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