Criminal Procedure

Overview & Framework

Criminal Procedure governs the process by which the government investigates, prosecutes, and punishes crime. The field is dominated by constitutional rights applied to the states through the 14th Amendment's Due Process Clause. On the bar exam, the analysis typically follows the chronological flow of a criminal case: investigation (search & seizure, interrogation, identification), pretrial proceedings, trial rights, and post-trial matters.

I. The Fourth Amendment — Search & Seizure

A. Threshold Questions: Is It a "Search"? Is It a "Seizure"?

1. Reasonable Expectation of Privacy (REP) — Katz v. United States (1967)

A "search" occurs when the government violates a person's reasonable expectation of privacy (REP). The two-part Katz test requires:

• Subjective expectation: The person actually (subjectively) expected privacy.
• Objective reasonableness: Society is prepared to recognize that expectation as reasonable.

Alternative: Trespass Theory — United States v. Jones (2012): A search also occurs when the government physically intrudes on a constitutionally protected area (persons, houses, papers, effects) to obtain information.

REP EXISTS (Protected):

• Home interior and curtilage (area immediately surrounding home)
• Hotel/motel rooms (during rental period)
• Sealed luggage and personal containers
• Phone booths (closed) — Katz
• Cell phone contents — Riley v. California (2014)
• Long-term GPS tracking — Carpenter v. United States (2018) (cell-site location info, CSLI)
• Thermal imaging of a home — Kyllo v. United States (2001)

NO REP (Not Protected — Third-Party / Open Fields Doctrines):

• Open fields — areas beyond curtilage, even if fenced/posted "No Trespassing" (Oliver v. United States)
• Anything in plain view from a lawful vantage point
• Garbage left at curb for collection — California v. Greenwood
• Third-party doctrine: Information voluntarily conveyed to third parties — bank records (Miller), pen registers/phone numbers dialed (Smith v. Maryland)
• Aerial surveillance from navigable airspace — California v. Ciraolo
• Dog sniff of luggage in public place (not a search) — Caballes; BUT dog sniff at front door of home IS a search — Florida v. Jardines
• Paint scrapings from car exterior
• Voice or handwriting exemplars

2. "Seizure" of a Person

A person is "seized" when, in view of all circumstances, a reasonable person would not feel free to leave or to terminate the encounter. (United States v. Mendenhall; Florida v. Bostick)

• Not a seizure: Consensual encounters — officer approaches on street, asks questions; person is free to leave.
• Seizure (stop): Officer's show of authority that restrains liberty — activated lights, commands to stop, physical touching. For a show of authority, the person must also submit to be seized. (California v. Hodari D.)
• Seizure (arrest): Full custodial arrest — greater restraint on liberty than a stop.

3. Standing

To challenge a search or seizure, the defendant must have standing — i.e., the defendant's own 4th Amendment rights must have been violated. A defendant cannot vicariously assert another person's 4th Amendment rights. (Rakas v. Illinois)

• Homeowner/renter: Always has standing for search of their home.
• Overnight guest: Has standing in the host's home. (Minnesota v. Olson)
• Brief visitor / commercial guest: No standing. (Minnesota v. Carter — persons present briefly for commercial purposes, e.g., bagging drugs, lack REP.)
• Car passengers: Passenger lacks standing to challenge search of the vehicle unless they own it or have a possessory interest in the item seized. BUT passenger has standing to challenge the stop itself. (Brendlin v. California)

B. The Warrant Requirement

Searches and seizures conducted without a valid warrant are presumptively unreasonable. The government bears the burden of showing an exception applies.

Valid Warrant Requirements:

• Probable cause: A fair probability that contraband or evidence of a crime will be found in the place to be searched. Determined under the totality of the circumstances test. (Illinois v. Gates)
• Neutral and detached magistrate: Cannot be a law enforcement officer or someone with a financial stake in issuing warrants. (Coolidge v. New Hampshire; Connally v. Georgia)
• Particularity: The warrant must particularly describe (a) the place to be searched and (b) the items to be seized. General warrants are invalid.
• Proper execution: Generally must be executed within a reasonable time; officers must "knock and announce" (but violation does not trigger exclusionary rule — Hudson v. Michigan).

C. Exceptions to the Warrant Requirement

1. Search Incident to Lawful Arrest (SILA)

• Must be contemporaneous in time and place with the arrest.
• No independent probable cause to search is required — the lawful arrest itself justifies the search.
• Containers on or near the person may be opened.
• Vehicles — Arizona v. Gant (2009): Search of vehicle passenger compartment incident to arrest is permitted ONLY if (a) the arrestee is unsecured and within reaching distance of the car at the time of the search, OR (b) it is reasonable to believe the vehicle contains evidence of the crime of arrest.
• Cell phones — Riley v. California (2014): Officers may NOT search cell phone contents incident to arrest without a warrant. The immense storage capacity and personal nature of digital data require a warrant.

2. Plain View Doctrine

• The discovery need NOT be "inadvertent" (overruling earlier dicta in Coolidge).
• Plain feel: If during a lawful Terry frisk, the officer feels an item whose incriminating character is immediately apparent, it may be seized. (Minnesota v. Dickerson — but no extended manipulation.)
• Plain smell: Recognized in some jurisdictions but complicated by marijuana legalization.

