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I. The exclusionary rule

A. In general

1. It is a judge-made rule that prohibits the introduction at a criminal trial of evidence obtained in violation of a defendant's fourth, fifth, or Sixth Amendment rights.

2. NYD

a) In State

(1) A person may be convicted if the conduct occurred within NY sufficient to establish:

(a) An element of the offense; or

(b) An attempt to commit the offense; or

(c) A conspiracy or criminal solicitation to commit the offense or otherwise establish the complicity of at least one of the persons liable therefor.

b) Out of state

(1) Even though none of the conduct constituting the offense may have occurred within NY, a person may be convicted in NY if:

(a) The offense committed was a result offense and the result occurred within the state; or

(b) The statute defining the offense is designed to prevent occurrence of a particular effect in the state and the conduct constituting the offense committed was performed with intent that it would have such effect in NY; or

(c) The offense was an attempt to commit a crime within NY; or

(d) The offense committed was a conspiracy to commit a crime within NY and overt act in furtherance of the conspiracy occurred within NY.

c) Venue

(1) The power to indict is vested in the county within which the conduct has some connection. A court cannot commence an action unless criminal conduct bears a nexus to the geo jurisdiction of the court.

B. Limitations

1. It is not applicable to grand jury proceedings

2. It is not applicable t civil proceedings

3. The search must either violate the federal constitution or federal regulations

4. The good faith defense

a) When the police rely in good faith on a judicial opinion later changed by a later opinion

b) When the police rely in good faith on a statute or an ordinance later declared unconstitutional

c) Good faith reliance on a defective search warrant or a computer error where the record keeping is not in the hand of the police.

d) NYD

(1) It rejects good faith reliance on a defective search warrant.

(2) The use of excluded evidence for impeachment purposes

(3) Confession violated Miranda rights but can be used for impeachment purposes.

(4) It extended to all illegally seized evidence to be used against the defendant.

C. The fruit of the poisonous tree

1. All evidence derived from illegally obtained evidence but must be excluded

2. Exceptions: breaking the causal chain

a) Independent source from the police illegal conduct

b) The inevitable discovery

c) The intervening act of the free will on the part of the defendant.

d) In-court identification.

e) Live witness testimony.

II. Arrests and other detentions

A. Arrests

1. A seizure

a) It is when a person reasonably believes that she can leave freely.

b) Arrest warrants are not generally required to arrest someone in a public place.

(1) Felony

(a) Police officer may arrest someone if she has reasonable grounds to believe that a felony has been committed and that the person before her committed it

(2) Misdemeanor

(a) Committed in her presence.

c) Home arrest requires a warrant if not an emergency case.

d) Probable cause required

(1) When taken into custody for interrogation or finger printing.

e) NYD:

(1) A police pursuit is a seizure.

2. Arrest in NYD

a) Valid arrest warrants.

(1) Must contain the name of the issuing court

(2) The date of the issuance

(3) The name or title of an offense charged in the underlying accusatory instrument

(4) The name of the defendant to be arrested or description with reasonable certainty if unknown;

(5) The police officer to whom the warrant is addresses; and

(6) A direction that the police officer arrest the defendant and bring him before the issuing court.

b) Police officer may arrest without a warrant when he reasonably believes that a felony or a misdemeanor has been committed by the offender, whether in his presence or otherwise.

c) A private person can make a warrantless arrest when:

(1) A felony has in fact been committed by the offender; or

(2) The offender in the presence of the arresting private person has in fact, committed any crime

d) Scale:

(1) Minimal intrusion: request for information: the police can approach a person and request info except on a caprice or whim

(a) The individual's right to refuse or run away does not give the police PC.

(2) C.L. right to inquire:

(a) The police must have founded suspicion that criminal activity is afoot

(i) Ask question

(a) Detention has to be short

(b) If explanation is given, the individual must be released

(3) Stop and frisk and police pursuit: both require reasonable suspicion

(a) They may seize anything under the plain feel doctrine if it resembles a weapon.

(4) Arrest: PC.

3. Other detentions

a) Investigatory detentions (stop and frisk)

(1) Reasonable suspicion is required

(a) It requires more than mere suspicion but full probable cause is not necessary.

(2) It does not have to arise from police officer's personal knowledge.

(3) It must be relatively brief

b) Automobile stops

(1) They may not randomly stop a single car simply to check a license and registration. They must reasonably believe the stopped car violated a traffic law.

(2) Exceptions

(a) Boats

(b) Checkpoints

(i) Stooped cars according to some neutral articulable standard

(c) Police may order the occupants out.

B. Evidentiary search and seizure

1. General approach

a) Does the defendant have a fourth amendment right?

(1) Was there a GOVERNEMENT CONDUCT?

(2) Did the defendant have a REASONABLE EXPECTATION OF PRIVACY?

b) If so, did the police have a valid warrant?

c) If the police did not have a valid search warrant, did they make a valid warrantless search and seizure?

2. Governmental conduct

a) The publicly paid police on/off duty.

b) Citizens acting at their direction

c) The privately paid police are NOT governmental conduct unless they are deputized to arrest.

3. Reasonable expectation of privacy

a) A person must have standing to object to an illegal search and seizure.

(1) It is based on the totality of the circumstances

b) You have standing when

(1) When you won the place searched

(2) The place search was in fact her place, whether or not she owned or had a right to possession of it

(3) She was an overnight guest of the owner of the place searched

(4) When present during the search

(a) However:

(i) If you are there when a car is searched and you don't object to it, don't claim the property as your own, it does not amount to standing even though they were present during the search.

c) NYD standing:

(1) Co-defendants traveling in a vehicle are permitted automatic standing to challenge charges of criminal possession of a weapon which arise solely because of the presumption of possession attributed to all passengers when weapon are found in car.

d) No standing:

(1) No automatic standing to object to seizure of evidence in possessory offense

(2) No automatic standing for co-conspirator.

e) Things held to the public: no expectation of right of privacy at all

(1) The sound of voice

(2) The style of your handwriting

(3) The paint on the outside of the car

(4) Account records held by a bank

(5) Monitoring the location of your car on a public street/ in your driveway

(6) Anything that can be seized across open fields

(7) Flying over

(8) The odors emanating from luggage

(9) The garbage left on the curb for collection.

(10) NYD

(a) A police officer may not reach into a car to move papers to obtain the vehicle's identification number.

4. Searches conducted pursuant to a warrant

a) NYD

(1) Dial-A-warrant

(a) Telephone or other electronic communication may obtain a judicial authorization for a search warrant with a judge.

(b) The judge must administer the oath, make record of it and if granted, the applicant must fill out the search warrant.

b) Requirements of a warrant: to be valid, a warrant must

(1) Be issued by a neutral and detached magistrate

(2) Be based on probable cause

(3) Particularly describe the place to be searched and the items to be seized.

c) Showing of probable cause

(1) The officer requesting the warrant must give an affidavit containing sufficient facts and circumstances to enable the magistrate to make an independent evaluation of probable cause.

(2) Use of informers

(a) Totality of the circumstances test

(i) Reliability, credibility and basis of knowledge.

(b) NYD

(i) Seth forth sufficient facts and circumstances to allow the magistrate to know how the informer got the info

(ii) It must support the reliability and the credibility of the informer

(3) Going behind the face of the affidavit

(a) When a defendant wants to attack the validity of a search warrant, the 4th Amendment permits the contest of the validity of some assertions in the affidavit. Three requirements to invalidate a search warrant

(i) A false statement was included in the affidavit by the affiant

(ii) The affiant intentionally or recklessly included the false statement

(iii) The false statement was material to the finding of probable cause.

