4.6.11 Criminal & Family Law

CrR 1.1
Local rules actually supersede state rules.
Cultivating relationships with court clerks, etc., can be invaluable.
Constitution always prevails over court rules.

CrR 8.1 and 8.2- criminal crosses over in to CR 6 and CR 7(b) govern.

Motions
-Request that courts issue an order.
-Issue on 3.5 hearing is always a confession.
-Issue on 3.6 hearing may be physical evidence or statements by those other than the accused.

Search without Warrant
-WA Const Art. 1 Sec 7- search done without warrant is invalid, unless one of the rare exceptions is applied.
-Search incident to arrest-

Basis for Police Action Without Warrant:
Probable Cause- Reasonable belief, based on facts, that a crime occurred and suspect has been pinpointed. Gives officer the right to arrest and further search.

Reasonable Suspicion- Specific articulable facts (more than a hunch) that criminality is afoot. (More general, no suspect.) Gives officer the right to investigate.

Terry v. Ohio - "a Terry stop" when officer can identify specific facts that lead to reasonable suspicion, gives right to limited investigative stop to flesh out whether or not there is probable cause.

Motions
-Can be used to create a negotiating position
-Can be used to develop evidence- motion to compel. Motion to compel production of evidence based on CrR 4.7.
-Also consider what it is that you are trying to say to the court. Purpose. Impression.
-Consider how likely the court is to actually read your motion. When writing to busy court make important information easy to find. Always use bold face on subheadings.

Analysis of Search- "Can the cop do what he did?"
Point by point, what alerted officer? What did the officer do and was it justifiable? There must be a justifiable reason for every officer action. What officer had, knew, and scope based facts at that time. Was every new act justifiable based what was known or discovered based on the previous point? Then move to next point and analyze again.

EX Weaving in lane. Is it illegal? No. Officer turns on lights. Driver is seized. But if articulable fact is explained away (driver is looking for address, etc.), then fact ceases to be an articulable fact in support of reasonable suspicion. DUI squad cops all have video cameras in their cars. Always compel the video if not produced.

Consent
A person can consent to waive their constitutional right.
"Do you have any drugs or weapons in the car?" Is that question justifiable based on a speeding car? No. You can ignore the question and the officer should move on. But if you answer they can act on that. Your statement adds to the facts upon which he is acting.

Was an arrest made?
How do you know if you are under arrest? Handcuffs? Not always. Can be a temporary detention for officer safety.
Miranda=Arrest

State v. Stroud
SIA Search Incident to Arrest -Exception
1. Arrest
2. Possible weapons -must be within reach
3. Possibility of evidence being destroyed -must be within reach
4. Reasonable time
Trunk (or other locked container) always off limits in this case, never within reach.

Plain View Doctrine
If officer sees something illegal they have the right to investigate.

Is a search permitted with an arrest?
Trunk is generally off limits. Even if search dog alerts on trunk, officer must get warrant to search.

Exigent circumstances- those that warrant action that does not confirm to procedure.

Analysis of Homework Assignment
1. Identify Rule - CrR 3.2
2. Significant Release Factors
- No criminal record
- Signed a lease
- Law school student
- Married with a child
3. Order those factors - Strong to Weak
4. Diffuse worst facts
"My client is at a distinct disadvantage because she has recently moved to town."

-It is important not to overstate the facts. The judge will learn more about the case eventually.
-Miranda protects against self-incrimination. Miranda is NOT a requirement for arrest.
-Police CAN lie to you.
-How to plead is always the client's decision.

CrR 3.2 Intro "probable cause"
If there are insufficient facts to believe that a crime occurred, or insufficient facts to believe that this person committed that crime, there is no probable cause.

