CONSTITUTIONAL ISSUES FOR TRIAL ATTORNEYS JOHN J HYNES

CONSTITUTIONAL ISSUES FOR TRIAL ATTORNEYS JOHN J. HYNES ASSOCIATE JUDGE CIRCUIT COURT OF COOK COUNTY

OVERVIEW � 4 TH, 5 TH and 6 th Amendment Considerations for Trial Attorneys � Practical Tips in Preparing, Presenting, and Opposing Motions to Quash Arrest and Motions to Suppress Statements � Substantive Law You Need to Know

The Starting Point: Who Bears the Burden of Presenting a Prima Facie Case � Motion to Quash Arrest/Suppress Evidence (Based on 4 th Amendment): Defendant bears the burden of going forward and proving the arrest or search was unlawful or impermissible. � Motions to Suppress Statements–Voluntariness or Miranda (Based on 5 th/6 th Amendment): The Prosecution bears the burden of going forward and proving defendant’s statement is voluntary by a preponderance of the evidence.

Who Bears the Burden of Presenting a Prima Facie Case (cont. ) � Motions to Suppress Identification (5 th/6 th Amendment): Defendant bears the burden of going forward and proving by a preponderance of the evidence that the identification procedures were unduly suggestive. � If defendant meets his burden, the State must then show by clear and convincing evidence that there is an independent basis of reliability for the in-court identification.

Overview: Boilerplate Motions � Object to boilerplate motions � Motions to Suppress Statements must specify the acts that constitute the “physical or psychological coercion” � Motions must specify Who committed the acts that form the basis of the motion

Overview: Prepare, Prepare � Always prep witnesses beforehand—may need to do more than once before the hearing � Prep officers and ASAs together � Make sure you have all the reports during prep sessions � Based on what is said, develop a timeline: who, what, where, and when

Overview: Prepare, Prepare (cont. ) � Anticipate problem areas and have an answer— Defendant’s Motion will provide a blueprint, but other things may come up during the prep sessions � You need to know the law � Obtain photos of defendant: Booking photos, photos taken after the statement, intake photos in the jail � Obtain medical information taken during intake at the jail

Overview: Prepare, Prepare (cont. ) � Work with the police and educate them � Let them know the allegations in the motion � Tell them know your strategy and inform them of the case law that backs up your theory � Stress the importance of report writing: Talk it over before you put it down � “If it’s not in the report, it didn’t happen” Defense Theory � Demeanor while testifying

Overview: The Hearing � Voluntariness claims: At the hearing the State should call any officers named in the motion and/or any officers who are described in the motion as participating in alleged misconduct � Object to questions/allegations not contained in the Motion

4 th Amendment: Practical Tips � Research the law before the prep session—there is almost always a case on point � Supply the law to the Judge and the defense before the hearing—Don’t overdo it � Argue the law in the alternative—the 4 th Amendment exceptions overlap

4 th Amendment: Case law Update � Byrd v. U. S. , 2018 U. S. Lexis 2803 (5/14/18) Reasonable Expectation of Privacy. Someone in lawful possession and control of a rental car has a reasonable expectation of privacy in it even if the rental agreement does not list him or her as an authorized driver.

4 th Amendment: Case law Update � Rodriguez v. United States, (2015) Terry Stop unlawful because suspect detained 7 -8 minutes to conduct a dog sniff � Utah v. Strieff, (2016) Unlawful stop attenuated by pre-existing warrant � People v. Burns, 2016 IL 118973, “Curtilage” includes landing in front of apartment within a locked apartment building

4 th Amendment Case law Update � People v. Holmes, 2017 IL 120407. Probable cause/Post Aquilar. The void ab initio doctrine does not retroactively invalidate probable cause to arrest based on AUUW statute later declared unconstitutional. � People v. Tyreke H, 2017 IL App (1 st) 170406. Terry Stop. Although defendant was seized for 4 th Am. purposes, the seizure was reasonable because police wanted to question him as a potential witness on a murder case. Must read.

