Presentation Transcript
CRIMINAL PROCEDURE: CRIMINAL PROCEDURE Class Six
Today’s Topics: Fourth Amendment: Today’s Topics: Fourth Amendment Standing
Derivative Evidence
Independent Source
Inevitable Discovery
Good Faith
Alternatives
Today’s Topics: Fifth Amendment: Today’s Topics: Fifth Amendment Privilege Against Self Incrimination
Policies
Scope
Compulsion
Holder
Non-Testimonial Evidence
Records & Required Documents
STANDING: STANDING Issue: Who can claim 4th Amd violation?
STANDING: STANDING Challenging party’s relationship to search conducted or thing seized
Current Supreme Court view more limited than past
Personal rights
No vicarious assertion
Target Standing: 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
Standing Principles: 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
Ownership & Standing: Ownership & Standing Possible to have possessory interest in property seized while failing reasonable expectation of privacy requirement
Co-Conspirators & Standing: Co-Conspirators & Standing No co-conspirator exception to standing requirements of Rakas
EXCLUSIONARY RULE: EXCLUSIONARY RULE
Theories of Admissibility: Theories of Admissibility Derivative Evidence & Attenuation
Independent Source
Inevitable Discovery
Use in Non-Criminal Proceeding
Use for Impeachment
Good Faith Exception
Derivative Evidence: Derivative Evidence Fruit of the Poisonous Tree
Evidence “derived from” particular illegal search or seizure
Attenuation: Attenuation Concept: What is the connection between the illegal search and the proffered evidence
Query: Has the causal chain been broken?
Application in Confession Cases: Application in Confession Cases Brown v. Illinois: Was confession fruit of illegal arrest or was taint attenuated by Miranda warnings?
Dunaway v. New York
Application in Confession Cases: Application in Confession Cases Taylor v. Alabama
Rawlings v. Kentucky [statements “spontaneous reaction” to discovery of evidence]
New York v. Harris [custody not unlawful]
Independent Source: 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
Relation to “Rediscovered” Evidence: 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
Inevitable Discovery: Inevitable Discovery “Hypothetical independent source”
Prosecution must show illegally obtained evidence would have been discovered through legitimate means that were independent of official misconduct
Example: Example Nix v. Williams
Critical feature: Gov’t obtained no benefit from constitutional violation
Inevitable Discovery, cont.: Inevitable Discovery, cont. Is doctrine limited to situations where officers acting in good faith?
Who has burden of proof?
What is the standard?
“Other Uses” & E/R: “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?
Use in Non-Criminal Proceedings: Use in Non-Criminal Proceedings Grand Jury
Civil Tax
Civil Deportation
Habeas Actions
Sentencing
Use in Criminal Trial: 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?
Impeachment: 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
Good Faith: 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
Good Faith Reliance on Defective Warrant: 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
Exceptions to the Exception: 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
Justifying Good Faith Exception: 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
Application to Warrantless Searches: Application to Warrantless Searches Issue: Can there be “good faith” objectively reasonable warrantless searches?
Illinois v. Krull (statute)
Arizona v. Evans (clerical error)
Alternatives to E/R: Alternatives to E/R Tort recovery
Criminal
Administrative
Exercise: Evaluating Proposed Solutions: 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
Chapter Three: CONFESSIONS: Chapter Three: CONFESSIONS Self-Incrimination and Confessions
Privilege Against Compelled Self Incrimination: Privilege Against Compelled Self Incrimination Seen in variety of contexts:
traditional confessions to police
trial testimony
subpoenas
production of records
The Debate: Con: 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
The Debate: Pro: 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
Scope of Privilege: 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
Fifth Amendment Privilege: A Quiz: Fifth Amendment Privilege: A Quiz When
Where
How
Quiz: In which forum can D successfully assert?: Quiz: In which forum can D successfully assert? Forfeiture Proceeding
Grand Jury
Civil Trial
Criminal Trial
Bankruptcy Action
Administrative License Revocation
Quiz: “Criminal” under Privilege?: 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?
