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Criminal Procedure
San Joaquin College of Law
Cronin, Phillip S.

4th Amendment
5th Amendment “… nor [shall any person] 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…”
6th Amendment: “In all criminal prosecutions, the accused shall enjoy the right… to have assistance of counsel for his defense.”
14th Amendment “…nor shall any state deprive any person of life, liberty or property without due process of law…”

Due process voluntariness test
Mere reliability insufficient
Factors: Subjective totality of the circumstances. Was defendant actually overborne considering

personal characteristics(education, age, intelligence, experience, physical and mental health),
nature of the detention(delays, advised of const rights, access to council and outside world, conditions),
manner of interrogation,
Use of force, threats (physical violence, refuse medication, remove spouse or children, arrest friends or relatives, or harsher consequences if no confession), promises (impossible, improper, illusory), or deceptions.

McNabb-Mallory Rule: defendant must be taken to a judicial officer as soon as possible, if not a confession may not be admissible.
Harmless error applies

Sixth Amendment Right to Counsel Approach to Confessions

Right violated if after adversary judicial proceedings have begun the police question the defendant outside the presence of counsel or without a valid waiver of the right to counsel.

Fifth Amendment Privilege against Self-Incrimination Approach to Miranda v. Arizona
Custodial police interrogation is inherently coercive

When a law enforcement officer interrogates a suspect in custody, the officer must inform the suspect of his rights
Under Miranda the Defendant must be informed, prior to custodial interrogation that:

1. He has the right to remain silent
2. Anything he says can be used against him at trial
3. He has the right to the assistance of a lawyer, and
4. If he cannot afford a lawyer, the government will provide him with one.

As a deterrent to coercive police practices if the warnings are not given, generally any statements obtained from the defendant will not be admissible even if right to counsel or voluntariness not violated.

No knowledge of crimes required. Trickery by police not necessarily render waiver invalid. Mental delusions not determinative.
Form of Waiver: Explicit waiver not necessary as long as knowing and voluntary. Counsel’s presence very persuasive of waiver.
Impeachment: Use of Miranda violation confession can be used for impeachment of defendant. Unconstitutional for police to violate Miranda for this purpose.
Post arrest Silence may not be used to impeach. Pre-arrest silence can.
Unclear whether non-testimonial fruits of an unwarned confession must be suppressed. US v. Patane-Plurality said not necessary.
: Burden on government to prove that a Miranda waiver was knowing and intelligent- preponderance of the evidence. Totality of the circumstances using factors such as suspect’s intelligence, physical and mental condition and circumstances surrounding waiver.
Overview of the Fifth Amendment

Privilege against Self Incrimination:

Purpose- Reliability, avoidance of coercion, conformance with adversarial system.
Who may assert: natural persons, not corporations, associations or partnerships. Only when testimony will incriminate the person, not another person-Privilege is person.
When may it be asserted: At any proceeding where government might compel testimony from person asserting for use in later prosecution. Must assert at time of questioning.
Scope of Privilege: incriminating is when the statement may furnish a “link in a chain of evidence needed to prosecute.”-Hoffman. No 5th right when foreign prosecutions. Court can overrule if prosecutor made it perfectly clear that it cannot tend to incriminate. Only applies to testimony, not real or physical evidence.
Violation does not occur until person’s compelled statements are used against him in crim case.
Must be compelled self incriminating statements. Must be criminal in nature. Must be official compulsion. Can be used for perjury case.
Registration requirements prohibited if directed at a specific group, group is inherently suspect of criminal activity, and inquiry into an area of law permeated with crim statutes.
Cannot penalize for invoking the privilege. Prosecutor may not comment on silence after Miranda. Harmless error doctrine applies.
No privilege when Immunity given: Use and derivative use immunity-forbids use of immunized testimony and any evidence from testimony. Transactional immunity- protects from prosecution of any activity mentioned. Immunized testimony cannot be used to impeach.

Identification Procedures:

Privilege against self incrimination:

Right to counsel: 6th Amendment gives defendant a right to have a lawyer present during identification proceedings to ensure fairness of the ultimate trial process-US v. Wade.

