Rights of the Accused:

1
CONSTITUTION DAY

• Rights of the Accused
• From Arrest to Appeal

2
Misty called Officer Ramirez and told him that a
high school student with a red backpack and
walking stick would be carrying a significant
amount of marijuana in the backpack. Misty
described the suspect and the location where he
would be walking.
3
As Officer Ramirez was on patrol, he saw a
teenager matching the description in the tip.
The backpack was red and he was walking with a
walking stick around the time that Misty stated.
Officer Ramirez turned on his lights and siren.
He pulled over and asked the person to stop.
The person was Joe.
Should Joe stop?
4
Why should Joe stop when asked by Officer Ramirez?

• What constitutional amendment applies at this
  point?

5
FOURTH AMENDMENT
The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be
violated, and no warrants shall issue, but upon
probable cause, supported by oath or affirmation,
and particularly describing the place to be
searched, and the persons or things to be seized.
6

• A police officer may approach and detain a person
  for the purpose of investigating possible
  criminal behavior even if there is no probable
  cause to support an arrest.

A brief detention does not violate the Fourth
Amendment if the officer has a reasonable and
articulable suspicion that the person has
committed or is about to commit a crime.
7
Joe walked over to the front of the police
vehicle. Officer Ramirez asked Joe his name.
Joe refused to answer the question.
Can Joe refuse to identify himself?
When an officer approaches a person and seeks
voluntary cooperation through noncoercive
questioning, there is no restraint on that
persons liberty, and that person is not seized.
8
Joe provided his identification to Officer
Ramirez. Officer Ramirez ran the information
through LEIN and there were no warrants. Officer
Ramirez returned Joes identification and asked
Joe where he was going. Joe did not answer.
Officer Ramirez asked to search the backpack.
Joe did not answer and began to walk away.
Officer Ramirez put his hand on Joes shoulder
and stated that he could not leave.
9
Is there a seizure when Officer Ramirez stopped
Joe from leaving?
A seizure within the meaning of the Fourth
Amendment occurs only if, in view of all the
circumstances, a reasonable person would have
believed that he was not free to leave. People
v Jenkins, 472 Mich 26, 32 (2005)
10
Officer Ramirez led Joe to the front of the
police vehicle and patted Joe down. If Joe is
not under arrest, can Officer Ramirez pat down
Joe?
11
During an investigatory stop based on a
reasonable and articulable suspicion, a police
officer is entitled to conduct a limited search
of the outer clothing of the person to determine
if the person has any weapons that may be used
against the police officer.
12
Officer Ramirez asked Joe for consent to search
the backpack and Joe stated, No. Officer
Ramirez opened the backpack and found what
appeared to be two packages of marijuana.
Officer Ramirez then handcuffed Joe and advised
that he was under arrest for possession with
intent to deliver marijuana. Was the search of
the backpack reasonable?
13
The applicable test in determining the
reasonableness of an intrusion is to balance the
need to search, in the public interest, for
evidence of criminal activity against invasion of
the individuals privacy.
Generally, a search conducted without a warrant
is unreasonable unless there exist both probable
cause and exigent circumstances establishing an
exception to the warrant requirement.
14
Probable cause to search exists when facts and
circumstances warrant a reasonably prudent person
to believe that a crime has been committed and
that the evidence sought will be found in a
stated place. Whether probable cause exists
depends on the information known to the officers
at the time of the search.
The recognized exceptions to the warrant
requirement are exigent circumstances, consent,
and plain view.
15
The exigent circumstance exception is applicable
where the police have probable cause to believe
that an immediate search will produce specific
evidence of a crime and that an immediate search
without a warrant is necessary in order to (1)
protect the officers or others, (2) prevent the
loss or destruction of evidence, or (3) prevent
the escape of an accused.
Do any of these exceptions apply in this case?
16
The plain view exception allows the seizure of
objects within the plain view of an officer who
has a right to be in the position to have that
view.

• Three conditions must be satisfied
• There must be prior justification for the
  officers intrusion into an otherwise protected
  area.
• The evidence must be obviously incriminatory or
  contraband.
• The discovery must be totally inadvertent.

