process clause requires in all criminal cases that the state prove all elements of a crime beyond reasonable doubt. The presumption of innocence is a basic component of a fair trial. however, the state may generally impose the burden of proof upon the ( in regard to an affirmative defense such as insanity or self-defense

Right to Unbiased Judge

Due Process is violated if the judge is shown to have actual malice against the ( or to have had a financial interest in the outcome

Right to Jury Trial

Right to jury trial attaches when the maximum authorized sentence exceeds 6 months

- There is no constitutional right to a jury trial if maximum authorized sentence is or less than 6 months

- Contempt of court: in civil contempt proceedings there is no jury trial right, but in criminal contempt proceedings, if the sum of the sentences exceeds 6 months, ( has a constitutional right to a jury

- Jury Pool - Fair Cross-Section

A ( has a right to have the jury pool reflect a fair cross section of the community (nothing more)

- Peremptory Challenge: Generally, a party may exercise peremptory challenges for any reason (rationale or irrational). However, it is unconstitutional (violation of EP) for a party to exercise peremptory challenge to exclude potential jurors on account of their race or gender.

- The other part must come up with satisfactory reason that it is not intended to discriminate

Ineffective assistance of counsel

The 6th amend right to counsel includes the right to effective assistance of counsel. Effective assistance of a counsel is generally presumed unless the claimant can show: 1) deficient performance by counsel, 2) but or such deficiency the result of the proceeding would have been different

Right to Confront Witnesses

The 6th amendment grants to a ( in a criminal prosecution the right to confront adverse witnesses. (but it can be burdened if serves an important public purpose e.g., protecting child witness from trauma. Also, a judge may remove a disruptive ()

Guilty Pleas & Plea Bargaining

A guilty plea is a waiver right to jury trial. When taking a guilty plea, the judge must address the ( personally and ask on the record: 1) as to the voluntaries and intelligence of the plea; 2) inform ( of the nature of charge 3) inform the ( of the maximum possible penalty and any mandatory minimum sentence 4) that ( has a right not to plead guilty (and demand a trial) 5) that by pleading guilty ( is waiving his right to a trial and moving on to sentence.

- If the ( breaches a plea bargain agreement, his peal and sentence will be w/d & original charge can be reinstated

* Withdrawal of guilty plea

The SC will not disturb guilty pleas after sentience, however there are basis for withdrawing a guilty plea after sentence: 1) the plea was involuntary 2) Lack of Jrx i.e., b/c of double jeopardy 3) Ineffective assistance of counsel; 4) If Judge did not make all of the inquiries on record (even marginally on point, raise them-one Q raised them all) 5) Failure of the prosecutor to keep an agreed upon plea bargain (a past bar raise it all)

Death Penalty

1) Any death penalty statute that does not give the ( the chance to present mitigating factors and circumstances is unconstitutional 2) the state may not by statute limit the mitigating factors; all relevant mitigating evidence must be admissible or the statue is invalid) 3) there can be no automatic category for imposition of death penalty (statute that says if you kill an officer you get death) 4) only a jury and not a judge, may determine the aggravating factors justifying imposition of death penalty

- Sanity requirement: 8th amend prohibits executing the death penalty on a prisoner who is insane at the time of execution, even if he was sane at the time the crime was committed. Mental retardation: it is cruel and unusual punishment to impose the death penalty on a person who is mentally retarded or child under 16 (when committed the crime)

Double Jeopardy

Under the 5th amendment, a person may not be re-tried for the same offense once jeopardy has attached. Jeopardy attaches in a jury trial at the empaneling and swearing of the jury. In bench trial jeopardy attaches when the first witness is sworn.

- Exceptions: Certain exceptions permit retail of a ( even if jeopardy has attached: 1) Hung Jury 2) Mis-trial for Manifest necessary 3) Re-trail on a successful appeal does not violate double jeopardy 4) ( breaches an agreed upon plea bargain

- SAME OFFENSE: The rule is that “two crimes do not constitute the same offense if each crime requires proof of an additional element that the other does not require, even though some of the same facts may be necessary to prove both crimes”

- I.e, not same: manslaughter w/ an automobile and hit and run- Reckless driving and drunk driving- Reckless driving and failure to yield right of way- Uttering forged check & obtaining $ by false pretence by forged check.

- Greater & Lesser-included offense: Attachment of jeopardy for a greater offense bars re-trial for lesser included offense. Similarly, attachment of jeopardy for a lesser included offense bars re-trial for greater offense, except that re-trial for murder is permitted if the victim dies after attachment of jeopardy for battery.

i.e., ( convicted of felony murder for shooting a king a store clerk during an armed robbery. ( cannot be tried for armed robbery b/c he is convicted of felony murder and armed robbery is a lesser included offense of felony murder.

- Separate Sovereigns: The constitutional prohibition against double jeopardy does not apply to trials by separate sovereigns. (thus, a person may be tried for the same conduct by both the state and federal gov or by two states, but not by a state and its municipalities)

- I.e., one robbery & death of 3 teller: ( had one alibi Wit. Acquitted on teller’s death. (like collateral estoppel), if same alibi, cannot re try.

- Watch out: judge discharges the jury: that triggers double jeopardy issue: for jury trial double jeopardy attaches after empaneling jury

Grant of immunity

A witness may be compelled to answer questions despite his 5th am if granted adequate immunity from prosecution: “Use and Derivative Use” Immunity: guarantees that the W’s testimony and evidence derived from his testimony will not be used against him. However, the W may still be prosecuted if E to be used against him was derived from a source independent of the immunized testimony. Immunized testimony (testimony obtained by promise of immunity) (it is coerced and cannot be used as impeachment; another sovereign cannot use it either)

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