CRIMINAL PROCEDURE

JUDICIAL POVERTY: MONEY MAKES A DIFFERENCE. WHEN THE DEFENDANT HAS MORE RESOURCES THAN THE
GOVT. TRYING THE CASE THEN THE SYSTEM IS REVERSED (OJ CASE #1). MONEY THEN MAKES THE JUDICIAL
SYSTEM BIASED.
CAPITAL PUNISHMENT: INNOCENT PEOPLE ARE BEING KILLED, BUT HOW MANY IS TOO MANY. THE REASONS THE
WRONG PEOPLE ARE BEING CONVICTED ARE:
-WRONGFUL CONFESSION
-MISIDENTIFICATION BORE
-PERJURY (POLICEMAN
THE AMENDMENTS:
4TH: SEARCH & SEIZURE: The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable
cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or
things to be seized.
5TH: TRIAL & PUNISHMENT: No person shall be held to answer for a capital, or otherwise infamous crime,
unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in
the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same
offense to be twice put in jeopardy of life or limb; nor shall 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: RIGHT TO SPEEDY TRIAL; CONFRONTATION OF WITNESSES: In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime
shall have been committed, which district shall have been previously ascertained by law, and to be informed of
the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory
process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
THE RIGHT TO COUNSEL:
1. Legal Regulation of the Criminal Justice Process
a. Steps in Process
i. Pre-Arrest Investigation
ii. Arrest
iii. Booking
iv. Post-Arrest Investigation
v. Decision to Charge
vi. Filing the Complaint
vii. Magistrate Review of Arrest
viii.First Appearance
ix. Preliminary Hearing
x. Grand Jury Review
xi. Filing of the Indictment or Information
xii.Arraignment on the Information or Indictment
xiii.Pretrial Motions
xiv.Guilty Plea Negotiation and Acceptance
xv.The Trial
xvi.Sentencing
xvii.Appeals
xviii.Collateral Remedies
b. Diversity in Legal Regulation
i. 52 lawmaking jurisdictions
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 ii. The Unifying role of federal constitutional regulation
iii. Natural divergence
iv. Describing common patterns
v. Models
vi. Procedural subsets
c. Diversity in Administration
i. Significance of discretion
ii. Discretion and diversity
2. Sources of Criminal Procedural Law
3. “Ordered Liberty”, “Fundamental Fairness,” “Total Incorporation” and
“Selective Incorporation” (p. 24)

Twining v New Jersey (p. 24) 1908

State ct prosecutor said jury may draw unfavorable inference from def’s failure to testify.

5th amendment: right to silence, cannot be looked upon unfavorably, gov can’t comment on failure to
testify or failure to talk when arrested.

ct held privi and imm clause does not incorporate bill of rights, and due process also does not require 5th
amendment apply to people in state courts, not immutable principle of justice.

Powell v Alabama (p. 25) 1932

Duncan v Louisiana (p. 25 and p. 1349) 1968

Right to jury trial for serious criminal offenses
Maximum punishment was 2 years in prison; no entitlement to a jury trial; misdemeanor
Selective incorporation – right to jury trial; Incorporate that which is “fundamental”
HELD: The 14A guarantees a right to a jury trial in all criminal cases which – were they to be tried in a federal court – would
come within the 6A’s guarantee.
Rationale:
years in prison is serious and not petty
Deep commitment of the Nation to a right of jury trial in serious criminal cases
Provides protection from the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge.
J. Black’s concurrence
Still believes in wholesale incorporation, but will accept selective incorporation
J. Fortas’s concurrence
Not incorporating all the rights, but just limiting this to a jury trial
J. Harlan’s dissent
“What’s the principle here?”
Lack of fundamental unfairness, so why go with selective incorporation? It is or it isn’t.
However, SI at least limits the “run free, run wild” risks of “natural law”
The key compromise that still exists today
Alternatives
Frankfurter vision of ordered liberty
Wholesale incorporation – everything comes in, no matter the relative importance
Selective incorporation
Use sort of natural law, but it didn’t begin overnight; presume that the BOR reflect natural law; presumptively view the BOR
as within the accepted notion of justice; rebuttable presumption
a. The Problem of Bodily Extractions, another look at the “due process” and “selective
incorporation” approaches
i. Rochin v California (p. 31) 1952
ii. Police enforced stomach pumping to recover morphine capsules from Rochin. (Shocks the
Conscience test)

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 1. Compared the extraction of stomach contents to the coerced confessions that offend
the communities’ sense of fair play and decency.
2. The government with permission now can gather those kind of those things
a. What do I mean about permission?
i. Ask the criminal
ii. Or get a warrant
1. Probable cause to believe your blood leads to evidence to a
crime
4. Due Process Right to Technology that Might Establish One’s Innocence? (p. 3
supplement)
District Attorney’s Office v Osborne (p. 3 supp) 2009

a. The limit is the 14th amendment

i. Breithaupt v. Abram (1957) Blood test taken from an unconscious driver in a manslaughter
case showed alcohol level
1. Blood samples under the care of a physician and procedure has become routine in
our everyday life.
a. Schmerber v. CA
i. Upheld that a police can take a blood sample from an injured person
against him objection
2. County of Sacramento v. Lewis: police killed motorcycle passenger during
motorcycle pursuit. Used shock of conscious test and found that this action did not
shock the conscious
3. Continued application of “free standing” due process
ii. Dominant source of constitutional regulation of the pre-trial stages of the process
iii. A major source of constitutional regulation of the trial
iv. Held unconstitutional under deductive reasoning instead of the consistency of common law
v. Look to particular case and resting
b. The federal courts “supervisory power” over the administration of federal criminal justice
i. McNabb v. U.S. (1943)
1. Quickly brought before a magistrate for prosecution…24hrs.
2. Or you will explain why you didn’t and if you don’t have an explanation and
confession you get will be out, and will be excluded.
a. US v. Payner (1980) Money Laundering in Bahamas
i. Does not authorize a federal court to exclude evidence that did not
violate defendant’s Fourth Amendment rights
b. US v. Hasting (1983)
c. Guantanamo Bay
i. How long to hold people under due process
ii. Government has lost every case so far
iii. (Supplement Case)
iv. Habeas Corpus: produce the body and justify detention
5. 6 Amendment: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial,
TH

by an impartial jury of the State and district wherein the crime shall have been committed, which district
shall have been previously ascertained by law, and to be informed of the nature and cause of the
accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining
witnesses in his favor, and to have the Assistance of Counsel for his defense.
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 a. Betts v. Brady (1942) Page 80
i. The court did not give the defendants lawyers and decided that they will evaluate these
cases on a case by case basis
b. Gideon v. Wainwright
i. In the case, the Supreme Court unanimously ruled that state courts are required under the
Sixth Amendment of the Constitution to provide counsel in criminal cases for defendants
unable to afford their own attorneys or lawyers.
6.Recoupment Laws:
a.Potential for violations of equal protection
b.Recoupment (promise to pay counsel costs) may be a condition of probation, if likelihood of ability
to repay
7.The Right to Counsel
a.Fundamental Right: Comes from the 6th Amendment, and applies to the states via due process
clause of 14th in Gideon v. Wainwright.
i. Facts: The defendant was charged with the robbery of a poolroom. At trial he was denied
his request for appointed counsel, despite his indigence. He was convicted. The Supreme
Court held that Gideon had been denied a fair trial. The 6th Amendment, as incorporated in
the 14th amendment automatically entitles an indigent defendant to appointed counsel. At
least in felony counsel.
ii. Unqualified right to hire the counsel of your choice
b.Proceedings in Which the Right to Counsel Applies
i. Misdemeanors- In Argersinger v. Hamlin the supreme court extended the right to counsel to
all indigent misdemeanor defendants faced with a potential jail sentence.
ii. Right to counsel attaches only in cases where DEFENDANT faces possible prison
1. Scott. v. Illinois: HOWEVER, the right only reinforced if imprisonment results; EX:
if DEFENDANT sentenced to probation, then no atty required, even though prison
was potential
2. Nichols v. US: THEN, an uncounseled conviction may be relied upon to enhance
sentence under a later conviction, even if result is prison. Overrules Baldasar.
iii.Suspended jail sentences or probation: NEW DOCTRINE: indigent DEFENDANT
without counsel may not receive suspended jail sentence or probation. Alabama v. Shelton
c. Right to counsel when adversary judicial proceedings commence AND case is at a critical
stage:
i. Initial Appearance: right to counsel applies before magistrate
1. White v. Maryland – initial appearance is a critical stage of the proceedings, and
requires the appointment of counsel, if the defendant is compelled to make a
decision which may later be formally used against him.
a. Even if the defendant is not compelled at the initial appearance to make
decisions which may be formally used against him at trial, there is still a
possibility that he may in particular circumstances have a right to appointed
counsel.
ii. Preliminary Hearings: Coleman v. Alabama – denial of right to counsel at the preliminary
hearing was a violation of the accused’s 6th amendment’s rights, because the hearing was a
critical stage of the prosecution.
iii. Arraignment: critical stage requiring counsel, but the denial of counsel is harmless error
as long as the defendant is not required to bind himself in anyway.

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 iv. Sentencing: a delayed sentencing hearing was a critical stage of criminal proceedings
requiring the right of attorney
1. NOT at a line-up (before proceedings begin) 5th amendment right against self-
incrimination?
2. NOT at a photo array (even after proceedings begin, b/c not critical)
3. NOT when prime suspect
4. NOT by virtue of simple detention (administrative detention of a prisoner does not
activate; generally, the right is activated by forces that jeopardize the privilege
against self-incrimination)
8.EQUALIZING DEFENDANTS
a.Court Expenses/Processes
i. There can be no equal justice where the kind of trial a man gets depends on the money
he has.
ii. Griffin-Douglas Principle: The equal protection
1. Griffin: The S.C. held that a state must provide a free transcript of the trial
proceedings when submission of a transcript is a prerequisite to appeal.
a. Transcript necessary for appeal:
i. States are not required to provide all forms of appellate review, but a
free transcript is necessary to equal access when the do
ii. Free transcript is necessary in all cases, even non-felonies
2. Douglas: The “Griffin principle” of equal protection was held to require that
counsel be appointed to assist indigent defendants in preparing the first appeal
from a conviction, at least where the first appeal is available as a matter of right
in every convicted defendant.
a. Counsel on Appeal: If DEFENDANT has a direct appeal right, he has a
right to counsel for this appeal;
b. Ross v. Moffitt: The Supreme Court adopted a narrow view of Griffin-
Douglas in holding that an indigent does not have a right to appointed
counsel on his applications for discretionary review by the state supreme
court or on his petition for cert. by the us supreme court. Said that the
appeal is rejected or accepted based on likelihood that the original
determination of guilt was wrong.
i. a discretionary appeal, in particular one where the transcript and
brief were already filed in court below, NO right to attorney or
assistance with the app
ii. No right to appeal when discretionary appeal from plea of guilty.
c. DUE PROCESS & EQUAL PROTECTION are implicated when the right to
appeal exists but is not meaningful, as a result of an overly complex appeal
process
3. Expert Services: Fundamental fairness entitles indigent Defendants to adequate
opportunity to present claims fairly, thus state must provide basic tools of adequate
defense
a. Ake v. Oklahoma: two instances when the defendant has the right to a
psychiatrist’s assistance at state expense: (1) when he makes a preliminary
showing that his sanity is likely to be a significant factor in his defense, (2)
when in a capital sentencing proceeding, the state tries to justify the death
penalty by showing that the defendant is likely to remain dangerous.
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 b. Due process requires access to psychiatric evaluation when:
i. Preliminary showing by DEFENDANT that sanity at time of offense
is likely to be a significant factor; or,
ii. In capital cases, Π presents evidence of Π future dangerousness.
4. Conflicting Obligations on Appellate Counsel:
a. If counsel finds a case wholly frivolous, he should advise the court with a
request to withdraw along with a brief referring to anything in the record
that might arguably support an appeal
i. Anders brief must include discussion of why appeal is meritless
ii. States may adopt different appellate procedures, as long as right to
appellate counsel is preserved and indigent appeal is resolved in a
way that relates to the merits of the appeal