17
The consent exception permits searches and
seizures when consent is unequivocal and
specific, and freely and intelligently given.
Ordinarily, the consent to search is given by the
person affected. A third party may consent to the
search when the consent person has an equal right
of possession or control over the premises.
A consent can be valid even if the person is not
apprised of his right to refuse consent.
18
Generally, if evidence is unconstitutionally
seized, it must be excluded from trial.
Exclusion of improperly obtained evidence serves
as a deterrent to police misconduct and preserves
judicial integrity.
The exclusionary rule applies not only to
evidence improperly seized during a search
without a warrant, but to evidence subsequently
seized pursuant to a warrant as a result of an
initial illegal search.
19
Officer Ramirez took Joe to the police
department. Joe was fingerprinted and his mug
shot was taken. Officer Ramirez then took Joe
to a interrogation room with only one chair. Joe
had to stand with his hands cuffed behind his
back. Officer Ramirez questioned Joe regarding
his intentions with the marijuana, who he
obtained it from, and whether it was his. For
the first few hours, Joe said nothing. He was
getting hungry, tired, and sore from being in the
interrogation room for four hours without sitting
down. Are there any concerns at this point?
20
After three and a half hours of interrogation and
standing, Joe admitted that the marijuana was
his, that he intended to sell it, and that the
marijuana was given to him by his stepfather,
Alex. who was forcing him to sell the marijuana
at school. After Joe confessed to the marijuana
and implicated Alex, Officer Ramirez requested a
search warrant for Alexs home based on the
statements made by Alex and uncovered 15
marijuana plants in the home. Alex was arrested
and charged as well. What Constitutional
provision is being affected?
21
FIFTH AMENDMENT
No person shall be held to answer for a capital,
or otherwise infamous crime, unless a presentment
or indictment of a grand jury, except in cases
arising in the land or naval forces, or in the
militia, when in actual service in time of war or
public danger nor shall any person be subject to
the same offense to be twice put in jeopardy of
life or limb nor 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 nor shall private
property be taken for public use, without just
compensation.
22
What should Joe have been given prior to
interrogating him at the police department?
MIRANDA WARNINGS
What are the Miranda Warnings?
23
Miranda warnings must be given to an individual
in custody or otherwise deprived of his freedom
by the authorities in any significant way and is
subjected to questioning. Miranda v Arizona,
384 US 436, 479 (1966)
Can a person waive his or her right to remain
silent?
24
Shortly after arresting Alex, Officer Ramirez
brought Joe into the same interrogation room. At
this time, Officer Ramirez gave the Miranda
warnings to Joe and asked if Joe waived them.
Joe signed a waiver and admitted to possessing
the marijuana with the intent to sell it. Does
this second interrogation with Miranda Warnings
fix the issues with the previous interrogation?
25
Joe was charged with intent to deliver Marijuana
less than 50 grams which is a felony punishable
by imprisonment for not more than 20 years or a
fine of not more than 25,000 or both. After
being charged, what is the first step in the
court process?
26
ARRAIGNMENT

• According to the Sixth Amendment of the
  Constitution, a defendant has the right to be
  informed of the nature and cause of the
  accusation. Arraignment also informs a
  defendant that he has a right to counsel.

Under the Michigan Constitution, does a defendant
have the same right?
27
At arraignment, district court Judge Bueller read
a copy of the information to Joe. Judge Bueller
advises Joe that he has been charged with intent
To deliver marijuana less than 50 grams and then
explains the maximum penalty if found guilty.
After reading the information, the judge asked
whether Joe wanted to plead guilty or not guilty.
Joe advised the court that he wanted an attorney
and could not afford one. What should the court
do and why?
28
Sixth Amendment
In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial, by
an impartial jury of the state and district
wherein the crime shall have been committed,
which district shall have been previously
ascertained by law, and to be informed of the
nature and causes of the accusation to be
confronted with the witnesses against him to
have compulsory process for obtaining witnesses
in his favor, and to have the assistance of
counsel for his defense.
29
Next Step Preliminary Examination

• The purpose of the preliminary examination is to
  determine whether probable cause exists to
  believe that a crime was committed and that the
  defendant committed it.
• Probable cause is established if a person of
  ordinary caution and prudence could
  conscientiously entertain a reasonable belief of
  the defendants guilt.

