# How to Ace FYLSE/Criminal Procedure Outline
## Selective Incorporation

First eight Amendments to the U.S. Constitution are applicable to the states through the Due Process Clause of the Fourteenth Amendment. The two exceptions are right to indictment by a grand jury and right to reasonable bail.

## Fourth Amendment - Search and Seizure
### Government Action

To make a Fourth Amendment claim, there must first be a government action.

### Standing - Reasonable Expectation of Privacy

A defendant must have standing to challenge government action, which occurs if the defendant has a reasonable expectation of privacy in the item to seized or place to be searched.

### Probable Cause and a Valid Warrant

A search is unreasonable unless the officer has probable cause to conduct the search, and the search is supported by a valid warrant.

#### Exceptions
##### Search incident to a Lawful Arrest

An officer may search a suspect as a consequence of a lawful custodial arrest.

##### Booking Search

A booking search is valid as long as it is conducted as a result of and in accordance with the regular practice of the police office. The Supreme Court has held that administrative searches such as routine booking searches performed for safety and to ensure that suspects' personal items are not lost, are not subject to the Fourth Amendment. If so, the search does not require probable cause, nor does it require reasonable suspicion.

##### Stop and Frisk

A Terry stop and frisk allows a officer to pat down a suspect when the officer has a reasonable suspicion that the suspect may be armed and dangerous. Reasonable suspicion requires more than a lunch, but instead a set of articulable facts that give rise to the notion that criminal activity is afoot.

##### seize evanescent evidence
### Checkpoint

The general rule is that for a checkpoint to be outside the scope of Fourth Amendment protection, and must be for purposes other than the police investigation of criminal activity. A nondiscriminatory checkpoint generally checks every person who passes through or some other equal rule, such as every third person that passes through.

## Fifth Amendment Privilege Against Self-Incrimination

A defendant has a 5th Amendment privilege against self-incrimination, which includes the right to counsel if the defendant does not waive his right to such counsel. This right attaches whenever there is custodial police interrogation.

### Self-Incrimination

The right against self-incrimination applies only during criminal cases, the Supreme Court has ruled that it may be asserted during civil, administrative, and legislative proceedings as well. The right applies during nearly every phase of legal proceedings, including Grand Jury hearings, preliminary investigations, pretrial motions, discovery, and the trials themselves.

### Under Custody

A defendant is in custody when a reasonable person would believe he was not free to leave.

### Interrogation

Interrogation occurs whenever the police make a statement that is likely to elicit an incriminating response.

### Testimonial in Nature

The content of his speech is not testimonial in nature because he is not asserting this own thoughts, opinions, observations, or knowledge, which are things that a witness would do.

#### Non Testimonial
### Waiver of Fifth Amendment right to counsel

A waiver of Miranda rights is valid if the defendant knowingly, voluntarily, and intelligently waived his right.

### Miranda

The 5th Amendment protection demands that Miranda warnings be provided to persons that are in the custody of government officials prior to any interrogation. The Miranda rights to remain silent and to counsel must be waived before any statement used against the person in court is obtained. Miranda is not offense-specific. A person is in custody if they reasonably believe they are not free to leave. Interrogation is defined as conduct or statements likely to elicit an incriminating response.

## Miranda

Miranda protects against coerced confession.

### Public Safe Exception to Miranda

Courts however allow an officer to question a suspect about the location of the weapon without giving Miranda warnings if it is necessary because of exigent circumstances.

## Sixth Amendment Right to Counsel

A defendant also has a Sixth Amendment right to counsel, which attaches once the defendant has been charged with a crime. A defendant's Sixth Amendment right to counsel applies to all post-charge proceedings.

### Line Up

Defendants have a right to counsel at all critical stages of litigation following indictment/arraignment. While courts have ruled that identification lineups are 'critical stages' under the Sixth Amendment, this right counsel does not extend to photographic identifications which are not considered adversarial proceedings.

## Sixth Amendment Right to Speedy Trial

The 6th Amendment provides each defendant the right to a speedy trial. The 6th Amendment is applied to states through its incorporation into the due process clause of the 14th Amendment. The right to a speedy trial attaches post charge. Whether the defendant has been given a speedy trial depends on the analysis of the totality of the circumstances.

## Exclusionary Rule

This rule prohibits introduction of evidence obtained in violation of a defendant's 4th, 5th and/or 6th Amendment rights. The evidence obtained in violation of this rule is inadmissible at trial but may be used for impeachment.

### Fruits of the Poisonous Tree

All evidence obtained by exploiting illegally obtained evidence are also inadmissible at trial (Wong Sun v. U.S.) The courts have not readily applied the fruits of the poisonous tree doctrine to evidence resulting from Miranda violations.

#### Exceptions
##### Independent Source

The independent source doctrine makes evidence admissible because the police had an alternative, constitutional, avenue toward its discovery.

##### Inevitable discovery

The inevitable discovery doctrine makes evidence admissible because the police authorities would have eventually discovered the evidence through their investigation anyway.

##### Intervening Act of Free Will by the Defendant

If the police show that there had been some intervening act of free will by Don that led to the discovery of the cocaine that could lead to its admissibility as well.

##### Attenuating of Taint Doctrine

The attenuation of taint doctrine will admit improperly seized evidence if the police can show factors that have led to the attenuation of the taint.

## Guilty Plea

A defendant's plea of guilty must be knowing and voluntary. The formalities for guilty plea are the judge must inform the defendant: (1) the maximum possible sentence; (2) the mandatory minimum sentence; (3) that he has a right to a jury trial, and; (4) that he has a right to plead not guilty.