5. OTHER PROCEEDINGS
a. Probation Revocations – No unqualified right to counsel:
i. Factual inquiry as to whether violated terms = lawyer;
1. Case-by-case approach, usually no counsel needed unless
defendant present a timely and colorable claim that:
a. He did not commit the violation
b. There aremitigatin circumstances making revocation
inappropriate.
ii. Simple question of whether probation should be revoked = no
lawyer.
b. Summary Courts-Martial: No right to appointed counsel, even though
presiding can impose 30 days hard labor
c. Parenting Termination: No unqualified right – state courts may determine
on case-by-case basis
d. Collateral Attack: No constitutional right to counsel in post-conviction
proceedings
e. Juveniles: always have right to counsel
f. Military: minor no; major, yes
9.WAIVING THE RIGHT
a.Faretta v. California: DEFENDANT must be free to decide: DEFENDANT has a right to
proceed pro se
i. A criminal defendant in a state proceeding has a constitutional right to knowingly &
intelligently refuse the aid of an attorney.
ii. HOWEVER, no clear right on appeal (state interest in measuring integrity of convictions)
1. Martinez v. Court of Appeals of California, says that proceed pro se right is not
absolute and you cannot claim ineffective assistance of counsel if you waived
counsel
b. Stand-by counsel: NOT a violation of 6th right
i. Mckaskle v. Wiggins: Serves interest of orderly proceeding, b/c atty can educate
DEFENDANT as to protocol and routine obstacles
c.Knowing, Voluntary & Intelligent: Iowa v. Tovar
i. STANDARD: Judge must inform DEFENDANT of:
1. Nature of charges against him;
2. Right to counsel regarding plea; AND,
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 3. Range of punishments if pleads guilty.
a. Judge does NOT need to foresee and warn of ALL future consequences
(such as three-strikes on first offense)
b. Collateral attack: if defendant wants to attack the fact that he waived
counsel he must prove that he was unaware of one of the above things.
d.Required Level of Competency:
i. No requirement of different/higher standard of competency than that for trial standing
ii. “sufficient present ability to consult with a lawyer with a reasonable degree of rational
understanding”
ii. “has a rational as well as functional understanding of the proceedings against him”
e.Can forfeit counsel if defendant assaults counsel or assures judge he will retain counsel and doesn’t
in a reasonable amount of time.
10.CHOOSING COUNSEL
a.Appointed: Indigent DEFENDANT has NO right to choose his counsel
i. NO 6th right to “meaningful relationship”
b.Retained: Courts cannot disqualify chosen counsel without a good reason
i. Denial in violation of 6th is a structural error (thus, automatic reversal)
ii. The right does NOT cover the use of otherwise forfeitable funds to hire atty
11.DECISION-MAKING
a.Defendant’s Decisions: “Fundamental rights”:
i. DEFENDANT must decide: plead guilty, waive right to jury trial, waive right to be present
at trial, testify on his own behalf, or forgo an appeal
ii. No right to compel counsel to raise every nonfrivolous issue
iii. Counsel not required to file notice of appeal unless specifically directed to
b.Counsel’s Decisions: “Superior ability of trained counsel” in assessing “strategy”:
i. COUNSEL has ultimate authority in deciding: barring prosecution form using
unconstitutionally barred evidence; obtaining a dismissal; wearing civilian rather than jail
clothes; striking an improper jury instruction, etc.
ii. “Strategic decisions rest within counsel’s professional judgment and include the methods to
utilize for a vigorous and effective advocacy”
iii. Appellate counsel may decide which nonfrivolous issues to raise, as a strategic decision
iv. Nixon v. Florida: Strategy pursued without DEFENDANT approval is never per se
ineffective; even though counsel conceded DEFENDANT’s guilt to the jury, this was part
of a trial strategy aimed at sentencing mitigation.
v. Roe v. Flores-Ortega: Counsel’s failure to file an appeal as of right when defendant had
requested one would constitute per se ineffective assistance of counsel. Since there was a
guilty plea entered here, it could signal to the client that they wanted the judicial
proceeding to be over.
12.EFFECTIVE ASSISTANCE
a.6th Amendment:
i. Constitutional right to effective assistance of counsel; thus, conviction subject to reversal
if incompetence negates effectiveness
ii. On appeal, right to effective ONLY if right to appeal; thus, no right on discretionary
iii. Courts must apply one standard for both retained and appointed counsel
b.Strickland v. Washington Two-Part Test:
i. Deficient performance of counsel such that it did not qualify as counsel; AND,
ii. The deficient performance prejudiced the defense.
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 1. Did the lawyer’s behavior fall below the expected behavior of the average lawyer
in the jurisdiction?
iii. The Test, Re-Stated: Performance must be deficient, and must have prejudiced
Defendant so much as to have deprived of right to fair trial
1. STANDARD: “reasonably competent attorney”
2. Venue: This seems to be raised as a habeas issue in many cases
c.Deficient Performance:
i. Perjury: Refuse to cooperate with perjury = NOT ineffective
1. Nix v. Whiteside: counsel told defendant that perjurying himself would lead
counsel to withdraw, to require counsel to advise the trial court of the perjury, and
that counsel would probably be allowed to impeach that testimony.
ii. Suppression: Failure to file timely motion re evidence obtained in violation of 4th
amendment. Court said that was a startling failure of professional responsibility.
1. Kimmelman v. Morrison: Did not ask for pre-trial discovery
iii. “Strategic” Decisions:
1. Yaraborough v. Gentry: presented a federal habeas corpus challenge to alleged
ineffective assistance of counsel due to closing argument
2. State court determination as to performance may only be reversed if “objectively
unreasonable.”
3. If a state court rejects an ineffective-assistance claim, a federal court may reverse
this only if the decision was "objectively unreasonable." The right to effective
assistance of counsel "is denied when a defense attorney's performance falls
below an objective standard of reasonableness." While Gentry's lawyer "was no
Aristotle," the federal judiciary must respect the state court's reasonable
conclusion that the lawyer was sufficient.
iii. State v. Davis: Remarks about racial prejudice in closing argument were
objectively unreasonable. Maybe not the best lawyer for a black guy?
i. To a white jury “I do not like black people but urge you to not let
race become a factor.”
iv. Duty to Investigate: Rompilla v. Beard
1. In capital case, must investigate mitigating factors; however, decision to use
would be strategic.
iii. Family told counsel that they didn’t know why defendant would have
committed the crime (they thought he was innocent).
2. Failure to take standard investigative step (in capital case) was per se deficient
3. Failure to examine prior conviction file (where mitigating evidence would have
been found) was deficient.
d.Prejudice:
i. Defining Prejudice: there is a reasonable probability that but for counsel’s
unprofessional errors, the result of the proceeding would have been different.
ii. Timely Exclusion: DEFENDANT should be able to use federal habeas to repair failure
to timely request exclusion. (Kimmelman)
1. Illegally seized evidence is often highly reliable and probative, and thus deserves
heightened attention
iii. Evidence of youth, inexperience and insufficient time did not meet standard, where no
showing of actual prejudice

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 1. HOWEVER: a sufficiently atrocious performance by counsel may warrant
presumption of prejudice . . .
2. . . . sleeping through trial
3. . . . failure at sentencing to call witnesses, provide mitigating evidence or make
closing argument
iv. Exceptions: Strickland analysis not the best choice if:
1. Trial court prevented counsel from utilizing certain adversarial procedures; or,
2. Counsel burdened by an actual conflict of interest.
v. Institutional Defects – bypass deficiency and prejudice:
1. Public defender with too-heavy caseload and insufficient resources to match could
not provide effective assistance
2. Attorney that allocates resources to clients passing polygraph = ineffective
3. Least experienced attys should not be assigned to capital cases
e.CONFLICT OF INTEREST: action taken on behalf of the defendant would work against an
obligation the attorney owes to another person or the attorney’s self interest.
i. Examples:
1. Joint representation of codefendants who will be tried separately;
2. Defense counsel has previously represented or is currently representing in another
matter the victim of the alleged offense
ii. Trial Court’s Obligation: Upon Motion of DEFENDANT (Holloway v. Arkansas):
1. Failure to investigate the risk of conflict upon counsel’s statement of conflict
denies effective assistance and violates the 6th amendment. Counsel also
requested separate counsel for defendants.
2. Sua Sponte: Unless court “knows or reasonably should know that a particular
conflict exists”, no duty to initiate inquiry
iii. If the possibility of conflict is reasonably apparent to the court, it has duty
to inquire
iv. If the defendant’s have been jointly charged or their trials have been joined
together, the court should inquire into a conflict of interest.
3. Scope of the inquiry:should not be perfunctory but should include probing and
specific questions.
iii. Post-Conviction Review: STANDARD (Mickens v. Taylor):
1. Presence of actual conflict; and,
2. Adverse impact on counsel’s performance.
iii. Reasonable probability that but for counsel’s unprofessional error’s, the
result of the proceeding would have been different.
iv. Examples:
i. Burger v. Kemp: Even if law partners are considered one atty,
shared representation is not a per se violation.
1. Two defendants, tow lawyers from the same firm. Each
defendant confesses but admits majority of culpability to
the other defendant. One of the lawyers prepares both
men’s appellate briefs, but only argues lesser culpability in
one brief. Not per se violation. Court presumes prejudice
only if the defendant demonstrates that counsel actively
represented conflicting interests and that an actually

9
 conflict of interest adversely affected his lawyer’s
performance.
ii. Certain flagrant conflicts, such as atty engaging in client’s criminal
acts, raise presumption of adverse impact (U.S. v. Fulton).
1. When attorney has engaged in the defendant’s crimes.
iv. Waiver: 6 right allows DEFENDANT to waive right to conflict-free counsel, in favor of
th