(b) Evidence obtained reasonably relied on a facially valid warrant may be used by the prosecution despite the ultimate finding that the warrant was not supported by probable cause.

d) Warrant must be precise on its face

(1) State with particularity the place to be searched and what items can be seized.

e) Search of third-party premises permissible:

(1) It is permissible under the 4th amendment so long as there is probable cause to believe evidence of someone's guilt will be found

f) Neutral and detached magistrate

(1) Usually county clerks

(2) Not a neutral magistrate

(a) The state attorney general

(b) A magistrate who receives no salary other than compensation for the issuance of warrants.

(c) A magistrate who participates in the search to determine its scope.

g) Execution of a warrant

(1) Must be executed by the police

(2) Execution must be without unreasonable delay

(3) Announcement requirement

(a) Police officer must generally knock and announce her authority and purpose and be refused admittance before using force to enter the place to be searched.

(b) No need if she has reasonable suspicion that it would be dangerous or futile to do so or that it would inhibit the investigation.

(4) Seizure of unspecified property

(a) May seize any contraband or fruits or instrumentalities of crime that they discover whether specified or not.

(5) Search of persons found on the premises

(a) Not permissible if persons not named on the warrant. If they have probable cause to arrest, they may search her incident to the arrest.

5. Exceptions to warrant requirement

a) Search incident to a lawful arrest

(1) Requirement

(a) If arrest is unlawful, any search is unlawful.

(2) Any custodial arrest sufficient

(a) They may conduct a search anytime a full custodial arrest is authorized for the specific offense

(3) Geo scope

(a) May search the person and his/her wingspan. His wingspan moves with his/her movement

(b) Automobile

(i) Of the passenger compartment after arresting the occupants. NOT the trunk

(c) NYD

(i) The officer must suspect that the arrested person may be armed to search containers in the grab area.

(4) Contemporaneous requirement

(a) It must be contemporaneous in time and place with the arrest.

(5) Search incident to incarceration

(a) May search his personal belongings prior to his/her incarceration.

b) Automobile

(1) Probable cause

(a) If the police have probable cause to search a vehicle such as an automobile contains fruits, instrumentalities, or evidence of a crime, or contraband, they may search the car without a warrant

(2) NY probable cause

(a) The police can arrest a car for inspection if they have reason to believe that there is a traffic violation based upon their observation.

(b) A stop is also valid if it made pursuant to a roadblock at which passing cars are stopped in a uniform and nondiscriminatory manner.

(c) Occupants can be questioned

(i) The questioning cannot escalate to restraint without reasonable suspicion of criminal involvement.

(ii) Can only fully searched if taken in full custody.

(3) Scope of search

(a) If the have full probable cause, they may search the entire car including the trunk and all containers within the car that might contain the object for which they are being searched.

(i) Limited probable cause: containers placed in the vehicle

(a) If probable cause for that container, they may search that container but any other parts of the car

(4) NYD scope: search incident to an arrest

(a) If the police have probable cause to arrest the occupant of a car but not have probable cause any instrumentalities or fruits of a crime are within the car, they may search within the occupants grab area.

(b) Once the occupant has been removed from the car, police may not remove closed containers of bags to look for weapons or other evidence.

(5) Motor Homes

(a) The exception extends to any vehicle that has the attributes of mobility and a lesser expectation of privacy similar to a car

(6) Contemporaneous is not required.

c) Plain view: they make a warrantless seizure when they:

(1) Are legitimately on the premises

(2) Discover evidence, fruits or instrumentalities of a crime, or contraband;

(3) See such evidence in plain view; and

(4) Have probable cause to believe that the item is evidence, contraband, etc.

(5) Inadvertence not required anymore.

d) Consent

(1) If voluntary and intelligent consent.

(2) An officer's false statement that she has a warrant negates consent.

(3) No obligation on part of police to tell that they can refuse the search.

(4) Authority to consent

(a) Any person with apparent equal right to use or occupy may consent.

(5) Scope to search

(a) It is limited by the scope of the consent.

e) Stop and frisk

(1) Standards

(a) Possible if officer has an articulable and reasonable suspicion of criminal activity.

(b) If the officer reasonable believes that the person may be armed and presently dangerous, she may conduct a protective frisk.

(2) Scope of intrusion

(a) Patdown of outer clothing

(b) Passenger compartment of automobile

(i) It is limited to those areas in which a weapon may be placed or hidden and the officer possesses a reasonable belief that the occupant is dangerous

(c) Time limit

(i) No rigid line.

(3) Admissibility of evidence

(a) Plain feel doctrine applies when it contraband or weapons.

(4) Ordering a driver out of the car permissible

(a) No need of reasonable suspicion when properly stopped for a traffic violation.

(b) If reasonably believe that the person is armed and dangerous, she may conduct a frisk.

(5) Stop and identify statutes

(a) It does not create probable cause to arrest when a person refuses to identify herself.

f) Hot pursuit, evanescent evidence and other emergencies

(1) No general emergency exception

(2) NYD: emergency doctrine

(a) Police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for assistance for protection of life or property

(b) Search must not be primarily motivated by intent to arrest and seize evidence; and

(c) There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched.

(3) Hot pursuit

(a) Hot pursuit of a fleeing felon, officer may make a warrantless search and seizure

(4) Evanescent evidence exception

(a) May seize anything that could disappear before warrant is obtained

(5) NYD evanescent evidence exception

(a) Blood and chemicals tests:

(i) NO C.L. right absent a court order.

(ii) Under the vehicle and traffic law which states that" any person who operates a motor vehicle in the state shall be deemed to have given consent" to such a test.

g) NYD: Informers

(1) If a warrantless arrest or search is based upon info supplied by informer, NY applies a more stringent standard than required by the US constitution.

(2) In NY, under the Aguilar-Spinelli test, a search warrant application must demonstrate:

(a) Veracity or reliability of the source of information; and

(b) The basis of informant's knowledge.

(3) If the informer has not revealed the basis for his knowledge, probable cause for verification can arise only where the observation confirms sufficient details suggestive of or directly related to the criminal activity informed about.

6. Administrative inspections and searches

a) Warrant required for searches of private residences and business:

(1) Exceptions permitting warrantless searches:

(a) Contaminated food.

(b) Highly regulated industries

(2) NYD exception

(a) Warrantless impoundment and inspection of a car is valid as an administrative search under the highly regulated industry of motor vehicle safety.

b) Inventory searches

(1) Inventory before person's incarcerated.

c) Search of airline passengers

d) Public school searches

(1) Only reasonable grounds for the search are necessary.

e) Probationer's house

(1) No violation if statute allows it and if there is reasonable grounds to do so.

(2) NYD:

(a) A parolee's right to be free of unreasonable searches and seizures is not violated when his parole officer makes a warrantless search of the parolee's apartment provided the officer's conduct is rationally and reasonably related to the performance of his duty as parole officer.

f) Government employees' desk and file

(1) It is permissible under 4th Amendment if it reasonable in scope and if it is justified at its inception by a non-investigatory, work-related need or reasonable suspicion of work-related misconduct.

g) Drug testing

(1) Upheld without probable cause, warrant etc.

(2) Power not limitless

7. Searches in foreign countries and at the border

a) Searches in foreign country

(1) The 4th amendment does not apply to searches by US officials in foreign countries

b) Searches at the border

(1) No 4th amendment

c) Roving patrols

(1) Stops

(a) If the officer reasonably suspects that the car may contain illegal aliens.