3. Automobile Exception

• Rationale: Reduced expectation of privacy in vehicles (pervasive regulation) + mobility/exigency.
• Extends to any container in the car that could hold the evidence sought. (United States v. Ross)
• If probable cause is limited to a specific container (e.g., a suitcase), the search is limited to that container. (California v. Acevedo)
• No exigency required — vehicle may be searched at the station later. (Chambers v. Maroney)
• Does NOT apply to motor homes being used as residences.
• Passengers' belongings: May be searched if they could contain the item for which there is probable cause. (Wyoming v. Houghton)

4. Consent

• No Miranda-style warnings required — police need not inform person of right to refuse.
• Scope: Limited to the scope a reasonable person would understand the consent to cover. The person may revoke consent at any time.
• Third-party consent: Valid if given by someone with actual authority (common authority/mutual use of the property) or apparent authority (officer reasonably believes person has authority to consent). (Illinois v. Rodriguez)
• Co-occupant present and objecting: If a physically present co-tenant expressly refuses consent, police may not rely on the other co-tenant's consent. (Georgia v. Randolph) BUT if the objecting co-tenant is removed (e.g., lawfully arrested), the remaining co-tenant can validly consent. (Fernandez v. California)

5. Terry Stop & Frisk

Element	Stop (Investigatory Detention)	Frisk (Pat-Down)
Standard	Reasonable suspicion of criminal activity	Reasonable belief person is armed & dangerous
Scope	Brief detention; ask questions, request ID	Pat-down of outer clothing for weapons only
Duration	Must be reasonably brief; no hard time limit	Limited to weapons check
Key Cases	Terry; Illinois v. Wardlow (flight in high-crime area)	Terry; Minnesota v. Dickerson (plain feel)

• Vehicle stops: Reasonable suspicion of traffic violation justifies a stop. All occupants are "seized." (Brendlin) Officer may order driver and passengers out for safety. (Pennsylvania v. Mimms; Maryland v. Wilson)
• Duration: Must be reasonably related in scope and duration to the justification. Extending a traffic stop beyond its purpose to conduct a dog sniff violates the 4th Amendment unless there is independent reasonable suspicion. (Rodriguez v. United States, 2015)
• Anonymous tips: Generally insufficient alone for reasonable suspicion unless corroborated by police observations or containing sufficient predictive detail. (Alabama v. White; Florida v. J.L.; Navarette v. California — 911 call with sufficient indicia of reliability may suffice.)
• Pretextual stops: The officer's subjective motivation is irrelevant; if there is objective reasonable suspicion or probable cause, the stop is valid. (Whren v. United States)

6. Exigent Circumstances & Hot Pursuit

Recognized exigent circumstances include:

• Hot pursuit of a fleeing felon into a home. (Warden v. Hayden) BUT hot pursuit of a fleeing misdemeanant does not categorically justify warrantless home entry. (Lange v. California, 2021)
• Imminent destruction of evidence (e.g., flushing drugs). BUT police may not create the exigency through actual or threatened 4th Amendment violations. (Kentucky v. King)
• Risk of harm / emergency aid — reasonable belief someone inside needs immediate help.
• Preventing suspect's escape when delay would allow flight.

7. Inventory Searches

• Purpose: Protect owner's property, protect police from claims, protect police from danger.
• Must follow standardized criteria — cannot be a pretext for investigation.
• Officers may open closed containers as part of inventory if procedures permit.

8. Border Searches & Special Needs / Administrative Searches

Border Searches:

• Routine searches at the border (or functional equivalent) require no suspicion whatsoever. Luggage, vehicles, and persons may be searched.
• Extended/intrusive searches (e.g., body cavity, forensic search of electronic devices) may require reasonable suspicion. (United States v. Flores-Montano — gas tank removal at border OK without suspicion; Riley may extend to digital searches at border.)
• Roving border patrols (interior) need reasonable suspicion to stop; probable cause to search.
• Fixed checkpoints (border/immigration) may stop vehicles briefly without suspicion. (United States v. Martinez-Fuerte)

Special Needs / Administrative Searches:

• Administrative/regulatory inspections: Must have warrant or consent, BUT warrant standard is less than probable cause (administrative warrant under Camara v. Municipal Court).
• Closely regulated industries: Warrantless inspections permitted. (New York v. Burger — auto junkyard.)
• Drug testing: Permissible without suspicion for railroad employees after accidents (Skinner), Customs employees in drug-enforcement positions (Von Raab), and student athletes/extracurricular participants (Vernonia; Earls). NOT permissible as general-purpose crime control (e.g., hospital testing pregnant women and reporting to police — Ferguson v. City of Charleston).
• Sobriety checkpoints: Permissible if conducted under neutral guidelines. (Michigan Dept. of State Police v. Sitz)
• Drug checkpoints: Impermissible — primary purpose is general crime control. (City of Indianapolis v. Edmond)
• School searches: Reasonable suspicion standard (not probable cause). (New Jersey v. T.L.O.)
• Probation/parole searches: May be warrantless and suspicionless if a condition of supervision. (Samson v. California — parolees; United States v. Knights — probationers with reasonable suspicion.)