choice of counsel Wheat v. US

1. So long as there is a reasonable possibility of a conflict, the court may prohibit the
same lawyer from representing two or more defendants, without violating the 6th
amendment rights of the defendant who loses access to his first choice.
ARREST, SEARCH & SEIZURE:
1. Exclusionary Rule
a. All evidence obtained by searches and seizures, in violation of the Constitution, is (per 4th/15th)
inadmissible in state court and federal court (Mapp v. Ohio).
b. HOWEVER: evidence obtained by police in reasonable reliance on a search warrant issued by a
neutral magistrate will still be admitted. (US v. Leon)
i. As long as the person writing the affidavit wrote it in good faith, the decision is that of the
magistrate and the exclusionary rule serves no useful function. The officers enforcing the
warrant must be able to rely on the decision of the magistrate.
c. Principles To Be Protected:
i. Exclusionary rule did NOT require suppression of evidence obtained in a badly executed
“knock-and-announce”
ii. Purpose of exclusionary rule must be considered – since the purposes of the “knock-and-
announce” rule do not connect to the evidence seizures that result, no constitutional interest
is served by suppression
d.Reasonable Reliance: On the warrant itself . . .
i. Failure to name the items to be seized with particularity, if reasonably relied upon, may
still be admissible because the officer should not be held to not believe a judge who says
a warrant is good.
1. HOWEVER: where the warrant is so obviously invalid that a reasonable officer
should have known it was invalid.
ii. If police arrested or seized property on invalid search warrant, then defendant files and
§1983, but the problem becomes what is it worth?
e. Knock and Announce Rule – when the police enter a private dwelling to execute a search warrant
they must knock and announce.
i. They must knock first, announce that they are the police, and wait until the person answers
the door.
ii. Hudson v. Michigan: even if the defendant can show that certain evidence would not have
been acquired by the police but for their failure to wait for the door ti be answered, the
evidence will still be admissible against him.
f.On statutes and regulations . . .
i. “objectively reasonable reliance on statutes” = admissible
ii. Suppression is NOT a remedy for simple illegality – a violation of IRS regs
g.Pre-Trial & Post-Conviction:
i. Grand jury witness may not refuse questions based on unlawfully-obtained evidence
ii. Exclusionary rule does NOT apply during a parole revocation hearing
h.Civil & Quasi-Criminal:
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 i. Exclusionary rule DOES apply during a forfeiture hearing, which is quasi-criminal,
especially if based on alleged criminal activity
ii. Exclusionary rule does NOT apply during civil case brought by another sovereign
iii. Exclusionary rule does NOT apply during civil deportation hearings
i.Third Party Conduct:
i. Private persons: police may view and inspect what a private party has already unlawfully
searched/seized
ii. Non-police gov’t employees: mistake by a court employee is not the evil that exclusion
protects against – thus, reliance on warrant (mistakenly allowed to stand) was reasonable
here
iii. Foreign officials: deported alien felons who re-enter U.S. are not covered by 4th; thus,
evidence from country of origin, though illegally obtained by authorities there, is
admissible here???
2.PROTECTED INTERESTS
a.Katz v. United States: established that the 4th protects people, not places, from unreasonable
intrusion
i. STANDARD: Reasonable expectation of privacy.
1. So long as an individual can justifiably expect that his conversation would remain
private, his/her conversation is protected from "unreasonable search and seizure" by
the Fourth Amendment.
ii. HOWEVER: something about nexus of property being tied to the crime
iii. AND: warrants may be executed against innocent 3rd parties
b.People & Places:
i. Public Places:
1. Individual on a pay phone has similar expectation of privacy as user on phone
number
2. Open fields are still probably fair game
3. Distance surveillance of a greenhouse OK
ii. Private Areas of Public Places:
1. Observation through an air shaft into restroom stall NOT okay
2. Prison cell = no expectation of privacy (Hudson v. Palmer)
iii. Chattels:
1. Vehicles:
i. Paint sample taken from a car, after car was already seized, was NOT a
search (Caldwell v. Lewis)
ii. Looking at a VIN or other thing inside car is not a search; HOWEVER,
reaching in to clear obstacle to officer’s view = a search (New York v. Class)
2. Bags & Briefcases: Manipulation of luggage was 4th violation, that by feeling his
luggage, the police searched it on the bus and that kind of inspection is more
intrusive then a purely visual inspection.
iv. Restrictions/Exceptions:
1. Hearing something nearby is NOT a search
2. Thermal imaging of a residence – while the police may use ordinary, non-intrusive
sense enhancement, a device not available to the public is a 4th search, and requires
a warrant (Kyllo v. US).
3. Aerial or long-distance photography are not intrusive, b/c they do not reveal
anything that could not otherwise be seen.
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 v. Canine Sniff: of luggage in a public space was NOT a search (US v. Place)
1. Sniff search of vehicle during traffic stop was NOT a search (Illinois v. Caballes)
vi. Devices: Police may use electronic tracking device if placed in goods sold during a sting
operation (US v. Knotts). Police can use any device that can give them information that
they can get without the device.
1. If installed with consent of owner, no privacy infringement.
2. However, in some circumstances (???), monitoring the beeper will be an
unreasonable search, b/c it reveals information that could not have been revealed
through visual surveillance.
vii. Computers: Person who transmits e-mail enjoys reasonable expectation of privacy – thus,
warrant required (or help from recipient)
c.Documents/Records: Andresen v. Maryland
i. Business records – 5th may be employed to prevent accused from cooperating and turning
evidence over, but will not prevent a lawful search for his records
1. which held that search of petitioner's offices for business records, their seizure, and
subsequent introduction into evidence did not offend the Fifth Amendment's
proscription that “[n]o person … shall be compelled in any criminal case to be a
witness against himself.” Although the records seized contained statements that
petitioner voluntarily had committed to writing, he was never required to say
anything.
ii. Records may be seized even though the holder is an innocent third party
1. NOTE: if documents cannot be taken without examining the contents of unseizable
documents, officers should seize the lot and wait for proper procedure to be
determined
2. Colorado court held (2002) that an innocent, third-party bookstore must get hearing
before forced to turn over all purchasing records; PATRIOT of 2001 permitted such
seizures on the word of an agent; however, PATRIOT re-auth created a judicial
review and more procedural protection before the seizure may take place.
3. PROBABLE CAUSE
a.judicial guideline set down by the U.S. Supreme Court for evaluating the validity of a search warrant
based on information provided by a confidential informant or an anonymous tip. The Supreme
Court abandoned the Aguilar-Spinelli test in Illinois v. Gates, 462 U.S. 213 (1983), in favor of a
rule that evaluates the reliability of the information under the "totality of the circumstances."
However, Massachusetts, New York, Tennessee, and Washington have retained the Aguilar-Spinelli
test, based on their own state constitutions.
The two “prongs” of the test are that, when law enforcement seeks a search warrant and a magistrate signs a warrant:
The magistrate must be informed of the reasons to support the conclusion that such an informant is reliable
and credible.
The magistrate must be informed of some of the underlying circumstances relied on by the person
providing the information.[1]
This information provided to a magistrate will allow the magistrate to make an independent
evaluation of the probable cause that a crime has been or will be committed.
police must state sufficient facts of which they have actual knowledge or information from a reliable source
b.Probable cause to arrest:
i. must have reasonable grounds to believe that a crime has been committed by the person to
be arrested
1. finding contraband in an automobile, there is probable cause to arrest its occupants,
regardless of their proximity from the contraband

12
 2. information/orders received through official channels can NOT create probable
cause, where the issuing authority lacked probable cause originally
c.Probable cause to search:
i. must have reasonable grounds to believe that the items sought are connected with criminal
activity and that they items will be found in the place to be searched
1. Warranted Searches:
i. the totality of the circumstances should be considered to determine whether
there is a fair probability that contraband will be found in a particular place
i. an informer’s veracity, reliability, and basis of knowledge are all
highly relevant, but not exclusive or mandatory, factors in evaluating
the totality of the circumstances (Massachusetts v. Upton).
ii. deference to magistrates (support the magistrate’s determination that
there was a fair probability that contraband or evidence of crime
would be found in Defendant’s motor home)
ii. anticipatory searches are okay (warrant authorized for later search after
triggering event) US v. Grubb:
i. Anticipatory searches are constitutional and do not need to describe
that condition on their face. In this particular decision, which arose
from a federal child pornography prosecution, the Court ruled that a
warrant that was predicated on the undercover delivery of a
videotape to the defendant's home, but did not state this on its face,
was properly issued and executed because it described the place to
be searched and the objects to be seized, and the search was
conducted after the delivery was made.
1. search is subject to challenge if a false statement was
necessary to the probable cause determination, but
DEFENDANT must prove untrue
2. Warrantless Searches:
i. Probable cause is also required for warrantless
i. Maryland v. Pringle: (p. 5 table contents)
4.SEARCH WARRANTS
a.ARREST WARRANT: clerk may issue, b/c judicial review occurs quickly upon arrest
b.SEARCH WARRANT: must be prepared by trained lawyer, and describe with particularity things
and place to be searched, so that issuer can evaluate probable cause
i. Authority: Cannot be issued by investigator or prosecutor – must be issued by a “neutral
and detached magistrate”
1. Magistrate cannot be paid by the warrant or offered other incentives
ii. Particulars: Sufficiency of the description: officer with a search warrant can, with
reasonable effort, ascertain and identify the place intended,
iii. Steele v. US.
i. If one can reasonably tell from outside a structure that it contains multiple
residences, warrant must describe the particular one to be searched
(standard: “objectively reasonable”) State v. Blackburn
ii. Particularity of description must be incorporated in the warrant, not in
supporting affidavit, Groh v. Ramirez
iv. Execution:
1. Timing: Must be executed promptly (usually 10 days at most)
13
 i. Generally, should be executed during the day, unless specified in warrant
ii. Night search only requires showing that property to be seized is likely to be
on premises at that time
iii. Absence of occupant is not a factor, U.S. v. Gervato
2. Entry: In order to justify entry without “knock and announce”, police must have
reasonable suspicion that to do so would be dangerous, futile or inhibit
investigation,
i. However, the reasonable suspicion test is NOT affected by unavoidable
destruction of property as part of entry
ii. Police may then break in IF occupant’s failure to let them in fairly suggests
refusal (consider: time to get to door, nature of establishment)
3. Safety: If warrant does not permit searches of persons found on premises, then treat
these as warrantless
i. Detention while waiting for warrant is okay
ii. Okay to detain and restrain persons on premises for officer safety Michigan
v. Summers
4. Other Concerns:
i. PLAIN VIEW: While executing, anything in plain sight is fair game.
Anything that is viewable in the area where the police have a right to be.
ii. COMPUTERS: may be treated as a container, so warrant must call for
containers – NOT SURE, State v. Evers.
iii. Presence of media during search unconstitutional, as it is an intrusion that
does not facilitate the search
iv. Delivery of warrant to property holder is generally a creature of state law,
but must be constitutionally done
v. The search ends when warranted items are found
5.WARRANTLESS ARREST & SEARCH
a.Arrest Standard: Arrest warrants are seldom used and are generally held to not be constitutionally
required. This is true even when the police have sufficient advance notice so that procurement of a
warrant would not jeopardize the arrest. US v. Watson
i. Misdemeanor: arrest if officer observes the commission of the crime. Atwater v. City of
Lago Vista
ii. Felony: arrest if probable cause
iii. PRETEXTUAL STOP: not a problem, esp. when breaking traffic law
b.Deadly Force: ONLY if probable cause to believe that the suspect posses a significant threat of
death or injury to the officers or others. Tennessee v. Garner
i. In all questions of force, ask whether an officers’ actions are objectively reasonable without
regard to intent or motivation. Graham v. Connor
1. Where the police do have reason to believe that the suspect is dangerous to
themselves or others, they are entitled to use deadly force if they reasonable believe
that lesser force will not suffice. And at least where the suspect is fleeing by
driving recklessly, the police are not requires to call of the chase even if this would
reduce the danger. Scott v. Harris
c.Magisterial Review: Must occur within 48 hours (except in genuine emergency) Gerstein v. Pugh
i. Once a suspect is in custody, however, there is no further justification for dispensing with a
magistrate’s neutral judgment.
d.Post-Arrest Searches:
14
 i. Always permissible to search an individual during arrest, even if arrest is for an offense
which bears no jail time possibility.
1. A police officer pulled over and arresting Robinson for operating an automobile
without a valid permit. The officer then frisked Robinson and discovered a
crumpled cigarette package containing fourteen vials of heroin in his pocket. US v.
Robinson
2. When returning to police facility, okay to search D’s entire person and seized
property (protect from theft and discover dangers)
i. Once an accused has been lawfully arrested and is in custody, the effects in
his possession at the place of detention that were subject to search at the
time and place of arrest may lawfully be searched and seized without a
warrant even after a substantial time lapse between the arrest and later
administrative processing, on the one hand, and the taking of the property
for use as evidence, on the other. US v. Edwards
ii. Delay in full search okay, as police were waiting for substitute clothing
ii. BLOOD TEST: permitted, b/c interest in preserving evidence, alcohol diminishes in blood
quickly, outweighed intrusion. Winston v. Lee
iii. SURGERY: to retrieve evidence swallowed was NOT reasonable search. Should be
conducted on a case by case basis, in which the individual’s interests in privacy and
security are weighed against society’s interests in conducting the procedure. Winston v. Lee
iv. Full search of vehicle was NOT okay, where no custodial arrest. Officer could has done a
custodial arrest but chose to issue a citation. Then chose to search the car, where the officer
found drugs. The concerns for searching after an arrest do not apply.
1. No threat to officer safety following a traffic citation
2. No need preserve and discover evidence when there is no likelihood that speeding
will continue.
v. Limited search of person (fingernail scrapings) okay, where probable cause to arrest exists,
but no arrest made. Suspect voluntarily came to police station to answer questions about
wife’s strangulation and had what appeared to be blood under his finger nails. Is
constitutional. Cupp v. Murphy
e.PREMISES SEARCH
i. Search “incident to a lawful arrest” - search in an arrestee's home beyond arrestee's
person and the area within his immediate control is unreasonable. Chimel
1. The Court reasoned that searches "incident to arrest" are limited to the area within
the immediate control of the suspect. While police could reasonably search and
seize evidence on or around the arrestee's person, they were prohibited from
rummaging through the entire house without a search warrant. The Court
emphasized the importance of warrants and probable cause as necessary bulwarks
against government abuse. Chimel v. California
i. a search is incident to arrest only if it is substantially contemporaneous with
the arrest and is confined to the immediate vicinity of the arrest
ii. where there are no exigent circumstances, it is unconstitutional to search a
home without warrant during arrest
iii. thorizes arrest in home or public does NOT authorize entry into third party’s
home
2. Officer Safety:
i. Protective Sweep: MUST be contemporaneous to arrest
15
 i. May extend only to cursory inspection of where person may be
found, and ONLY as long as necessary to dispel reasonable suspicion
of danger. Maryland v. Buie
ii. Naked Suspect: Okay to allow suspect to get dressed, and inspect drawer
with clothes for any dangers. Giacalone v. Lucas
iii. Outside: Arrest in front of house did not authorize cops to take suspect back
inside and then search house.
i. Even if Chimel, holding that the warrantless search of a house can be
justified as incident to a lawful arrest only if confined to the area
within the arrestee's reach. Vale v. Louisiana
3. Secure Evidence:
i. Limits: Officer who moved stereo equipment, without probable cause, to
get serial numbers, while there on unrelated matter, was conducting a new,
unreasonable search, outside the bounds of the arrest. Arizona v. Hicks
ii. Gravity of the arrest offense matters – arresting in home for the sole purpose
of securing BAC results was unjustified. Waiting inside house with
defendants for
iii. Presence: Officer waited 19 hours in apartment to secure for warrant =
OKAY
iv. Okay to detain suspect outside residence, while waiting on warrant to search
within, to prevent suspect from destroying evidence (for a “reasonable”
amount of time).
i. warrantless entry into a private home in order to make a felony
arrest. The Court struck down a New York statute providing for such
warrantless entries because the Fourth Amendment draws a firm line
at the entrance to the house. Absent exigent circumstances, that
threshold may not be reasonably crossed without a warrant. The
court, however, did specify that an arrest warrant (as opposed to a
search warrant) would have sufficed for entry into the suspect's
residence if there had been reason to believe that the suspect was
within the home. Payton v. New York
4. VEHICLES & CONTAINERS
f. Probable Cause:
i. inherent mobility of autos creates exigent circumstance; less expectation of privacy
ii. auto may be subject to search without warrant solely on basis of probable cause to believe
that vehicle contains something subject to seizure
iii. includes motor homes CALIFORNIA v. CARNEY
1. The decision established that motor mobile homes may not receive the heightened
protection from warrantless police searches to which stationary homes are entitled.
Instead, motor mobile homes are more akin to automobiles, which police may
search without a warrant and with probable cause.
iv. Auto itself may be seized upon probable cause that it is itself contraband, especially
(forfeiture). Florida v. White
v. No probable cause needed to inspect packages/containers coming into country; then, if
contraband, okay to re-close and deliver, then search again
vi. Contemporaneous to Arrest: Okay to search passenger compartment whenever arresting,
even though suspect is outside car.
16
 1. "Once an officer determines there is probable cause to make an arrest, it is
reasonable to allow officers to ensure their safety and to preserve evidence by
searching the entire passenger compartment." Thornton v. US
6. Containers:
a. Independent Probable Cause:
i. police can search a container, in a vehicle, based on probable cause that attaches to the
container, even if there is none for the vehicle as a whole.
1. the "automobile exception" to the Fourth Amendment's general search-warrant
requirement is broad enough to cover a situation where the police only have
probable cause to believe there is evidence in a specific movable container within
the car. The Court noted that the warrant requirement previously had depended on a
"curious line between the search of an automobile that coincidentally turns up a
container and the search of a container that coincidentally turns up in an
automobile." In place of that uncertain distinction, the Court adopted a single rule:
"The police may search an automobile and the containers within it where they have
probable cause to believe contraband or evidence is contained.” California v.
Acevedo
ii. As Part of Vehicle Search: If probable cause to search vehicle, containers therein are
subject to be part of that search. Wyoming v. Houghton
1. Inventory:
i. Routine Searches: as part of routine impound procedure, always okay to
inventory
i. "Once an officer determines there is probable cause to make an
arrest, it is reasonable to allow officers to ensure their safety and to
preserve evidence by searching the entire passenger compartment."
Colorado v. Bertine
ii. if there is no inventory policy, then search of containers probably reaches
beyond (search of locked container, when no policy, was unreasonable).
Florida v. Wells
7. THE "TERRY STOP" Terry v. Ohio
a. Basis: officer may conduct a Terry stop only when the officer observes unusual conduct that leads
him to reasonable suspicion, in light of his experience as a police officer, that criminal activity is
afoot and that person with whom he is dealing may be armed and dangerous
b. Standard for the Stop:
i. Assessment based on totality of circumstances + yields a particularized suspicion that this
individual is engaged in wrongdoing.
ii. ALSO: if a lawful stop already, and police have “articulable suspicion” that suspect may
gain control of weapon, further searching is reasonable
1. Examples:
i. Conversations with addicts do not indicate criminal behavior
ii. Anonymous tip with vague description and no independent confirmation did
not have “indicia of reliability”
iii. Profiling is not per se violative – totality of circumstances gave rise to
reasonable suspicion of criminal activity
iv. Police bulletin or other third party official information is an acceptable basis
for a Terry Stop

