STUDY GUIDE: CHAPTERS 2-8

Transcription

1 STUDY GUIDE: CHAPTERS 2-8 Chapter 2: Constitution Chapter 3: Search & Seizure Chapter 4: Stop & Frisk Chapter 5: Principles of Arrest Chapter 6: Search for Evidence Chapter 7: Special Needs Searches Chapter 8: Self- Incrimination CHAPTER TWO: Most of the criminal procedure provisions are found in the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments. Review the 4 th, 5 th, 6 th, 8 th, and 14 th Amendments. 4 th Amendment: 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. 5 th Amendment: 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; nor shall private property be taken for public use, without just compensation. Clauses within 5 th Amendment: - Grand Jury Clause - Double Jeopardy Clause - Self Incrimination Clause - Due Process Clause - Just Compensation Clause 6 th Amendment: 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

2 [Type text] [Type text] [Type text] 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. - See Klopfer v. North Carolina (1967) 8 th Amendment: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. 14 th Amendment: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. NO state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. 14 th Amendment addresses many aspects of citizenship and the rights of citizens. The most commonly used- and frequently litigated- phrase in the amendment is equal protection of the laws. Review the Fundamental Fairness Doctrine The Fundamental Fairness Doctrine applies the principles of Due Process to judicial proceedings. Due process is the conduct of legal proceeding pursuant to rules and principles that protect and enforce private rights, such as the right to a fair and impartial trial, which generally includes the right to have adequate notice of trial, the right to an attorney, the right to confront and cross- examine witnesses and the right to refuse to give self- incriminating testimony. The Fundamental Fairness Doctrine is commonly considered synonymous with Due Process. Chapter Three: Review the importance of the 4 th Amendment in searches What makes a search reasonable or unreasonable? The Supreme Court has ruled warrantless police searches are not a violation of someone s 4 th Amendment rights so long as it is reasonable based on the totality of the circumstances. The circumstances of a warrantless search, seizure, and/or arrest generally fall within one of the following categories: 1) Felony arrest in a public place as long as probable cause exists; warrant required for arrest in a place not open to the public unless officer is in hot pursuit. 2) No warrant for search incident to a lawful arrest. 3) Automobile searches

3 4) Exigent circumstances 5) Stop & Frisk (Terry Stop) 6) Fixed Roadstop Checkpoints at the Borders 7) Searches, Seizures and arrests made under Good Faith Exception Review case law relating to the use of K9s within searches and seizures Chapter Four: Review the 4 th Amendment in relation to Terry Stops A Terry Stop, or stop and frisk, is a stop of a person by law enforcement officers based upon reasonable suspicion that the individual may have been engaged in criminal activity. This determination is reliant upon the totality of the circumstances. The stop and frisk relates to the authority of a police officer to detain a person and subject them to a limited search for weapons without the probable cause needed for an arrest. The standard needed for a stop and frisk is reasonable suspicion, while the standard required for an arrest is probable cause. Chapter Five: Review the 4 th Amendment in relation to warrants In most instances, police are required to have a search warrant to conduct a search of a home or other area where there is a reasonable expectation of privacy. The warrant must be filed in good faith by a police officer and requires reliable information showing probable cause to search the premises. Warrants are required to have three things: 1) Signature of a neutral magistrate (judge/magistrate) 2) Description of place(s) to be searched 3) Description of items to be seized (warrant must specify with particularity ) The 4 th Amendment requirements do not apply when a person does not have a reasonable expectation to privacy in the place or thing being searched. The Supreme Court set forth the test for determining if an expectation of privacy exists: 1) Does the person expect the place or thing to be private; to remain private? 2) Was the expectation objectively reasonable?

4 [Type text] [Type text] [Type text] Review the definition of hearsay and its components Hearsay is defined broadly as an out of court statement offered to prove the truth of whatever it asserts. Hearsay evidence is often admissible at trial. However, many exclusions and exceptions exist even hearsay may be admitted if exceptions are met. (Cornell University Law School, n.d.). The rule prohibiting hearsay (out of court statements offered as proof of that statement) from being admitted as evidence because of the inability of the other party to cross- examine the maker of the statement. There are a number of exceptions to the hearsay rule (including present- sense impression, excited utterances, declarations of present state of mind, dying and the business records exceptions), as well as things defined not to be hearsay (admission of a party- opponent and prior statements of a witness). Chapter Six: Review basic search warrant procedures - Review from prior chapters (search warrant exceptions) Chapter Seven: Review different types of special needs searches There are exceptions to the search warrant requirements that do not violate 4 th Amendment rights; these searches also do not require probable cause to exist for law enforcement. These special needs searches include: - Student searches - Airport Screening/TSA searches - Border Patrol Checkpoints - Inventory searches Chapter Eight: Review Miranda Miranda v. Arizona (1966) is a landmark case in relation to the 5 th and 6 th Amendments, where a defendant must be made aware of their right against self- incrimination and their right to an attorney, state appointed if financially necessary. Miranda has a two- pronged test relating to (1) custody and (2) interrogation. Law enforcement officers are required to provide an individual with their Miranda

5 Warning if both criteria are met. Review the Bright Line Rule The Bright Line Rule is a judicial rule that helps resolve ambiguous issues by setting a basic standard that clarifies ambiguity within a case. The Cornell University Law School (n.d.) further defines the Bright- line rule as an objective rule that resolves a legal issue in a straightforward, predictable manner. Review the Discussion on False Confessions There has been extensive research within social sciences about false confessions, defined by Kassin (2010) as an admission to a criminal act, usually accompanied by a narrative of how and why the crime occurred, that the confessor did not commit. Leo (2004) has identified three different types of false confessions: - Voluntary False Confessions: Knowingly given in response to little or no police pressure, perhaps for a pathological need for attention, punishment, guilt over past crimes, mental impairment, or to protect the actual offender. - Compliant False Confessions: Knowingly given to end the interrogation or to receive some perceived or promised benefit or reward. - Persuaded False Confession: Knowingly given by an innocent individual who has reason to doubt their own reliability or memory, may believe they have committed the criminal act. Review Concepts of Self- Incrimination Individuals have the right to waive their constitutional rights, including their 5 th Amendment rights against self- incrimination; this is generally referred to as a Miranda Waiver. This occurs when the individual in custody waives their rights knowingly, intelligently, and voluntarily. To determine if a knowing, intelligent, and voluntary waiver has occurred, a court will examine the totality of the circumstances, which considers all pertinent circumstances and events. (Cornell University, n.d.).