(2) Searches

(a) No warrantless search unless one of the exceptions above exist.

d) Fixed check points

(1) Possible to stop inside a border without a reasonable suspicion, but they must have consent for the search and seizure.

e) Opening international mail

(1) Have reasonable cause to suspect that mail contains contraband.

(2) Reopening

(a) The subsequent reopening is not a search within 4th Amendment.

f) INS enforcement action

(1) Factory survey to determine citizenship of each employee, without raising 4th Amendment issues

g) Detentions

(1) If reasonable suspicion that traveler is smuggling contraband in her stomach, they may detain her for the time reasonable under the circumstances.

8. Wiretapping, eavesdropping

a) 4th Amendment requirements

(1) A showing of probable cause to believe that a specific crime has been or is being committed must be made;

(2) the suspected persons whose conversations are to be overheard must be named;

(3) the warrant must describe with particularity the conversations that can be overheard;

(4) the wiretap must be limited to a short period of time

(5) provisions must be made for the termination of the wiretap when the desired information has been obtained; and

(6) A return must be made to the court, showing what conversations have been intercepted.

b) Exceptions

(1) Unreliable ear

(a) The speaker assumes the risk that the other is unreliable

(2) Uninvited ear

(a) No 4th Amendment if the person makes no attempt to make the conversation private.

c) Judicial approval required for domestic security surveillance:

d) Federal statute

(1) Title 3 of the omnibus Crime control and safe streets act regulates interceptions of private " wire, oral or electronic communications"

e) Pen registers it only records the numbers dialed from a certain phone.

(1) No need of judicial approval

(2) Title 3 doesn't apply to pen registers either.

f) NYD

(1) Eavesdropping include both bugging and wiretapping. Both are felonies if there is neither consent nor a properly issued eavesdropping warrant.

(2) Evidence obtained from eavesdropping by an unauthorized private person is inadmissible except in civil or criminal proceeding against the eavesdropper.

(3) Warrant is good for 30 days.

(4) Within 90 days, the person whose conversations were seized must be informed

(5) If the conversation incriminates a third party, it is admissible if the third party was not a party to the conversation and his premises or are of privacy was not invaded by the interception.

(a) Suppression is by pretrial motion.

C. Methods of obtaining evidence that shock the conscience

1. Searches of the body

a) Blood tests

(1) Reasonable intrusion

b) Surgery

(1) It is NOT a reasonable intrusion

c) Shocking inducement

(1) If a crime is induced by official actions that by themselves shock the conscience, any conviction therefrom offends due process.

III. Confessions

A. 14th Amendment: Voluntariness

1. Looking at the totality of the circumstances assesses voluntariness.

2. Must be official compulsion.

a) Only an official compulsion will render a confession involuntary.

3. Harmless error test applies:

a) A conviction will not be overturned simply because the involuntary confession was erroneously admitted into evidence.

B. 6th Amendment right to Counsel Approach

1. In all criminal proceedings, a defendant has a right to counsel

2. It applies to all critical stages of a criminal prosecution.

3. Since Miranda, it has been limited t cases where adversary judicial proceedings have begun.

4. It is offense specific.

a) Every time there is a call for counsel for one charge, he must make the same request for another charge.

5. NYD

a) NY provides for an indelible right to counsel.

b) It attaches when:

(1) The defendant is in custody, the police are engaging in " activity overwhelming to the layperson and the defendant requests counsel; or

(2) At arraignment: or

(3) Upon the filing of an accusatory instrument; or

(4) When there has been an significant judicial activity.

c) Waiver may be obtained

(1) If known to the police, waiver can obtained but only in presence of counsel.

d) Investigatory line-ups

(1) No right to counsel exists held prior to formal prosecutorial action except if

(a) Police was aware that defendant was represented by counsel on another charge;

(b) Defendant explicitly requested his attorney.

e) Arthur Hobson Rule:

(1) The length of interrogation and custody are factors in determining voluntariness of confessions.

f) Knowledge that defendant is represented

(1) It is not necessary that police directly involved with the investigation knows that defendant is represented by counsel.

g) Infants

(1) Attempt to keep parent from child held by police may invalidate child's confession

h) Unrelated charges

(1) If defendant is taken into custody and his right t counsel has indelibly attached, police may not question him, absent his counsel, even on new unrelated charges.

(2) However, if defendant released and later arrested on unrelated charges, waiver can be mad without the presence of counsel from prior charges.

i) Volunteered statements

(1) A spontaneous statement made by defendant without any inducement, provocation or encouragement by the authorities may properly be admitted, even if statement was made in the absence of counsel.

j) Emergency exception

(1) When police are searching for a person who has recently disappeared, the continued questioning of the suspected kidnapper need not terminate although the right to counsel has attached.

C. Fifth Amendment privilege against compelled self-incrimination: MIRANDA

1. The warnings

a) They are a prerequisite to the admissibility of any statement made by defendant during custodial interrogation.

b) List:

(1) He has the right to remain silent

(2) Anything he says can be used against him in court;

(3) He has the right to the presence of an attorney;

(4) If he cannot afford one, one will be appointed for him if he so desires.

c) It does not need to be verbatim

d) Re-warning after break is not needed

(1) Unless the time lapse has been so long that a failure to do so would seem like an attempt to take advantage of the suspect's ignorance of his rights.

2. When required

a) Anyone in custody for a crime must be given the warnings prior to interrogation by the police

(1) Governmental conduct

(a) Only applies when made by the publicly paid police.

b) Custody requirement

(1) Legal standard: if at the time of the interrogation, the suspect was not free to leave

(2) Probation interview and routine traffic stops are NOT custodial.

c) Interrogation

(1) It refers also to any words or actions on the part of the police that police should have known are reasonably likely to elicit incriminating statements

(2) Miranda does not apply to spontaneous statements.

d) Waiver

(1) The prosecution must prove that the waiver was knowing, voluntary and intelligent.

(2) Waiver cannot be presumed from silence

(3) A request for an attorney must be specific

(4) Police deception of defendant's lawyer

(a) It will be admissible even if the police lie to the defendant's lawyer about their intent to question the defendant or fail to inform the defendant that his lawyer is attempting to see him as long as adversary proceedings have not commenced.

e) Types of statements

(1) It applies to both inculpatory and exculpatory statements

f) State-ordered psychiatric examination

(1) Will be inadmissible if defendant not warned of his right to remain silent.

g) Limits on Miranda

(1) Some limits posed by USSC: like confession made to parole officer.

h) Inapplicable to grand jury hearing

3. Right to terminate interrogation

a) Right to remain silent

(1) All questioning must stop immediately

(2) Police may resume questioning if they scrupulously honor request

(a) The police immediately ceased questioning upon defendant's request and did not resume questioning for several hours

(b) Defendant was re-warned of his rights;

(c) Questioning was limited to a crime that not the subject of the earlier questioning

b) Right to counsel: 5th amendment

(1) All questioning must cease until defendant is provided with counsel or initiates further questioning himself

(2) Police may NOT resume questioning for ANY crime.

(3) It applies whenever there is custodial interrogation.

(4) It is NOT offense specific.

(5) Request must be unambiguous and specific.

(6) Ambiguities relevant only if part of request.

(a) Once it has been requested, no question may be used to cast doubt on the request

(7) Counsel must be present at interrogation

(8) Statements obtained in violation may be used to impeach

(a) If police initiate further questioning, the defendant' s statement cannot be used in case in chief, but can be used for impeachment purposes.

4. Effect of violation

a) Use of confession for impeachment

(1) If in violation of Miranda rights, but voluntary, it can be used for impeachment purposes if the defendant takes the stand.