II. The Exclusionary Rule

A. Fruit of the Poisonous Tree

The exclusionary rule extends not only to evidence directly obtained through the illegal action (the "primary evidence") but also to all evidence derived from the illegality — the "fruit of the poisonous tree." (Wong Sun v. United States)

B. Exceptions to the Exclusionary Rule

Exception	Rule	Key Case
Independent Source	Evidence obtained from a source wholly independent of the illegal conduct is admissible.	Segura v. United States; Murray v. United States
Inevitable Discovery	Evidence is admissible if the prosecution proves by a preponderance that the evidence would inevitably have been discovered through lawful means.	Nix v. Williams
Attenuation	Evidence is admissible if the connection between the illegal conduct and the discovery of evidence is so remote or attenuated as to purge the taint. Factors: (1) temporal proximity, (2) intervening circumstances, (3) purpose and flagrancy of the misconduct.	Wong Sun; Utah v. Strieff (2016) — discovery of outstanding warrant during illegal stop attenuated the taint.
Good Faith	Evidence obtained by officers who reasonably relied on a facially valid warrant later found to lack probable cause is admissible. Rationale: excluding evidence would not deter judicial (not police) errors.	United States v. Leon (1984)

Good Faith Exception — Applications & Limits:

• Reliance on warrant — Leon
• Reliance on statute later declared unconstitutional — Illinois v. Krull
• Reliance on court clerical error (recalled warrant still in database) — Arizona v. Evans; Herring v. United States (negligent police recordkeeping — good faith applies unless systemic or reckless)
• Reliance on binding appellate precedent later overruled — Davis v. United States

Good faith does NOT apply when:

• The affidavit was so lacking in probable cause that no reasonable officer would rely on it.
• The magistrate was misled by affiant's knowing or reckless falsehoods. (Franks v. Delaware)
• The magistrate wholly abandoned the judicial role.
• The warrant is so facially deficient that officers could not reasonably presume it was valid.

C. Scope & Limitations of the Exclusionary Rule

• Applies in: Prosecution's case-in-chief (criminal trial).
• Does NOT apply in:
  • Grand jury proceedings (United States v. Calandra)
  • Civil proceedings
  • Parole/probation revocation hearings (Pennsylvania Bd. of Probation v. Scott)
  • Impeachment of defendant's testimony (Walder v. United States; Harris v. New York)
  • Deportation / removal proceedings (INS v. Lopez-Mendoza)
  • Sentencing
• Knock-and-announce violations do not trigger exclusion. (Hudson v. Michigan)
• Standing: Only the person whose rights were violated may invoke the rule. (No vicarious standing.)

III. The Fifth Amendment — Self-Incrimination & Miranda

A. Miranda Warnings & Waiver

1. "Custody" — Would a Reasonable Person Feel Free to Leave?

The test is objective: would a reasonable person in the suspect's position feel they were in custody (i.e., deprived of freedom in a significant way)? (Thompson v. Keohane)

• Custody: Formal arrest; placed in police car; taken to station against will; locked in room.
• NOT custody: Routine traffic stop (Berkemer v. McCarty); Terry stop (brief, temporary); voluntary interview at station where told "free to leave"; probation interview (Minnesota v. Murphy).
• Age matters: A child's age is relevant to custody analysis if known or objectively apparent. (J.D.B. v. North Carolina, 2011)
• Prison: Incarcerated person is not automatically "in custody" for Miranda — must look at whether additional restraint was imposed beyond normal prison conditions. (Howes v. Fields)

2. "Interrogation" — Express Questioning or Its Functional Equivalent

Interrogation includes express questioning AND any words or actions by police that are reasonably likely to elicit an incriminating response. (Rhode Island v. Innis)

• IS interrogation: Direct questions about the crime; "Christian burial speech" (Brewer v. Williams); confronting suspect with damaging evidence to provoke a response.
• NOT interrogation: Spontaneous/volunteered statements; routine booking questions (name, address, DOB) (Pennsylvania v. Muniz); statements to undercover officers or cellmates (Illinois v. Perkins — no coercive atmosphere); general on-scene questioning during emergency.

3. Waiver of Miranda Rights

• Waiver must be knowing, intelligent, and voluntary under the totality of the circumstances.
• Express waiver: Suspect explicitly agrees to talk.
• Implied waiver: Suspect is read rights, acknowledges understanding, then begins answering questions. (Berghuis v. Thompkins, 2010 — defendant remained mostly silent for 2.75 hours, then answered one question; waiver found.)
• Police deception about the subject matter does not necessarily invalidate waiver, but it is a factor. (Colorado v. Spring)
• Failure to inform suspect of attorney's attempt to reach them does not invalidate waiver. (Moran v. Burbine)

4. Invocation of Rights

Right Invoked	Standard	Police Obligations	Resumption
Right to Silence	Must be unambiguous (Berghuis v. Thompkins)	Must "scrupulously honor" — stop questioning	Police may re-approach after a significant time has passed, re-Mirandize, and question about a different crime. (Michigan v. Mosley)
Right to Counsel	Must be unambiguous and unequivocal (Davis v. United States — "Maybe I should talk to a lawyer" is insufficient)	Must immediately cease all interrogation	Police may NOT reinitiate questioning about any crime until counsel is provided or the suspect reinitiates communication. (Edwards v. Arizona) After 14-day break in custody, police may re-approach. (Maryland v. Shatzer, 2010)

5. Exceptions to Miranda

• Public Safety Exception — New York v. Quarles (1984): Officers may ask questions reasonably prompted by concern for public safety without Miranda warnings (e.g., "Where's the gun?"). Answers and physical evidence are admissible.
• Routine Booking Exception: Biographical data questions (name, address, DOB) are not interrogation. (Pennsylvania v. Muniz)
• Undercover Agent Exception — Illinois v. Perkins: Miranda does not apply when suspect is unaware they are speaking to law enforcement (no coercive atmosphere).