4 th Amendment: Case law Update Cellphones & Electronic Devices � Riley v. California, (2014) Search Warrant required for cellphone contents � 725 ILCS 168/5, et seq. , Freedom Location Surveillance Act. Effective 1/1/17 law enforcement must obtain a search warrant to obtain location information from electronic devices (cellphones, laptops, etc. ) � 725 ILCS 137/1, et seq. , Citizens Privacy Protection Act. Law enforcement may not use a cell site simulator device unless they obtain a court order based on probable cause that the person whose location information is sought is involved in criminal activity. � IL Statutes are more stringent than Federal laws

5 th and 6 th Amendment Considerations � The Distinction: � 5 th Amendment rights generally deal with precharging situations � 6 th Amendment rights generally deal with postcharging situations � 6 th Amendment rights are Offense Specific—it cannot be invoked once for all future prosecutions

Identification Procedures: 6 th Amendment � Rothgery v. Gillespie County, 554 U. S. 191 (2008). The right to counsel attaches when the accused is brought before a judicial officer and told the formal accusations against him and his liberty is subject to restraint. � Does defendant’s appearance before a judge at an extradition proceeding trigger his 6 th Am. Right to an attorney at any subsequent lineups? � The answer was NO. � Il. Cts held extradition did not trigger 6 th Am. Extradition is a “summary and ministerial procedure” designed to return a fugitive to the demanding State. People v. Young, 153 Ill. 2 d 383 (1992). See, also People v. Lewis, 2015 IL App (1 st) 130171.

Identification Procedures: 5 th and 6 th Amendment � Prior to 1/1/15, lineups were the preferred method of identification, followed by photographs, and then show-ups � Show-ups (suspect is presented to eyewitness for identification purposes)—Courts reluctantly approve this procedure under limited circumstances � Show-ups are permissible if there are urgent or exigent circumstances that arise after the crime that prevent the use of other methods of identification � This changed with the enactment of Sections 107 A 0. 1 and 107 A-2. 725 ILCS 5/107 A-0. 1 & 107 A-2

Identification Procedures: Statutory Requirements (cont. ) � Section 107 A-2. Lineup Procedures. Several changes have been made to ensure the identification procedure is not suggestive. � Section 107 A-2(c) After the effective date of the Act, no preference as to whether the police conduct a live lineup or photo lineup � Section 107 A-2(j) Failure to comply with statutory requirements may be considered by the court when adjudicating the Motion to Suppress ID. Also, when warranted, the court may instruct the jury that they can consider compliance or noncompliance with this Section as a factor when weighing the identification testimony. � The statute is included in the Appendix to Caselaw Update

Identification Procedures: 5 th and 6 th Amendment (cont. ) � If the pre-trial identification procedures are suggestive, will the eyewitness still be allowed to make an in-court identification? � It depends, if there is an independent basis for the eyewitness’ identification, then the in-court identification will be allowed � Must have a hearing on Defendant’s Motion to Suppress Identification. Defendant bears the burden of proof.

Identification Procedures: 5 th and 6 th Amendment (cont. ) � If defendant meets his burden, the State must show by clear and convincing evidence, an independent basis of reliability. � As a practical matter, ASA will need to prepare witness before the hearing ◦ Defense is permitted to call the eyewitness at the hearing. People v. Smith, 362 Ill. App. 3 d 1062 (2005).

