Friday, April 27, 2007

The LLS 2007 Spring Criminal Procedure Discussion

Following a tradition begun last semester, Law Law Stud is hosting a discussion for bar courses he is enrolled in. If anyone would like to get a thread going for another bar course the Stud is not in, please advise him.

This discussion will be for Criminal Procedure. Specifically, the Stud is enrolled in Professor Stanley Goldman's class.

On the last day of class, Prof. Goldman handed out a short outline, which the Stud reproduces here as is:

  1. Exclusion (its' Limitations) and the Fruit of the Poisonous Tree Doctrine
    1. The exclusionary rule is one of the constitutional remedies available to anyone who has been personally subjected to an unconstitutional search and seizure, interrogation or identification. The rule gives such individuals the right to exclude the illegally procured evidence from their subsequent criminal prosecution, unless one of the exceptions, limitations or exemptions applies.
    2. General exceptions or limitations to exclusion: (Exclusion is not an available remedy in civil cases, or quasi-criminal proceedings such as deportation hearings. Defendant can only get exclusion if the search violates the federal constitution or a federal statute so providing.)
      1. Exclusion does not apply to grand juries proceedings.
      2. Impeachment of the defendant's own testimony (this exception to exclusion does not apply to coerced confessions or, for the purposes of this examination, to Massiah violations.) Improperly Mirandized confessions, pre or post arrest unMirandized silence, illegally seized evidence and Jackson violations, though inadmissible in the prosecution's case in chief, may nevertheless be introduced as evidence for the purpose of impeaching the "defendant's" testimony if he personally takes the stand at trial and testifies in a manner inconsistent with the unconstitutionally obtained evidence (or silence).
      3. Good faith reliance on:
        1. a statute or ordinance later declared unconstitutional; or
        2. a defective search warrant as a result of insufficient probable cause.

          Exceptions to the Good Faith Reliance on a Defective Search Warrant:

          1. Affidavit so lacking in probable cause no reasonable officer could rely on it.
          2. Warrant is defective on its face (e.g., failure to state with particularity the place to be searched or things to be seized).
          3. Affiant lied to or misled the magistrate.
          4. Magistrate has wholly abandoned his judicial role.
      4. Fruit of the Poisonous Tree: (Excludes all evidence obtained or derived from illgal police act as tainted "fruit.")


        1. Free will. Independent Acts that break the chain of taint between the original unlawful police action and the illegally derived evidence (can include the free will of the accused or the witness).
        2. Inevitable Discovery (Including independent source rule.)
        3. Miranda violations - No fruit of the Poisonous Tree exclusion of 3rd party statements or physical evidence.
        4. Knock and Announce violations - No Fruit of the poisonous tree exclusion for all or most evidence discovered in the residence.
  2. Search and Seizure Model
    1. Was there State Action?
    2. Does defendant have standing to object?

      Does defendant have reasonable expectation of privacy? A defendant only has standing to object when he/she has a reasonable expectation of privacy in the area searched or the item seized. Seizure of items already exposed to public view implicates no right of privacy.

      Example: Ease dropping.

    3. Did the police have a search warrant?
      1. Was there a probable cause for its issuance?
      2. Did a neutral and detached magistrate issue the warrant?
      3. Was the warrant properly executed?
    4. If there was no warrant or the warrant is not valid then did the search fall within any of the following exceptions (or can the state use the "good faith" defense to exclusion in order to justify the introduction of the seized items?)

      The Warrant Exceptions - Can the search fit squarely within one of the eight narrowly drawn exceptions to the warrant requirement?

      1. Evanescent
        1. Example - extraction of blood for alcohol test
        2. Intrusion must be reasonable
      2. Plain view
        1. Legitimately on the premises
        2. Discovery of fruits or instrumentalities of crime or contraband
        3. In plain view
      3. Consent
        1. Voluntary and intelligent
        2. Third party consent - where two or more persons have or are reasonably believed to have right to use or occupy a piece of property or premises, then either one can consent to a warrant less search and bind the other (unless the opposing occupant is present and inform police of their objection).
      4. Stop and Frisk
        1. Reasonable suspicion to stop
        2. Frisk and pat down for weapons
        3. What if other evidence that weapon is found? Ho much like a weapon could it seem from the outside?
      5. Border Searches
        1. Searches at border do not require probable cause or even reasonable suspicion.
        2. Searches away from border do require probable cause
      6. Hot Pursuit - Real Hot
      7. Search Incident to lawful arrest
        1. Arrest must be lawful
        2. Contemporaneous in time.
        3. Geographic span - the person and his wingspan
        4. More lenient for automobile searches but may be limited in future by the Court
      8. Automobile Exception
        1. Full probable cause, but no warranty required based upon
          1. Exigency of the car's mobility
          2. Lesser expectation of privacy justifies
        2. Warrant less search of the whole car and packages or containers that could reasonably contain the item for which the police had probable cause to look.
  3. Pre-Trial identification
    1. Counsel needed at post-indictment line-ups
      1. Not needed for photo line-up
      2. Not needed for handwriting sample, etc.
    2. Denial of due process if line-up is unnecessarily suggestive
    3. If line-up is unconstitutional for either reason then:
      1. Line-up identification is inadmissible
      2. Trial I.D. also inadmissible unless proven independent by clear convincing evidence.
  4. Double Jeopardy
    1. Once jeopardy attaches, a defendant cannot be retried for the same offense by the same sovereign after a dismissal, acquittal or conviction not reversed by defense appeal
    2. Separate sovereigns
    3. Jeopardy attaches when jury sworn or first witness takes the stand