6. Remedy for Miranda Violations

• Statements obtained in violation of Miranda: Inadmissible in the prosecution's case-in-chief.
• Impeachment: Statements taken in violation of Miranda (but not coerced) may be used to impeach the defendant's trial testimony. (Harris v. New York)
• Physical evidence: Physical fruits of unwarned (but voluntary) statements are generally admissible. (United States v. Patane)
• Subsequent warned statement: If police obtain an initial unwarned statement, then give warnings and obtain a second statement, the second statement may be suppressed if the question-first technique was deliberate. (Missouri v. Seibert — two-step interrogation designed to undermine Miranda; BUT Oregon v. Elstad — initial Miranda failure was inadvertent, so subsequent warned statement was admissible.)
• Truly involuntary/coerced statements (due process violation) may NOT be used for any purpose, including impeachment. (Mincey v. Arizona)
• Miranda is a constitutional rule: (Dickerson v. United States, 2000) BUT violation of Miranda does not create a cause of action under 42 U.S.C. §1983. (Vega v. Tekoh, 2022)

B. The Privilege Against Self-Incrimination

• Testimonial/communicative: Oral statements, written statements, compelled production of documents revealing contents of one's mind. The act of production itself can be testimonial (admitting existence, possession, authenticity). (Fisher v. United States; United States v. Hubbell)
• NOT testimonial (no 5th Amendment protection): Blood samples, DNA, handwriting exemplars, voice exemplars, hair samples, standing in lineup, field sobriety tests (physical), breathalyzer.
• Who can invoke: Natural persons only (not corporations or other entities). (Braswell v. United States)
• When invocable: In any proceeding (criminal, civil, administrative, legislative) where the answer might incriminate. At trial, the defendant's decision not to testify cannot be commented upon by the prosecution. (Griffin v. California)
• Immunity: Government may compel testimony by granting use and derivative use immunity (testimony and its fruits cannot be used against the witness). Transactional immunity (complete immunity from prosecution for the transaction) is broader but not constitutionally required. (Kastigar v. United States)

C. Double Jeopardy

1. When Jeopardy Attaches

• Jury trial: When the jury is empaneled and sworn.
• Bench trial: When the first witness is sworn.
• Guilty plea: When the plea is accepted by the court.
• Jeopardy does NOT attach at indictment, arraignment, or preliminary hearing.

2. "Same Offense" — The Blockburger Test

• Lesser included offenses: A lesser included offense is the "same offense" as the greater — prosecution for one bars prosecution for the other. (e.g., robbery includes assault; manslaughter included in murder.)
• Greater offense committed after prosecution for lesser: If new facts arise (e.g., victim dies after assault conviction), some courts allow prosecution for the greater offense. (Diaz v. United States, 2024)

3. Exceptions / When Retrial Is Permitted

• Mistrial at defendant's request/consent (unless government intended to provoke it — Oregon v. Kennedy).
• Hung jury — retrial permitted.
• Successful appeal by defendant — conviction reversed on appeal, retrial permitted (defendant "waived" protection by seeking reversal). Exception: reversal based on insufficient evidence bars retrial. (Burks v. United States)
• Separate sovereigns doctrine: Federal and state governments are separate sovereigns — both may prosecute for the same conduct without violating double jeopardy. (Gamble v. United States, 2019) Same applies to different states.

IV. The Sixth Amendment

A. Right to Counsel

6th Amendment Right to Counsel vs. Miranda (5th Amendment) Right to Counsel

Feature	5th Amendment (Miranda)	6th Amendment (Massiah)
When attaches	Custodial interrogation	Initiation of adversary judicial proceedings
Offense scope	Not offense-specific — bars questioning on any topic after invocation (Edwards)	Offense-specific — only bars questioning on the charged offense. (McNeil v. Wisconsin; Texas v. Cobb)
Trigger for violation	Custodial interrogation without warnings or after invocation	Deliberate elicitation of statements about charged offense without counsel. (Massiah v. United States; Brewer v. Williams)
Undercover agents	No violation — no coercive atmosphere (Perkins)	Violation if agent deliberately elicits statements about charged offense. (United States v. Henry; Kuhlmann v. Wilson — passive "listening post" OK, but active elicitation violates.)
Waiver	Knowing, voluntary, intelligent	Knowing, voluntary, intelligent — but police-initiated interrogation after invocation is invalid unless counsel present. (Michigan v. Jackson — NOTE: overruled by Montejo v. Louisiana — police may approach 6th Amendment defendant who has not affirmatively requested counsel.)

