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ANSWERS

Question #1
What criteria are used to determine whether a searches incident to arrests are valid?  What information do judges use to determine whether probable cause existed?

Response by LEGAL Eagle #3, an attorney from New York City
In a nutshell, a search incident to an arrest is a search by a police officer who arrests a person either with or without a warrant of that person and his immediate area for weapons and evidence. The purpose of this exception to the Fourth Amendment is to allow the police officer to search for weapons that may be used against him or to search for evidence that may be destroyed by the person being arrested.

The standard to determine whether or not a search incident to arrest is valid is "reasonableness." The reasonableness of a search incident to arrest (decided by a judge) depends on the "facts and circumstances--the total atmosphere of the case" and those facts and circumstances must be viewed in the light of the Fourth Amendment principles. A reasonable search, for example, would be one that is made of the area in the "immediate control" of the person being arrested. For example, in Chimel v. California, 395 US 752, (1968), a person was arrested in his home pursuant to a valid search warrant. The police officers then proceeded to search the entire house. This search was found invalid because it was too broad. The person arrested was in the living room and the police officers searched the upstairs as well. Consequently, the Supreme Court held: "There is no comparable justification . . . for routinely searching any room other than that in which an arrest occurs--or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. Such searches, in the absence of well-recognized exceptions, may be made only under the authority of a search warrant. The 'adherence to judicial process' mandated by the Fourth Amendment requires no less." Chimel at 763

Response by LEGAL Eagle #4, an attorney from Syracuse, New York
The Supreme Court, in U.S. v Robinson, 414 US 218 (1973), set the precedent that upon a custodial arrest (as opposed to the defendant just receiving a traffic ticket -- see, Knowles v Iowa, 525 US 113, decided 12/8/98), a police officer may search the suspect/defendant, as well as the premises (or vehicle) where the defendant was found without probable cause, since this act is conducted principally to protect the police officer from a concealed weapon, and/or to locate and preserve any additional evidence of the crime charged (or other crimes). What the police officer might find during a *pat frisk,* or search of a vehicle, for example, even if not a weapon (like drugs), may be used as evidence of a crime in a subsequent prosecution.

In Knowles, an Iowa law permitted a full search of a vehicle incidental to the issuance of a traffic citation (here, for speeding). The Supreme Court allowed that Iowa law might permit such actions, but that it violates the Fourth Amendment. Neither of the two typical justifications for such searches existed: a traffic stop is much less risky for an officer than a custodial arrest; it might justify the officer ordering the suspects from their vehicle, but not its search. Additionally, the need to discover and preserve evidence doesn't exist in a traffic stop, since the behavior for which the person received (or will receive) a ticket has already been concluded; all evidence necessary for the "arrest" (ticket) has been obtained by the officer (or there should not have been a stop of the vehicle -- there would be no "probable cause").

Question #2
Why can an alleged perpetrator be found not guilty of felony murder, and then be tried in civil court for wrongful death? Is this not double jeopardy?
(Submitted by a high school student at Roosevelt in the Bronx.)

Response by LEGAL Eagle #3, an attorney from New York City
The Fifth Amendment to the US Constitution reads, in part: ". . . nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb". This clause, known as the Double Jeopardy Clause, prevents either state or federal authorities from bringing the same person to trial more than once for the same offense after he has been acquitted by a jury. It is important to note, however, that a person is only protected by the Double Jeopardy Clause when he is in "jeopardy [of loss] of life or limb", which means in a criminal trial.

Contrary to criminal trials, in a civil case, if the defendant loses, he won't lose life or liberty as in a criminal trial, but will only be subject to money damages. Thus, because there is no threat to life or limb, the Double Jeopardy Clause does not apply. Another important reason for the Double Jeopardy Clause is that in a criminal case, the opposing party is the government with its unlimited resources and police power. This is not true in a civil case where the opposing party is another individual. Consequently, parties in a civil case do not need the Constitutional protections of the Double Jeopardy Clause to protect them.

Your question fits the fact pattern of the O.J. Simpson case in California, where the defendant was acquitted of murder, but found liable for wrongful death. (Wrongful death basically means that a jury found that the defendant caused the person's death.) These different outcomes can occur because, as stated above, the Double Jeopardy Clause does not apply to civil cases. In fact, a defendant can even be convicted in a criminal case for murder and still be tried in a civil court for wrongful death (which is a pretty easy case to prove). There are, however, certain court rules that do apply in civil cases (that are similar in result to the Double Jeopardy Clause) that do prevent a plaintiff from repeatedly bringing the same claim against a defendant.