17
 v. Mere presence in a “high crime area” does not create a reasonable suspicion,
but it may be a relevant factor
vi. Match to suspects vague description does not warrant advanced detention
for fingerprinting and subsequent interrogation is questionable
iii. Scope & Extent
1. Mendenhall Test: A person is seized only if, in view of all circumstances, a
reasonable person would have believed that he was not free to leave.
2. General Limitation: investigatory stop must be temporary and no longer than
necessary to effectuate its purpose
i. removal of detainee without his consent from public area in airport to police
room in airport converted stop to seizure
ii. the 4th cannot require suspect to answer questions, but state law can create
an ID requirement
3. Freedom to Leave:
i. freedom of movement was restricted by his being a passenger, not by police
action – thus, consensual
i. Bostick claimed he was not "free to leave" because the bus was
scheduled to depart soon, and if it were to depart without him he
would be separated from his luggage. But Bostick "would not have
felt free to leave the bus even if the police had not been present.
Bostick's movements were 'confined' in a sense, but this was the
natural result of his decision to take the bus; it says nothing about
whether or not the police conduct at issue was coercive." Thus, it
was not through any display of authority or show of force on the
police's part that Bostick felt he was not free to leave the scene of the
encounter with the police. In the absence of such a show of authority,
there was no justification for the Florida court's per se rule that a
seizure had occurred simply because the encounter had taken place
on a bus. Because the Florida courts had not engaged in the correct
legal analysis, the Supreme Court sent the case back so that they
could do so in the first instance. Florida v. Bostick
ii. No police obligation to inform of right not to cooperate; no per se rule to
inform suspect
iii. Flight from an encounter with police does not establish that the encounter
was non-consensual.
i. To constitute a seizure of the person, just as to constitute an arrest --
the quintessential "seizure of the person" under Fourth Amendment
jurisprudence -- there must be either the application of physical
force, however slight, or, where that is absent, submission to an
officer's "show of authority" to restrain the subject's liberty. No
physical force was applied in this case, since Hodari was untouched
by Pertoso before he dropped the drugs. Moreover, assuming that
Pertoso's pursuit constituted a "show of authority" enjoining Hodari
to halt, Hodari did not comply with that injunction, and therefore
was not seized until he was tackled. Thus, the cocaine abandoned
while he was running was not the fruit of a seizure. California v.
Hodari
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 4. Finding Contraband:
i. Use of drug detection dog is NOT a search, because the dog ONLY alerts on
illegal substances (thus, no privacy intrusion). Illinois v. Caballes
ii. Temporary seizure of unattached personal effects is okay, but ONLY IF the
gov’t’l interest outweigh’s the minimal intrusion (90-minute luggage
detention was unreasonable). US v. Place
iii. THERE IS NO PLAIN FEEL RULE: the Terry stop is for officer safety only
– finding a bag of drugs does not function as probable cause for the next.
iv. ADMINISTRATIVE & REGULATORY
1. Based on the Search Objective
i. Safety Searches: WARRANT REQUIRED to search for administrative
violations (except in emergency). Camara v. Municipal Court
ii. Border Searches: NO WARRANT NEEDED for incoming packages and
containers (“the border search exception”). US v. Ramsey
iii. Vehicle Checkpoints: Roving patrol may make random stops at int’l border,
but not inside.
i. A simple checkpoint may be okay, if uniform and slight, but an
extended detention and/or search requires individualized suspicion
beyond the Terry rationale. Almeida-Sanchez v. US
iv. Special Law Enforcement Need: Only a valid basis if “sufficiently
different and divorced from” general law enforcement objects
i. General canine checkpoints for illegal drugs – violation of 4th,
because purpose was to detect ordinary criminal acts
ii. Secret blood-testing of pregnant mothers suspected of drug use –
supposedly to coerce into treatment, but still general law
enforcement purpose of arrest/prosecute
v. Based on the Individual:
i. Students: Balance between student’s expectation of privacy and
school’s need to function. Okay to search purse, after individualized,
particularized allegation by teacher.
1. Okay to require drug testing for almost any extracurricular
activity, but NOT FOR GENERAL POPULATION; upheld
for random athletic testing and random extracurr. Testing.
ii. Parollees/Probationers: System presents “special needs” beyond
ordinary law enforcement concerns, and justifies lower standards
1. BALANCING TEST: examine totality of circumstances and
determine reasonableness by balancing degree to which
intrudes upon individual’s privacy and degree to which
necessary for legitimate government interests. Samson v.
California
vi. Employees of Critical Industries:
i. Okay to drug test employees who interdict illegal drugs or
otherwise carry firearms
ii. Okay to blood/breath/urine test employees after train accident or
certain rule violations
v. CONSENT: When the subject of a search is not in custody and the State attempts to justify a
search on the basis of his consent, the 4th and 14th Amendments require that it demonstrate
19
that the consent was in fact voluntarily given, and not the result of duress or coercion,
express or implied. Schneckloth v. Bustamonte
1. The Nature of Consent (Factors):
i. Voluntariness is determined by
totality of circumstances,
including:
ii. Implied or actual threat of incarceration;
1. Even threat of parole violation, US v. Knight.
iii. Mental or emotional state of suspect (and degree to which influenced
by injury, intox, circumstance);
1. US v. Elrod shows where defendant is in emergency room
with dislocated hip, he can’t give proper consent.
iv. Concurrent denials of guilt (which implies that consent may have
been involuntary, b/c suspect knew would be found out); Higgins v,
US
v. STANDARD: objective reasonableness (not perception or intent of
suspect or officer).
ii. Consent is invalidated by:
i. Claim by officer that he already has a search warrant (however,
statement that he will seek does not invalidate);
ii. Prior illegal police action (fruit of poisonous);
iii. Right to counsel asserted (consent request should be directed through
counsel).
iii. NOT a factor:
i. 5th warning (is not required, b/c request for search is unlikely to elicit
incrim statements);
ii. Deception (undercover agents okay).
2. Third-Party Consent:
i. Test is not whether actual authority exists, but rather whether police had
reasonable belief that party had authority to consent (assertions + knowledge
+ key = reasonable)
i. X-girlfriend who doesn’t live there anymore, but doesn’t mention
that and continually calls the apartment her apartment.
ii. Reasonableness," not consent, is the touchstone of Fourth
Amendment jurisprudence; the Constitution only prohibits
"unreasonable" searches and seizures. Therefore, the constitutional
validity of a police determination of consent to enter is not judged by
whether the police were correct in their assessment, but by whether,
based on the facts available at the moment, it was reasonable to
conclude that the consenting party had authority over the premises.
Illinois v. Rodriguez
ii. Sources of Authority:
i. Spouse can reasonably consent to any shared marital property;
HOWEVER: other spouse can block consent if present. US v. Duran
ii. Parent can consent to search of live-in minor child’s quarters, and
sometimes live-in adult child