Effective Assistance of Counsel — Strickland v. Washington

• Two-prong test: (1) Deficient performance — counsel's performance fell below an objective standard of reasonableness; AND (2) Prejudice — reasonable probability that, but for counsel's errors, the result of the proceeding would have been different.
• Presumption of competence — great deference to counsel's strategic choices.
• Prejudice presumed in certain situations: actual conflict of interest adversely affecting representation (Cuyler v. Sullivan); complete denial of counsel at a critical stage; state interference with counsel.
• Guilty pleas — Hill v. Lockhart; Lafler v. Cooper; Missouri v. Frye: Ineffective assistance applies to plea bargaining. Prejudice = reasonable probability defendant would have accepted (or received) a better plea offer but for counsel's errors.

B. Right to Jury Trial

• Attaches for offenses carrying more than 6 months' imprisonment. (Baldwin v. New York)
• Federal: 12-person jury; unanimous verdict required. (Ramos v. Louisiana, 2020 — unanimity requirement applies to states.)
• State: Minimum 6 jurors. (Williams v. Florida) If only 6, verdict must be unanimous. (Burch v. Louisiana)
• Cross-section requirement: Jury venire (pool) must represent a fair cross-section of the community. (Taylor v. Louisiana) BUT the petit jury itself need not be representative.
• Peremptory challenges — Batson v. Kentucky: Prosecutor may not use peremptory challenges to exclude jurors based on race (or gender — J.E.B. v. Alabama). Three-step process: (1) prima facie case of discrimination; (2) race-neutral explanation; (3) court determines pretext.

C. Right to Speedy Trial

• Remedy: Dismissal with prejudice (the only remedy — cannot be retried).
• Attaches: At arrest or formal charge (whichever is earlier). Does NOT apply to pre-accusation delay (pre-indictment delay analyzed under Due Process).
• Federal Speedy Trial Act: Generally requires trial within 70 days of indictment or initial appearance (whichever is later). Certain delays are excludable (e.g., continuances, pretrial motions).

D. Confrontation Clause — Crawford v. Washington

What Is "Testimonial"?

• Testimonial: Prior testimony at preliminary hearing, before grand jury, or at former trial; statements made during police interrogation when the primary purpose is to establish or prove past events relevant to later prosecution. (Davis v. Washington; Michigan v. Bryant)
• Non-testimonial: Statements made during an ongoing emergency (e.g., 911 call reporting ongoing violence — Davis); business records made in the ordinary course; casual remarks to friends; co-conspirator statements during and in furtherance of conspiracy.
• Forensic reports — Melendez-Diaz v. Massachusetts; Bullcoming v. New Mexico: Lab reports/certificates prepared for use in prosecution are testimonial — analyst must testify. A surrogate analyst is insufficient unless the testifying witness conducted an independent review. (Williams v. Illinois — plurality, fractured opinion.)

Confrontation Clause vs. Hearsay Rules — What's the Difference?

The Confrontation Clause is a constitutional limitation on the use of out-of-court statements, while hearsay rules are evidentiary rules. Even if a statement falls within a hearsay exception (e.g., dying declaration, excited utterance), it may still be barred by the Confrontation Clause if it is testimonial and the declarant is unavailable without prior opportunity for cross-examination. However, the Supreme Court has hinted that dying declarations may be a historical exception to the Confrontation Clause. Non-testimonial statements are governed solely by hearsay rules, not by Crawford.

V. Identification Procedures

A. Types of Identification Procedures

Procedure	Description	Constitutional Protections
Lineup	Suspect placed among similar-looking individuals for witness to identify	6th Amendment right to counsel (post-charge only); Due Process
Showup	One-on-one presentation of suspect to witness (often at crime scene shortly after crime)	Due Process (inherently suggestive but not per se impermissible)
Photo Array	Witness views photographs to identify suspect	Due Process only (NO right to counsel — United States v. Ash)

B. Sixth Amendment Right to Counsel at Identifications

• Post-charge lineups and showups: Defendant has a right to have counsel present. (United States v. Wade; Gilbert v. California)
• Pre-charge lineups: No right to counsel — 6th Amendment has not yet attached. (Kirby v. Illinois)
• Photo arrays: No right to counsel at any stage because it is not a "critical stage" requiring counsel's presence. (United States v. Ash)

C. Due Process Challenge — Manson v. Brathwaite

Reliability factors (from Neil v. Biggers/Manson v. Brathwaite):

• Witness's opportunity to view the suspect at the time of the crime
• Witness's degree of attention
• Accuracy of the witness's prior description
• Level of certainty at the identification
• Time elapsed between the crime and the identification

VI. Pretrial Procedures

A. Bail

• The 8th Amendment prohibits excessive bail, but there is no absolute constitutional right to bail.
• Bail may be denied if the defendant poses a danger to the community or a serious flight risk. (United States v. Salerno)
• Bail must be set at an amount no higher than reasonably necessary to ensure the defendant's appearance at trial.

B. Grand Jury

• Federal: 5th Amendment requires grand jury indictment for all federal felonies.
• States: Grand jury indictment is NOT required — the 5th Amendment Grand Jury Clause has NOT been incorporated against the states. (Hurtado v. California) States may proceed by information filed by the prosecutor.
• Grand jury proceedings: Secret; no right to counsel inside the grand jury room; rules of evidence do not apply; no right to present exculpatory evidence; no right to confront witnesses. Prosecutor has wide discretion.
• Exclusionary rule: Does NOT apply to grand jury proceedings. (United States v. Calandra)

C. Preliminary Hearing

• Judicial proceeding to determine whether there is probable cause to hold the defendant for trial.
• Defendant has the right to counsel (it is a critical stage). (Coleman v. Alabama)
• Cross-examination of prosecution witnesses is permitted.
• Standard: probable cause to believe the defendant committed the charged offense.