Question #3
In Gideon v. Wainwright ( 372 U.S. 335), why wasn't Gideon's second trial considered double jeopardy?
(Submitted by a high school student at Roosevelt in the Bronx.)

Response by LEGAL Eagle #3, an attorney from New York City
The Fifth Amendment to the US Constitution reads, in part: ". . . nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb". This clause, known as the Double Jeopardy Clause, prevents either state or federal authorities from bringing the same person to trial more than once for the same offense after he has been acquitted by a jury. It is designed to prevent unfair harassment of a person by repeated attempts to convict him of a crime of which he has already been found not guilty.

However, there are exceptions to this rule. For example, if a defendant is convicted, appeals his conviction and the appellate court finds a legal error and orders a new trial, then the defendant may not plead double jeopardy to prevent that new trial. The US Supreme Court affirmed this issue in Forman v. US, 361 US 416 (1960). The Court stated: "It is elementary in our law that a person can be tried a second time for an offense when his prior conviction for that same offense has been set aside by his appeal."

Your question asks about Clarence Earl Gideon's retrial. Since his first trial was found to have a constitutional error, e.g., he was not afforded his Sixth Amendment right to a lawyer, that verdict was set aside. Consequently, based on Forman v. US, the state could retry him on the murder charge because he was, in reality, not convicted of anything. On an aside, I would recommend reading Gideon's Trumpet by Anthony Lewis for an interesting personal history of Mr. Gideon's struggle.

In addition to the one mentioned above, the following are also other exceptions to the Double Jeopardy Clause: (i) the jury is unable to agree on a verdict, e.g., a hung jury, (ii) mistrials for manifest necessity, e.g., the defendant gets appendicitis in the middle of the trial, and (iii) a breach upon an agreed upon plea bargain by the defendant, e.g., when the defendant breaks a plea bargain, his plea sentence can be vacated and the original charges can be reinstated.

Question #4
We visited a judge, and saw a case involving murder 2 and assault.  Why can't you be found guilty of one and not the other? Is it always the case that if you are not convicted of a higher felony that you cannot be convicted of a lesser felony?

Response by LEGAL Eagle #3, an attorney from New York City
The felony murder doctrine allows someone whose conduct brought about an unintended death in the commission or attempted commission of a felony to be prosecuted for murder. In other words, someone can be prosecuted for murder even though he did not intend to commit a murder, so long as he intended to commit a felony from which the death of an individual resulted.

A conviction for murder requires a certain level of intent (the old common law rule was a showing of "malice.") The prosecution has to prove that the defended had sufficient malice (or one of the other elements of intent) to commit the murder. But what about the following scenario: someone decides to rob a bank. He goes into the bank and points a gun at a person and demands money. He gets the money and as he leaves, he trips and the gun accidentally goes off and kills one of the bank tellers. This person could clearly be convicted of robbery. But what about murder? Did he have the intent (or malice) necessary to kill the bank teller? It does not appear so because the gun just accidentally went off and someone died. What if the gun wasn't even loaded and the bank teller died of fright? The felony murder rule solves these difficulties. Since the bank robber had the intent to commit the underlying felony, e.g., he intended to rob the bank, the malice necessary for there to be murder is implied from him committing the bank robbery. In other words, malice is implied from his intent to commit the underlying felony.

There are several limitations upon the felony murder rule, which vary from state to state. One limitation is the fact that the defendant must be guilty of the underlying felony in order to be convicted of felony murder. Applying your question to the example above, if the defendant is not convicted of the underlying felony, the robbery, then there is no underlying felony and, thus, not the sufficient level of intent necessary to convict him of murder. Therefore, felony murder does not apply. Another limitation is that the felony murder rule is limited to felonies that are inherently dangerous because only dangerous felonies have the sufficient intent to impute to the homicide.

In the above example, if the felony murder rule did not apply, the defendant could, however, still be convicted of robbery and some other type of homicide, such as manslaughter, which has a lower intent threshold than murder. The reason prosecutors would want to prosecute felony murder in the above example, however, is that a conviction for murder carries stiffer penalties than does a conviction for manslaughter.

Question #5
We are studying cases about the exclusionary rule. Can you give me any information on the opinions of people who believe the evidence should still be used even when actions of the police were inadvertent?

Response by LEGAL Eagle #3, an attorney from New York City
The Fourth Amendment to the US Constitution protects people against unlawful searches and seizures by the police. The exclusionary rule requires that where evidence has been obtained in violation of protections of the Fourth Amendment (e.g., no warrant was obtained, etc.) that the illegally obtained evidence cannot be used at the trial of the defendant. It is thus excluded.