Quiz: Sufficient Compulsion?: Quiz: Sufficient Compulsion? You receive subpoena
You are threatened with contempt for refusing to testify
You refused to testify and are offered immunity
Quiz: Sufficient Compulsion?: 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
Quiz: Sufficient Compulsion?: 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
Scope: “Criminal Proceedings”: Scope: “Criminal Proceedings” Boyd
Hitchcock
In re Gault
“Non-Criminal Proceeding” : “Non-Criminal Proceeding” Murphy
Piedmont
L.O. Ward
Allen
Forum of Invocation: Forum of Invocation Judicial?
Administrative?
Legislative?
Basis of Invocation: Basis of Invocation To protect against use of incriminating statements in subsequent criminal prosecutions
Foreign Prosecution: 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
Potential Use in Foreign Prosecution, con’t: 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
COMPULSION: COMPULSION 5th Amd protection against self incrimination only triggered when self incrimination is compelled by government
Issue: How is compulsion shown?
Examples: Examples Contempt
Other state-imposed sanctions
Contrast Lefkowitz v. Turley with McKune v. Lile
Contempt Scenario: A Preview: 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
Invocation & Consequences at Trial: 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 D’s objection)
Invocation & Consequences, con’t: Invocation & Consequences, con’t Adverse Inferences at Sentencing?
Application to Civil proceedings
HOLDER: HOLDER Privilege against self-incrimination is personal
Cannot be vicariously asserted
Belongs only to person who is himself incriminated by his own testimony
“Holder” in the Business Context: “Holder” in the Business Context Taxpayers & accountants
Taxpayers & lawyers
Partnerships
Sole proprietorship
Corporation
Corporation wholly owned & operated by single person
What is protected: What is protected Non-testimonial evidence outside scope of privilege, including:
blood sample
fingerprint
photograph
measurements
voice or handwriting exemplar
Analytical Key: Analytical Key Communicative/testimonial
Not physical characteristic
Query: Does witness face cruel trilemma in disclosing?
“Is it testimonial?”: “Is it testimonial?” Tip: An express or implied assertion of fact which can be true or false
Documents: Documents Contexts:
Gov’t subpoenas evidence from third party
Gov’t uses D’s business records, seized pursuant to valid warrant
Example: Fisher v. U.S.: Example: Fisher v. U.S. Subpoena of records
Aspects of potential incrimination
Contents of documents
Act of production
Fisher: Contents: 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 gov’t to make incriminating records
Fisher: Act of Production: 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
Recently: U.S. v. Hubbell: Recently: U.S. v. Hubbell Facts: Whitewater
Held: 5th Amd privilege applies
Rationale: Gov’t had shown no independent, prior knowledge of existence or whereabouts
Contrast: Fisher
Act of Production: People: 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?
Required Records: Required Records General rule: If voluntarily prepared, no valid claim that “compelled” by gov’t at time made
Issue: What if documents are prepared at gov’t direction? Are they compelled for 5th Amd purposes?
Required Records Doctrine: 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]
Analyzing Legislation under Required Records Doctrine: 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]
Procedural Considerations: Procedural Considerations Invoking privilege, followed by grant of immunity
Waiver of privilege
Immunity: 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
Immunity & Constitutional Limitations: 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 gov’t is free from immunized statement?
Mechanics of Immunity: Mechanics of Immunity Question asked
Assertion of privilege by witness
Response:
honor, or
seek judicial determination
If no privilege found, witness must answer
If privilege exists, questioner must either
Let witness stand on privilege
Apply for immunity
Judge’s Role in Immunity: Judge’s 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 prosecutor’s decision to offer is incorrect or not in public interest
Asserting Privilege: Asserting Privilege Ohio v. Reiner
Can privilege be asserted by someone claiming that she is innocent?
Does witness’s assertion, standing alone, establish risk of incrimination?
Waiver: 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
Exercise: Exercise Assume you are drafting a Policies & Procedures Manual for a prosecutor’s office. List at least 5 factors you would include as items that should be considered by a prosecutor in deciding whether to offer immunity