D. Arraignment

• Formal reading of charges; defendant enters a plea (guilty, not guilty, nolo contendere).
• Right to counsel attaches. This is a critical stage.
• 6th Amendment right to counsel is triggered at arraignment. (Rothgery v. Gillespie County)

E. Prosecutorial Duty to Disclose — Brady v. Maryland

• Applies to evidence known to the prosecution or in the possession of the police team.
• Applies regardless of good or bad faith of the prosecution.
• Failure to disclose = due process violation; remedy is typically a new trial.

VII. Trial Rights

A. Right to a Public Trial

• 6th Amendment guarantees a public trial. Closure requires: (1) overriding interest; (2) closure is narrowly tailored; (3) alternatives considered; (4) findings on the record. (Waller v. Georgia)
• The public and press also have a 1st Amendment right of access to criminal trials. (Richmond Newspapers v. Virginia)

B. Right to Compulsory Process

• 6th Amendment right to use subpoena power to compel attendance of favorable witnesses.
• Government may not arbitrarily prevent defense witnesses from testifying. (Washington v. Texas)

C. Due Process Rights at Trial

• Presumption of innocence and proof beyond a reasonable doubt for every element. (In re Winship)
• Right to be present at trial (may be waived by voluntary absence or disruptive conduct — Illinois v. Allen).
• Right to testify on one's own behalf.
• No comment on silence: Prosecutor may not comment on defendant's failure to testify. (Griffin v. California)

VIII. Guilty Pleas

• Factual basis: Federal Rule 11 (and most states) requires a factual basis for the plea.
• Plea bargaining: Constitutionally permissible. (Brady v. United States) Prosecutor may threaten additional charges to induce plea if charges are supportable. (Bordenkircher v. Hayes)
• Broken plea agreements: If the prosecution breaches a plea agreement, the defendant is entitled to specific performance or withdrawal of the plea. (Santobello v. New York)
• Withdrawal: Before sentencing — generally allowed for "fair and just reason." After sentencing — very limited (must show manifest injustice or involuntariness).
• Conditional guilty plea: Defendant may plead guilty while preserving the right to appeal a pretrial ruling (e.g., denial of motion to suppress).
• Effect on claims: A voluntary guilty plea waives most pre-plea constitutional defects (e.g., illegal search, Miranda violation) except jurisdictional defects and challenges to the voluntariness of the plea itself. (Tollett v. Henderson)

IX. Sentencing

• Apprendi v. New Jersey (2000) / Blakely v. Washington (2004): Any fact (other than a prior conviction) that increases the maximum sentence beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.
• United States v. Booker (2005): Federal Sentencing Guidelines are advisory, not mandatory.
• Alleyne v. United States (2013): Facts increasing mandatory minimum sentences must also be found by the jury beyond a reasonable doubt.
• Death penalty — Ring v. Arizona: Aggravating factors making defendant eligible for death must be found by jury.
• 8th Amendment: No cruel and unusual punishment. Proportionality review applies (especially in capital cases and LWOP for juveniles).
• Juvenile sentencing: LWOP for non-homicide offenses unconstitutional (Graham v. Florida); mandatory LWOP for any juvenile offense unconstitutional (Miller v. Alabama); Miller applies retroactively (Montgomery v. Louisiana).

X. Appeals & Habeas Corpus

A. Appeals

• No constitutional right to an appeal, but once a state provides appellate review, due process and equal protection apply.
• Right to counsel on first appeal as of right. (Douglas v. California) No right to counsel on discretionary appeals. (Ross v. Moffitt)
• Harmless error: Constitutional errors may be deemed harmless if the government proves beyond a reasonable doubt that the error did not contribute to the verdict. (Chapman v. California) Some errors are structural and never harmless (e.g., denial of counsel, biased judge, denial of self-representation, denial of public trial).
• Plain error: Errors not objected to at trial are reviewed under the plain error standard (error that is clear, affects substantial rights, and seriously affects the fairness/integrity of proceedings).

B. Habeas Corpus

• Federal habeas corpus (28 U.S.C. §2254) allows state prisoners to challenge their convictions in federal court on grounds that custody violates the Constitution.
• Exhaustion: Must exhaust state remedies first.
• AEDPA standard: Federal courts grant habeas relief only if the state court decision was (1) contrary to or an unreasonable application of clearly established Supreme Court precedent, or (2) based on an unreasonable determination of facts. Very deferential standard.
• Procedural default: If defendant failed to raise a claim in state court due to procedural default, federal habeas review is barred unless defendant shows (1) cause for the default and prejudice, or (2) actual innocence.
• Retroactivity — Teague v. Lane: New rules of criminal procedure generally do NOT apply retroactively to cases on habeas review, with two exceptions: (1) substantive rules (decriminalization or rules placing conduct beyond government's power to punish); (2) watershed procedural rules (effectively defunct category).

