1. Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ 07458. All rights reserved Basic Criminal Law – The U.S. Constitution, Procedure, and Crimes By Anniken U. Davenport CHAPTER 11 CONSTITUTIONAL RIGHTS AFTER ARREST

2. Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ 07458. All rights reserved Chapter Objectives  Explain the Miranda warning  Explain when a criminal defendant has a right to counsel  Explain the rights of indigent defendants to a public defender  Explain the right against self incrimination

3. Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ 07458. All rights reserved Chapter Objectives  List and explain the circumstances under which a person can be compelled to testify against him/herself  Explain the attorney-client privilege, husband-wife privilege, and priest-penitent privilege  Explain when physical evidence can be compelled from defendants without violating the right against self incrimination  Explain the right to a speedy trial  Distinguish statutes of limitations from the Constitutional right to a speedy trial

4. Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ 07458. All rights reserved Arrest Definition-The official taking of a person to answer criminal charges. Citizen’s Arrest-permitted in limited circumstances. (Just call 911) Custody- The state of being detained by law enforcement officers; a person is in custody when that person is not free to leave.

5. Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ 07458. All rights reserved Bail Initial Appearance- A court proceeding shortly after a suspect’s arrest where the suspect is informed of specific rights. U.S. Constitution bars “excessive bail”.

6. Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ 07458. All rights reserved Preliminary Hearings State must show by a preponderance of evidence that the defendant committed the crime. Defendants may waive preliminary hearing, often in return for reduced bail. If prosecutor makes the case, the judge will issue a binding.

7. Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ 07458. All rights reserved Grand Jury & Indictment Only prosecution presents evidence to grand jury. If jury agrees, it issues a “true bill” charging the defendant with the crime. Defense can move to quash indictment. Defense must prove the grand jury operated unconstitutionally. Jeopardy does not attach with indictment

8. Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ 07458. All rights reserved Right Against Self-Incrimination Fifth Amendment=“No person... shall be compelled in any criminal case to be a witness against himself” Defendant is innocent until proven guilty, the state must prove its case

9. Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ 07458. All rights reserved Post-Arrest Interrogation Defendant has the right to remain silent. Police may attempt to trick defendant within reason.

10. Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ 07458. All rights reserved Confessions Confessions may not be entered into evidence until a Jackson-Denno hearing has been held. State must prove the confession was made voluntarily. Taping confessions adds to state’s credibility.

11. Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ 07458. All rights reserved Right to Counsel The Constitutional Right to Counsel in Criminal Cases Sixth Amendment – “ In all criminal prosecutions, the accused shall enjoy the right… to have the Assistance of Counsel for his defense” Originally the Right to Counsel was only guaranteed for those accused of capital crimes. 1938 – Right to Counsel was extended to criminals accused of any federal felony

12. Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ 07458. All rights reserved Right to Counsel (Cont’d) 1963 – Right to Counsel given to anyone accused of a federal or state felony (Gideon v. Wainwright) 1964 – confessions obtained before police inform the accused of their Right to Counsel, or refuse to allow the accused to speak with an attorney, are inadmissible in court Scottsboro Boys – A group of young black men in Alabama were accused of rapping two white women. After unfair and extremely brief trials, most of them were convicted and sentenced to death. On appeal to the Supreme Court, the ruling handed down emphasized that the Right to Counsel must be upheld. All were convicted again during the second trial, but the judge threw out the convicts on the basis of his finding that the testimony of the accusers was unbelievable

13. Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ 07458. All rights reserved Right to Counsel- Miranda v. Arizona A defendant has the Right to Counsel at the arraignment, preliminary hearings, during most police interrogations, during a lineup, at trial, and at sentencing. However, it is pointless to give this right to a defendant if he/she does not know about it. Before questioning begins, police are required to inform any person in custody that: he has the right to remain silent anything he says can and will be used against him he has the right to an attorney during questioning if he cannot afford one, an attorney will be appointed to him at no charge before questioning, and at anytime during the questioning, he can stop and the interrogation will end

14. Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ 07458. All rights reserved The Poor and the Right to Counsel The Right to Counsel gives the defendant access to “effective” assistance; in other words, the counsel given should be competent. Indigent defendants have the right to a court appointed attorney at no charge. Right to Counsel, including free counsel for indigent defendants, continues after trial through the post trial appeals and any direct appellate appeals.

15. Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ 07458. All rights reserved Arraignment Once grand jury has issued a true bill, defendant attends an arraignment. State informs the defendant of the charges against him or her. Defendant enters plea to the charges. If defendant fails to appear at arraignment, judge issues a “bench warrant”.

16. Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ 07458. All rights reserved Plea Bargaining Most cases resolved by plea bargaining. Defendant and prosecutor meet at a bench conference where they decide on terms. Judge must agree to deal. Defendants can plead: Guilty Nolo Contendere (No Contest) or Enter an Alford Plea.

17. Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ 07458. All rights reserved Immunity because a person who is granted immunity has no risk of criminal prosecution, he/she can be compelled to testify regardless of how personally embarrassing or humiliating the information given may be: use immunity – a limited form of immunity in which the person’s testimony cannot be used as evidence against them transactional immunity – a broad form of immunity in which the person cannot be prosecuted for any action related to the testimony as long as the person testifies truthfully

18. Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ 07458. All rights reserved Attorney-Client Privilege Attorney Client Privilege – conversations between client and counsel are privileged in order to encourage full and frank discussion between an attorney and client attorney-client relationship defined differently in each state an attorney cannot suborn perjury – attorney client privilege does not allow the attorney to participate in a crime work product rule – attorney client privilege survives death (Swidler & Berlin and Hamilton v. U.S.)

19. Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ 07458. All rights reserved Spousal Privilege B. Spousal Privilege – protects private conversations between husband and wife rooted in the concept that a person cannot be compelled to self-incrimination, and that a husband and wife are considered one person under common law, it was customary that a spouse could not be compelled to testify or could be prevented from testifying by the other spouse Trammel v. United States – established that a person can choose to testify against their spouse; the privilege to avoid testimony belongs to the speaker and not to the one being spoken about

20. Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ 07458. All rights reserved Priest-Penitent Privilege protects private conversations between a religious figure and a practitioner of that faith established in common law to encourage religious devotion, but the Supreme Court has not yet weighed in on the continued contemporary relevance of this tradition

21. Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ 07458. All rights reserved Patient-Counselor Privilege the Supreme Court has ruled that the protection of conversations between a patient and his/her psychiatrist “serves the public interest by facilitating the provision of appropriate treatment for individuals suffering the effects of a mental or emotional problem”

22. Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ 07458. All rights reserved Compelling the Production of Physical Evidence Right Against Self-Incrimination does not apply to physical evidence a suspect can be compelled to produce physical evidence as long as methods for doing so are not unreasonably intrusive defendants can be made to try on clothing defendants cannot be forced to vomit up evidence by having their stomachs pumped in a hospital defendants can be forced to stand in a line-up; submit to fingerprinting, photographing, and measuring; and forced to provide writing and voice samples

23. Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ 07458. All rights reserved Compelling the Production of Physical Evidence Breath Analysis, Blood, and DNA Evidence Those suspected of driving under the influence can be compelled to submit to a breathalyzer test or even take a blood test Suspects cannot be made to take a lie detector test DNA evidence, as technology is growing, is being used more frequently in courts; it is difficult to refute the findings of DNA evidence Non-consensual urine tests violate the Fifth Amendment prohibition against unreasonable search and seizure

24. Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ 07458. All rights reserved Right to a Speedy Trial Sixth Amendment – guarantees a defendant the right to a “speedy and public” trial because of the subjective nature of the word “speedy” most state and local jurisdictions have passed laws to regulate strict time limits for bringing defendants to trial, usually within one year of being formally charged and arrested the penalty for the government for violating these deadlines is dismissal of all charges against the accused

25. Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ 07458. All rights reserved Right to a Speedy Trial difference between speedy trial and statutes of limitation statutes of limitation set a deadline for the commencement of criminal actions right to a speedy trial dictates how soon the trial must begin after a suspect has formally been charged with that crime