20
 iii. Landlord may consent to common areas, but NOT to tenant’s
privately controlled premises.
iv. Employer may consent except as limited by employee’s privacy
expectation.
1. Reasonableness of employee’s expectation of privacy.
v. Employee may consent to business within the scope of authority
iii. Limitations:
i. Antagonism – where motive of wife’s consent is clearly one of spite
she has no right to waive her husband’s protection against
unreasonable searches and seizures. State v. Gonzalez-Valle
ii. Police have knowledge of expressed denial of consent. Georgia v.
Randolph
iii. Suspect is present and denies consent
iv. Suspect has exclusive control of specific area within the mutual
larger area
ENTRAPMENT:
1.THE BASIC TEST
a.1973: Entrapment occurs when law enforcement officers instigate a criminal act by persons otherwise
innocent in order to lure them to its commission and to punish them; the focus is on predisposition or
intent of DEFENDANT to commit the crime.
b.The govt. may not originate a criminal design, implant in an innocent person’s mind the disposition to
commit a criminal act, and then induce the commission of the crime so that the govt. may prosecute.
i. To be entitled to the entrapment defense the defendant must show that the govt.’s conduct
induced the defendant to commit the crime.
1. Conflicting theories:
i. Courts disagree on whether to be tried by court or jury, whether entrapment
defense is mutually exclusive with denial of act, to what extent
DEFENDANT must prove, etc.
ii. 1st Circuit: when the govt’s quest for conviction leads to the apprehension of
an otherwise law-abiding citizen who, if left to his own devices, likely never
would have run afoul of the law, the courts should intervene.
iii. 5th Circuit: the gov’t failed to prove that the preacher was likely to engage in
money laundering absent the govt’s conduct.
ii. The gov’t may not originate a criminal design, give an innocent person the disposition to
commit a criminal act, and then induce commission of the crime in order to prosecute.
1. Outrageousness: Unless the conduct reaches “demonstrable level of
outrageousness”, the gov’t is not required to have reasonable suspicion of the
wrongdoing; agents simply provide an opportunity for Defendant to commit a crime.
2. Middle Men: when government agents have persuaded a middle man to induce a
particular target selected by the agents to commit a crime, the courts have generally
extended the entrapment defense to the ultimate targets
3. Legal conduct and law changes: Prior lawful acts may NOT be used to prove
predisposition. Jacobson v. US:
i. Man read child pornographic magazine that was once legal, but became
illegal. Govt. arrested and tried to shoe predisposition by saying that he
ordered it when it was legal.
INTERROGATION & CONFESSION:
21
1.MIRANDA
a.In general, any statement made by a suspect as the result of a custodial interrogation is
compelled, and thus violates the Fifth Amendment right against self-incrimination, unless the
government proves the police provided adequate procedural safeguards (effective to secure the
privilege against self-incrimination). Miranda v. Arizona No. 759
i. Miranda warnings cannot be repealed by Congress because it is a Constitutional
decision, over which the court has the ultimate authority. Dickerson v. US
ii. Public Safety Exception: may question without recitation if reasonably prompted to do so by
concern for public safety (“the gun is over there” = admissible).
1. Since the police officer's request for the location of the gun was prompted by an
immediate interest in assuring that it did not injure an innocent bystander or fall into
the hands of a potential accomplice to Quarles, his failure to read the Miranda
warning did not violate the Constitution. New York v. Quarles
b.Custodial Interrogation:
c. Custody: Exists if, at the time of the interrogation, a reasonable person in the suspect’s position
would conclude that his freedom of action is curtailed to the degree associated with an arrest.
i. Determining whether a suspect is actually in custody has always been based on objective
criterion like whether he had been brought to the police station by police or had come of his
own accord. Yarborough v. Alvarado
ii. No need to Mirandize an on-the-street interview or voluntary walk-in precinct confession.
d. Interrogation: Express questioning, words or actions that the police should reasonably expect to
elicit an incriminating response from the suspect.
i. The Court held that the Miranda safeguards came into play "whenever a person in custody is
subjected to either express questioning or its functional equivalent," noting that the term
"interrogation" under Miranda included "any words or actions on the part of the police (other
than those normally attendant to arrest and custody) that the police should know are
reasonably likely to elicit an incriminating response from the subject." Rhode Island v. Innis
ii. Spontaneous statements: made by a suspect in custody, but NOT in response to interrogation,
are still admissible (police conversation in front seat about “tragedy” was NOT interrogation)
iii. Agent/officer disguised as fellow prisoner is NOT interrogating suspect. Illinois v. Perkins
iv. “Routine booking questions” are permitted, unless they are designed to trip up / show mental
state (date of 6th birthday). Manner in which routine are answered is not in itself testimonial.
1. The court reasoned that 5th Amendment and Miranda apply only to evidence of
testimonial or communicative nature and not to "real or physical evidence." The court
ruled that when the officer asked the defendant for his name, height, etc. before
reading him his Miranda rights, it did not violate the 5th Amendment rights of the
defendant because these questions are part of police booking routine. Pennsylvania v.
Muniz
v. Physical or demeanor evidence v. evidence of silence: The prosecution may not use the fact
that the defendant stood mute or claimed his privilege in the face of accusation. This case
involves comments on post-arrest, pre-Miranda silence and demeanor. After one is in
custody, regardless whether the Miranda warnings were actually given, comment on the
defendant's exercise of his right to remain silent is unconstitutional. US v. Velarde-Gomez
vi. Reasonable danger of incrimination: Statutes requiring suspects to identify themselves
during police investigations did not violate either the Fourth or Fifth Amendments. Under the
rubric of Terry v. Ohio, the minimal intrusion on a suspect's privacy and the legitimate need
of law enforcement officers to quickly dispel suspicion that an individual is engaged in
22
 criminal activity justified asking a suspect to identify himself. No reason to think that asking
for identification would trigger incrimination. Hiibel v. Sixth Judicial Court
e. Procedural Safeguards:
i. Adequate Warning: Of right to remain silent, that anything said can and will be used
against, of right to consult with lawyer and have one present during interrogation, and that if
cannot afford lawyer, one will be appointed.
1. if you are an american citizen and you go to france then you get mirandized coming
back into the country
ii. Knowing, Voluntary and Intelligent Waiver:
1. Knowing and intelligent: suspect is aware of the nature of the rights and
consequences of abandoning them.
i. “Intelligent” does not mean “wise”; suspect can waive without understanding
inculpatory nature of statements.
2. Voluntary: no coercion (based on the totality of circumstances, including suspect’s
age and intelligence, and conduct of police).
3. Waiver cannot be inferred from the simple fact of a post-Mirandizement incriminating
statement. However, silence combined with acts that demonstrate waiver may be
sufficient.
i. The court is tolerant of a number of ways to waive, including signing then
talking, not signing then talking, etc.
ii. Whether the incriminating statements and sketches were admissible on the
basis of waiver was a question to be resolved on the totality of the
circumstances surrounding the interrogation. On the basis of the record, it is
clear that respondent voluntarily and knowingly waived his Fifth Amendment
rights and consented to continued interrogation, and that the statements and
sketches obtained from him were voluntary, and hence their admission in the
Juvenile Court proceeding was correct. Fare v. Michael C.
iii. If a suspect has not yet requested a lawyer but, unbeknownst to him,
somebody else has retained on for him, the failure to inform the suspect that a
lawyer is trying to see him does not erase the waiver of his Miranda rights.
Moran v. Burbine
f. The Rights, Once Asserted:
i. Right to Silence: Police may not interrogate a suspect who has asserted her right to silence
about this crime; however, following a new Mirandizement and a significant passage of time,
they may ask about another crime.
1. Respondent's right to cut off questioning was scrupulously honored, the police having
immediately ceased the robbery interrogation after respondent's refusal to answer and
having commenced questioning about the murder only after a significant time lapse
and after a fresh set of warnings had been given respondent. Michigan v. Mosley
2. The right to silence includes prohibition on comment by gov’t on silence.
ii. Right to Counsel:
1. Police may not interrogate a suspect who has clearly and unequivocally asserted her
right to counsel about ANY crime, until counsel is present; this protection continues as
long as suspect is in custody. Minnick v. Mississippi
i. clearly requests an attorney Davis v. US
2. Suspect may waive/void the right to counsel if she re-initiates communication with
police.
23
 i. Thus, a suspect detained during an investigation may, after invoking his right
to have counsel present during an interrogation, may ask for a drink of water
or to use the telephone without retreating from his prior request for counsel.
He may not, however, ask more generalized and open-ended questions.
Oregon v. Bradshaw
3. Also, this is NOT the 6th A right to counsel, which IS offense-specific.
4. Under any circumstances, once DEFENDANT has RETAINED to counsel, he cannot
be actively questioned by the state or its agents (including informants); passive
informants may be okay.
5. Police do not have a rule about how they treat attorney so long as it has no relevance
at all to the degree of compulsion experienced by the defendant during the
interrogation. Moran v. Burbine
iii. Fruit of the poisonous tree:
1. Pre-Miranda volunteered physical evidence IS admissible.
i. US v. Patane, US 2004—sup38: physical evidence derivative of a Miranda-
violating confession is admissible
i. after police gave defective warning, suspect told them where to find
gun
ii. held: gun is admissible at trial
1. Miranda exists only to prevent against testifying against
himself, and that the admission of additional fruits of a non-
Mirandized but VOLUNTARY confession – in that case
physical evidence – therefore cannot violate Miranda.
2. Police practice of eliciting confession, then Mirandizing, then re-eliciting confession:
this is NOT okay, UNLESS there is a sufficient break after first confession but before
Mirandize, so as to give DEFENDANT “reasonable belief that she can decide not to
speak with police”.
i. Oregon v. Elstad, 1985: ∆ need not be made aware that a previous confession
(made before Miranda warnings were given) is inadmissible, making second
confession admissible. Analyzed as to whether or not the confession was
knowingly and voluntarily made.
i. No casual link between first and second confession.
ii. Missouri v. Seibert, 2004: police followed protocol that called for
interrogation without Miranda warnings followed by warnings and repeat of
confession
i. held: second confession is inadmissible
ii. this situation can be distinguished from Elstad on the following
grounds:
1. (1) deliberate failure to warn ;
2. (2) explicit use of previous statement;
3. (3) failure to advise suspect that previous statement could not
be used against her
g. Problems with Voluntariness:
i. False promise not to prosecute (from cops to suspect) is not per se violation.
ii. Paid informant offering to protect suspect from other inmates in exchange for truth =
COERCION, b/c threat of physical harm.

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h. Proceedings: Once legal proceedings begin, everything changes. DEFENDANT cannot be
interrogated unless advised, consciously waives 6 amendment rights.
i. Brewer v. Williams, 1977: the attachment of 6A rights is determined by the occurrence of a
certain prior event (i.e., the institution of proceedings against ∆—indictment or arraignment);
it does not depend on whether lawyer would be useful to help suspect prevent incriminating
herself
ii. once 6A rights attach, the government may not deliberately elicited inculpatory statements in
the absence of a valid waiver of the right to counsel
1. Fellers v. US, 2004—787: ∆ arrested in his home after having been indicted (6A
attaches at indictment); inculpatory statements made to officers before waiver was
signed are inadmissible
i. NOTE: remanded to determine whether second statement (made after wavier)
was admissible (i.e., whether Elstad applies in 6A context)
2. Maine v. Moulton, 1985—793: codefendant agreed to cooperate with police in
ongoing investigation of witness tampering after he and ∆ were indicted; met with ∆
(at ∆’s urging); police told him to discuss eliminating witnesses (which ∆ rejected);
conversation then turned to the theft for which they were indicted and related
burglaries
i. held: incriminatory statements are inadmissible in trial of the charges pending
ii. deliberate elicitation:
i. even though officers told informant to limit conversation to witness
tampering, they should have known that their investigative tactic
would lead to incriminatory information from charged ∆ in absence of
counsel
ii. nor does it matter that ∆ initiated meeting with informant: knowing
exploitation by the State of an opportunity to confront the accused
without counsel being present is as much a breach of the State’s
obligation not to circumvent the right to assistance of counsel as is the
intentional creation of such an opportunity
iii. NOTE: inculpatory statements re. crime 2 (witness tampering) would
be admissible in trial of that crime b/c ∆ had not yet been charged;
inculpatory statements re. crime 1 would also be admissible at trial 2 if
relevant
3. US v. Henry, 1980—789: paid informant, a fellow inmate, engaged in conversations
with ∆ while he was incarcerated after indictment that led to a confession
i. although government agents instructed informant not to question ∆ about his
crime, the informant was not just a passive listener but an active participant in
conversations with ∆
ii. held: incriminatory statements made in the course of these conversations are
inadmissible
4. Kuhlman v. Wilson, 1986—791: 6A right to counsel is not violated where government
informant was placed close to ∆ and overheard ∆ make incriminatory statements, but
did nothing to elicit these statements
iii. Texas v. Cobb, 2001—799: Blockburger test is used to determine whether the offense
regarding which ∆ is question is the same as that for which he was indicted
1. test: whether each offense requires proof of a fact that the other does not

25
 2. held: The United States Supreme Court held that, regardless of whether the murder
charge was closely related factually to the burglary offense, the right to counsel was
offense specific. Since the two offenses required different elements of proof, they
were separate offenses, and prosecution was not initiated on the murder offense at the
time of the interrogation. Respondent thus had no right to the presence of his
previously appointed counsel during the interrogation concerning the murder charge,
and the confession resulting from that interrogation was admissible.
iv. Waiver
1. as in Miranda, waiver must be voluntary, knowing, and intelligent (VKI)
i. waiver is not shown simply be establishing that ∆ elect to speak after
receiving warnings
2. knowing and intelligent
i. Patterson v. Illinois, 1988—794: Miranda warnings sufficiently inform
defend of his rights to counsel; thus, if ∆ is given and understands Miranda
warning, waiver is knowing and intelligent
i. exception: if ∆ is not told that lawyer is trying to contact her during
questioning (as in Moran v. Burbine) and 6A has already attached,
waiver will not be valid
ii. also, whereas a conversation between an undercover officer and ∆ would not
give rise to Miranda violation, it does violate 6A
iii.
IDENTIFICATION:
RIGHT TO COUNSEL
Pre-Indictment, Live: No right to counsel before formal proceedings begin.
1. Kirby v. Illinois, 406 U.S. 682 (1972) (the right to counsel does not apply to pre-indictment eyewitness
identification). At the start of adversary judicial criminal proceedings
Post-Indictment, Live: Right to counsel in live ID process attaches when formal proceedings begin.
1. An accused has a Sixth Amendment right to have counsel present at any corporeal identification procedure
conducted after the commencement of an adversary judicial criminal proceeding against him. This rule is
known as the Wade-Kirby doctrine. United States v. Wade, 388 U.S. 218 (1967) (recognizing that a person
is entitled to the assistance of counsel at all critical stages of a criminal proceeding, and determining that the
pretrial exhibition of a suspect to a witness for identification purposes is a critical stage of the prosecution);
a. If counsel is not present at the post-indictment lineup, and the accused has not waived counsel,
results of the out-of-court identification are inadmissible. In such cases, the prosecution is
furthermore precluded from obtaining an in-court identification of the accused by the same witness,
unless it proves by clear and convincing evidence that the in-court identification does not constitute
fruit-of-the-poisonous-tree evidence. Among the factors that may be considered are:
i. the prior opportunity of the witness to observe the alleged criminal act.
ii. the existence of any discrepancy between any pre-lineup description and the defendant's
actual appearance.
iii. any identification prior to lineup of another person.
iv. the identification by picture of the defendant prior to the lineup.
v. failure to identify the defendant on a prior occasion.
vi. the lapse of time between the crime and the lineup identification.
b. Moore v. Illinois: Defendant was convicted for rape after his victim identified him at a preliminary
hearing in which defendant was not represented by counsel. The Court held that defendant's Sixth