XI. California-Specific Distinctions

Issue	Federal Rule	California Rule
Exclusionary Rule	Federal minimum protections; good faith exception applies (Leon)	Proposition 8 — CA follows federal minimum. Pre-Prop 8 broader state protections largely eliminated. Good faith exception applies. (In re Lance W.)
Automobile Search	Probable cause to search vehicle, including containers	Same as federal after Prop 8. Previously, CA was stricter.
Electronic Surveillance	One-party consent — one party to conversation may consent to recording	Two-party consent — Cal. Penal Code §632: ALL parties must consent to recording of confidential communications. (CA is a "two-party consent" state.) Violations may lead to exclusion under state law (not Prop 8 issue but statutory).
Grand Jury	Required for federal felonies (5th Amendment)	Not required; most cases proceed by preliminary hearing + information. Grand jury available as an alternative.
Compulsory Joinder	No compulsory joinder rule beyond double jeopardy	Kellett rule: Must join all charges arising from same act/course of conduct. Failure bars later prosecution.
Independent State Grounds	N/A	CA courts may interpret the CA Constitution to provide greater protections than the federal Constitution, but Prop 8 limits this in the exclusionary rule context. Independent state grounds remain viable in areas not covered by Prop 8 (e.g., right to privacy under Art. I, §1).
Right to Counsel	Strickland standard for ineffective assistance	Same standard, but CA applies People v. Ledesma (similar to Strickland). CA Constitution Art. I, §15 independently guarantees right to counsel.
Speedy Trial	Barker v. Wingo balancing test; Speedy Trial Act (70 days)	Cal. Penal Code §1382: Felony — 60 days from arraignment on information/indictment. Misdemeanor — 30 (in custody) or 45 (out of custody) days. Remedy: dismissal (may be refiled if statute of limitations has not run).
Jury Size	12-person federal jury; minimum 6 for states	12-person jury required for felonies; misdemeanors may use 12 or fewer. Unanimous verdict required. (Cal. Const. Art. I, §16)
Death Penalty	Permitted with adequate procedural safeguards	CA has death penalty statute but execution has been subject to moratorium. Proposition 66 (2016) sought to expedite. Governor's moratorium (2019-present). The procedural requirements remain testable.

Proposition 8 — Deep Dive

What it does: Cal. Const. Art. I, §28(f)(2) provides: "Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding." This effectively means that California courts cannot use the state constitution to create exclusionary protections broader than those required by the federal Constitution.

What it does NOT do: Prop 8 does not affect: (1) statutory privileges (attorney-client, physician-patient, etc.); (2) evidence code provisions enacted by two-thirds legislative vote; (3) constitutional rights that do not involve the exclusionary rule (e.g., the right to privacy for non-exclusionary purposes); (4) protections that are co-extensive with federal protections.

Practical effect on essays: When analyzing a search and seizure issue on a CA bar essay, apply federal 4th Amendment standards. If the search/seizure is valid under federal law, it is valid under California law (post-Prop 8). If the search/seizure violates the federal 4th Amendment, the evidence is excluded under both federal and California law. There is generally no separate California analysis that would produce a different result for exclusionary rule purposes.

Common Essay Patterns

Pattern 1: The Multi-Stage Investigation

Setup: Police receive a tip, conduct surveillance, perform a traffic stop, discover evidence, arrest the suspect, search the car and cell phone, and interrogate at the station.

Issues to address:

• Was the tip sufficient for reasonable suspicion? Probable cause? (Gates totality test)
• Was the stop valid under Terry? Was it improperly extended? (Rodriguez)
• Was the arrest supported by probable cause?
• Was the vehicle search valid? (Automobile exception vs. SILA under Gant)
• Cell phone search — warrant required under Riley
• Were Miranda warnings given before custodial interrogation?
• Did defendant invoke rights? Was invocation honored?
• Exclusionary rule — fruit of the poisonous tree analysis for each item

Pattern 2: Home Entry & Consent Issues

Setup: Police go to suspect's home, obtain consent from a roommate, search the house, find evidence, arrest the suspect, and question them.

Issues to address:

• Standing of defendant to challenge the search
• Third-party consent — actual vs. apparent authority
• Co-occupant objection rule (Randolph / Fernandez)
• Scope of consent
• If no valid consent: was there an exigent circumstance? Plain view?
• Post-arrest Miranda analysis
• CA distinction: Prop 8 — federal standard controls exclusion

Pattern 3: Identification & Right to Counsel

Setup: Witness views a showup or lineup; defendant is charged; police later question defendant without counsel about the charged offense and an uncharged offense.

Issues to address:

• Was the identification procedure unnecessarily suggestive? (Manson v. Brathwaite)
• Was there a right to counsel at the identification? (Post-charge lineup: yes; photo array: no)
• 6th Amendment right to counsel: has it attached? Offense-specific analysis. (Massiah; Texas v. Cobb)
• 5th Amendment Miranda: was there custodial interrogation on the uncharged offense?
• Distinguish 5th vs. 6th Amendment counsel rights (scope, trigger, invocation effects)

Pattern 4: Double Jeopardy & Guilty Pleas

Setup: Defendant is prosecuted, enters a plea or goes to trial, then faces a second prosecution for a related offense.