(2) Silence may not be used by prosecution to counter defendant's insanity defense

(3) May be harmless error.

b) Subsequent valid confession

(1) An invalid confession obtained before Miranda warnings were given will not render a subsequent valid confession obtained after the warnings were given.

5. Public Safety exception:

a) If police interrogation is reasonably prompted by concern for public safety,

(1) Responses to the questions may be used in court, even though the accused is in custody and Miranda warnings are not given.

IV. Pretrial Identification:

A. Denial of right to counsel

1. When right exists

a) At any post-charge line-up or showup

2. Role of counsel

a) Only to observe that no suggestive aspects of the lineup and bring them out on cross-x of the witness

3. Photo identification

a) There is no right to counsel for pics identification.

4. Physical evidence

a) No right to counsel to take physical evidence such as handwriting samples

B. Denial of due process

1. The defendant can attack an identification when it was

a) UNNECESSARILY SUGGESTIVE and

b) That there is A SUBSTANTIAL LIKELIHOOD OF MISIDENTIFICATION.

C. The remedy

1. Exclusion: rarely granted

a) Strike the in-court identification

2. How to get it in anyhow:

a) Independent source

3. It should be determined at a suppression hearing.

V. Pretrial procedures

A. Preliminary hearing: the Gerstein Hearings

1. A defendant has a 4th amendment right to be released from detention if there is no probable cause to hold him

2. If probable cause has already been determined, there is no need for a preliminary hearing.

3. If none has been made:

a) He has a right to the hearing if there is significant pretrial constraints on the defendant's liberty.

4. Timing

a) Within a reasonable time

5. Remedy

a) There is no rea remedy of the defendant

B. Pretrial detention

1. Initial appearance

a) She must be brought before a magistrate who will advise her of her rights, set bail, and appoint counsel if necessary.

2. Bail

a) Due process concerns

b) Right to be free from excessive bail

c) Bail issues are immediately appealable

d) Defendant incompetent to stand trial

3. Pretrial detention practices

a) Preventive detention is constitutional.

C. Preliminary hearing to determine probable cause to prosecute

1. Right to counsel is attached.

D. Grand juries

1. The charging grand jury determines probable cause to prosecute by returning the bill of indictment submitted by the prosecutor as a " true bill"

2. NYD

a) Consist between 16/23 persons, 12 votes are needed to indict

b) A citizen may waive indictment for a crime if

(1) He is being held for grand jury action;

(2) The crime is punishable other than by death or life imprisonment; and

(3) The DA consents.

c) Grand jury may indict when:

(1) The evidence establishes all the elements of the crime;

(2) the evidence before it is legally sufficient to establish that the accused committed thee offense; and

(3) the evidence establishes reasonable cause to believe that the accused committed the crime

d) Dismissal: if the grand jury decides not to indict and dismisses the matter:

(1) The defendant must be released if being held in custody upon the charge;

(2) The matter may not be resubmitted to the same or another grand jury unless the court allows resubmission; and

(3) The defendant must be notified within 90 days of the filing of the dismissal, unless resubmission has been allowed or the court, for good cause and in exigent circumstances, postpones giving notice.

e) Immunity: generally

(1) Any witness in a legal proceeding, other than a grand jury proceeding may refuse to give evidence requested of him on the ground that it may incriminate him and may not be compelled to give such evidence unless granted immunity

(a) Transactional immunity

(i) Witness cannot be tried for any crime disclosed. But it will be only use immunity in other jurisdictions

f) Immunity: grand jury

(1) Any witness testifying in grand jury proceeding is granted transactional immunity unless he waives it or volunteers any info not responsive to any inquiry.

(2) Written waiver signed by witness is required

(3) If the defendant requests the opportunity to testify before the grand jury, it must be granted provided he waives immunity.

3. Special or investigatory grand juries

a) It investigates on its own motion.

4. Grand jury proceeding

a) Secrecy and defendant's lack of access

b) Particularized need required for prosecutor's access to grand jury materials

c) Subpoena powers of grand jury

(1) They can issue them.