The good faith exception is an exception to the exclusionary rule. This exception provides that evidence is not to be excluded where that evidence was discovered by officers acting in good faith and in a reasonable, though mistaken, belief that they were authorized to take those actions. For instance, if the police search an apartment with a search warrant that was later found out to be, through no fault of the police, not properly obtained. In United States v. Leon, 468 U.S. 897, (1983), the US Supreme Court ruled that the exclusionary rule "should not be applied so as to bar the use in the prosecution's case in chief of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be invalid."

The Leon case was decided 6-3. The Court's opinion was delivered by Justice White. This is the opinion to read. For the opposing view, one can read the dissenting opinions of Justices Brennan and Stevens.

Question #6
Why don’t criminals spend there entire lives in jail when given when a judge sentences him/her to a life sentence?

Response by LEGAL Eagle #10, an attorney from New York City
Generally a life sentence is part of an "indeterminate term" which has a minimum term for a certain number of years (typically between 15 and 25) and a maximum of the person's natural life. The sentenced person becomes eligible for parole release once the minimum term is completed and is supposed to be supervised by parole for the rest of his or her life. This is the way it is done in New York unless the person has been sentenced to a term of life without parole which is a relatively new sentence on the New York books and means that the person never gets out.

Response by LEGAL Eagle #10, an attorney and teacher from Philadelphia, PA
A sentence is often composed of "carrots" and "sticks." Often, a court will give a person a sentence, say 25 yrs. to Life. If the incarcerated person is a model prisoner, is helpful, causes no problems, does the right thing all the time, he will be rewarded with his "carrot" and get out of prison early.

Question #7
How much evidence must the State produce in order to find a person guilty of murder in the first degree?

Response by LEGAL Eagle #11, an attorney from New York City
For any crime, whether the crime is murder or stealing a candy bar, the standard of proof is the same. The state must prove the defendant guilty beyond a reasonable doubt. That means that all members of the jury must be convinced beyond a reasonable doubt that the defendant committed the crime before the defendant can be found guilty.

Response by LEGAL Eagle #10, an attorney from New York City
The question is a little vague because it is not explicit which State the question refers to.

Generally, a Murder in the First Degree statute has several subdivisions proscribing different types of conduct. Examples include murder committed against a police officer, a corrections officer, a witness, a judge, a murder committed during the course of another felony, a murder by a confined inmate, a "hired" killer situation, a multiple victim murder, a prior murderer who murders again, a particularly depraved type of murder etc........... In any of these situations, in order for the State to convict a person of such a murder it must present enough evidence to a jury to convince it beyond a reasonable doubt that the person accused of committing the murder actually did it and is actually guilty of each and every element of the subdivision of Murder in the First Degree that he or she is accused of. That is, in a general sense, how it is done.

Question #8
Can a police office search anyone without any cause?

Response by LEGAL Eagle #10, an attorney from New York City
A police officer may not search anyone without any cause. Courts have all interpreted the 4th amendment's guarantee against unreasonable searches and seizures to mean that for a police officer to even approach a person and request information from them or impede their liberty in any way there must be at least an objective credible reason for the approach. If the intrusion goes any further (i.e. a pat-down or a search) there must be either reasonable suspicion or probable cause to believe that a crime has been, is being or will be committed.

Searches that are conducted for no reason will result in the items recovered being suppressed in court.

Question #9
Should the felony murder doctrine be abolished?

Response by LEGAL Eagle #10, an attorney from New York City
I don't think the felony-murder doctrine should be abolished and I don't understand why anyone would think it should. If a death is caused during the commission of a heinous felony, I think criminal liability for the murder should attach even if the death wasn't intended. People shouldn't be committing these felonies in the first place.

Question #10
How long is a "search warrant" active for beyond the time and date for which it was signed?

Response by LEGAL Eagle #10, an attorney from New York City
Under Section 690.30 of the New York Criminal Procedure Law, a search warrant issued in New York must be executed within 10 days from the time it has been issued, otherwise it is deemed "stale" and items recovered pursuant to it will not be admissible in evidence.

Response by LEGAL Eagle #23, an attorney from PA
A search warrant has a period of time, ordered by the court, that it is effective. So, the time varies.

Question #11
If a car is pulled over for a traffic violation, does a passenger have a legal right to get out of the car and walk away without being questioned or searched by the police?