Issues to address:

• Has jeopardy attached? (When?)
• Blockburger same-offense test
• Lesser included offense analysis
• Separate sovereigns doctrine
• If guilty plea: was it knowing, intelligent, voluntary? (Boykin)
• Effectiveness of counsel in plea bargaining (Lafler; Frye)
• CA: Kellett compulsory joinder rule

Pattern 5: Trial Rights & Post-Trial

Setup: Errors occur at trial (Confrontation Clause violations, jury selection issues, sentencing enhancements), and defendant seeks appellate or habeas relief.

Issues to address:

• Confrontation Clause: was the out-of-court statement testimonial? (Crawford)
• Batson challenge to peremptory strikes
• Apprendi/Blakely: were sentencing facts found by jury beyond reasonable doubt?
• Ineffective assistance of counsel (Strickland two-prong test)
• Harmless error vs. structural error analysis
• Habeas: exhaustion, AEDPA standard, procedural default

Issue-Spotting Checklist

• 4th Amendment — Search: Was government conduct a "search"? Apply REP (Katz) and trespass (Jones) tests. Did defendant have standing?
• 4th Amendment — Warrant: Was there a warrant? Was it valid (PC, neutral magistrate, particularity)? Was it properly executed?
• 4th Amendment — Exception: If no warrant, does an exception apply? (SILA, automobile, plain view, consent, Terry, exigent, inventory, border, special needs)
• Exclusionary Rule: If the search/seizure was illegal, is evidence excluded? Any exception? (Good faith, independent source, inevitable discovery, attenuation)
• 5th Amendment — Miranda: Was there custodial interrogation? Were warnings given? Was there a valid waiver? Did defendant invoke? Was invocation honored? Any exception (public safety, booking, undercover)?
• 5th Amendment — Self-Incrimination: Is the evidence testimonial? Was it compelled? Immunity issues?
• 5th Amendment — Double Jeopardy: Has jeopardy attached? Same offense under Blockburger? Any exception (mistrial, appeal, separate sovereigns)?
• 6th Amendment — Right to Counsel: Have adversary proceedings begun? Is the right offense-specific? Massiah deliberate elicitation? Effective assistance (Strickland)?
• 6th Amendment — Jury Trial: Offense punishable by >6 months? Proper jury size and unanimity? Batson issues?
• 6th Amendment — Speedy Trial: Barker factors? CA Penal Code §1382?
• 6th Amendment — Confrontation: Testimonial hearsay under Crawford? Unavailability + prior cross-examination?
• Identification: Suggestive procedure? Manson v. Brathwaite reliability? Right to counsel at lineup?
• Pretrial: Bail (excessive?), grand jury (required?), preliminary hearing (PC?), Brady disclosure?
• Guilty Plea: Knowing, intelligent, voluntary? Boykin colloquy? Plea bargain enforced?
• Sentencing: Apprendi/Blakely — jury finding for facts increasing maximum? 8th Amendment proportionality?
• CA Distinctions: Prop 8 (exclusionary rule), Kellett (joinder), two-party consent, speedy trial (PC §1382), independent state grounds?

Exam Tips

Mnemonics & Memory Aids

Key Distinctions

Concept A	Concept B	Key Difference
Reasonable Suspicion	Probable Cause	RS = specific articulable facts suggesting criminal activity (lower standard, for stops/frisks). PC = fair probability of crime/evidence (higher standard, for arrests/warrants/auto exception).
Stop (Terry)	Arrest	Stop = brief, temporary, limited scope (RS required). Arrest = full custodial restraint (PC required).
Search Incident to Arrest (vehicle)	Automobile Exception	SILA (Gant) = limited to reaching distance OR evidence of crime of arrest. Auto exception (Carroll) = PC for any contraband/evidence, search entire vehicle.
5th Amend. Counsel (Miranda)	6th Amend. Counsel (Massiah)	5th = triggered by custody + interrogation, not offense-specific after invocation. 6th = triggered by charging, offense-specific, bars deliberate elicitation including by undercover agents.
Invoke Right to Silence	Invoke Right to Counsel	Silence = police may re-approach after cooling off, different crime (Mosley). Counsel = ALL questioning must stop on ALL crimes until counsel provided or suspect reinitiates (Edwards).
Elstad (inadvertent)	Seibert (deliberate)	Inadvertent Miranda failure: subsequent warned statement admissible. Deliberate two-step: subsequent warned statement suppressed unless curative measures taken.
Testimonial (Crawford)	Non-Testimonial	Testimonial = primarily to prove past events for prosecution (barred without cross-exam). Non-testimonial = ongoing emergency, business records, casual statements (governed by hearsay rules only).
Harmless Error	Structural Error	Harmless = constitutional error that did not contribute to verdict (proven beyond reasonable doubt). Structural = per se reversible (denial of counsel, biased judge, public trial denial).
Double Jeopardy (Blockburger)	CA Kellett Rule	Blockburger = same offense if each does not require unique element. Kellett = broader; bars separate prosecution of different offenses from same act/course of conduct.
Actual Authority (Consent)	Apparent Authority (Consent)	Actual = person genuinely has common authority over property. Apparent = officer reasonably (but mistakenly) believes person has authority. Both validate consent.
Randolph (present, objecting)	Fernandez (removed, then consent)	If physically present co-tenant objects, consent of other is invalid. If objector is lawfully removed (arrested), remaining co-tenant can validly consent.