      1. Hung-jury
      2. Mistrial
      3. Successful defense appeal
  5. Confessions - Defendant can object to the admissibility of his confession.
    1. Miranda
      1. Essentials
        1. Custody and
        2. Interrogation
        3. If both a & b are present, then the police must give the Miranda warnings and obtain a waiver.
        4. Waiver must be voluntary and intelligent - Burden on suspect to clearly exercise. Police need not seek to clarify ambiguities.
        5. Edwards
          1. Right to remain silent
          2. Right to counsel
      2. Exceptions
        1. waiver (see above)
        2. spontaneous statement (no interrogation)
        3. not custodial (e.g., probation interviews, tax audit interviews and early in routine traffic stops not considered sufficiently custodial settings - no Miranda warnings required)
        4. use for impeachment (including silence except post-warnings silence)
        5. fruit of the poisonous tree (non-testimonial evidence)
        6. substantial compliance
        7. public safety (not applicable to coercion)
    2. Massiah (Blockburger Limitation)
      1. Represented by counsel
      2. Formal proceedings have commenced
    3. Jackson (Counsel requested but not yet appointed)
    4. Must be voluntary
      1. Coercion.
      2. Not incriminatory. (Immunity)

Let the discussion commence!


the leen saga said...

I just wanted to be the first person to post something. Beyond that, I've no relevant comment at this time.

Buddha Claire said...

i just like anything that calls law school social studies.

Sonia said...

I got a question - Harmless error (in re: coerced confessions) - there are two types, Chapman rule and Rehnquist rule. Which one is applicable to our class?

Bruce said...


In my notes for Arizona v. Fulminante, I wrote that Goldman advises us to argue Rehnquist's rule in our briefs in the future as lawyers, but to assume that Chapman is the rule for the class.

Sonia said...

Ahh - Got it, thanks!

Zoo TV Repair Man said...

Can anyone flesh out Harlan's Perceived Unfairness Standard? I have a mention of it during the harmless error discussion in Fulminante but can't find it anywhere else. Thanks

Bruce said...

Zoo TV Repair Man:

I looked around in my notes, on Google, and in Arizona v. Fulminante (499 U.S. 279), and found nothing on Harlan's Perceived Unfairness Standard. Could you help all of us and indicate where you found it in the text?

Bruce said...

Zoo TV Repair Man:

I looked again in my notes, and found this:


In an earlier generation, Justice Harlan formulated his perception of harmless error based on what society in general would have accepted; i.e., if an error was of a kind that society in general would have seen as fundamentally unfair, it could not possibly be harmless.

To a certain degree, Rehnquist’s description of the harmless error rule may be considered dicta, because the Court in this case actually came to a 5-4 decision that the error was in fact not harmless. Thus, the current rule about coerced confessions is really the Chapman rule on harmless error, which is that you look at the impact. When you brief, if it helps you, cite Rehnquist’s dicta in Fulminante; but for this class, the rule is Chapman.


Hope that helps!

Zoo TV Repair Man said...

As we know, there are two levels of searches with regard to blood/urine type tests. There is the type that is checking for the existence of a certain drugs or drugs in general (yes or no answer) and then general blood tests that will reveal everything including drugs. I believe the first type, like a dog sniff of a suitcase at a sidewalk or at the airport, has NO Fourth Amendment implications. I also believe the latter does. Is this right and can you, oh insightful Bruce, provide some insight?

Bruce said...

Quite correct. With regard to blood/urine tests, so long as the test only reveals the presence or absence of specific contraband, and nothing else, it's okay. Otherwise, there's too much information, kind of like too much discretion for the officers. While the comparison of the specific tests is to drug-sniffing dogs, the comparison of the non-specific tests is to rummaging through a suitcase.

The bottom line is, with regard to medical tests, if there's a chance that the test would reveal legitimate things, that's too much information and is not allowed.