(2) Govt. need not prove relevance

(3) If defamed, a defendant or a witness may move to seal the report

d) No right to counsel or Miranda warnings

(1) A subpoenaed witness has no right to counsel

(2) A grand jury witness may consult with counsel outside courtroom

(3) A witness who has waived immunity may consult with counsel inside room
        1. NYD: no right to counsel
          1. A witness who has been granted immunity may consult with counsel, but not in the grand jury room. A witness who has waived immunity may be accompanied into the grand jury room by counsel but counsel may not take part in the proceeding.
          2. Traumatic crimes:
            1. Any witness to a traumatic crime may be accompanied by a social worker, rape crisis counselor, psychologist or other professional providing emotional support to the witness.
          3. Witness who may be videotaped
            1. Child witness
              1. 12 years or younger may be videotaped in lieu of appearing
            2. special witness: a special witness is a person who cannot attend the proceeding because the person is either
              1. physically ill or incapacitated; or
              2. more than 12 years old but would suffer very severe emotional or mental stress if required to testify in person concerning the crime of incest.
        2. No right to potential defendant warnings
        3. No right to have evidence excluded
        4. No right to challenge subpoena on 4th amendment grounds
        5. Exclusion of minorities
          1. Minorities may not be excluded from grand jury service.
          2. It will be reversed regardless of the harmless of the error.
    1. Speedy Trial
      1. Social interest
      2. Constitutional standard
          1. Totality of the circumstances
          2. Length of delay
          3. Reason of the delay
          4. Whether the defendant asserted his right; and
          5. Prejudice to the defendant.
      3. Remedy: dismissal
        1. Dismissal with prejudice
      4. NYD: Remedy
        1. Felony: 6 months
        2. A misdemeanor: 90 days
        3. B misdemeanor: 60 days
        4. Violation: 30 days.
        5. If the prosecution is not ready for trial, the defendant may be entitled to either release from custody or dismissal of the charge, depending on the amount of the delay.
        6. Unexcused delay requires upon defendant's motion.
        7. Whether the defendant is prejudiced by delay is irrelevant.
        8. The exceptions to dismissal are:
          1. Homicide;
          2. Sudden availability of material evidence.
        9. Exclusions from time periods:
          1. Reasonable delay resulting from other proceeding
          2. Continuance
          3. Absence of defendant, if defendant's absence causes the delay
          4. Reasonable delay caused by joinder of co-defendant
          5. Delay caused by defendant's detention in another jurisdiction
          6. Delay caused by exceptional circumstances
          7. Period during which an action has been adjourned in contemplation of dismissal.
      5. When right attaches
        1. It does not attach until defendant has been arrested or charged
          1. Knowledge of defendant of the charges not necessary.
      6. Special problems
        1. Detainees
          1. A defendant incarcerated in another jurisdiction who has a charge pending in another one has a right to have the second jurisdiction exert reasonable efforts to obtain presence for trial.
        2. Indefinite suspension of charges
          1. It is a violation of the 6th.
    2. Prosecution duty disclose exculpatory information and notice of defenses
      1. Prosecutor's duty to disclose
        1. The Brady rule:
          1. Disclose material, exculpatory evidence to the defendant.
          2. Failure violates Due Process Clause.
          3. A conviction will be overturned if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.
            1. Exception: Reports on sexually abused minors
              1. A defendant may not automatically obtain investigative reports made by a state agency in charge of investigating sexually abused minors because of the confidentiality.
              2. They can only disclosed if favorable to defendant and if material to guilt or punishment.
            2. Probably must be relevant to merits
              1. Only on the case in chief
      2. NYD: Prosecutor's duty to disclose
        1. Defendant may, upon demand, obtain for inspection and copying:
          1. His own or a co-defendant's statement to a law enforcement officer, including grand jury testimony
          2. Tapes or bugged conversations intended to be used at trial;
          3. Relevant photos or drawing made by police
          4. Reports of physical, mental, or scientific tests or experiments;
          5. Any other property obtained from the defendant;
          6. Approximating date, time, place of the offense charged;
          7. Anything that the State of federal Constitution requires to be disclosed to the defendant by the prosecution prior to trial.
          8. All specific instances of defendant's conduct that prosecutor intends to use at trial to impeach the defendant's credibility.
      3. Notice of alibi and intent to present insanity defense
        1. Reciprocity required
          1. Prosecution may demand if defendant is going to get an alibi or raise the insanity defense. Defendant must give list of witnesses, prosecution must respond in kind.
        2. Commenting on failure to present alibi
          1. The prosecution may not comment at trial on the defendant's failure to produce a witness named as supporting the alibi. But the prosecution may use the notice of an alibi to impeach a defendant who takes the stand and testifies to a different alibi.
        3. NYD
          1. Defendant must notify prosecutor 30 days from not guilty plea if raisin insanity defense.
          2. Within 20 days after arraignment, prosecutor may serve defendant with demand for the alibi defense and the defendant must reply within 8 days.
          3. Disclosure to prosecutor
            1. Before defendant's direct case, the defense must make available any relevant prior written or recorded statements by a defense witness. Prosecution may demand physical, mental or scientific reports, the results of which the defendant intends to introduce at trial
          4. Continuing duty to disclose
            1. If a part finds, before or during trial, additional discoverable material, that party must promptly disclose or inform the other side of its refusal to disclose or apply for a protective order.
          5. Comment on non-production
            1. Failure of prosecution to call a witness or the failure of any party to introduce previously disclosed material " shall not, by itself, constitute grounds for any sanction or for adverse comment at any point during trial".
    3. Competency to stand trial
      1. Competency and insanity distinguished
        1. Insanity is a defense to the criminal charge
        2. Incompetency depends on defendant's mental condition at the time of trial.
          1. It is a bar to trial.
      2. Due process standard: either if he:
        1. Lacks a rational as well as a factual understanding of the charges and proceedings; or
        2. Lacks sufficient present ability to consult with her lawyer wit reasonable degree of understanding.
      3. Trial judge's duty to raise competency issue
        1. The judge has a constitutional obligation to conduct further inquiry and determine whether in fact the defendant is incompetent if he sees that at trial.
      4. Burden can be placed on defendant
        1. By a preponderance of the evidence is constitutional.
        2. By clear and convincing evidence is NOT constitutional.
      5. Detention of defendant
        1. Based on incompetency
          1. He may be detained in a mental hospital for a brief period of time for evaluation and treatment
        2. Based on insanity
          1. He can be confined in a mental institution for a longer term that the max period of incarceration for the offense.
    4. Pretrial publicity and the right to a fair trial
      1. Excessive pretrial publicity prejudicial to the defendant may require change of venue or retrial.
  1. Trial
    1. Basic right to a fair trial
      1. Right to public trial
        1. Under the 6th and the 14th Amendments
        2. Preliminary probable cause hearing
          1. Presumptively open to the public and the press
        3. Suppression hearing: Open to the public unless
          1. The party seeking closure shows an overriding interest likely to be prejudiced by a public hearing;
          2. The closure is no broader than necessary to protect such an interest;
          3. Reasonable alternatives to closure have been considered; and
          4. Adequate findings to support closure are entered by trial court.
        4. Trial
          1. Have a right under 1st Amendment.
          2. Need finding that closure would be necessary for a fair trial.
      2. Right to an unbiased judge
        1. Due process is violated if the judge is shown to have actual malice against the defendant or to have had a financial interest in having the trial result in a verdict of guilty
      3. Judge must be a lawyer in felony cases.
      4. Right to be from trial disruption
        1. When it is likely that the jury did not give the consideration necessary to the evidence, due process is violated.
      5. Cannot compel defendant to appear in prison clothing.
      6. Right to have jury free from unfair influences
        1. Due process will be violated
      7. No right to preservation of potentially exculpatory evidence
        1. If in bad faith, the police destroy the evidence
          1. Due process is violated.
    2. Right to trial by jury
      1. The 6th Amendment applies to the states.
      2. Right to jury trial only for serious offenses
        1. It is serious if the punishment exceeds 6months of imprisonment.
        2. Contempt
          1. Civil contempt: no jury trial right.
          2. Criminal contempt: the 6 month rule applies
            1. Cumulative penalties totaling more than 6 months cannot e imposed in a post-verdict contempt adjudication without affording the defendant the right to a jury trial.
          3. Summary contempt punishment during trial
            1. During trial, may aggregate punishment over 6 months without jury trial.
          4. Appellate modification sufficient
