Criminal Procedure : Week of April 28

28 April

• Who are we? Presinct ADA (closer to the police than DAs who operate only in court)
• Whom do we represent? The sovereign people? the cops?
• We're answering a question for the police, but they are not necessarily our client.
• Maybe start with the Concordia Avenue tip, since it's the most time-sensitive. An anonymous tip might not be enough suspicion, but the officer on the scene might be. Maybe approach the person walking westbound and interact to see if reasonable suspicion crops up for a frisk. This boils down to whether or not we think there is a reasonable suspicion, and if not, what would be good practice. 4A and exclusionary rules are law, and we owe our client an honest answer. It is possible that there might be public safety concerns that trumps other rules, but we would not want to be casual about it.
• Technoview next. This is different from Kyllo: that's a house. Houses get special protection, and that case doesn't cover this situation. This is a search (i.e., examining things not generally visible). Is it permissible under 4A? Random use is probably not OK. Why not just use a metal detector in the public places-- that would be just fine, and no need to worry there. A good answer here makes a distinction between public places and the others. What is "public safety," and is it a good justification? (i.e., "no crime" and "catching bad guys" != public safety). Would the court buy the distinction between wanting to get guns off the street and wanting to get evidence for prosecution. Sits, though: the only place you find drunk drivers is on the road-- this is a much more general-purpose initiative. Also, how much cop time would be used here (i.e., all bus stops)? Does our client understand what the cost of this measure is? (i.e., even though the law says they can do this on traffic stops, it is not a good practice). What about seizing from gang members? We need reasonable suspicion that a crime is afoot, and reasonable suspicion that the person who can resolve this ambiguity is armed and dangerous. There's no real equal protection problem if we've got individually articulable facts (Sokolov: if we have reasonable suspicion, we're good to go). But how do we define who is a gang member? What side-effects might we have? Maybe increase in gun traffic, because gang members want to replace their weapons.
• What about Jane? A Miranda violation against her will not impact our ability to prosecute Mark. Maybe we should use this situation for leverage on Mark, though (i.e., "we have your mom."). There's also some risk that information obtained under duress might be unreliable. Was there any probable cause for her arrest? Officer did a stop and frisk, but there was no reason to think she was armed and dangerous. Her arrest is no good. Maybe make her an offer: you're free to go, but we can help you.
• The exclusionary rule does not deter against unlawful search of person A to get at person B.

29 April

• The exam will say how the questions are weighted (points). It is supposed to be difficult-- everyone will be challenged, and nobody will do it all right.
• Probable cause (for prosecution): under one view of the evidence, it's reasonable to believe that this person committed all the elements of a crime. It doesn't all have to be admissible evidence. The view doesn't have to be one that you believe.
• What role does convictability play in the decision for charging?
• Don't make assumptions about elements of crimes, penalties, etc., when these would be in the statute.
• The law professor question from the 2000 exam.
  • Do we have a client? Probably the prosecutor: he is coming to us for legal advice and is prepared to rely on it.
  • This means we owe him some duties: confidentiality, explanations of illegality about choices, etc.
  • Our client has a client also: the sovereign. That's unusual. He has the special obligations of the prosecutor.
  • What are the prosecutor's interests/objectives? Not bringing a case that he doesn't believe in. Not making a fool of himself again.
  • Is there any view of the evidence that supports inferences of the elements of the crime? Yes, you could think that there was. On the other hand, there's no real evidence that the guy is dead.
  • Why does the narcotics task force leader say "don't go there?" Does that change whether or not you have legal authority to charge? Probably not. So the prosecutor needs guidance on whether or not pursue the line of questioning that the narcotics task force doesn't want. If the surveillance evidence is exculpatory, then it would have to be given to the defense. So there are lots of reasons that we want to pursue this line of inquiry: it could tell us all sorts of things.
  • What is the thing we want: to convict Tammy of Eric's murder? Not so much as taking down the gang.
  • There's also this issue of the extramarital affair, and it might explain his disappearance.
  • Let's think strategically: what does the information permit us to do? Who were the jury tamperers in the prior trial? Ben and Carl. If we could get them to testify, we could try Tammy for the murder we know she committed.
  • Out job is not to take down Tammy. Our job is to explain to our client what the law permits and requires of him, and what good practice would be in the furtherance of his objectives.
  • Rule 8.4: we are prohibited from committing crimes, or inducing others to violate the rules. This is subtle-- it can govern what questions we can ask of Allen: we can't do things that encourage him to violate his clients' privileges.
  • We don't have probable cause for burglary, so we can't attach an agreement to prosecute for burglary. Is the stop OK? If not, the findings will be suppressed. There's some question about the order of how things went here.
  • Why isn't there any limit on the scope of your search incident to arrest? Just to keep things simple.
  • OK, so what would we want to ask Steve? How about where were you when Eric went missing? We also want to tie him up: we'd like to maybe see if we can get a warrant to look at his apartment to see what else stolen might be there.

30 April

• 2001 exam, q3. If we use the boss as a guardian, what conditions do we impose. Always think: if he fails the condition, do we want him in prison?
• Do we have enough evidence to charge him with anything at all? The firearm charge, maybe. This would be a slam dunk, especially compared with the burglary. This carries 2 years, and it's easy to make.
• Focus on the questions you can answer within the question of the exam: we are trying to show that we can use our powers of reason to put together a plausible sentence. We can always say that we want to know more-- avoid over-speculating.
• What do we think of the parole officer's testimony? It appears that he didn't do his job. Remember: we want a good probation officer this time around, so what thoughts do we have about his chances of success?
• Read the statutes: apparently there's some kind of intensive sanctions program that gives some additional authority to the probation officer.
• Conditional sentences: the conditions themselves should be desirable, and helpful to his continued adherence to the law.
• A probation restriction without a rationale is an invitation for violation, and thereby the wasteful consumption of prison resources.
• Note that Gallion requires specification of the objectives of a sentence, and specification of the penal measures that will get there. The major rationales: deterrance and public safety. Most of the other rationales (restoring the community, making people better) are a bit suspect.
• Why would a sentence for possessing a firearm be justification for anti-burglary measures? How can we use our power as a sentencer to reinforce the condition we like (being at a workplace that is helpful to our purpose)? How, for example could it end: he could get fired, he could quit, he could find a better job, the business could go under.
• Can we get the gun admitted? Without it, we might have some big issues. We have probable cause to charge him, but conviction might be a bigger obstacle.
• So, returning to being the client for the DA, we should say what we've got probable cause for (burglary or weapons), and explain what some goals would be.