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3. Other Detentions
a. Investigatory Detentions (Stop and Frisk)
If the police have a reasonable suspicion of criminal activity {based on
totality of circumstances}or involvement in a completed crime,
supported by articulable facts (i.e. not merely a hunch), they may detain
a person for investigative purposes. If the police also have reasonable
suspicion that the detainee is armed and dangerous, they may frisk the
detainee for weapons.
o Source of Suspicion
Like probable cause, reasonable suspicion need
not arise from a police officer’s personal
knowledge. The suspicion can be based on a
flyer, a police bulletin, or a report from an
informant.
• Informant’s tip: must be accompanied
by indicia of reliability sufficient to make
the officer’s suspicion reasonable.
1) Duration and Scope
a. The detention must be no longer than necessary to
conduct a limited investigation to verify the suspicion.
The police may ask the detained person to identify
himself (i.e. state his name) and generally may arrest the
detainee for failure to comply with such a request. The
detention will also turn into an arrest if during
detention other probable cause for arrest arises.
2) Property Seizures
Brief property seizures are similarly valid if based on
reasonable suspicion.
b. Automobile Stops
Generally, police may not stop a car unless they have at least
reasonable suspicion to believe that a law has been violated.
However, if special law enforcement needs are involved, the Supreme
Court allows police to set up road blocks to stop cars without
individualized suspicion that the driver violated some law. To be valid,
the roadblock must: (i) stop cars on the basis of some neutral, articulable
standard (e.g. every car); and (ii) be designated to serve purposes closely
related to a particular problem pertaining to automobiles and their
mobility {i.e. road block to check for drunk driving is valid, but to check
for illegal drugs is not}.
1) Seizure of all Occupants
An automobile stop constitutes a seizure not only of the
automobile’s driver, but also of any passengers as well. Thus,
passengers have standing to raise a wrongful stop as a
reason to exclude evidence found during a stop.
IV. CONFESSIONS
The admissibility of a ∆ ’s confession or other incriminating admission
involves analysis under the 4th, 5th, 6th, and 14th.
A. 14th Amendment-Voluntariness
For a self-incriminating statement to be admissible under Due Process
Clause, it must be voluntary, as determined by the totality of the
circumstances. A statement will be involuntary only if there is some
official compulsion (e.g. a confession is not involuntary merely bc it is the
product of mental illness).
1) Harmless Error Test Applies
If an involuntary confession is admitted into evidence, the
conviction need not be overturned if there is other
overwhelming evidence of guilt.
B. 6th Amendment-Right to Counsel
6th Amendment guarantees the right to assistance of counsel in all criminal
proceedings, which include all critical stages of the prosecution after
judicial proceedings have begun (e.g. formal charges have been filed). It
prohibits the police from deliberately eliciting an incriminating statement
from a ∆ outside of the presence of counsel after ∆ has been charged
unless he has waived his right to counsel.
Exam Tip: Note that there can be no violation of right to counsel before formal
proceedings begin. Thus, a ∆ who is arrested but not yet charged does not have
a 6th Amendment right to counsel BUT DOES have a 5th Amendment right to
counsel under Miranda.
1. Offense Specific
The 6th Amendment is offense specific. Thus, even though a ∆ ’s
6th Amendment rights have attached regarding the charge for which
he is being held, he may be questioned regarding unrelated,
uncharged offenses without violating 6th (although interrogation
might violate right to counsel under Miranda). Two offenses
will be considered different if each requires proof of an additional
element that the other crime does not require.
• Scope of Immunity
o Extends only to the offenses to which the
question relates and does not protect against
perjury committed during the immunized
testimony.
Waiver of Privilege
A criminal ∆ waives privilege by taking the witness
stand to the extent necessary to subject him to any cross-
examination. A witness waives the privilege only if he
discloses incriminating information.
1. Miranda Warnings
For an admission or confession to be admissible under the 5th Amendment
privilege against self-incrimination, a person in custody must, prior to
interrogation, be informed, in substance, that:
(i) He has the right to remain silent;
(ii) Anything he says can be used him in court;
(iii) He has the right to an attorney;
(iv) If he cannot afford one, one will be appointed for him if he so
desires.