26
 Amendment rights were violated by a corporeal identification conducted after the initiation of
adversary judicial criminal proceedings and in the absence of counsel.
Photographic: No right to counsel (because not an adversarial confrontation).
1. Distinguished from in-person line-ups are “mug shots.” The Sixth Amendment does not apply where the
police present photographs, including a photograph of the accused, to an eyewitness for possible
identification of the perpetrator. Such a display, although it occurs after indictment, is not a critical stage of
the prosecution. United States v. Ash, 413 U.S. 300 (1973).
SUGGESTIVE PROCEDURE
Due Process: Due process is denied if an ID is unnecessarily suggestive and conducive to irreparable
mistaken ID.
1. Evidence of a pretrial identification of the accused must be excluded from trial if, based on the totality of
the circumstances, the procedure used to obtain the identification was (1) unnecessarily suggestive; and (2)
conducive to mistaken identification. Stovall v. Denno, 388 U.S. 293 (1967). This rule applies regardless
of whether the identification was corporeal or non-corporeal, occurred before or after formal charges were
initiated, and whether or not counsel was present.
a.Balancing Test: opportunity of the witness to view the criminal at the time of the crime, the degree of
attention paid by the witness, accuracy of the prior description, level of certainty, and the time
between the crime and the confrontation.
b.
Reliable IDs:
1. Even if an identification procedure is unnecessarily suggestive, the identification procedure must also have
been unreliable in order to exclude the evidence. Manson v. Brathwaite, 432 U.S. 98, 114 (1977). The
relevant factors in determining reliability include:
a.Person conducting line-up should not be aware of suspect.
b.Eyewitnesses should be told that the suspect might not be in the lineup.
c.Suspect should not stand out in any way.
d.A clear statement of witness confidence in the ID should be taken
e. the opportunity of the witness to view the perpetrator at the time of the crime.

f. the witness' degree of attention.

g.the accuracy of the witness' prior description of the perpetrator.

h. the length of time between the crime and the confrontation.

EXCLUSIONARY RULES:
STANDING TO SUPPRESS
1. A Defendant has standing ONLY to object to evidence obtained via an unconstitutional intrusion on
her reasonable expectation of privacy.
a. Rakas v. Illinois, US 1978—516: movant must have a REOP in the place searched
i. target theory: any ∆ against whom search was “directed”
1. eg. Alderman: government installs illegal wiretap on A’s phone in order to gather
evidence against B—B is target
ii. judicial integrity (Payner—523): “the supervisory power does not authorize a federal court
to suppress otherwise admissible evidence on the ground that it was seized unlawfully from a
third party not before the court”
1. movant must have a REOP in the place searched
iii. automatic standing: movant testifies that he owned the property searched in order to create
standing – ownership creates automatic standing.
1. testimony by the defendant to allege possession cannot be used against him at trial.

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 iv. Business premises – corporate or individual defendant in possession of the business premises
searched has standing, and that an officer or an employee of the business enterprise has
standing if there was a demonstrated nexus between the area searched and the work space of
the defendant.
v. Brendlin v. California: possessory interest in the items seized was automatically enough to
permit a challenge constitutionality; however, possession of the seized items must be
evaluated like other 4A claim – relevant only if REOP with respect to item and search.
vi. being “legitimately on the premises” is insufficient.
vii. Ownership of some items kept in the intruded space is insufficient.
viii.A “brief invited stay” is insufficient – visitors who do not stay overnight receive no
protection.
1. however, two individuals arrested in third party’s home while there for several hours
to cut cocaine did not have REOP; thus, arrest in the home without an arrest warrant
was lawful (Minnesota v. Carter, US 1998—188)
2. important factors in determining whether there is a REOP in host’s home
i. length of stay
ii. purpose of visit: social v. business
3.
FRUIT OF THE POISONOUS TREE
1. Wong Sun, 1963—543: evidence is not admissible against ∆ where:
a. (a) it was come upon by exploitation of prior illegality; and
i. NOTE: exploitation connotes a higher degree of relatedness than simply saying cause; thus,
initial misconduct must be more than simply one among several causes
b. (b) the illegality was one of which ∆ had standing to complain
Independent Source:
◊ The government can show that it had a legal independent source for the evidence. government must
prove by a preponderance of the evidence that the evidence would have been discovered through
independent legal means (Nix).
1. general principle: police should not be put in a worse position that they have been in it no police error or
misconduct had occurred (Nix v. Williams, 1984—550)
a. “but for” test.
b. Victim witness is untainted by initial photo ID from bad arrest, b/c victim was known to police
before arrest.
2. evidence observed in pain view during illegal entry, but later obtained pursuant to independently obtained
search warrant (i.e., warrant that did not rely on the illegal entry)
a. Murray v. US, 1988—544: officers must have planned to obtain warrant before conducting illegal
search (i.e., purpose of illegal search cannot be to determine whether obtaining a warrant was
worthwhile)
b. if officers decision to seek a warrant was prompted by evidence discovered during an illegal entry,
then the search pursuant to a warrant would not have been a genuine independent source
3.
Inevitable Discovery:
The government would have discovered the evidence without the illegal intrusion.
4.The police must show that evidence would have discovered the evidence inevitably and in the same
condition – NOT that it “could have” or “might have”.

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 5.Where gov’t has cause to arrest, but does so in an illegal manner, a statement outside the scope of the
illegality is admissible (ex: illegal in-home arrest, but statement made subsequently while outside
home).
6.CAREFUL: must distinguish illegal intrusion from illegally conducted intrusion; if the police can
search, but fail to announce themselves properly, the evidence will probable still come in.
Attenuation:
Some additional factor sufficiently attenuates the link between the illegal intrusion and the evidence
in question.
a.The shorter the time lapse between the Fourth Amendment violation and the acquisition of the
challenged evidence, the more likely it is that a court will conclude that the evidence is tainted. For
example, in Wong Sun [371 U.S. 471], the police obtained a statement from the defendant in his
bedroom immediately after his unlawful arrest. The Court suppressed this evidence, “which
derive[d] so immediately from the unlawful entry.”
b. breaking the causal chain
i. passage of time: how much time separates primary illegality
1. Rawlings v. Kentucky, 1980—540: suspects were improperly detained while officers
obtained a search warrant for the house; held: admissions made after evidence was
discovered were admissible—45 minute detention was in congenial atmosphere and
statements were spontaneous
2.
ii. consent to new search or seizure
1. depends on:
i. proximity of illegal conduct and consent
ii. intervening circumstances
iii. purpose and flagrancy of initial misconduct
iii. intervening Fourth Amendment event: eg. Miranda warning
iv. the effect of Miranda warnings
1. giving of Miranda warning alone does not break the causal chain (Brown—535)
i. this would allow police to arrest anyone without PC and get an admissible
confession simply by giving Miranda warning before conducting interrogation
7.Examples: intervening act of free will by DEFENDANT, lengthy causal chain, long time period.
Impeachment:
1. Post-arrest silence and illegally obtained confessions may be used to impeach Defendant, if he takes
the stand.
a. Harris v. New York, 1971—718: Miranda-violating confession can be used for impeachment (as long
as it is not otherwise involuntary)
2.Pre-arrest silence is admissible either way.
3.Post-arrest silence or requests for counsel may NOT be offered to prove sanity.
Good Faith Reliance:
Judicial opinion: Evidence will not be excluded when police rely in good faith on judicial opinion that their
actions are constitutional, even if the opposite is later determined.
Statute: Same as judicial.
Search warrant:
4.Evidence will not be excluded when police rely in good faith on a validly issued search warrant later
declared defective UNLESS:
5.Magistrate relied on information supplied by officer who lied or exhibited reckless disregard for the
truth.
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 6.Magistrate wholly abandoned her judicial role.
7.Warrant was based on affidavit so lacking in probable cause that reliance upon the warrant was
unreasonable.
8.The warrant failed to state with particularity the place, person or thing to be searched/seized.
SPEEDY TRIAL:
1. 6TH: RIGHT TO SPEEDY TRIAL; CONFRONTATION OF WITNESSES: In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial
a. Barker v. Wingo: was a case in which the United States Supreme Court held that determinations of
whether or not the Sixth Amendment right to a speedy trial for defendants in criminal cases has been
denied, must be made on a case-by-case basis.
i. One factor recognized by the Court was the length of delay, but the Supreme Court has never
explicitly ruled that some particular time limit must apply. Another factor recognized by the
Court was the reason for the delay. The prosecution may not excessively delay the trial for its
own advantage, but a trial may be delayed to secure the presence of an absent witness. The
other factors to be considered are the time and manner in which the defendant has asserted
his right, and the degree of prejudice to the defendant which the delay has caused. If it is
found that a defendant's right to a speedy trial was violated, then the indictment must be
dismissed and/or the conviction overturned. A reversal or dismissal of a criminal case on
speedy trial grounds means that no further prosecution for the alleged offense can take place.
1. (1) Length of delay – Delay must be of sufficient length to potentially prejudice the
accused; some statutes set specific time limits for initiation of trial, see, e.g., Federal
Speedy Trial Act, 18 U.S.C. § 3161.
2. (2) Reason for delay – Evidence that the prosecutor deliberately attempted to delay
trial is weighed heavily in the analysis, unless there is a justifiable reason for the
delay, such as a missing witness or illness of a party. If the delay is willfully caused
by the defendant, he is deemed to have waived the right to a speedy trial.
3. (3) Defendant's assertion or non-assertion of right – The defendant need not assert
the right prior to trial but failure to do so may receive considerable weight in the
court's analysis of the speedy trial question.
4. (4) Prejudice to defendant – e.g., loss of evidence, fading memory of witnesses,
prolonged incarceration, etc.
b.Basics:
i. Attaches: When Defendant has been formally charged (generally, when complaint filed or
defendant arrested).
ii. Tolls: Any voluntary continuance by defendant; guilty plea; charges are dismissed and
accused is released; trial begins; certain procedural circumstances.
1. Smith v. Hooey: the state has a duty under the 6th A to make a good faith effort
to obtain the presence for trial of petitioner, who repeated demanded trial.
iii. Out-of-state incarceration: State has duty to seek extradition or transport.
iv. Remedy: Dismissal. [Exception: statutory speedy trial violations may permit re-
prosecution.]
1. A charge must be dismissed if a court finds that the defendant's right to speedy trial
has been violated, Strunk v. United States, 412 U.S. 434 (1973), and such dismissal
bars all future prosecutions of the offense.
v. Non-Prosecution: Generally, failure to timely prosecute is NOT assertable; EXCEPTION: if
defendant can show actual AND substantial prejudice.
c.The Test: Four-Factor (none dispositive, weighed by court):
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 i. Length of delay – considered a trigger for four-part analysis; generally one year is sufficient
to presumptively trigger.
1. US v. Loud Hawk: time clock wasn’t running during govt.’s appeals dismissals of
indictments, especially since defendants were released on their own recognizance.
ii. Reason for delay – reasonable diligence by state.
1. Lovasco: The Court held that a pre-indictment delay was wholly irrelevant for amend.
VI purposes because the constitutional right to a speedy trial attached only after
defendant was accused by indictment or information, or was actually restrained by
arrest and detention to answer for a criminal charge. The Court also held that amend.
XIV had a limited role to play in protecting against oppressive delay. The Court held
that the death of two potential witnesses during the delay was not sufficient prejudice
because defendant had not shown how their testimony would have aided the defense.
iii. Defendant’s timely assertion – not necessarily a waiver, but important to this analysis.
1. In Baker v. Wingo, defendant didn’t object until 11th continuance and only objected
then because he noticed that the prosecution might be able to convict him.
iv. Prejudice to defendant – again, not dispositive, but perhaps most important.
1. Actual and substantial prejudice
i. How were you hurt by the long trial?
PLEA BARGAINING:
GENERALLY
2.there is no due process violation when a prosecutor asks for an enhanced sentence when a defendant refuses
to take a guilty plea
3.any statements he made could be used to impeach contradictory testimony he might give if the case went to
trial
4.where parties can’t agree on a plea agreement, they can meet with the judge who serves as a moderator.
Judge may indicate what charge or sentence concessions would be acceptable. Parties can then decide
outside the presence of the court whether to reject or accept the plea agreement tendered by the court
5.plea may be withdrawn if the prosecution fails to fulfill all its promises
6.constitutional and supervisory concerns hold the government to a greater degree of responsibility than D for
impressions or ambiguities in the plea agreement
7.if a person violates a plea agreement after having pleaded guilty and having begun his sentence, he may be
reprosecuted for the original charge
8.co-defendants do not have to be treated alike when plea bargaining
9.prosecutors, before entering into a binding plea agreement with D, do not have to disclose impeachment
information relating to any informants or other witnesses
10.Judge may exercise sentencing discretion, but may not refuse to dismiss count of indictment when
prosecutor declines to prosecute that count
COUNSEL’S RESPONSIBILITY
11.if D’s mistaken belief as to plea bargain is based upon representations by his own counsel, the court may
grant relief based on expectations, or find that D did not have the effective assistance of counsel
12.the lawyer shall abide by the client’s decision, after consultation with a lawyer, as to the plea to be entered
13.it is utterly unreasonable for counsel to recommend a guilty plea to a D without first cautioning him that
he should not plead guilty unless he believed himself guilty
14.D has the right to decide whether or not to plead guilty – this right goes beyond trial strategy
ENTERING A PLEA
15.the plea could not be voluntary in a constitutional sense – there must be some basis for inferring that the
nature of the charge was explained sufficiently for D to know what he was admitting
31
 16.Test set by court for determining the constitutional validity of a state court guilty plea where D has
been given misleading information: whether D was aware of actual sentencing possibilities, and, if not,
whether accurate information would have made any difference in his decision to enter a plea
17.the standard is whether the plea represents a voluntary and intelligent choice among the alternative
courses of action open to D
18.guilty plea does not waive the self-incrimination privilege at sentencing; court may not draw an adverse
inference from a defendant's silence in determining facts relating to the circumstances and details of the
crime
19.An individual accused of a crime may voluntarily, knowingly, and understandingly consent to the
imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts
constituting the crime
EFFECT OF GUILTY PLEA
20.D may not challenge his plea when it was based on competent advice
21.Counseled pleas do not waive antecedent constitutional violations
Other Outline
IX. GUILTY PLEAS AND BARGAINING: REQUIREMENTS FOR A VALID PLEA
• test: guilty plea must be voluntary, knowing, and intelligent
◊ coercion
 global settlement (AKA: wired plea or package deal)
∗ not per se impermissible, but judge must be aware of the deal so that they can make an adequate
inquiry into the voluntariness of the plea (i.e., whether ∆ was coerced by co-defendants) (US v.
Caro, 10thCir 1996—1057)
∗ “the appropriate dividing line between acceptable and unconstitutional plea wiring does not
depend upon the physical condition or personal circumstances of the defendant; rather, it
depends upon the conduct of the government (or a third party) (Pollard, DCCir 1992—1056)
› plea is not coerced if the factual circumstances create the pressure (e.g., ∆’s plea is linked to
his wife’s and she is in poor health and he doesn’t want her to go through a trial)
◊ knowledge (there are both constitutional and statutory requirements—eg. rule 11)
 ∆ need not know of possible or mandatory deportation
 ∆ need not know collateral consequences (e.g., possibility of future prosecution as a repeated
offender)
 ∆ need not be furnished evidence that could be used to impeach testimony of government witnesses
(ie. Brady material) (Ruiz, 2002—1057)
 ∆ have a general idea of the penalty that can be imposed
∗ must know if there is a mandatory minimum sentence
∗ need not know with precision all potential punishments under the Federal Sentencing Guidelines
◊ intelligence: competency to plead guilty
 ∆ must be able to consult with his lawyer with a reasonable degree of rational understanding and
must have a rational as well as factual understanding of the proceedings against him (Dusky, 1960
—1064)
 standard for competency to plead guilty is the same to stand trial (Moran, 1993—1064)
• rule 11
◊ (a)(2) allows conditional pleas of guilty
◊ (d) standards for withdrawal
 (1) any reason before the court accepts the plea
 (2) after plea, but before sentence if
∗ (A) court rejects plea; or,