Identification and Expert Testimony � Perry v. New Hampshire, 565 U. S. 228, 132 S. Ct. 716, 181 L. Ed. 2 d 694 (2012). Due Process Clause does not require a trial judge to conduct a preliminary assessment of the reliability of an eyewitness identification made under suggestive circumstances not arranged by the police. � People v. Lerma, 2016 IL 118496. IL S. Ct. held that trial court erred in denying defendant’s request to present expert testimony on the issue of the reliability of eyewitness testimony. MUST READ

5 th and 6 th Amendment: Statements by the Accused � The Distinction: � 5 th Amendment rights generally deal with precharging situations � 6 th Amendment rights generally deal with postcharging situations � 6 th Amendment rights are Offense Specific—it cannot be invoked once for all future prosecutions ◦ Notice of Representation. People v. Sealey; People v. Villalobos

5 th Amendment Considerations: Statements by the Accused � Motions to Suppress Statements generally fall into two areas of inquiry: � Miranda warnings � Voluntariness: Whether, under the totality of the circumstances, the defendant’s statement was voluntary.

5 th Amendment: Statements by the Accused—Miranda Issues � Three � Was areas of inquiry: the defendant “in custody”? � Did the defendant understand his Miranda warnings? � Did the defendant knowingly & voluntarily waive his rights or did he invoke one or more of the Miranda rights?

5 th Amendment: Statements by the Accused—Miranda Issues/In Custody Determination � Courts use a two-part inquiry in determining whether a person is in custody. � First, what were the circumstances surrounding the interrogation; and � Second, given those circumstances, would a reasonable person have felt he or she was at liberty to terminate the interview and leave. J. D. B. v. North Carolina, 131 S. Ct 2394, 2402 (2011)

5 th Amendment: Statements by the Accused—Miranda Issues/In Custody Determination (cont. ) a witness voluntarily goes to the police station, there is no need to Mirandize him or her prior to questioning. � However, during the course of the interrogation, if the police begin to focus on the person as a potential suspect in the crime, the police must then Mirandize the person before any further questioning. � See, People v. Lopez, 229 Ill. 2 d 322 (2008) for a good discussion of the issue. � If

5 th Amendment: Miranda Issues/ Understanding Miranda Warnings �A valid waiver of Miranda rights must be knowingly and intelligently made. People v. Braggs, 209 Ill. 2 d 492, 515 (2003), citing People v. Bernasco, 138 Ill. 2 d 349, 364 -65 (1990). �A criminal suspect is not required to know and understand every possible consequence of a waiver of Miranda for it to be knowing and intelligent.

5 th Amendment: Miranda Issues/ Understanding Miranda (cont. ) � Practical Tips for Hearing on Miranda Issues: � Even though precise language of Miranda is not required (California v. Prysock, 453 U. S. 355 (1981)), officers should routinely read rights from a preprinted form � Officer should get an acknowledgement from defendant that he understands after each right

5 th Amendment: Miranda Issues/ Understanding Miranda (cont. ) � Practical � At Tips for Hearing (cont. ): the conclusion of the warnings, the defendant should indicate he understands all the warnings and is willing to talk � Effective 1/1/17, statements made by minors under 18 years of age are presumed inadmissible unless Miranda rights are read and explained to the minor using the wording contained in the statute. 705 ILCS 405/5 -170 (See Appendix to Caselaw Update)

5 th Amendment: Miranda Issues � Cir. Ct. of Cook County, G. O. 2017 -01: “. . . when an arrestee or other person not represented by counsel is held in police custody and requests court-appointed legal representation, and representation is available from the Law Office of the Cook County Public Defender or its designee, the Public Defender shall be deemed appointed by the court as defense counsel, pending appearance before the court.

5 th Amendment: Miranda Issues/Invocation of Rights � After the defendant is given his rights, there are three possible answers: � Sure officer, I’d love to talk to you � No officer, I don’t want to talk, I wish to remain silent � No officer, I don’t want to talk to you, I wish to speak to an attorney � Big difference between the last two answers.

5 th Amendment: Miranda Issues/Invocation of Rights (cont. ) � Right to Remain Silent: A suspect who wishes to invoke his right to remain silent must do so unambiguously. �A suspect’s silence after being given his Miranda warnings is not an unambiguous invocation of his right to remain silent. Berghuis v. Thompkins, 560 U. S. 370, 130 S. Ct. 2250, 176 L. Ed. 2 d 1098 (2010).