Exam Tip: Despite the fact that Miranda warnings mention a right to
counsel, failure to give warnings violates∆ ’s 5th right against compelled
self-incrimination, not his 6th right to counsel. Don’t be fooled by an
answer choice that states that a failure to give warnings violates the 6th.
2. When Required
Before governmental, custodial interrogation of person accused of a crime.
a. Governmental Conduct
Miranda necessary only if ∆ knows he is talking to
government.
b. Custody
Whether a person is in custody depends on whether the
person’s freedom of action is denied in a significant way based
on the objective circumstances (e.g. an arrest constitutes
custody; a routine traffic stop does not constitute custody).
Factors: when and where interrogation occurred, how long it
lasted, how many police were present, what the officers and the
∆ said and did, the presence of physical restraints or the
equivalent (i.e. guard stationed at the door).
c. Interrogation
Includes any words or conduct by police that they should
know would likely elicit a response from ∆ . Thus, Miranda
warnings are not required before spontaneous statements are
made by ∆ . Note that routine booking questions do not
constitute interrogation.
d. Waiver
A suspect can waive his Miranda rights, but the prosecution
must prove that the waiver was knowing, voluntary and
intelligent.
e. Types of Statements
Miranda applies to both inculpatory statements and
exculpatory statements (e.g. “I didn’t shoot V, you did”)
f. Inapplicable at Grand Jury Hearing
Miranda requirements do not apply to a witness testifying
before the grand jury, even if witness was compelled by
subpoena to be there.
3. Right to Terminate Interrogation
The accused may terminate police interrogation any time prior to or during the
interrogation by invoking either the right to remain silent or the right to
counsel.
a. Right to Remain Silent
If the accused indicates that he wishes to remain silent, police must
scrupulously honor this request by not badgering the accused,
although the Supreme Court has allowed later questioning on an
unrelated crime.
V. IDENTIFICATION PROCEDURES
2 Basis for attack: Pre-indictment ids are judged under due process
standard, while post-indictment ids are examined under the right to
counsel approach.
(i) Remember: 5th Amendment privilege against self-
incrimination only applies to testimonial evidence
used for identification. Note: ∆ nevertheless may be
properly asked to recite certain words for identification
purposes.
A. Pre-Indictment: Due Process Standard
A ∆ can attack an id as denying due process if id is unnecessarily
suggestive AND there is a substantial likelihood of misidentification.
One on One show up at hospital justified on the basis of expediency,
namely victim close to death and impracticability of using a lineup.
Exam Tip: Since a lineup does not involve compulsion to give “testimonial”
evidence, a suspect’s 5th Amendment right against self-incrimination does not
apply. Thus, ∆ may not refuse to participate in line up on this basis.
1. Remedy
The remedy for unconstitutional ids is exclusion of in court id and is
rarely granted.
a. Independent Source
A witness may make an in court id despite the existence of an
unconstitutional pretrial id if the in-court id has an independent
source. Most common: opportunity to observe at the time of crime
(e.g witness viewed ∆ for up to 40 mins at time of crime). Other
factors include: ease with which witness can identify ∆ , and
existence or absence of prior misindentifications.
b. Reliability
Where an id is both suggestive and unnecessary, it can still be
admissible if it is reliable based on totality of the circumstances.
Factors: opportunity to view criminal at the scene, witnesses’
degree of attention, accuracy of witness description, degree of
certainty, time interval bwt crime and identification.
These factors are balanced against the degree of
suggestiveness.
VI. TRIAL
A. Basic Right to Fair Trial
6th and 14th Amendments guarantee the right to a public trial, but the
right varies with the stage of the proceeding involved.
a. Pretrial Proceedings
Preliminary probable cause hearings are presumptively open
to the public and press, as are pretrial suppression hearings,
although the latter may be closed to the public under limited
circumstances (e.g. the party seeking closure has an overriding
interest likely to be prejudiced by disclosure and there is no
reasonable alternative besides closure).
b. Trial
The press and public have a 1st Amendment right to attend the
trial itself, even when the defense and prosecution agree to
close it. The state may constitutionally permit televising
criminal proceedings over the ∆’s objection.
2. Right to Unbiased Judge
Due Process is violated if the judge is shown to have actual malice
against the ∆ or to have had a financial interest in having the trial
result in a guilty verdict.