FOR NEXT WEEK- Memo to Attorney
Using alternative facts in handout, write memo to the attorney applying the analysis that we discussed in class today. Find and read the case in the handout. Analyze for attorney whether motion to suppress is warranted using cases cited in handout. Logical flow and organization. Use headers and subheaders. Apply facts to rules and come to conclusion. "We should/not file a motion to suppress because..." 2 pages max. Don't try to address every issue, but do fully analyze all issues addressed.

4.5.11 Complex Litigation

2 Handouts
-Constitution
-"cheat sheet" on EP Clause

No book for class.
Different subject will be covered each week. Be sure to ask questions and clarifications AS WE GO ALONG.

Constitution- Controls how government treats us.

Amendments-
13th- Eliminated slavery
14th- 1. Due process clause 2. Privileges and Immunity Clause 3. Equal Protection clause
(only one of the three that apply to ALL persons
15th- Allowed freed slaves to vote (women did not get right to vote until 19th Amend. 50 years later)

The Equal Protection Clause- does not say that it must treat everyone equally.
"...does not require absolute equality."

Equal Protection Clause:

EX "All commercial pilots must have 20/20 vision." Does that law impact everyone equally?
Facially neutral? Yes. Disparate impact? Yes. Eldery. Does NOT violate EPC

Even if it is discriminatory it may still survive EPC test.
If government can give a compelling reason for discrimination the law stands.

Laws which descriminate on the basis of race and are upheld are rare.
EX Attica riots. After which races were segregated for SAFETY. Upheld.

Arbitrary, capricious or unreasonable discrimination or facially neutral with merely a disparate impact? Is discrimination among similarly situated citizens?

I. Strict scrutiny for "Compelling" government interest ("microscope")
II. Medium scrutiny for "important" government interest
III. Reasonable relationship to "legitimate" government interest ("sniff")

I. Suspect class (race, religion, national origin)
-or-
Fundamental right (1st Amend. rights, 4-8th Amend. criminal procedure rights, privacy, voting, interstate travel, education (minority view.))

II. Age, legitimacy, gender, sexual preference. (Many states have elevated gender and sexual preference to suspect class level.)

III. Everybody else.

Answering EPC essay questions:
1. Why was the person denied?
2.State the law
3. Similarly situated? -If not similarly situated then EPC does not apply.
4. Is it facially neutral? or discriminatory?
5. Is there a disparate impact?
6. Discuss- Apply appropriate level of scrutiny. Does the government have a Compelling/Important/or Legitimate interest?

Case List
San Antonio v. Rodriguez (1973)

Washington v. Davis (1976)

Village of Arlington Heights v. Metropolitan Dev. Corp. (1977)

Personnel Admin of Mass v. Feeney (1979)

Craig v. Boren (1976)

Brown v. Bd. of Education (1954) -"Segregation may effect their hearts and minds in a way unlikely to ever be undone." "Separate educational facilities are inherently unequal."

Plessy v. Ferguson (1896) - Railroad segregation, "separate but equal".

Dred Scott v. Sanford (1857) -Slave taken from slave state to free state, does "property" change its nature?

Korematsu v. U.S. (1944) -Internment camps for American citizens of Japanese descent upheld.

Swann v. Charlotte-Mecklenburg Bd. of Ed. (1971) -Bussing to desegregate. Lead to "white flight" to suburbs.

Milliken v. Bradley (1974) -Gov't cannot segregate, but may self-segregate. "De facto" v. "de jure (govt)" segregation. Supreme court has a duty to "remove root and branch" of discrimination.

Regents of University of California v. Bakke (1978) -reverse discrimination, med school. 1. Quota systems? NO 2. Race can never be considered at all? YES Judges split down the middle. Justice Lewis Powell deciding vote. Use EPC to correct violation of EPC? "Benign discrimination". "Traditional indicia of suspectness", not denied benefit, only the number of people is effected.

Bradwell v. Illinois (1873)

Reed v. Reed (1971) - Idaho, men over women for administration of probate estates. Did not stand.

Women
"Romantic Paternalism". Not discrimination- protection!