Response by LEGAL Eagle #10, a law clerk from New York City
No. If a car is pulled over for a traffic violation, the driver must stay and cooperate with the police or risk a justifiable further intrusion of liberty including a search and/or arrest. There may be limits as to what a police officer can do when a person is pulled over for a simple traffic violation but failure to cooperate or walking away will only give the officer a proper reason to be more intrusive.

Response by LEGAL Eagle #15, an attorney and teacher from New York City
Good question--the passenger may be searched without a warrant if the officer has reasonable grounds to believe the passenger may be concealing something connected to the original reason for searching the driver...(alcohol, drugs, etc.)

Question #12
Why are New York City police officers able to stop and frisk people on the street for no reason? Doesn't this violate our rights?

Response by LEGAL Eagle #10, a law clerk from New York City
In New York City and everywhere else in this State, police officers may not stop and frisk a person for no reason, if they do and if it can be shown that there was no objective credible reason to stop and frisk a person, it is a violation of the rights of the person frisked and any contraband or evidence recovered as a result of the frisk would have to be suppressed.

Response by LEGAL Eagle #15, an attorney and teacher from New York City
"Stop and frisk" has been recognized by the US Supreme Court for over 50 years as an exception to the need for a search warrant.

Question #13
I know what double jeopardy means but what if evidence is found days after the case is closed. Could the defendant be accused?

Response by LEGAL Eagle #3, an attorney from New York City
The Double Jeopardy Clause of the Fifth Amendment prevents either the state or federal authorities from bringing the same person to trial more than once for the same offense after he has already been acquitted. It is designed to prevent unfair harassment of a person by repeated attempts to convict him of a crime of which he has already been found not guilty. Thus, the answer to your question is "No" -- the person could not be retried no matter how much incriminating evidence is found after the trial. The government gets one bite at the apple so to speak and if it blows it at the trial, that is it. A related issue is that, under the Sixth Amendment, the accused enjoys a right to a speedy trial. This means that the government can't take too long in prosecuting the accused and therefore only has a certain amount of time to find incriminating evidence. Although the double jeopardy and speedy trial protections might seem a little harsh on the prosecution, especially if subsequent evidence comes up clearly indicating that the now-acquitted defendant did, in fact, commit the crime, it is the prosecution's burden to prove the crime beyond a reasonable doubt at the first trial. The government has a huge array of resources at its disposal, such as police, experts, great sums of money; so if they can't get it right the first time, there is no second chance. One caveat is that the Double Jeopardy Clause is jurisdiction specific. For example, say, hypothetically, someone killed an FBI agent in New York and was prosecuted in Federal Court in NY but was acquitted. Two days later the gun that killed the FBI agent was found and could be directly linked to the now acquitted defendant. The US government could not reprosecute this person. New York State, however, could prosecute him for violation of state murder laws and use the gun as evidence against him in the state crime.

Question #14
What crimes can people commit in order for them to get the death penalty?

Response by LEGAL Eagle #3, an attorney from New York City
What crimes can people commit in order for them to get the death penalty? Although there are numerous crimes that are considered capital crimes, ie, a crime where the death penalty may be imposed, they all have one element in common: the death of the victim. One justification for the death penalty is retribution, i.e., a punishment for what the accused did, and thus death as a punishment is not inflicted where no death of the victim occurred. Thus, a defendant can only be sentenced to death if he took someone else's life. This was not always the case. Historically, people could be executed for all sorts of crimes, from as serious as rape, to minor ones such as horse stealing. Over time, however, the US Supreme Court has held that the Constitution permits the death penalty only where the defendant was actively involved in the killing. Thus, the driver of a getaway car in a bank robbery where the robber shoots a police officer could not be charged with a capital crime; but the shooter could be. It is important to note that a mandatory death penalty is unconstitutional. The 35 or so states (plus the federal government) that have the death penalty have it for certain limited and specific crimes, ie, killing of a police officer, killing of a witness in a criminal case, first degree murder (which is typically a planned killing with premeditation).

The way most state death penalty statutes are crafted is for the trial to be conducted in two phases: the first is the guilt phase, the phase that determines whether or not the defendant actually did the crime. The second is the penalty phases, where the same jury that decided the guilt ways mitigating and aggravating factors, such as if the defendant was abused as a child (a mitigating) or the defendant stabbed the victim 400 times (an aggravating). So, even if the defendant was found guilty of a capital crime at the guilt phase, the jury could decide that there were sufficient mitigating factors to warrant that the defendant not get the death penalty, but life imprisonment instead.