5 th Amendment: Miranda Issues/Invocation of Rights (cont. ) � Right to Remain Silent � Once a suspect has invoked his right to remain silent, can the police question him further? � Maybe � Key: Was the suspects right to cut off questioning scrupulously honored? Michigan v. Mosely, 423 U. S. 96 (1975)

5 th Amendment: Miranda Issues/Invocation of Rights (cont. ) � Right to Remain Silent—Factors under Mosely: � Was the suspect properly advised of his Miranda rights before each interrogation? � When the suspect invoked his right to remain silent at the first questioning, did the police immediately stop the interview? � Was there a significant time lapse between the first and second interview? � Were there intervening factors between interviews? � Was the questioning directed at the same crime or a different crime? � State need not satisfy all Mosely factors

5 th Amendment: Miranda Issues/Invocation of Rights (cont. ) � Right to an Attorney � Once a suspect has invoked his right to an attorney, can the police question him further? � NO, HE MAY NOT BE QUESTIONED FURTHER UNTIL AN ATTORNEY IS MADE AVAILABLE UNLESS HE WAIVES HIS EARLIER REQUEST. SMITH v. ILLINOIS, 469 U. S. 91 (1984).

5 TH Amendment: Miranda Issues/Invocation of Rights (cont. ) � Edwards v. Arizona, 451 U. S. 477 (1981). Created a presumption that once a suspect invokes the Miranda right to an attorney, any waiver of that right in response to subsequent police questioning while in custody is involuntary. � Maryland v. Shatzer, 559 U. S. 98, 130 S. Ct. 1213, 175 L. Ed 2 d 1045 (2010). Once the suspect is released from custody, S. Ct. held the Edwards presumption no longer applies after a 14 day break-in-custody.

5 th Amendment: Miranda Issues/Invocation of Rights (cont. ) � Right to an Attorney � Once a suspect invokes his right to an attorney, he can only waive it if: ◦ The suspect initiates further discussions with the police; and ◦ He knowingly and intelligently waives the right he previously invoked (Defendant must be re-advised of Miranda rights)

5 th Amendment: Miranda Issues/Invocation of Rights (cont. ) � Right to an Attorney � General question by the suspect like “what happens next, ” is not enough for courts to find suspect initiated the conversation. People v. Olivera, 164 Ill. 2 d 382 (1995). But see, People v. Miller, 393 Ill. App. 3 d 1060 (2009); People v. Outlaw, 388 Ill. App. 3 d 1072 (2009). � The state cannot establish a knowing waiver by showing the suspect merely responded to further questioning.

5 th Amendment: Miranda Issues/Invocation of Rights (cont. ) � If an attorney appears at the police station on behalf of a suspect, must he be given access to the suspect? � IT DEPENDS

5 th Amendment: Miranda Issues/Invocation of Rights (cont. ) � QUESTIONS THAT MUST BE ANSWERED: � Was the attorney present at the police station and did he request access to the suspect before completion of the interrogation of the suspect? � Did the police refuse or fail to inform the suspect of the immediate availability of an attorney?

5 th Amendment: Miranda Issues/Invocation of Rights (cont. ) � If the answer to these questions is yes, then the statement must be suppressed. People v. Mc. Cauley, 163 Ill. 2 d 414 (1995). ◦ IL. Supreme Ct. held that Illinois Const. affords greater protection in this area than U. S. Const. ◦ Practical Tip: Courts are quick to rule in favor of defendant whose attorney testifies he was denied access to his client at the station.