          5. Probation
            1. No need of jury trial as long as revocation of probation would result in imprisonment for more than 6 months.
      3. Number and unanimity
        1. No right to jury of twelve
          1. At least 6 jurors
        2. No absolute right to unanimity
          1. A six-person juries must be unanimous.
        3. NYD:
          1. Indictment ( felonies)
            1. 12 jurors, with 4 alternatives, at the discretion of court.
          2. Information ( crime less than felonies
            1. 6 jurors, with up to 2 alternates.
            2. If the punishment is 6 months or less, there is no jury
      4. Right to venire selected from representative cross-x
        1. Showing of exclusion of significant group sufficient
        2. No right to proportional representation on particular jury
        3. Use of peremptory challenges for racial and gender-based discrimination.
          1. For any reason BUT race and gender based.
          2. Test:
            1. The defendant must show facts or circumstances that raise inference that the exclusion of potential jurors was based on race or gender;
            2. If such sowing is made, the prosecutor must then come forward with a race-neutral explanation for the strike;
            3. The judge then determines whether the prosecutor's explanation was the genuine reason for striking the juror, or merely a pretext for purposeful discrimination.
          3. Defendants
            1. The same applies to defendants.
        4. Distinct and significant group.
      5. Right to impartial jury
        1. NYD
          1. A juror can be challenged for cause for the following reasons:
            1. Lack of qualifications
            2. Not impartial because of the juror state of mind;
            3. Juror is related within 6th degree consanguinity or affinity to the defendant, a person allegedly injured, a prospective witness or counsel;
            4. Juror was a party adverse to the defendant, victim, witness or counsel in any civil action or was complained against or accused by any such person in a criminal action;
            5. Juror was witness at any preliminary examination, before the grand jury or is to be witness at trial; or
            6. Juror served on the grand jury or served as a juror in a prior civil or criminal action involving the same conduct charged.
          2. Waiver
            1. Unless the indictment charges murder in the first degree, the defendant may waive at any time before trial a trial by jury, if the waiver is
              1. In writing; signed by him; in the presence of the judge;
              2. With the judge's approval.
        2. Right to question on racial bias
          1. On voir dire
        3. Juror opposition to death penalty
          1. Standard
            1. Whether the juror's view would prevent or substantially impair the performance of his duties in accordance with his instructions and oath.
          2. Improper exclusion may result in reversal
        4. Juror favoring death penalty
          1. Same as above
        5. Inconsistent verdicts
          1. They are not reviewable because it would lead to speculation
    3. Right to counsel
      1. Stages where it applies
        1. 5th Amendment:
          1. custodial police interrogation
        2. 5th and 6th:
          1. post-indictment interrogation whether custodial or not
        3. 6th
          1. preliminary hearings to determine probable cause to prosecute
          2. arraignment
          3. post-charge line-ups
          4. guilty plea and sentencing
          5. felony trials
          6. misdemeanor trials when imprisonment is actually imposed
          7. overnight recesses during trial
          8. appeals as a matter of right.
      2. Stages where it does not apply
        1. Blood sampling
        2. Taking handwriting or voice samples
        3. Pre-charge or investigative line-ups
        4. Photo identification
        5. Preliminary hearings to determine probable cause to detain
        6. Brief recesses during defendant's testimony at trial.
        7. Discretionary appeals
        8. Parole and probation revocation proceedings
        9. Post-conviction proceedings
      3. Waiver of right of counsel and right to defend oneself.
        1. As long as his waiver is knowing and intelligent
      4. Effective assistance of counsel
        1. It is the most commonly raised constitutional claim.
        2. Effective assistance is presumed
        3. Right extends to first appeal
        4. Circumstances constituting ineffective assistance
          1. Deficient performance by counsel; and that
          2. But for the deficiency, the result of the proceeding would have been different
      5. Conflicts of interests
        1. Joint representation is not per se invalid
        2. If attorney before at trial advises of the conflict and judge refuse to appoint separate counsel:
          1. Defendant has a right to automatic reversal
    4. Right to confront witness
      1. NYD
        1. Child witness may testify from a separate room via two-way closed circuit TV.
      2. It's 6th Amendment
      3. The fact finder and the defendant observe the demeanor of the testifying witness; and
      4. The defendant has the opportunity to cross-x any witness testifying against him.
      5. Right not absolute
        1. Disruptive defendant
        2. Voluntarily leaving the courtroom.
      6. Introduction of co-defendant's confession
        1. General rule
          1. It is prohibited
        2. Exceptions:
          1. All portions referring to the other defendant can be eliminated
          2. The confessing defendant takes the stand and subjects himself to cross-x with respect to the truth or falsity of what the statement asserts.
          3. The confession of the non-testifying co-defendant is being used to rebut the defendant's claim that his confession was obtained coercively.
      7. Use of prior judicial proceeding hearsay
        1. Two additional showing are necessary
          1. The prosecution has made a good faith effort to obtain in-court testimony of the witness and failed;
          2. The defendant has had an opportunity to cross-x the person as to the testimony or has otherwise had an opportunity to test its accuracy.
  2. Guilty pleas and plea bargaining
    1. Guilty plea waives right to jury trial
    2. NYD guilty plea:
      1. At any time before imposition of sentence, the court in its discretion may permit a defendant to withdraw a plea of guilty to all or part of an indictment
      2. Collateral attacks on guilty pleas after sentence
        1. Allows a defendant who pleaded guilty to appeal certain pretrial orders denying motions for suppression of:
          1. Confessions;
          2. Evidence from illegal searches and seizures; and
          3. Identification testimony.
    3. Taking the plea
      1. Advising the defendant of the charge, the potential penalty, and her rights
        1. The judge must inform her
          1. Of the nature of the charge to which the plea is offered
          2. of the maximum possible penalty and of any mandatory minimum, but the failure to explain a special parole term is not fatal;
          3. that she has a right not to plead guilty and that if she does, she waives the right to trial.
      2. Requirement of adequate record
        1. Must indicate that the plea was taken intelligently and knowingly.
        2. An unfairly informed defendant is not bound
        3. Not applicable in some recidivist proceedings
          1. When the prosecution introduces prior guilty pleas
      3. Remedy
        1. Pleading anew
    4. Collateral Attacks on guilty pleas after sentence
      1. Those pleas that are intelligent choice among alternative are immune from collateral attack.
      2. Plea offered by defendant who denies guilt
        1. If he denies guilt but take the plea, it will be considered an intelligent choice
          1. Withdrawal will not be permitted when there is other strong evidence of guilt in the record.
      3. Bases for attack on a guilty plea after sentence
        1. Plea was involuntary
        2. Lack of jurisdiction
        3. Ineffective assistance of counsel
        4. Failure to keep plea bargain
    5. Plea bargaining
      1. NYD
        1. Prosecution
          1. The sentencing court has the power to impose a lighter sentence than bargained for.
            1. The prosecution can then apply to withdraw consent to the plea if a sentence less severe than that negotiated is to be imposed
            2. If the court breaks a promise on which the defendant relied when pleading
              1. Remedy: withdrawal
        2. Conditional pleas
          1. By pleading guilty, defendant waives his right to appeal the merits of the plea bargain
            1. Prosecutor can condition the plea on the defendant's waiver of the right to appeal his sentence and/or the right to appeal pretrial proceedings.
            2. However, waiver of the right to appeal does not prevent the defendant to withdraw from the plea.
      2. Enforcement of the bargain
        1. The plea bargain will be enforced against the prosecutor and the defendant, but not against the judge, who does not have to accept the plea.
        2. Prosecution
          1. If it doesn't keep to the bargain, the court should decide whether to grant specific performance or let the defendant withdraw her plea.
        3. Defendant
          1. If doesn't keep the bargain, his plea and sentence can be vacated.
      3. Power of the state to threaten more serious charge
        1. State can do that
      4. Power to charge more serious offense
        1. Permitted
      5. Admission of statements made in connection with plea bargaining
        1. Are inadmissible at trial
    6. Collateral effects of guilty pleas
      1. Conviction may be used in other proceedings
        1. Introduction possible in different states.
      2. Dot not admit legality of search
  3. Constitutional rights in relation to sentencing and punishment
    1. NYD
      1. Application of NY death penalty statute
        1. Within 120 days after defendant's arraignment, the state must file a written notice of its intention to seek the death penalty
        2. A separate sentencing proceeding is to be conducted before the same jury that found the defendant guilty of murder in the 1st degree
        3. At the sentencing phase, the jury must consider aggravating and mitigating factors
