CRIMINAL PROCEDURE

1
CRIMINAL PROCEDURE

• Class Six

2
Todays Topics Fourth Amendment

• Standing
• Derivative Evidence
• Independent Source
• Inevitable Discovery
• Good Faith
• Alternatives

3
Todays 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 partys 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 govt 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
• Ds 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 Govt 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 govt case in chief
• Exceptions exist Inevitable discovery,
  independent source, good faith
• Issue Is evidence excludable in scenarios
  other than prosecutions 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., Ive never, ever been
  arrested before.
• Rationale E/R should not be used as license for
  perjury
• Cross-examination of D raises issue
• LimitationCross-examination of defense witnesses

25
Good Faith

• Exception to general rule that illegally obtained
  evidence cannot be used during prosecutions 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, cont

• 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

51
Contempt Scenario A Preview

• Question asked
• Assertion
• Responses to assertion, either
• honor, or
• seek judicial determination that applicable
• If not, witness must answer
• If yes, 2 options
• Let stand on privilege
• Apply for immunity
• If granted, refusal to answer may be contempt

52
Invocation Consequences at Trial

• Comment on invocation prohibited Griffin rule
  --- Fact that D did not take stand cannot be
  used as evidence against him
• Jury instructions re adverse inferences
• Carter (required if requested)
• Lakeside (can be given over Ds objection)

53
Invocation Consequences, cont

• Adverse Inferences at Sentencing?
• Application to Civil proceedings

54
HOLDER

• Privilege against self-incrimination is personal
• Cannot be vicariously asserted
• Belongs only to person who is himself
  incriminated by his own testimony

55
Holder in the Business Context

• Taxpayers accountants
• Taxpayers lawyers
• Partnerships
• Sole proprietorship
• Corporation
• Corporation wholly owned operated by single
  person

56
What is protected

• Non-testimonial evidence outside scope of
  privilege, including
• blood sample
• fingerprint
• photograph
• measurements
• voice or handwriting exemplar

57
Analytical Key

• Communicative/testimonial
• Not physical characteristic
• Query Does witness face cruel trilemma in
  disclosing?

58
Is it testimonial?

• Tip An express or implied assertion of fact
  which can be true or false

59
Documents

• Contexts
• Govt subpoenas evidence from third party
• Govt uses Ds business records, seized pursuant
  to valid warrant

60
Example Fisher v. U.S.

• Subpoena of records
• Aspects of potential incrimination
• Contents of documents
• Act of production

61
Fisher Contents

• Privilege inapplicable
• Rationale
• Subpoena does not compel oral testimony
• Does not compel taxpayer to restate, repeat or
  affirm truth of contents
• Pre-existing documents preparation voluntary
• No compulsion by govt to make incriminating
  records

62
Fisher Act of Production

• Communicative aspects distinct from what
  document itself might say
• existence
• possession/control
• authenticity
• belief that same
• Facts here do not support claim

63
Recently U.S. v. Hubbell

• Facts Whitewater
• Held 5th Amd privilege applies
• Rationale Govt had shown no independent, prior
  knowledge of existence or whereabouts
• Contrast Fisher

64
Act of Production People

• Bouknight order to produce child subject to
  protective order
• Issue Can mother claim act of producing is
  potentially incriminating as implicit
  communication of control over child?

65
Required Records

• General rule If voluntarily prepared, no valid
  claim that compelled by govt at time made
• Issue What if documents are prepared at govt
  direction? Are they compelled for 5th Amd
  purposes?

66
Required Records Doctrine

• Shaprio
• Critical fact documents kept for legitimate
  administrative purpose, which cannot be focused
  solely on those inherently suspected of criminal
  activity
• Contrast, Marchetti, Haynes targeting group
  suspected of criminal activity

67
Analyzing Legislation under Required Records
Doctrine

• Issue When does law have non-criminal
  regulatory purpose and when is it essentially
  criminal?
• California v. Byers compelled reporting of
  accident

68
Procedural Considerations

• Invoking privilege, followed by grant of immunity
• Waiver of privilege

69
Immunity

• Types
• Transactional no transaction about which
  witness testifies can be subject of future
  prosecution against that witness
• Use/Derivative prevents use of testimony or
  other information directly or indirectly derived
  from it. Prosecution for transaction still
  possible

70
Immunity Constitutional Limitations

• Kastigar
• Does 5th Amd require transactional immunity?
• If immunity granted and witness compelled to
  testify, who has burden of proof to show that
  evidence proffered by govt is free from
  immunized statement?

71
Mechanics of Immunity

• If no privilege found, witness must answer
• If privilege exists, questioner must either
• Let witness stand on privilege
• Apply for immunity

• Question asked
• Assertion of privilege by witness
• Response
• honor, or
• seek judicial determination

72
Judges Role in Immunity

• Typically limited to insuring that procedural
  aspects of statute are met
• Many statutes do not permit judge to refuse to
  grant on grounds she believes prosecutors
  decision to offer is incorrect or not in public
  interest

73
Asserting Privilege

• Ohio v. Reiner
• Can privilege be asserted by someone claiming
  that she is innocent?
• Does witnesss assertion, standing alone,
  establish risk of incrimination?

74
Waiver

• General rule Person must refuse to answer and
  rely on 5th Amd privilege in order to invoke its
  protection
• Once person answers, privilege against
  self-incrimination is waived

75
Exercise

• Assume you are drafting a Policies Procedures
  Manual for a prosecutors office. List at least
  5 factors you would include as items that should
  be considered by a prosecutor in deciding whether
  to offer immunity