5 th Amendment: Voluntariness � TOTALITY OF THE CIRCUMSTANCES TEST � COURTS LOOK AT A NUMBER OF FACTORS UNDER THIS TEST TO DETERMINE IF THE STATEMENT IS VOLUNTARY � ABSENCE OR PRESENCE OF ONE OR MORE OF THESE FACTORS DOES NOT NECESSARILY MEAN STATEMENT IS INVOLUNTARY

5 th Amendment: Voluntariness— Factors � Length of time in custody: 48 Hour Rule � Defendant’s age and criminal experience � Isolation from family or friends � Promise of reward, leniency, or immunity � Familiarity with the English language � Failure to provide necessities � Whether defendant is in an extreme drugged or intoxicated state

5 th Amendment: Voluntariness— Factors (cont. ) � Mental capacity of the defendant ◦ Courts look at defendant’s IQ, age, schooling, criminal experience, work history � Deceit, trickery or fraud used by police ◦ Use of above will not automatically invalidate confession, but many courts do not like � Psychological coercion or verbal threats � Physical coercion � Statutory factors set forth in 725 ILCS 5/103 -2. 1 pertaining to audio and video recording of certain statements

5 th Amendment: Voluntariness— Factors � Physical coercion: � Once defendant brings in extrinsic evidence of physical coercion, the state must prove by clear and convincing evidence that injuries were not the result of police brutality. People v. Wrice, 2012 IL 11860, 962 N. E. 2 d 934, slightly modified it’s holding in People v. Wilson, 116 Ill. 2 d 29 (1987). � People v. Richardson, 234 Ill. 2 d 233 (2009). S. Ct. reviewed Wilson factors and ruled confession was not involuntary even though suspect received bruises while in police lockup.

5 th Amendment: Voluntariness— Factors � Defense may subpoena officer’s disciplinary records to see if there is a pattern of misconduct. People v. Banks, 192 Ill. App. 3 d 986 (1989). � Object to subpoena unless defendant has filed a Motion to Suppress, with specific allegations. Argue the issue is not ripe. � Judge should view records in camera and rule on whether any of the records are admissible.

5 th Amendment: Voluntariness— Juveniles—Additional Factors � In re D. L. H. , Jr. , 2015 IL 117341. A MUST READ regarding juvenile statements. Trial court may take into account the juveniles physical and mental age when determining whether the statement was voluntary. � If juvenile is subject to automatic transfer, should inform him of that � Concerned Adult Factor: Must have a youth officer or parent/guardian present during questioning. In People v. Murdock, 2012 IL 112362, S. Ct. noted that the absence of a juvenile officer will not make a juvenile’s statements per se involuntary. See, also People v. Patterson, 2014 IL 112362

Voluntariness—Juveniles—New Statutory Factors � P. A. 099 -0882, effective 1/1/17, creates major changes to custodial interrogations of minors � 705 ILCS 405/5 -401. 5 changes in Miranda requirements � 725 ILCS 5/103 -2. 1 statements by a minor under 18 years of age are presumed inadmissible unless the interview is electronically recorded � 55 ILCS 5/3 -4006 (Duties of public defender) a minor under 15 years of age must be allowed to consult with a public defender (or an attorney under contract with the county if the county does not have a fulltime PD) and the minor must be represented by counsel throughout the entire custodial interrogation

Forrest Gump/Low IQ Defense I’m not a smart man

5 th Amendment: Statements— Practical Tips � Low IQ Defense: Due to his age, IQ, lack of schooling, lack of experience in the criminal justice system � The defendant could not knowingly and intelligently waive his Miranda rights; or � The defendant’s statement was not voluntary because he was susceptible to police coercion or manipulation

5 th Amendment: Statements— Practical Tips � How to Respond to the Low IQ Defense: Prepare, Prepare � Obtain prior police reports and talk to police officers who have given him Miranda in the past � Subpoena school records and talk to teachers � Subpoena medical records, mental health records, etc. and speak to doctors � Obtain transcripts of prior court cases

5 th Amendment: Statements— Practical Tips � Prepare, Prepare � Obtain juvenile records, family or adjudicative files, and transcripts of juvenile proceedings � Obtain work records and talk to employers background information on defense experts—prior testimony, opinions, publications

Good Luck