        4. A finding of mental retardation by the court precludes imposition of the death penalty
        5. The death penalty cannot be carried out while the defendant is incompetent o pregnant
        6. NY provides for death by lethal injection
    2. Procedural rights in sentencing
      1. Right to counsel
        1. It is a critical stage,
          1. Requires the assistance of counsel, as substantial rights of the defendant may be affected.
      2. Right to confrontation and cross-x
        1. The usual sentence may be based on hearsay and uncross-x reports
        2. New proceeding
          1. Where a magnified sentence is based on a statute, that requires new findings of fact to be made, those facts must be found in a context that grants the right to confrontation and cross-x
        3. Capital sentencing procedure
          1. Must have opportunity for confrontation.
    3. Resentencing after successful appeal and reconviction
      1. General rule:
        1. Record must show reason for harsher sentence
          1. Based on objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceedings.
      2. Exceptions
        1. Reconviction upon trial de novo
        2. Jury sentencing
          1. It does not apply to trial by use of jury unless the second jury learned about the first one.
      3. Recharging in trial de novo
        1. A prosecution may not obtain an indictment for a more serious offense in a trial de novo
    4. Substantive rights in regard to punishment
      1. Criminal penalties constituting cruel and unusual punishment
        1. Punishment grossly disproportionate to offense
          1. Cruel and unusual
        2. Proportionality: no right to comparison to similar cases
        3. Death penalty
          1. For murder
            1. It is not inherently cruel and unusual punishment.
            2. The 8th Amendment requires that it is imposed under a statutory scheme that gives the judge or jury reasonable discretion, full info concerning the defendant and guidance in making the decision
            3. Discretion
              1. Must be allowed discretion to consider mitigating circumstances.
              2. Must be allowed to consider any aspect of the defendant's character or any circumstance of his crime as a factor in mitigation.
            4. Information
              1. A defendant is not entitled to instruction for every lesser offense.
            5. Victim impact statements
              1. Now, they are allowed.
            6. Guidance
              1. A statute providing for death penalty may not be vague
            7. prior crimes
              1. if a death sentence is based in any part on a defendant's prior conviction, the sentence must be reversed if the prior conviction is invalidated.
            8. Standard of review
              1. Even if affected by a vague or unconstitutional factor, the sentence may be upheld if all mitigating and aggravating factors have been considered.
          2. For rape
            1. Death penalty is cruel and unusual punishment
          3. For felony murder
            1. It cannot be imposed where the defendant, as an accomplice, "did not take or attempt to take life, or intent that lethal force be employed."
          4. Jury responsible for verdict
          5. Racial discrimination
            1. Statistical evidence that black defendants who kill white people are more likely to get death penalty does not render the sentence unconstitutional
          6. Sanity requirement
          7. For minors
            1. Not cruel and unusual to impose death penalty on defendant's who were 16 and over when they committed the crime.
        4. Status crimes
      2. Recidivists statutes
        1. A mandatory life sentence imposed pursuant to a recidivist statute does not constitute cruel and unusual punishment.
      3. Punishing the exercise of constitutional rights
        1. Cannot punish people who plead innocent in harsher manner than those who plead guilty
      4. Consideration of defendant's perjury at trial
        1. The judge may take into account the belief that the defendant committed perjury
      5. Imprisonment of indigents for nonpayment of fines violated equal protection Clause
  4. Constitutional problems on appeal
    1. NYD
      1. Right to appeal by defendant
        1. An appeal to an intermediate appellate court may be taken as of right by defendant from the following:
          1. A judgment other than one including a sentence of death, unless the appeal is solely based on the ground that a sentence was harsh or excessive when made on a guilty plea and the sentence did not exceed what the defendant did not agree to as a condition of the plea
          2. A sentence, other than one of death, if the sentence is either invalid as a matter of law or harsh or excessive;
          3. A sentence including an order of criminal forfeiture; or
          4. An order setting aside a sentence other than one of death, upon motion of the prosecution.
      2. Right to appeal by the prosecution
        1. An appeal to an intermediate appellate court may be taken as of right by the prosecution in certain situations. Appeals from following are the most important
          1. An order dismissing an accusatory instrument or a count thereof;
          2. A trial order of dismissal;
          3. An order setting aside a verdict;
          4. A motion to set aside the verdict before sentencing;
          5. A sentence, other than of death; or
          6. A motion made by the defense to suppress evidence.
    2. No right to appeal
    3. Equal protection and right to counsel on appeal
      1. First appeal
        1. If an avenue of post-conviction review is provided, conditions that make the review less accessible to the poor than the rich violate equal protection.
        2. Right to appointed counsel
          1. Indigents have counsel at state expense
        3. Frivolous appeal: Anders Brief
          1. An appellate court can permit withdrawal of counsel who concludes appeal would be frivolous.
      2. Discretionary appeals
        1. No right to have a counsel even if indigent
    4. Retrial after reversal on appeal
      1. Due process prohibits retrial on a more serious offense
    5. Retroactivity
      1. If new rule of criminal procedure, the rule must be applied to all other cases on direct review.
  5. Collateral attack upon conviction
    1. They can generally attack their convictions, usually by beginning a new a separate civil proceeding involving an application for a writ of habeas corpus
    2. Habeas corpus proceeding
      1. No right to appointed appeal.
      2. Burden of proof
        1. The petitioner has the burden of proof by a preponderance of the evidence to show unlawful detention.
      3. State may appeal
        1. It may appeal the grant of the writ and double jeopardy doesn't bar it.
    3. Federal habeas corpus for state prisoners
      1. Requirement of custody
        1. It is sufficient that he is on probation or parole or out on bail.
      2. Requirement of exhaustion of state remedies
      3. Requirement that state court findings be respected
        1. Allegation of Miranda violations reviewable
      4. Requirement that state detention be in violation of federal rights
      5. Failure to comply with State procedural rules
        1. A state prisoner who fails to comply with state procedure requirements regarding the manner in which a federal constitutional claim must be raised cannot get federal habeas corpus relief unless:
          1. He shows both
            1. Cause for noncompliance; and
            2. Actual prejudice.
      6. Fourth Amendment claims will not be relitigated
        1. A state defendant may not obtain habeas corpus relief on the ground that evidence used to convict him was obtained in violation of his 4th Amendment rights, unless:
          1. He also establishes that he was not given a full and fair opportunity to raise the issue in state court.
      7. Sufficiency of the evidence
      8. Grand jury discrimination
        1. It is cognizable on federal habeas corpus ground.
      9. Abuse of writ.
        1. Generally, a petitioner must raise all ground if the writ.
        2. If he submits a second writ, the prosecution can challenge it on abuse of writ.
        3. If the petitioner doesn't show cause then it's out unless :
          1. It will result in a fundamental miscarriage of justice.
        4. Death penalty cases:
          1. The petitioner must show that the constitutional error:
            1. probably resulted in the conviction of an innocent person.
      10. Prohibition against new Rules
        1. No new rules of constitutional criminal procedure may be announced or applied retroactively by a federal court on habeas corpus review of a state court judgment.
        2. Exceptions
          1. A new rule of criminal procedure can be announced or applied retroactively at a federal habeas corpus proceeding if the new rule either:
            1. Places a class of conduct beyond the power of the states to proscribe;
            2. Implicates the fundamental fairness and accuracy of the criminal proceeding
  6. Rights during punishment : probation, imprisonment and parole
    1. Right to counsel at parole and probation revocations
      1. Probation revocation involving resentencing
        1. Probation revocation involving resentencing
          1. If new sentence is involved, defendant is entitled to representation by counsel in all cases she has right to counsel at trial.
        2. Other situations
          1. Application or the case involves parole revocation, the right to counsel is much more limited
            1. Only if on the facts of the case, such representation is necessary to a fair hearing.
    2. Prisoner's rights
      1. Due process rights.
        1. Violated only where the regulations and operations impose "atypical and significant hardship"
      2. No 4th Amendment protections in search of cells
      3. Right of access to courts
        1. They must reasonable access to courts
      4. 1st Amendment rights
        1. prison regulations reasonably related to penological interests will be upheld even though they burden the 1st Amendment.
      5. Right to adequate medical care
        1. Deliberate indifference to serious medical needs of prisoners constitutes cruel and unusual punishment in violation of the 8th Amendment..
    3. No right to be free from disabilities upon completion of sentence
  7. Double jeopardy