32
 ∗ (B) ∆ can show a fair and just reason for requesting the withdrawal
◊ (f) admissibility or inadmissibility of plea, plea discussion, and related statements
 Fed R Evi. 410: except as otherwise provided,
∗ plea of guilty that was later withdrawn
∗ plea of nolo contendre
∗ statement made under rule 11 re. either of the foregoing pleas
∗ statements made to prosecutor during plea negotiations that do not lead to a plea or when plea is
withdrawn
 NOTE: government typically requires that ∆ waive these rights
• breach of a plea agreement
◊ Santobello, 1971—1087: prosecutor 1 promised not to make a sentencing recommendation; prosecutor 2
(who didn’t know of this promise) made a sentencing recommendation
 held: state court may either (a) allow ∆ to withdraw plea or (b) hold a new sentencing proceeding
before a different judge
Trial by Jury
XI. TRIAL BY JURY
A. REQUISITE FEATURES OF THE JURY
• size
◊ 6 person jury is constitutionally permissible (Williams v. Florida—1178)
 reliability is not impaired : provides sufficient interposition btw. ∆ and state; large enough to
promote deliberation without outside interference; sufficient for jury to be composed of a cross-
section of the community
◊ jury of less than 6 people is unconstitutional under the 6A (Ballew v. Georgia—1181)
• unanimity
◊ unanimity is not a necessary element of proof BRD (Apodaca v. Oregon—1184)
 the jurors who voted to convict had to have found guilt BRD
 fewer fact-finders does not necessarily make the outcome less reliable
 dissent
∗ lack of unanimity potentially decreases quality of deliberations: minority concerns might not
receive adequate attention
• waiver
◊ Ullah, 9thCir: ∆ cannot waive federal unanimity requirement
 this is the case even though ∆ and prosecution can agree to a bench trial

B. JURY SELECTION AND COMPOSITION

• composition of the jury: fair cross-section of the community
◊ statute requiring exempting women from requirement of jury service and requiring that they opt in to be
included in the jury pool (Taylor—1191)
 “women are sufficiently numerous and distinct from men and that if they systematically eliminated
from jury panels the Sixth Amendment’s fair-cross-section requirement cannot be satisfied”
• voir dire: what questions must a judge put to the panel of prospective jurors upon the request of the ∆
(esp’ly re. racial prejudice)?
◊ process is very different btw. states and federal system
 in most states, lawyers are allowed to put questions to the venire
 in federal system, it’s up to the judge whether lawyers can ask questions—75% didn’t allow lawyers
to ask any questions at all; instead, lawyers must submit questions to the judge
◊ in federal court, judge may decide to ask a question on one of the following three grounds
33
  constitutionally mandated
 mandated by supervisory power
 judge’s discretion
◊ racial prejudice
 judge constitutionally required to ask questions about racial prejudice if racial issues are
inextricably bound up with the conduct of the trial (Ristaino, 1976—1198)
∗ AS: court is really retreating from Ham, 1973—1197 (questions re. race required by DPC); felt
hat this should fall under supervisory powers rather than be classified as a constitutional case
∗ although it is usually best to ask about racial prejudice, court refuses to require the question in all
federal cases (Rosales-Lopez, 1981—1200)
 under supervisory power, federal judges must inquiry re. racial prejudice when requested by a ∆
accused of a violent crime and where ∆ and victim are members of different racial or ethnic groups
 capital cases
∗ capital defendant accused of an interracial crime is entitled to have prospective jurors informed
of the race of the victim and questioned on the issue of racial bias (Turner, 1986—1200)
◊ exposure to pretrial publicity
 important question is this: having heard what you’ve heard about the case, do you think that you can
sit as an impartial juror
∗ by and large, judges accept prospective jurors answer
 no constitutional violation where judge asked all jury panel whether they had been exposed to
pretrial publicity and jurors who did not respond were considered to have asserted that they could
remain fair (Mu’Min, 1991—1200)
• excusals for cause
◊ improper exclusion of jurors
 improper to exclude members of the jury panel for cause simply because they voiced general
objections to the death penalty or expressed conscientious or religious scruples against its infliction
(Witherspoon, 1968—1204)
∗ prospective jurors must be asked whether their beliefs would invariably compel them to vote
against capital punishment
∗ juror may not be challenged for cause on his views about capital punishment unless those views
would prevent or substantially impair the performance of duties as a juror in accordance with
instructions and oath (Adams, 1980—1205)
∗ “reitualistic adherence” to requirement that prospective juror make it unmistakably clear that he
would automatically vote against the death penalty” is not required (Wainright, 1985—1207)
 remedy for erroneous exclusion
∗ Gray, 1987—1207: appears to establish per se rule requiring reversal in capital case where judge
erroneously dismisses a juror for cause (under Witherspoon-Witt)
◊ improper inclusion
 no reversal where court improperly failed to remove juror for cause when juror was removed by ∆
using preemptory challenge (Ross, 1988—1208)

C. PEREMPTORY CHALLENGES
• equal protection clause forbids a prosecutor from challenging jurors solely on the basis of their race (Batson,
1986—1216)
◊ other situations in which the rule applies
 defense counsel’s use of peremptory challenges (Georgia v. McCollum, 1992—1224)
 civil litigation (Edmonson v. Leesville Concrete, 1991—1223)
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  exclusion of women (J.E.B. v. Alabama, 1994—1226)
 exclusion of Hispanics (Hernandez v. New York, 1991—1226)
◊ white ∆ has standing to challenge prosecutor’s use of peremptory challenges to exclude black jurors
(Powers v. Ohio, 1991—1222)
◊ proving discrimination—must prove discriminatory intent
 discrimination can be proved on the basis of actions in ∆’s case alone (Batson overrules Swain)
 ∆ establish a prima facie case by:
∗ establishing that she is a member of a cognizable racial group;
∗ that the prosecutor has exercised peremptory challenges to remove from the venire member’s of
∆’s race; and,
∗ that these facts and other relevant circumstances (e.g., pattern of strikes) raise an inference that
the prosecutor
 prosecutor must articulate a neutral reason for her challenges
∗ neutral reason
› prosecutor excluded Spanish speaking jurors because he wanted to make sure that jurors
accepted translated version of the testimony as the testimony; claimed that, based on
prospective jurors’ demeanor during voir dire, he was concerned that they would not rely on
translator (Hernandez v. New York, 1991—1226)
› prosecutor’s explanation need not be either persuasive or plausible (Purkett v. Elam, 1995—
1229)
 if prosecutor offers a neutral reason, ∆ must show that the reason offer is pretextual
• rationale for keeping peremptory challenges
◊ eliminates extremes of partiality
◊ increases acceptance of the result (b/c litigants helped pick the jury)
◊ corrects judicial errors in failing to exclude for cause
◊ meets the three elements of third party standing

D. PRESERVING THE INTEGRITY OF DELIBERATIONS

• FRE Rule 606(b) permits proof that “extraneous prejudicial information” was brought to jury’s attention and
that “outside influence was brought to bear upon any juror”
◊ allegations immune from inquiry under Rule 606(b)
 members of the jury were using alcohol and illegal drugs during the trial (Tanner v. US, 1987—
1240)
 intimidation of one juror by another
 unfair inferences drawn from the evidence
 assumption that because ∆ did not testify he must be guilty
 vote for conviction because extended deliberation would cut into juror’s vacation
◊ allegations requiring inquiry
 item not in evidence brought into jury room