Due process clause: Pretrial confrontation for identification may be so unreliable to violate due process


Question: Does the 4th Amendment apply? Does this party have standing? If violation found then exclusionary rule applies.
Warrant clause: requirements for a warrant: Probable cause, oath or affirmation , particular description of place, person or things. May still fail the reasonableness clause.

Reasonableness clause
Arrests and other detentions:

Stops and Other Detentions:
: 4th Amendment “The right of the people to be secure in their persons, houses, papers & effects, against unreasonable searches & seizures shall not be violated, an no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.” Three constitutional issues- Privilege against self-incrimination, the right to counsel, and the due process clause. 5th amendment-“no person shall be compelled in any criminal case to be a witness against himself.”: Privilege only applied when response might be incriminating, testimony may be used against the defendant, and statements are testimonial in nature. . – even if admissible under voluntariness test it still may be excluded if it violates right to counsel. : Judge decides by preponderance of evidence.
Minority: collateral benefits that don’t deal directly with criminal charge or severity of sentence do not make statements involuntary.
Unduly long interrogation may be considered involuntary.
Confessions made as a result of a plea admissible unless required by condition of plea. Federal Rules of Evidence only allows use for impeachment.
Can be violated even if defendant is not explicitly questioned if officers deliberately elicited incriminating evidence.
Even more likely to find a violation when the defendant has retained counsel and counsel is not allowed to assist. (Christian burial speech)
6th A right to counsel is offense specific-statements made about other crimes for which the right has not attached are fully admissible.
Test for different offenses: Different f each requires proof of an additional element that the other crime does not require.
Exception: concern for public safety- when police ask questions reasonably prompted by concern for public safety, responses need not be suppressed in court. (gun in grocery)
Warnings after questioning and confession not adequate if nature of questioning was intentional.
NO Miranda necessary when defendant is not aware that questioner is

not required except for home arrests: No warrant required in public place under following circumstances:
Reasonable grounds that felony committed and arrestee did it.
Misdemeanors in officers presence.
In home warrantless arrests presumption of unreasonableness unless exigent or consented to or person retreats to home. Presumption difficult to overcome for minor offenses
Announcement Requirement: Police must announce his authority and purpose before using force to enter a home to make an arrest. – must be reasonable time.
Third party premises: absent exigent circumstances must get separate SW.
Force used to arrest must be reasonable. All seizures must be supported by full PC.
Stop: Police have authority to detain briefly. Permissible when 1. observation of unusual conduct, 2. leading to reasonable suspicion that criminal activity may be afoot and 3. the ability to point to specific and articulable facts to justify suspicion.
Reasonable suspicion is particularized objective basis for suspecting the particular person stopped based on objective, articulable facts. – Officers knowledge relevant.
Scope and Duration- must be temporary and no longer than necessary- least intrusive method to dispel suspicion.
May make property seizures temporarily for no longer than necessary.

Automobile stops: Officer must have reasonable suspicion to stop automobile

Detention during lawful Search Permissible- safety, preveting flight of evidence, makes search easier.

Police Station Investigations: Must have full probable cause to bring suspect in to police station for questioning or fingerprinting unless convenient, not used to harass(maybe).
Frisk: Officer may frisk if he reasonably suspects he is in danger.
May search parts of passenger area in car if RS that occupant may gain immediate control of weapons.
If traffic law violated officer may stop for ulterior motive.
Roadblocks upheld if on basis of neutral, articulable standard and closely related to a particular problem related to automobiles and their mobility. Search for undocumented aliens and sobriety upheld. No search for illegal drugs. (not related)
Informational roadblocks okay
Officer may order persons out of car-minimal added intrusion/potential danger.
Suspicionless boarding of boats allowed b/c waterborne setting.
Cannot pat down without reasonable suspicion of crim activity and weapons.
Does not apply to grand jury subpoena. Could be unreasonable if extremely broad or used for harassment. -triggered when the defendant requests attorney during interrogation. Police may not resume questioning until attorney is made available or defendant initiates discussions with police (initiation. -must be scrupulously honored- Found scrupulously honored where – If police should know that their action is reasonably likely to elicit an incriminating response. Informing that they are under arrest not interrogation. Psychiatric examination by state is interrogation. Grand jury questioning not interrogation.