    1. NYD
      1. Acts constituting prosecution
        1. In NY, a person may not be prosecuted twice for the same offense, or separately prosecuted for two offenses based upon the same act or criminal transaction
        2. A person is prosecuted for an offense when he is charged by an accusatory instrument filed in a court in NY or any jurisdiction within the US and the action either:
          1. Terminates in a conviction upon a plea of guilty; or
          2. Proceeds to the trial stage and a jury has been impaneled and sworn in or, in the case of a trial by the court without a jury, a witness is sworn in.
      2. Acts not constituting prosecution
        1. A person is not deemed to have been prosecuted for an offense when:
          1. Such prosecution occurred in court which lacked jurisdiction over the defendant or the offense; or
          2. Such prosecution was for a lesser offense that could have been charged under the facts of the case and the prosecution procured by the defendant, without knowledge of the appropriate prosecutor, for the purpose of avoiding prosecution for a greater offense.
      3. Same offense: General rule
        1. NY follows the transaction rule test
          1. Defendant has to be charged with all offenses arising from any single transaction except when:
          2. The offenses have substantially different elements;
          3. Each contains an element not in other and are designed to prevent very different harms;
          4. One is criminal possession, the other is criminal use;
          5. Each involved death, injury, loss etc to different victims;
          6. Violation of another jurisdiction's statute, terminated by court order in the other jurisdiction for lack of evidence as to an element not in NY crime; or
          7. One offense is NY RICO and other is federal RICO.
    2. When jeopardy attaches
      1. It is the 5th Amendment: once a defendant has been tried for an offense he cannot be retried for the same offense.
      2. Jury trials
        1. It attaches when the jury is impaneled.
      3. Bench trials
        1. It attaches when the first witness is sworn in.
      4. Juvenile proceedings
        1. The commencement of the proceeding bars subsequent criminal trial for the same offense
      5. Not in civil proceeding
    3. Exceptions permitting retrial even if jeopardy attached
      1. Hung jury
      2. Mistrial for manifest necessity
      3. Retrial after successful appeal
      4. Breach of plea bargain
    4. Same offense
      1. When two crimes do not constitute same offense
        1. Each crime requires proof of an additional element.
        2. Application
          1. See examples p. 57.
      2. Cumulative punishments for offenses constituting same crime
        1. Imposition of cumulative punishments for two or more statutorily defined offenses, specifically intended by the legislature to carry separate punishments,
          1. even though constituting the "same" crime under the above test, does not violate the prohibition of multiple punishments for the same offense of the double jeopardy Clause when the punishments are imposed at a single trial.
      3. Lesser included offenses.
        1. Retrial for lesser included offense barred
        2. Retrial for greater offense
          1. Double jeopardy bars it.
          2. Unless that retrial for murder is permitted if the victim dies after attachment of jeopardy for battery,
          3. Exception
            1. If unlawful conduct that is subsequently used to prove the greater offense
              1. Has not occurred at the time of the prosecution for the lesser offense; or
              2. Has not been discovered despite due diligence.
      4. Conspiracy and substantive offenses
        1. Not barred
      5. Prior evidence act
        1. The introduction of such evidence is not equivalent to prosecution for that substantive offense; thus subsequent prosecution is not barred.
      6. Conduct used as a sentence enhancer
        1. Not violated when a person is indicted for a crime the conduct of which was already used to enhance the defendant's sentence for another crime
      7. Civil actions
        1. Double jeopardy only prohibits repetitive criminal proceedings
          1. However if there is clear proof from the face of the statutory scheme that its purpose or effect is to impose a criminal penalty, the double jeopardy clause applies.
    5. Separate sovereigns
      1. The Clause does not apply to separate sovereigns' proceedings.
    6. Appeals by prosecution
      1. The prosecution may appeal any dismissal upon the defendant's motion that does not constitute an acquittal on the merits.
      2. It does not bar appeal if a successful appeal would not require a retrial.
        1. Appeal of sentence
          1. Govt. can appeal sentence, pursuant to a congressionally enacted statute permitting such review.
          2. Appeal from death penalty prohibited
            1. If the jury refused to give death penalty, the prosecution is barred from seeking it.
    7. Collateral estoppel
      1. Definition
        1. A defendant may not be tried or convicted of a crime if a prior prosecution by that sovereignty resulted in a factual determination inconsistent with one required for conviction.
  8. Privilege against compelled self-incrimination
    1. The 5th Amendment is applicable to the states
    2. Who may assert the privilege
      1. Only NATURAL persons may assert it.
    3. When
      1. Anytime his response may furnish a link in a chain of evidence needed to prosecute him.
      2. Proceedings where potentially incriminating testimony sought
        1. In ANY proceeding in which testimony that could tend to incriminate is sought.
          1. The privilege must be claimed in civil proceedings to prevent the privilege from being waived for a later criminal prosecution
      3. Privilege not a defense to civil records requirements
        1. The govt. may require that certain records be kept and reported on where the records are relevant to an administrative purpose, unrelated to enforcement of criminal laws.
        2. Limitation: criminal enforcement purpose
          1. If the registration requirement is directed not at the general public but a select group inherently suspect of criminal activities and the inquiry is in a area permeated with criminal statutes, the person may assert the privilege to avoid prosecution for failure to comply with the requirement.
    4. Method for invoking the privilege
      1. Privilege for a defendant
        1. He may choose not to take the stand.
          1. It is IMPERMISSIBLE to call the jury's attention to the fact that he has chosen not to testify
      2. Privilege for a witness
        1. The person asserts the privilege while on the stand.
    5. Scope of protection
      1. Testimonial but not physical evidence
        1. The state may require a person to produce blood samples, handwriting exemplars or voice samples.
        2. The fact that the defendant refuses to submit to the blood-test does not violate the 5th Amendment.
      2. Compulsory production of documents
        1. It does not violated the 5th Amendment because it does not involve testimonial self-incrimination
        2. Corporate records
      3. Seizure and use of incriminating documents
        1. The privilege only protects against being compelled to communicate information, not against the disclosure of communications made in the past.
    6. Right to advice concerning privilege
      1. A lawyer may not be held in contempt for her good faith advice to her client to invoke the privilege and refuse to produce materials demanded by a court order.
    7. Prohibition against burdens on assertion of the privilege
      1. Comments on defendant's silence
        1. No comment allowed. The jury may be instruct on defendant's motion that it cannot draw any inference from his silence.
        2. Exception
          1. The prosecution may comment on the defendant's failure to take the stand when the comment is in response to defense counsel's assertion that the defendant was not allowed to explain his side of the story
        3. Harmless error test applies.
      2. Penalties for failure to testify prohibited
    8. Elimination of the privilege
      1. Grant of immunity
        1. Use and derivative use immunity sufficient to extinguish the privilege
        2. Immunized testimony involuntary
        3. Testimony obtained by a promise of immunity is coerced and therefore cannot be used even for impeachment purposes.
        4. Use of testimony by another sovereign prohibited
      2. No possibility of incrimination
        1. No privilege in that case.
    9. Waiver of the privilege
      1. Waiver by criminal defendant
        1. By taking the stand
      2. Waiver by witness
        1. Only if he discloses incriminating info. Thereafter she can be compelled to disclose additional info.
  9. Juvenile court proceedings
    1. Rights that must be afforded
      1. Written notice of the charges with sufficient time to prepare defense
      2. The assistance of counsel
      3. The opportunity to confront and cross-x witnesses.
      4. The right not to testify
      5. The right to have guilt established by proof beyond of a reasonable doubt.
    2. Right not applicable
      1. Jury trial
      2. Pretrial detention is allowed
    3. Double jeopardy and transfer of juvenile to adult court
      1. The transfer issue must be resolved before the adjudication of delinquency ( delinquency status bars being tried as an adult to double jeopardy)
  10. Forfeiture actions
    1. Right to pre-seizure notice and hearing
      1. The owner of personal property is not constitutionally entitled to notice and hearing before the property is seized for purposes of a forfeiture proceeding.
      2. Different for real property.
    2. May be subject to 8th Amendment
      1. No excessive fines can be imposed
      2. Penal forfeitures
        1. If it is grossly disproportionate to the gravity of the offense
      3. Non-penal forfeitures
        1. Civil in rem forfeitures
          1. It is not subject to the 8th amendment as it is a real action not against the person.
        2. Monetary forfeitures
          1. Remedial in nature thus not subject to 8th Amendment.
    3. Protection for innocent owner not required
      1. The 8th Amendment does not require statutes to provide for an innocent owner defense

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