E. THE TRIAL JUDGE AND THE RIGHT TO JURY TRIAL

• jury nullification—the jury’s power to ignore the law in favor of acquittal

DOUBLE JEOPARDY:
22.Attaches when a jury is sworn, or in a bench trial, when first witness is sworn or at the beginning of
introduction of evidence.
23.Once jeopardy attaches, a defendant generally cannot be tried for the same offense.
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 24.Two offenses can be the same only if based on the same transaction or occurrence.
25.A single act that violates two separate statutes can constitute two separate offenses ONLY if each
statute requires proof of additional facts that the other does not.
Mistrial:
26.Generally, a mistrial does NOT bar re-prosecution.
27.In particular, mistrial on Defendant’s motion implies his voluntary termination of trial, so no jeopardy.
28.HOWEVER: if defendant can show that prosecution deliberately provoked mistrial, jeopardy may
apply.
Acquittal:
29.Generally, re-trial of acquitted defendant is barred because of the high likelihood of convicting an
innocent.
30.Dismissal on grounds unrelated to factual guilt/innocence is NOT an acquittal.
31.Jury’s choice of a lesser included offense is an implied acquittal of the charged offense.
32.Determination NOT to impose death penalty functions as a sentencing acquittal, UNLESS the
underlying trial is re-done, in which case sentencing on a new conviction begins fresh.
Reversal on Appeal:
33.Reversal of dismissal on pre-trial motion permits re-trial.
34.If defendant is convicted, then post-trial ruling dismisses or acquits, then appeal reverses ruling,
conviction is reinstated – thus, no jeopardy problem.
Sovereignty:
35.Separate prosecutions by two different states do not violate double jeopardy, because their power to
prosecute is derived from different sources.
36.Equally, no problem with separate state and federal prosecutions.
37.HOWEVER, U.S. Department of Justice guidelines preclude prosecutions that mirror a prior state
action, UNLESS: (1) the matter involves a substantial federal interest; (2) the state action left the matter
demonstrably unvindicated; [IS THIS “AND” or “OR”???] (3) gov’t believes that conduct constitutes
federal offense and is reasonably convictable.
38.BUT: state and municipal do not function the same way – one probably precludes the other if same
offense.
SENTENCING:
39.Constitution forbids a judge from sentencing a defendant to death without disclosing those portions of the
presentence report that form the basis for the sentence
40.D does not have the ability to cross examine those who provided sentencing information
41.in capital cases, D can present mitigating evidence on his own behalf, but in non-capital cases a statute
may or may not provide D with this opportunity
42.6th amendment right to counsel extends to sentencing, a stage of a criminal proceeding where substantial
rights of a criminal accused may be affected
43.Due process provides an alternative basis for a right to counsel at certain post-sentencing proceedings, not
protected by the 6th amendment right to counsel, specifically parole and probation revocation hearings
44.a state legislature can still choose, after Blakely and Booker, to have (from Breyer’s dissenting opinion):
a.Single, mandatory sentences for each crime
b.Indeterminate sentences with parole chosen by judges without broad statutory sentence ranges
c.Guidelines systems with aggravating facts proven to juries
d.Inverted guidelines – astronomically high sentences with long lists of mitigating factors
U.S. v Wade (p. 745) 1967
Counsel attaches at post-indictment lineup; weakened by Kirby?
Indictment, then counsel appointed, then lineup; defense counsel not present at the lineup.
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ISSUE: Should an in-court identification be excluded because the accused was in a post-indictment/pre-
trial lineup without notice to and in the absence of the accused’s appointed counsel?
RULE 1: Defense counsel’s presence should be required to conduct the post-indictment lineup, absent
an intelligent waiver.
Rationale:
Lineup after ID was a crucial stage of trial, therefore right of counsel attached at the lineup.
The lineup is most often used, as in the present case, to crystallize the witness’ identification of
the defendant for future reference.
Inherent lineup suggestiveness mandates defense counsel to be present in order to attack
suggestiveness on cross examination (right of confrontation).
Attorney’s presence can ensure that the lineup is not procedurally unnecessarily suggestive.
RULE 2: If the initial identification was tainted, then the second identification must be derived from
means sufficiently distinguishable to attenuate the taint. Various factors must be considered:
-The prior opportunity to observe the alleged criminal act;
-The existence of any discrepancy between any pre-lineup description and the defendant’s actual
description;
-Any identification prior to lineup of another person;
-The identification by picture of the defendant prior to the lineup;
-Failure to identify the defendant on a prior occasion; and
-The lapse of time between the alleged act and the lineup identification.
HELD: Vacate the conviction to determine whether the in-court identifications had an independent
source, or whether, in any event, the introduction of the evidence was harmless error.
Does the in court ID have an independent source?
Inevitable discovery – did the lineup ….
Independent source doctrine – clear and convincing evidence
Concerns:
Person may not have a clear and distinct memory and may instead alter their recollection.
Note: A declaration of certainty has no empirical evidence to back it up.
****The error is probably irreparable. Once the witness has seen the person, as presented to them, it is
unlikely that the witness’s recollection will change, even if in error.

Imprinted mental image replaces the fleeting memory from the scene of the crime.
Rationale for not admitting the out of court ID:

The attorney was not present and therefore could not conduct a cross-examination.
-Lineup is usually based on certain subtleties.
-The lineup is the very core of the case; identification; a critical stage of the proceeding.
-Right to an attorney when the case is being decided, and that is at the ID.
-The presence of the attorney will make for a less suggestive procedure.
-Attorney will insist on certain things.
-Police will fear the attorney and do the ID right.
-Post-arraignment lineup w/o counsel is to be viewed as inherently suggestive.
Note: While the court uses “post-indictment” in its analysis, the otherwise broad and general
language of the opinion led people to nevertheless interpret Wade as applying to all pre-trial
lineups, whether pre- or post-indictment.

Kirby v Illinois (p. 755) 1972

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Counsel attaches at post-indictment lineup
Showup (one-person lineup) before indictment/counsel.
RULE: A person’s 6A and 14A right to counsel attaches only at or after the time that adversary judicial
proceedings have been initiated against him; therefore, same goes for counsel at a lineup.
HELD: Decline to adopt a per se exclusionary rule upon testimony concerning the ID that took place
long before the commencement of any prosecution whatsoever.
Notes:
Other protections: DP clauses of 5A and 14A forbid a lineup that is unnecessarily suggestive and
conducive to irreparable mistaken ID.

Court refused to extend the principle of Wade to a pre-arraignment situation. Why?

-The impingement upon law enforcement (logistics of getting counsel present;
who? Find them?
-Time lapse would then necessitate an arrest (would need PC) and would result in stale
memories;
police may say to heck with it and we’ll do a photo spread which doesn’t require counsel
to be present) would be too great.
-Could then no longer do a quick street-corner showup to nab an assault suspect, etc.
-Lineup would be even harder to administer.
Not many post-arraignment lineups any more.

Kirby is sort of a cousin to Massiah, once removed. Once the right to counsel has attached; can’t do a
lineup w/o the defendant; if the client is present when he will be ID’d, then counsel s/b present.
Out of court ID suppressed if it was so unnecessarily suggestive as to be conducive to an irreparable
mistaken identification.

Moore v Illinois (p. 757) 1977

A. Issues Discussed: Criminal Justice (procedure), 8th Amendment, 14th Amendment
B. Legal Questions Presented:
1. Is the prosecution required to disclose all evidence obtained?
2. Was the admission into evidence of a shotgun that was not the weapon a violation of due
process?
3. Can prosecution release venires for voicing opposition to the death penalty?
II. CASE SUMMARY:
A. Background:
Petitioner Moore was convicted of murder and sentenced to death for the shotgun slaying of a
bartender in Lansing, Illinois. He claimed that he was denied a fair trial and due process because the
State failed to disclose several items of evidence helpful to the defense, it failed to correct false
testimony, and it introduced into evidence a shotgun that was not used as the murder weapon. Moore
also attacked the imposition of the death penalty for noncompliance with the standards of Witherspoon v.
Illinois, a 1968 US Supreme Court case that ruled against providing prosecution unlimited challenge of
jurors who might have objections to the death penalty.

The Supreme Court of Illinois rejected petitioner's claim that evidence had been suppressed and false
evidence has been left uncorrected, and held that the shotgun was properly admitted into evidence as a
weapon in Moore's possession when he was arrested. The court found him suitable for commission of

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the crime charged. Petitioner then sought review in the US Supreme Court. The high court granted
certiorari.
IV. THE SUPREME COURT'S DECISION:
"We know of no constitutional requirement that the prosecution make a complete and detailed
accounting to the defense of all police investigatory work on a case…

[W]e are unable to conclude that the shotgun's introduction deprived Moore of the due process of law
guaranteed him by the Fourteenth Amendment. The 16-gauge shotgun, found in the car, was in the
constructive possession of both Moore and Barbee when they were arrested after the shooting incident
on October 31. There is substantial other evidence in the record that a shotgun was used to kill Zitek,
and that he suffered the wounds one would expect from a shotgun fired at close range. The testimony as
to the murder itself, with all the details as to the shotgun wounds, is such that we cannot say that the
presentation of the shotgun was so irrelevant or so inflammatory that Moore was denied a fair trial. The
case is not federally reversible on this ground.

Inasmuch as the Court today has ruled that the imposition of the death penalty under statutes such as
those of Illinois is violative of the Eighth and Fourteenth Amendments, it is unnecessary for us to
consider the claim of noncompliance with the Witherspoon standards [Witherspoon v. Illinois (1986)]…
The sentence of death, however, may not now be imposed.

The judgment, insofar as it imposes the death sentence, is reversed, Furman v. Georgia, supra, and the
case is remanded for further proceedings."

US v Ash (p. 758) 1973

Brief Fact Summary. A number of informants were asked to identify a number of suspects in
connection with a bank robbery. The respondent, Ash (the “respondent”), challenged the identification
because counsel was not present at what was arguably a critical stage of the prosecution.
Synopsis of Rule of Law. An accused does not have the right to counsel at a post indictment
photographic lineup
Facts. The Supreme Court of the United States (”Supreme Court”) granted certiorari to resolve the
circuit split as to the issue of whether an accused has the right to counsel at a post indictment
photographic lineup. The Supreme Court held that the right to counsel at a display at which the
defendant himself was not entitled to be present was not embodied in the Sixth Amendment of the
United States Constitution (”Constitution”). The Court of Appeals reversed.
Issue. Whether the Sixth Amendment of the Constitution grants an accused the right to have counsel
present at a post indictment photographic identification procedure?
Held. The Sixth Amendment of the Constitution does not grant an accused the right to counsel during a
post indictment photographic identification procedure because the accused himself is not entitled to be
present, rendering it impossible that the accused will be confused or overpowered by the proceedings.
Dissent. The dissent writes to emphasize that the photographic lineup is indeed a critical stage of the
proceedings.
Concurrence. Justice Potter Stewart (”J. Stewart”) concurs to emphasize the point that any issues
involved could be resolved through traditional methods such as cross examination.
Discussion. The Sixth Amendment of the Constitution guarantees the assistance of counsel during stages
of the proceeding at which a defendant is faced with either the intricacies of the law, or a zealous
prosecutor. Neither of these situations exist at a photographic display. The historical test to be applied to

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the Sixth Amendment issues indicates that the right has only been expanded when new facts have
demanded it for the protection of the defendant.

Stovall v Denno (p. 762) 1967

“Totality of the circumstances” creates an emergency showup exception
Only black male in room, in handcuffs, presented to dying lady by police officers.
RULE: A claimed DP ID violation depends on the totality of the circumstances.
HELD: Not unnecessarily suggestive.
Notes:
Recognizes that every lineup/showup is suggestive; what matters is the extent of the suggestiveness.
Consideration given to pressing circumstances.
Still, as suggestive as humanly possible!
-------
(14th amendment fundamentally unfair lineups)

RULE: the lineup must not be unnecessarily suggestive that it presents so substantial a likelihood of
irreparable misidentification that it denies due process of law – uses a totality of the circumstances
approach

Manson v Brathwaite (p. 763) 1977

Reliability analysis for identifications
Undercover drug purchase; showup with a single photo; lazy police work.
ISSUE: Whether, under the totality of the circumstances, the ID was reliable even though the confrontation procedure was
suggestive.
RULE: DUE PROCESS LINEUP FACTORS:
1. the opportunity of the witness to view the criminal at the time of the crime
2. the witnesses degree of attention
3. the accuracy of the prior description of the criminal
4. the level of certainty demonstrated at the confrontation
5. the time between the crime and the identification
Rationale:
Permits the admission of the ID if, despite the suggestive aspect, it possesses certain features of reliability.
Serves to limit the societal costs imposed by a sanction that excludes relevant evidence from consideration and
evaluation by the trier of fact: deterrence and its effect on the administration of justice.
Notes:
Takes a reliability view (MA does not follow this rule); as opposed to a
Per se rule of exclusion (MA follows this rule) (considered and rejected by the Court).
Was it suggestive; and
Was it unnecessarily so?
If both, then it does not come in. MA argues that this is needed to truly effect deterrence.
However, prior knowledge or an extended viewing opportunity may truly provide a reliable ID in spite of a
suggestive showup!
The per se rule dilutes reliability.

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