30
After the preliminary examination, district court
Judge Bueller found that there is probable cause
that a crime has been committed and that Joe
committed the crime. Joe was bound over to
Circuit Court in order to stand trial. Now,
Joe has to decide whether he wants a bench trial
or a jury trial. What gives Joe the right to
decide the type of trial? What type of trial
should Joe pick?
31
BENCH TRIAL v. JURY TRIAL

• In a bench trial, the judge decides the law and
• The judge will be the trier of fact and determine
  credibility of witnesses.

• In a jury trial, the Judge will determine the
  law and
• The jury will be the trier of facts and determine
  credibility of witnesses.

Would you waive a jury trial?
32

• Forty four months after the preliminary
  examination, Joes trial was held. The trial was
  adjourned multiple times because the prosecution
  argued that a key witness, Misty, was unavailable
  at trial. Misty was in a rehabilitation center
  that was located in the same city as the
  courthouse. The prosecutor believed that a clean
  and sober Misty would be more credible in front
  of a jury. Joe was in jail until the time of
  trial.
• What, if any, right of the accused is at issue?

33
Speedy trial

• There is no absolute standard for what a speedy
  trial is.
• There are four factors to consider
• a. Length of delay
• b. Reason for delay
• c. Defendants assertion of his right and
• d. Prejudice to defendant.

34

• Misty is the informant that told Officer Ramirez
  that Joe had the marijuana. The prosecutor
  decided not to call Misty to testify because
  Misty left rehab and was using cocaine and
  drinking again. Also, Misty was homeless.
• The prosecutor knew that Misty was sleeping in a
  local homeless shelter but did not subpoena her
  or notify her of the trial.
• Is the witness unavailable to testify?

35
Unavailable witness

• A witness is considered unavailable if he or she
  is absent from the hearing and the proponent of
  a statement has been unable to procure the
  declarants attendanceby process or other
  reasonable means, and in a criminal case, due
  diligence is shown.

A witness cannot be unavailable for purposes of
using former testimony unless the prosecutor has
made good faith effort to obtain the witness
presence at trial.
36

• The prosecutor rested his case. The defense
  attorney rested its case without calling any
  witnesses or presenting any evidence. In the
  prosecutors closing arguments, the prosecutor
  stated that the facts were not in dispute because
  Joe failed to testify.
• Which constitutional amendment is affected by the
  prosecutors statement?

37
United States Constitution5th Amendment

• No person shall be held to answer for a capital,
  or otherwise infamous crime, unless on a
  presentment or indictment of a grand jury, except
  in cases arising in the land or naval forces, or
  in the militia, when in actual service in time of
  War or public danger nor shall any person be
  subject for the same offense to be twice put in
  jeopardy of life or limb nor 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 nor shall
  private property be taken for public use, without
  just compensation.

38

• The constitutional foundation underlying the
  privilege is the respect a governmentstate or
  federalmust accord to the dignity and integrity
  of its citizens. To maintain a fair
  state-individual balance, to require the
  government to shoulder the entire load . . . ,
  to respect the inviolability of the human
  personality, our accusatory system of criminal
  justice demands that the government seeking to
  punish an individual produce the evidence against
  him by its own independent labors, rather than by
  the cruel, simple expedient of compelling it from
  his mouth.
• Miranda v Arizona, 384 US 436, 460 (1966)

39

• A prosecutor may not comment upon a defendants
  failure to testify.
• However, a prosecutors statement that certain
  inculpatory evidence is uncontroverted does not
  constitute a comment regarding the defendants
  failure to testify, particularly where someone
  other than the defendant could have provided
  contrary testimony.

40

• After about 10 minutes in deliberations, the jury
  found Joe guilty of intent to deliver marijuana
  less than 50 grams. Joe was sentenced to five
  years in prison in addition to fines.
• Joe wants to appeal and requested the assistance
  of counsel.
• Does Joe have the right to counsel for appeals?

41

• An indigent defendant has the right to appointed
  appellate counsel for the first tier review by
  the Michigan Court of Appeals.

42

• You are a judge on the Michigan Court of Appeals
  should Joes conviction be overturned?